OVG Sachsen-Anhalt - 1 M 49/23

OVG Sachsen-Anhalt - 1 M 49/23
Court:	OVG Sachsen-Anhalt (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 53(1) GDPR Article 54(1) GDPR § 123 (1)(2)
Decided:	28.06.2023
Published:	06.07.2023
Parties:	Magdeburg Administrative Court
National Case Number/Name:	1 M 49/23
European Case Law Identifier:
Appeal from:
Appeal to:	Not appealed
Original Language(s):	German
Original Source:	openJur (in German)
Initial Contributor:	Norman Aasma

The Higher Administrative Court of Saxony-Anhalt held that Article 53(1) GDPR and the principle of procedural transparency established therein do not allow an individual to challenge in court the election procedure of the head of a DPA.

English Summary

Facts

This judgement stemmed from an appeal against a decision of the Magdeburg Administrative Court.

In the original proceeding, the applicant challenged the procedure for the election of the data protection commissioner for the German state Saxony-Anhalt. According to the applicant, the election procedure was not transparent and thus contravened to the requirements set forth in Article 53(1) GDPR. In particular, the data protection commissioner was appointed under state law by the regional Parliament. Members of the parliamentary groups could make proposals but there was no mandatory public call for applications. Furthermore, the applicant stressed that Article 54(1)(c) GDPR establishes an obligation for all EU Member States to put in place a law to provide more legal clarity about the election procedures of the heads of the DPAs.

The applicant asked the court to temporarily block the election procedures and refer the case to the CJEU, in order to check whether the principle of transparency was respected.

The court of first instance rejected the claim. Therefore, the applicant appeal the decision before the Higher Administrative Court of Saxony-Anhalt (Oberverwaltungsgericht Sachsen-Anhalt - OVG Sachsen-Anhalt).

Holding

The court found that the applicant's appeal was inadmissible.

More specifically, the court held that the applicant shall not be eligible to bring such a claim before the court, because there is no proved violation of the applicant's own subjective rights. As a matter of fact, Article 53(1) GDPR establishes requirements which are in the public interest; however, such requirements cannot be invoked by an individual, as their subjective rights are not directly affected by the alleged violation of such a provision.

Incidentally and without delving into the merits, the court also noted that offices at state level have staff chosen through democratic elections by voters or indirectly by other electoral bodies. The court stressed how the procedure designed by the state law does not jeopardise transparency, as it is immediately clear which names are proposed and by whom. Moreover, the election by a parliamentary assembly is explicitly envisaged by the GDPR in Recital 121.

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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.

Rubrum

HIGHER ADMINISTRATIVE COURT OF THE STATE OF SAXONY-ANHALT Decision in the administrative legal matter of the ..., ... ..., ... ..., applicant and complainant, - legal representative: lawyers ... - areas of the state parliament of Saxony-Anhalt, represented by the president of the state parliament , Domplatz 6 - 9, 39104 Magdeburg, Respondent and Respondent, because of the election of the State Commissioner for Data Protection - here: preliminary legal protection according to § 123 VwGO (complaint) - the Higher Administrative Court of the State of Saxony-Anhalt - 1st Senate - on June 28th decided in 2023:

tenor
The applicant's appeal against the decision of the Magdeburg Administrative Court - 5th chamber - of June 27, 2023 is rejected. The applicant must bear the costs of the appeal procedure. The value in dispute for the appeal procedure is set at a value of up to € 65,000.00.
reasons
1. The applicant's admissible appeal against the decision of the Magdeburg Administrative Court - 5th chamber - of June 27, 2023, the examination of which is limited to the reasons set out in accordance with Section 146 (4) sentences 1 and 6 VwGO, has no Success. The complaint submission does not justify the requested amendment of the contested decision. In the given case, the Senate decides on the complaint before the expiry of the deadline for substantiating the complaint, based on the implicitly declared interest of the complaint and in the well-understood interest of the applicant, because the choice sought by the applicant is to be prevented of the State Commissioner for Data Protection is to be carried out today (at 2.20 p.m.) by the respondent. Pursuant to Section 123 (1) sentence 2 VwGO, the court can issue an interim order to regulate a provisional situation with regard to the disputed legal relationship in order to to avert significant disadvantages or to prevent imminent violence or if the regulation appears necessary for other reasons. The asserted claim (order claim) and the need for the provisional regulation (order reason) must be made credible in accordance with § 123 Para. 3 VwGO in conjunction with §§ 920 Para. 2, 294 ZPO. If the main thing is wholly or partially anticipated with a regulatory arrangement according to § 123 para. 1 sentence 2 VwGO and this usually creates a factually final state, a regulation can only be made if the applicant has at least overriding prospects of success in the main thing and absolutely would be exposed to unreasonable, otherwise unavoidable disadvantages if he had to be referred to the legally binding conclusion of legal proceedings. On the other hand, there are only overriding prospects in the main case if the asserted claim is most likely justified and will in all probability also be confirmed in the main case (cf. OVG LSA, decision of January 5, 2007 - 1 M 1/07 -, juris [m. w. N.]). Based on this, the applicant has neither made his application authority analogous to § 42 para acceptance of the applicant, the case law of the Federal Constitutional Court has clarified that the provision of Art. 33 Para elected constituency (BVerfG, decision of September 20, 2016 - 2 BvR 2453/15 -, juris para. 21 [m. w.n.]). The Office of the State Commissioner for Data Protection is one at state level (Art. 63 Verf LSA). Contrary to the view of the complaint, the disputed election does not lack the essential element for democratic elections, namely to always take place for a limited period of time (see Art. 54 Para. 1 lit. d] GDPR, Art. 63 Para. 2 Verf LSA, § 21 Paragraph 2 sentence 1 DSAG LSA). The disputed office is - contrary to the further assumption of the complaint - one that belongs organizationally and functionally to the area of the highest (state) organs - not, as the complaint correctly complains, as part of such. Because the supervisory authority acts completely independently in the fulfillment of its tasks and in the exercise of its powers in accordance with Art. 52 Para indirect external influence and neither seeks nor accepts instructions (Article 52 (2) GDPR). The fact that the disputed office is supposed to be an "administrative authority sui generis" and that the state commissioner is appointed to a civil service (temporary) does not change the fact asserted by the complaint (as already Art. 63 Para. 3 Verf LSA for state law). Finally, the composition and interaction of the organs involved in the appointment procedure (parliamentary groups and state parliament) do not preclude an exemption from Article 33(2) of the Basic Law (cf. on this: BVerfG, loc.cit., para. 21). The position of the office of the State Commissioner is not relevant because it is not itself the supervisory authority (see § 22 DSAG LSA). His application is therefore not able to give the applicant, as the administrative court correctly explained in detail, no claim to the application process. The procedure in question is - contrary to the assumption of the complaint - not contrary to European law, since Art. 53 Para. 1 of Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons in processing of personal data, on the free movement of data and on the repeal of Directive 95/46/EC (General Data Protection Regulation - Regulation (EU) 2016/679 - GDPR) just as expressly opens up the possibility of appointment by Parliament. Accordingly, recital 121 states: "The general requirements for the member or members of the supervisory authority should be regulated by legislation of each Member State and in particular provide that these members, through a transparent procedure, either - on a proposal from the government, a member of the government , Parliament or a Chamber of Parliament - be appointed by the Parliament, the Government or the Head of State of the Member State or by an independent body entrusted with the appointment under the law of the Member State." The EU legislator therefore expressly considers the right of proposal by a parliament, whose sub-organs are the parliamentary groups, to be permissible. Contrary to the further acceptance of the applicant, Art. 53 Para. 1 DSGVO (in conjunction with Art. 54 Para . 1 lit. b] GDPR) obviously (acte clair) no subjective (public) right for an applicant, because the regulations are addressed to the Member States and are not intended to "protect competitors", but solely to serve their public interests. Thereafter, the Member States provide that each member of their supervisory authorities is appointed through a transparent process. Whether such a procedure is followed and whether the minimum requirements for the appointment (e.g. pursuant to Art. 53 Para. 2 GDPR) are met is the responsibility of the respondent, in accordance with Art. 54 Para. 1 lit. a) GDPR, which has to monitor and enforce the application of this regulation in accordance with Article 57 (1) (a) GDPR and which has the powers in accordance with Article 58 GDPR. For this reason alone, there was no need for a submission under Art. 267 TFEU. Irrespective of this, the legal questions raised by the applicant regarding the GDPR were not relevant to the decision for the following reasons. However, it does not guarantee itself (cf.: BVerfG, decision of January 9, 1991 - 1 BvR 207/87 -, juris para. 44). The complaint also did not explain that the procedure regulated in § 21 DSAG LSA is not transparent i . S.v. Art. 53 Para. 2 GDPR is. The procedure itself is in this respect simple law in the DSAG LSA and otherwise by the regulations in Art. 45 (convening), Art. 50 (publicity of the negotiations) and Art. 51 (voting) Verf LSA i. V. m. Art. 63 Verf LSA constitutionally standardized. According to this, it is readily recognizable (transparent) which person(s) was (were) nominated by whom and who is to be or was elected in a publicly announced and publicly conducted election act pursuant to Art. 53 GDPR requires an invitation to tender from the disputed body. Since he applied through the respondent before the upcoming election and forwarded his application to the state parliament and its parliamentary groups himself, the respondent can consider the applicant's application and take note of his application documents. The applicant cannot ask for more, even in the event that an advertisement would have had to be issued, Art. 33 Para. 1 M 158/10 -, resolution of September 14, 2012 - 1 M 94/12 - and resolution of October 25, 2012 - 1 M 103/12 -, each juris). The application procedure claim as a subjective right, if it were to come into play here, does not serve a general error or legality check of the final (selection) selection decision made by the unsuccessful applicant (see: OVG LSA, decision of July 25, 2022 - 1 M 79/22 -, juris para. 12). Irrespective of the above, the complaint ultimately fails because it seems impossible that the respondent would elect the applicant as state commissioner for data protection in the event of a new (selection) decision (cf . on this: OVG LSA, decision of December 7, 2021 - 1 M 90/21 -, juris [with w. N.]), since his application was already known to the parliamentary groups in the state parliament, but none of them saw his application as a proposal (§ 21 para. 1 sentence 1 and 2 DSAG LSA) has adopted.2. The decision on costs follows from Section 154 (2) VwGO.3. The decision to determine the amount in dispute for the complaints procedure is based on § 53 Para. 2 No. 1 GKG i. V. m. §§ 47, 52 paragraph 6 sentence 1 No. 1, sentence 2 to 4 GKG and corresponds to the applicable first instance value determination.4. This decision is incontestable (Section 152 (1) VwGO, Section 68 (1) sentence 5 GKG in conjunction with Section 66 (3) sentence 3 GKG).