UPRS - UPRS I U 1911/2019-21

UPRS - UPRS I U 1911/2019-21
Court:	UPRS (Slovenia)
Jurisdiction:	Slovenia
Relevant Law:	ZInfP ZVOP-1
Decided:	10.08.2022
Published:	22.02.2023
Parties:
National Case Number/Name:	UPRS I U 1911/2019-21
European Case Law Identifier:	ECLI: SI:UPRS:2022:I.U.1911.2019.21
Appeal from:
Appeal to:	Unknown
Original Language(s):	Slovenian Slovenian
Original Source:	Case (in Slovenian) Sodna praksa.si (in Slovenian)
Initial Contributor:	elisabeth

Slovenian administartive court decided that defendant did not act correctly when it transferred his complaint to an authority which, according to the provisions of ZVOP-1 (slovenian law), is not a competent for decision-making at the second level.

English Summary

Facts

Plaintiff believed that the first instance authority had ilegally obtained, stored and processed his personal data related to registration of permanent residence without his consent or knowledge, he also claimed material and non-material damages because of this breach and not filling obligation in conection to data minimisation principle. Plaintiff requested deletion of his personal data. First instance authority made a decision, he appealed and second instance (Ministry of Agriculture,Forestry and Food). Administrative court has decided that plaintiff should have first appeald to Information Commissioner (Informacijski pooblaščenec) and then after that plaintiff would be allowed to start administrative dispute before Ministry. Since main issues were procedural nature, court did not go into judging matters of processing personal data.

Holding

Given the content of the plaintiff's request, the defendant did not act correctly when it transferred his complaint for consideration to an authority which, according to the clear provisions of ZVOP-1, is not a competent authority for decision-making at the second level. Incorrect legal instruction on the right to appeal and wrongful conduct of the first-instance authority cannot be to the detriment of the party who acts on it.

Comment

This case covers procedural asspects of administrative dispute under slovenian law and clears out which requirements must be firstly fullfiled before starting dispute. In a matter of processing of personal data and in connection to GDPR does not say much just mentions basic facts why this was case started as a case about processing personal data.

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English Machine Translation of the Decision

