VG Stuttgart - 4 K 836/21

VG Stuttgard - 4 K 836/21
Court:	VG Stuttgard (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 2 GDPR Article 16 GDPR
Decided:	26.07.2022
Published:
Parties:
National Case Number/Name:	4 K 836/21
European Case Law Identifier:
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Landesrechtsprechung Baden-Württemberg (in German)
Initial Contributor:	n/a

The VG Stuttgard held that a data subject did not have a legitimate claim to rectify his naturalisation certificate according to Article 16 GDPR, because the certificate is not contained in a filing system or automated storage and therefore, pursuant to Article 2 GDPR, outside of the scope of the GDPR .

English Summary

Facts

The plaintiff seeks the correction of a naturalisation certificate. They were naturalised by the defendant on 28 July 2005. The naturalisation certificate is in the name of S. K., born on xx.xx.1967 in Khost/Afghanistan. However, submitted that they had given false information about his identity when naturalising. He had been living in Germany since 1995 with false personal data from Afghanistan. He had been naturalised with these personal details. However, he was a Pakistani citizen with the name S. R., born on xx.xx.1966. The applicant submitted a Pakistani identity card, a Pakistani birth certificate and a family registration certificate with details of his wife and children. He requested that the naturalisation certificate be amended to read S.R., born xx.xx.1966 in N./Pakistan.

The defendant informed the applicant that his request could not be granted. The naturalisation certificate had become effective despite the mistake in identity. The cause of the incorrectness of the certificate was that the plaintiff had given incorrect personal details. The naturalisation was thus not null and void, but only afflicted with defects which, however, were accepted for reasons of legal certainty after the expiry of the time limit of section 35 of the Basic Law. There are many cases in which the naturalisation certificate contains a different name from the one the naturalised person currently uses, for example in the case of a name change in the course of naturalisation or after marriage. In this case, neither the naturalisation certificate is corrected nor a new certificate is issued. Instead, the holder of the certificate is expected to prove to the relevant authorities that he or she is the person whose name appears on the certificate.

Holding

The VG Stuttgard held that the plaintiff could not rely on Art. 16 to rectify his naturalisation certificate.

The court pointed out that according to Article 16, the data subject has the right to demand that the controller rectify inaccurate personal data relating to him or her without undue delay. The provision is, for example, recognised as a legal basis for a claim to rectification of the civil register (cf. VGH Bad.-Württ., Urt. v. 10.03.2020 - 1 S 397/19 - juris.).

However, the case at hand is not within the material scope of the GDPR. The material scope of the GDPR is regulated in Article 2 GDPR, which determines its applicability to "the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system."

In the present case, only one document is involved, and no data is processed by automated means. No data is stored in a filing system. A claim under Art. 16 GDPR does not exist if data is stored, but the storage is not automated or in structured files. In the present case, it is about data of the plaintiff that are listed on a naturalisation certificate. There is no filing system and no automated storage.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

guiding principles

On the (denied) claim of a person naturalized under an incorrect identity in the German state association to correction of the naturalization certificate.

tenor

        The charges get dismissed.

        The plaintiff bears the costs of the proceedings.

facts
1

The plaintiff requests the correction of a naturalization certificate.
2

The plaintiff was naturalized by the defendant on July 28, 2005. The certificate of naturalization is in the name of S.K., born on xx.xx.1967 in Khost/Afghanistan.
3

In a letter dated November 4th, 2020, the plaintiff turned to the defendant and alleged that he had given false information about his identity when he was naturalized. He has lived in Germany since 1995 with false personal details from Afghanistan. He was naturalized with these personal details. However, he was a Pakistani citizen with the name S.R., born on xx.xx.1966. The plaintiff produced a Pakistani identity card, a Pakistani birth certificate and a family registration certificate detailing his wife and children. He applies to change the naturalization certificate from 28.07.2005 to the personal data S.R., born on xx.xx.1966 in N./Pakistan.
4