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

UPRS Judgment I U 1911/2019-21JedroThe defendant did not act correctly, given the content of the plaintiff's request, when it transferred his complaint for consideration to a body which, according to the clear provisions of ZVOP-1, is not a competent body for decision-making at the second level. Incorrect legal instruction on the right to appeal and wrongful conduct of the first-instance authority cannot be to the detriment of the party who acts according to it. Judgment The action is granted in such a way that the decision of the Ministry of Agriculture, Forestry and Food No. 33010-187/2019/4 of 29 October 2019 is canceled and the appeal against the decision of the Krško Administrative Unit, number 330-850/2019/8 of 12 September 2019, is sent to the Information Commissioner for a decision. Explanation 1. On the basis of the third paragraph of Article 5 of the Agriculture Act (hereinafter referred to as ZKme-1) and the second paragraph of Article 3 of the Rules on the Register of Agricultural Holdings (hereinafter the Rules), the Krško Administrative Unit (hereinafter referred to as the first-level authority) rejected the plaintiff's request with the contested decision for familiarization, addition, correction, blocking and deletion of personal data in the register of agricultural holdings (hereafter RKG), in which he was registered as a member of the farm at the address ..., between 29 December 2017 and 24 May 2019 , based on the registered permanent residence at this address (point 1 of the sentence). She also found that no special costs were incurred (point 2 of the statement). 2. The statement of reasons shows that on 15 July 2019, referring to the EU General Data Protection Regulation (hereinafter GDPR) and the Personal Data Protection Act (hereinafter ZVOP-1), the plaintiff filed a request for the issuance of a declaratory decision due to a suspected violation of data protection personal data related to registration of permanent residence. He believed that the first-instance authority had illegally obtained, stored and processed his personal data without his consent, consent or knowledge, thereby attributing false and non-existent characteristics to him. Because of the registration of his permanent residence at the address ..., he considered him as a member of the farm A.A., the holder of the agricultural holding at this address, although the plaintiff claimed that he was not a farmer, a member of the farm or a member of the agricultural holding. In the request, he emphasized that the record of registration of permanent residence is an appropriate legal basis only for establishing the fact of who the parties to the proceedings are, but not a tool for determining the characteristics of the subjects. The authority of the first instance should carry out the ascertainment procedure, question him and inform him about what data is being collected and for what purpose. He was not informed about this either when registering his permanent residence or at the request of A. A. He also believed that this data should only be collected for as long as necessary and only for the purpose for which it was collected and processed. With its conduct, the authority of the first instance violated his rights from Articles 35 and 38 of the Constitution of the Republic of Slovenia and Article 8 ZVOP-1.3. In the request, the plaintiff also stated that he suffered material and non-material damage as a result of the illegal conduct of the first-level authority, as in 2018 he was assessed cadastral income in the amount of EUR 1,191.61 and advance payment of income tax in the amount of EUR 118.34, even though he is not a farmer , a member of a farm, agricultural holding or farming community. As a result, he also received lower cash social assistance (CSD Posavje decision, No. 1231-1713/2019-31852/4 of 11 July 2019) in the amount of EUR 99.30. The plaintiff repeated his request in the application dated 7/23/2019, on which the date 5/24/2019/4 is written. The first-instance authority found that the plaintiff requests correction or deletion of data in the RKG for the period from 29 December 2017 to 24 May 2019, i.e. for the time of registration of permanent residence at the address ..., and that it be deleted for this period as a member of the agricultural holding A. A.5. Before issuing the contested decision, the first-instance authority replied to the plaintiff's new writings and explained on what legal basis it had officially registered him as a member of farm A. A.6. Subsequently, the first-instance authority found that the data from the permanent population register showed that the plaintiff had a registered permanent residence at the address ... from 16/03/2012 to 27/01/2014 and from 29/12/2017 to 24 5. 2019, i.e. at the same address as the holder of the agricultural holding A. A. Referring to the provisions of ZKme-1, the Act on the Central Population Register (hereinafter the Act on CRP) and the Rules on RKG, he concluded that the Ministry of Agriculture, Forestry and Food ex officio on 25/01/2018 at the agricultural holding, the holder of which is A.A. at the address ..., carried out the reconciliation of data from official records, i.e. taking over data from CRP. Since at that time the plaintiff had a registered permanent residence at the same address as the owner of the agricultural holding, he was registered as a member of this agricultural holding. In doing so, he also referred to point a of the third paragraph of Article 5 of the RKG Rulebook, which stipulates that the administrative unit does not issue an ex officio statement if the change in the RKG was made ex officio due to the reconciliation of data, including with the records of entities .7. Since, according to the opinion of the first-level authority, the change in the RKG for the subject agricultural holding occurred only due to the reconciliation of data with the records of entities, i.e. ex officio, A.A. did not issue a new extract from the RKG to the holder of the agricultural holding. He concluded that neither ZKme-1 nor the Rules on RKG stipulate that the individual must be informed that he has been officially registered as a member of the farm, if the registration was made due to the adoption of data from other official records (in the specific case of data from CRP on registered permanent residence). As further emerges from the contested decision, the owner of the farm A.A. was informed about this entry on 7/3/2018, when, based on his written request to enter data changes in the RKG, he was issued the required statement. In doing so, the first instance authority once again refers to the provisions of the RKG Rules, that extracts from the RKG are issued only to the holder of the agricultural holding. 