In a letter dated November 24, 2020, the defendant informed that the request for a change in the plaintiff’s personal details could not be granted. The plaintiff was naturalized under the specified and proven personal data S.K. The certificate of naturalization became effective despite the mistake in identity and the resulting incorrect designations of persons in the certificate. The naturalization certificate will not be changed to the plaintiff's new name. In a letter dated February 2nd, 2021, the defendant added the reason for the rejection of the application and argued that the plaintiff had set the cause for the incorrectness of the document because he had given incorrect personal details. The naturalization is not void, but only has deficiencies, which are accepted after the expiry of the period of § 35 StAG for reasons of legal certainty. There are many cases in which the naturalization certificate contains a different name than the naturalized person's current name, for example in the case of a name adjustment in the course of naturalization or after a marriage. The naturalization certificate is not corrected here, nor is a new certificate issued. Rather, the holder of the certificate is expected to prove to the relevant authorities that he is the person whose name is on the certificate.
5

On February 23, 2021, the plaintiff brought an action before the Stuttgart Administrative Court.
6

In the statement of claim, the plaintiff explains that the legal opinion of the defendant, according to which the naturalization of the plaintiff was only deficient, but which had to be accepted after the expiry of the period of § 35 StAG for reasons of legal certainty, found no basis in the legal text. § 35 StAG only addresses the requirements for revoking illegal naturalization. It says nothing about the fact that naturalizations made under false personal data cannot and must not be corrected. Since the defendant, despite the threatened action for failure to act, has not issued an appealable decision, the present action is likely to be admissible and well-founded.
7

The plaintiff requests:

8th

to oblige the defendant to change the personal details of the plaintiff in the naturalization certificate dated July 28, 2005, handed out on September 2, 2005, to the personal details S. R., born xx.xx.1966 in N./Pakistan.
9

The defendant requests

10

reject the complaint.
11

The defendant submits that an Afghan passport and a birth certificate issued on August 11, 2003 were presented by the Consulate General of Afghanistan in Bonn as proof of the plaintiff's Afghan nationality in the naturalization process. After checking the required naturalization requirements, the naturalization became effective when the naturalization certificate was handed over. The naturalization took place with the acceptance of Afghan citizenship. The plaintiff had been naturalized under the personal details provided and verified in the naturalization procedure. The naturalization became effective despite the identity error and the resulting incorrect personal designation in the certificate and continues to be effective. The administrative act is also not void. Naturalization can no longer be revoked, as this can only be done up to ten years after the announcement of naturalization, Section 35 (3) StAG. According to § 42 VwVfG, the authority can correct spelling mistakes, calculation errors and similar obvious inaccuracies in an administrative act at any time. In this specific case, it is not an obvious mistake on the level of a typographical or calculation error. Rather, the plaintiff set the cause for the inaccuracy because he had given false personal details. The naturalization is not void, but only has deficiencies, which are accepted for reasons of legal certainty after the expiration of the period of §§ 35 StAG. The naturalization certificate is not a civil status certificate. It is merely proof that the person named in the document had acquired German citizenship at the time the document was issued. There are many cases in which the naturalization certificate contains a different name than the naturalized person is currently using. In such a case, neither the naturalization certificate will be corrected, nor will a new certificate be issued. Rather, the holder of the certificate is expected to prove to the relevant authorities that he is the person whose name is on the certificate.
12

With the decision of April 14, 2022, the legal dispute was transferred to the rapporteur for decision as a single judge.
13

For further details of the facts and the status of the dispute, reference is made to the court files and the official files belonging to the defendant that are available to the court.

Reasons for decision
14

The complaint, on which the rapporteur decides after being transferred by the chamber as a single judge according to Section 76 (1) Asylum Act (Section 87 (2), 3 VwGO), is admissible, but remains unsuccessful on the merits.
15

The court was able to negotiate and decide despite the absence of a representative of the plaintiff, since this possibility was referred to in the proper summons (§ 102 Para. 2 VwGO).
1.
16

The action is admissible as an obligation action in the form of an action for failure to act. The requirements set out in § 75 VwGO for filing an action for failure to act are met at the relevant time of the court decision. On November 4th, 2020, the plaintiff applied to the District Office O. for the correction of his naturalization certificate. No notification has been issued. The defendant did not assert a sufficient reason for inaction, but merely referred to the fact that the plaintiff was not entitled to a corresponding claim. Even at the time of the court decision, a sufficient reason within the meaning of § 75 sentence 1 and sentence 3 VwGO for the lack of a decision on the plaintiff's application is not apparent.
2.
17