8. Furthermore, it follows from the findings of the first-level authority that on 18 January 2019, the second-level authority ex officio carried out a new reconciliation of data with the records of entities and registered GERKs. He did not issue a new statement to the holder of the agricultural holding in this regard either, as the reconciliation was carried out ex officio this time as well. The statement was issued to the holder of the agricultural holding only on 10 April 2019, after the oral hearing for the harmonization of GERKs, and on this statement the plaintiff is also listed as a member of the farm. 9. This situation was valid until 24/05/2019, when the first-instance authority, following the plaintiff's notification, carried out a new reconciliation of data from official records, namely CRP, as the plaintiff registered his residence at the address... The plaintiff was informed about the new reconciliation by letters from 7 June and 21 June 2019.10. In relation to the plaintiff's allegation that he was harmed by such conduct, the first-instance authority notes that, based on the provisions of ZKme-1 and the Rules on RKG, he obtained, used and processed the personal data of the plaintiff due to his residence at the address of the agricultural holding. He emphasizes that the registration of a farm member in the RKG does not mean that the person is a farmer even according to the Agricultural Land Act (hereinafter ZKZ). It also notes that there is no legal basis for the deletion of members of the farm who have a registered permanent residence at the same address as the owner of the farm, especially not with the effect of retroactivity. The authority can register a change in the members of the farm only when the registration of residence is changed, which it did when the plaintiff deregistered his residence. 11. In relation to the claimant's request under Articles 19, 30 and 32 of ZVOP-1, the first-instance authority notes that only the personal data of the claimant were processed in the RKG, as stipulated in the first and fifth paragraphs of Article 166, the third paragraph of Article 5 ZKme-1 and the second paragraph of Article 3 of the RKG Rules. Since he merely reconciled the data or simply took over the data from other records in his official capacity, he did not inform the holder of the agricultural holding (points a) and b) of the third paragraph of Article 5 of the RKG Rules). Proceeding from the provisions of ZKme-1 and the Rules on RKG, he points out that there is no obligation to inform a person about the registration of membership on the farm, which was done ex officio. 12. Based on the above, the first-instance authority found that the plaintiff's request for correction, blocking and deletion of personal data in the RKG was not justified. In accordance with Article 146 of the General Administrative Procedure Act (hereinafter ZUP), he informed the plaintiff of his findings and invited him to testify. 13. On August 1, 2019, the plaintiff filed a new request for the issuance of a declaratory decision, renewal of the procedure and a request for familiarization, addition, correction, blocking and deletion of personal data, which the first-instance authority found to be largely identical in content to the request with on 15 July 2019. In addition, the plaintiff only stated that the first-instance authority did not prove that it would have informed him about the case and allowed him to be heard. 14. On 31/05, 11/06 and 17/06/2019, the first-instance authority received several more letters from the plaintiff relating to the correction of documents, and two requests, which are identical in content to the request from 15/07/2019. received on 15 July and 23 July 2019. In the contested decision, he summarized the content of the applications and gave his opinion on them. 15. The plaintiff responded to the request of the first-instance authority with an application that is essentially the same as his previous ones. With the proposal to hold an oral hearing, consideration of the possibility to cancel and annul the decision under the supervisory right under Article 274 of the ZUP, extraordinary annulment according to Article 278 of the ZUP and annulment of the decision according to Article 279 of the ZUP, he also proposed issuing a declaratory decision in connection with the application procedure of permanent residence at the address ..., dated 29 December 2017.16. Referring to Article 154 of the ZUP, the first instance authority decided that an oral hearing was not necessary. He considered that he could not decide on the plaintiff's proposals for cancellation and annulment of the decision under the supervisory right, extraordinary annulment and nullity of the decision, until the decision has been issued. 17. The first-instance authority also found that the plaintiff's registration of permanent residence was carried out in accordance with the first paragraph of Article 7 of the Act on Registration of Residence (hereinafter ZPPreb-1), but it ceased with the registration of a new permanent residence at a different address on 24 5. 2019 (first paragraph of Article 8 ZPPreb-1). Therefore, he judged that the request to establish the illegality of this decision was not justified. Since the plaintiff had a registered permanent residence at the same address as the owner of the farm between 29 December 2017 and 24 May 2019, he was officially registered as a member of the farm in the RKG (third paragraph of Article 5 of ZKme-1 and second paragraph 3 of the article of the Rules on RKG).18. The plaintiff appealed against the decision of the first instance authority. The Ministry of Agriculture, Forestry and Food (hereinafter referred to as the second-level authority) is his complaint, with reference to the third paragraph of Article 5 of ZKme-11, the second paragraph of Article 3 of the Rulebook on RKG2 and point a) of the third paragraph of Article 5 of the Rulebook on RKG3, refused. He emphasized that the mere fact that a person is a member of a farm does not mean that this person is considered a farmer in the sense of Article 24 of the ZKZ, according to which he must meet certain criteria regarding income and qualifications. He agreed with the judgment of the first-level authority that every person who has a permanent residence at the same address as the holder of the agricultural holding should be registered as a member of the farm ex officio. Therefore, he considered that the plaintiff's request for information regarding such registration was unfounded. 19. The authority of the second level also stated that it assessed the contested decision only in the part that falls within its actual competence, that is, only with regard to the correctness of the entry in the RKG and the obligation to inform about such entry. 