The plaintiff is not entitled to have his naturalization certificate corrected. There is no apparent legal basis for the asserted claim.
18

a. § 42 VwVfG, according to which the authority can correct spelling errors, calculation errors and similar obvious inaccuracies in an administrative act at any time, is no longer a basis for a claim. The plaintiff's request is not based on a correction i.S. of § 42 VwVfG, but to a change in the original content of the certification. There is no obvious inaccuracy within the meaning of the provision.
19

b. The Citizenship Act (StAG) does not give rise to a right to amend a naturalization certificate after the naturalized person has changed their identity. The law does not provide for such a right in its current version of the fourth law amending the nationality law of August 12, 2021 (Federal Law Gazette I p. 3538).
20

c. The plaintiff referred to Section 49 (2) of the Residence Act in response to the court's request to explain the legal basis on which a right to amend the document should exist. In connection with the requirement to check, establish and secure the identity of foreigners, this provision regulates that every foreigner is obliged to provide the authorities entrusted with the enforcement of foreigners law with the necessary information on his age, identity and nationality upon request and to submit the declarations required by the representation of the state whose citizenship he or she is or presumably has, and which are in accordance with German law, in connection with the procurement of travel documents. It is clear from the wording of the provision that only an obligation of the foreigner is regulated here, but not an obligation of the authority to behave in a certain way, not even to correct documents that are related to clarifying the identity of foreigners.
21

i.e. A claim under Art. 16 sentence 1 GDPR (General Data Protection Regulation – VO (EU) 2016/679) is also ruled out.
22

According to this provision, the data subject has the right to demand the correction of incorrect personal data concerning them from the person responsible without delay. The provision is recognized as the legal basis, for example, for a right to correction of the population register (cf. VGH Bad.-Württ., ruling of March 10th, 2020 - 1 S 397/19 - juris.).
23

In order to be able to derive a corresponding claim from Art. 16 GDPR, the GDPR would have to be applicable to the facts at hand. According to the court, this is to be denied. Art. 2 GDPR regulates the material scope of the regulation and determines its validity "for the fully or partially automated processing of personal data and for the non-automated processing of personal data that is stored or should be stored in a file system".
24

In the present case, it is all about a single document, and no data is processed automatically. There is no storage of data in a file system. A claim according to Art. 16 GDPR does not exist if data is stored but not automatically or in structured files (cf. Schaffland/Wiltfang, GDPR/BDSG, September 2021, Art. 16 GDPR, para. 2). The present case concerns the plaintiff's data, which are listed on a naturalization certificate. There is no file system and no automated storage.
3.
25

The fact that the plaintiff continues to appear under his former identity in terms of registration and in legal transactions can be left open as to whether an amendment to the certificate of naturalization is an obstacle. There is a considerable state interest in preventing one and the same person from appearing in legal transactions with several different identities and official identification papers (BVerwG judgment of 01.09.11 - 5 C 27/10 - juris). If the present lawsuit were successful, the plaintiff would be the holder of a certificate of naturalization based on personal details that do not match his identity under registration law. Therefore, the plaintiff's primary concern should initially be to have his identity corrected by the registration authority.
26

Furthermore, there may be no question as to whether the naturalization certificate was incorrect in the present case. Because at the time the certificate was issued, the certification corresponded to the identity under which the plaintiff generally appeared in legal transactions. It does not appear to be ruled out from the outset that a change of identity in order to eliminate a previous deception - committed using an incorrect name and an incorrect nationality - should be treated in the same way as a name change, for example after marriage, in which - according to the administrative practice described by the defendant - no correction is required of the documents issued in the former name.
27

The decision on costs follows from Section 154 (1) VwGO.
28

Decision of 07/26/2022

The amount in dispute is increased

EUR 10,000.00

(Sections 63 (2), 52 (1) GKG, cf. Section 42.1 of the 2013 catalog of the value in dispute).