20. The plaintiff filed a lawsuit against the decision of the first instance authority. He proposes to the court to establish the illegality of the decision of the authority of the second instance in relation to the decision of the authority of the first instance, to establish the illegality of the silence of the authority of the first and second instance, all in relation to its request to the controller of personal data for familiarization, addition, correction, blocking and deletion of personal data and related violations of constitutional human rights and fundamental freedoms. He points out that he is not a farmer, a member of a farm or farm and does not join the family of the farm holder. He accuses the defendant of not taking a stand regarding the alleged violations of constitutional rights from Articles 2, 14, 21, 22, 23, 25, 32, 33, 34, 35, 38, 42, Articles 49, 50, 53, 67, 74 and 78 of the Constitution and to the request for renewal of the procedure regarding the registration or deregistration of the address of permanent residence and the related automatic processing of personal data. As a result of the defendant's illegal conduct, personal and social qualities were allegedly attributed to him, which he does not have. With this conduct, the defendant is said to have directly interfered with his rights, obligations and legal benefits, which he was not aware of. 21. The plaintiff believes that he was materially harmed due to the actions of the defendant, as he lost his right to cash social assistance in the amount of EUR 1,183.44 just because he registered his residence at a different address, even though his social, economic and social position has not changed in any way. Since he was allegedly not aware of the defendant's registration, he was not able to prevent harmful consequences in time. She believes that the defendant already knew or should have known this at the time when the plaintiff registered a new permanent residence at the address ..., which makes her judgment that she allowed the registration of permanent residence in good faith or with a good intention incorrect. He emphasizes that when he registered his permanent residence, no one informed him of the rights, obligations and legal benefits arising from the stated address of permanent residence, especially given the fact that at the time he had partial legal capacity, and he was not offered the right to representation and assistance .22. In what follows, the plaintiff blames the defendant for not allowing him to opt-in to the automatic processing of his personal data on either 25 January 2018 or 7 March 2018, as she did not inform him of the procedure and entries. Such conduct is said to be contrary to the provisions of the ZUP. The defendant allegedly did not inform him about the processing of personal data even on 25 May 2018, which he should have done in accordance with the applicable provisions of the GDPR. 23. From the plaintiff's further statements, it is clear that due to the illegal conduct of the defendant, he lost his right to cash social assistance in the amount of EUR 1,183.44. He believes that the record of registration of permanent residence is an appropriate legal basis only for establishing the fact of who the parties to the proceedings are, but not as a tool for determining the characteristics of persons. 24. In the lawsuit, the plaintiff also points out that the first-instance authority only referred his complaint to the Ministry of Agriculture, Forestry and Food, but not to the Ministry of the Interior, which, according to the complaints, should have referred it to him in relation to registration, deregistration or change permanent or temporary residence. He states that the first-instance authority processed his personal data and found that he is a farmer, a member of a farm, a member of a farm or a member of a farm household, although he was not given the opportunity to make a decision on this. He also explains that he registered a permanent residence at the address ... solely due to the deprivation of business capacity and due to the inability to legalize the apartment building at the address ... Since he registered a separate household at the address ..., he believes that he should be treated as an independent legal entity the subject. The defendant allegedly did not take this into account and even labeled him as a member of the farm, as a result of which he was allegedly discriminated against and materially damaged. If the law stipulates that because of staying at a certain address he automatically becomes a farmer, he should be informed about this. 25. The plaintiff also submits a proposal for an assessment of constitutionality and legality. He believes that the individual provisions of the ZPPreb, namely point 3 of the first paragraph of Article 2, ZKme-1 (point a) of the third paragraph of Article 5, the first paragraph of Article 139, the second paragraph of Article 143 of the first paragraph and point 2 of the third paragraph 140, point 3 of the first paragraph and paragraph 5 of Article 166 and paragraph 3 of Article 167), of the RKG Rules, namely the second paragraph of Article 3 and ZDoh-2, namely 69, 70 and 72. of Article, inconsistent with the Constitution of the Republic of Slovenia due to violations of constitutionally protected personal rights and non-compliance with Articles 2, 14, 21, 22, 23, 25, 32, 33, 34, 35, 38, 42 ., Articles 49, 50, 53 of the Constitution of the Republic of Slovenia and inconsistency with the constitutionally protected economic and social relations of the individual from Articles 67, 74 and 78 of the Constitution of the Republic of Slovenia.26. The plaintiff also attaches to the lawsuit an appeal against the decision of the Center for Social Work Posavje, an appeal against the decision of the FURS, an objection against the FURS income tax, a request to the authority to correct data and renew the procedure - agriculture, and several lawsuits filed before the Labor and Social Court in Ljubljana. 27. In the answer to the lawsuit, the defendant essentially refers to the findings of the contested decision and proposes to dismiss the lawsuit. 28. The lawsuit is justified. 29. The plaintiff proposes to the court to establish the illegality of the decision of the authority of the second instance in relation to the decision of the authority of the first instance and to establish the illegality of the silence of the authority of the first and second instance, all in relation to his request to the controller of personal data for familiarization, addition, correction, blocking and deletion of personal data and related violations of constitutional rights.30. An individual whose personal data is processed in accordance with the fourth paragraph of Article 9 of ZVOP-1 has the right to be informed (first paragraph of Article 30 of ZVOP-1) as well as to supplement, correct, block or delete personal data, if he proves that they are incomplete, inaccurate or out of date, or that they were collected or processed in violation of the law (first paragraph of Article 32 ZVOP-1). Likewise, the individual has the right to request the termination of this processing from the controller at any time (paragraph three of Article 32 ZVOP-1). The procedure for exercising this right with the controller is regulated in Article 33 ZVOP-1, which in the second paragraph stipulates that the controller must complete, correct, block or delete personal data within 15 days from the date of receipt of the request and notify the applicant or to inform him within the same period of the reasons why he will not do so, or to decide on the objection within this period. If the controller does not agree to the objection (that the conditions for processing personal data are not met), the individual can request the national supervisory authority for the protection of personal data to decide on the processing of personal data based on the fourth paragraph of Article 32 ZVOP-1. The aforementioned state supervisory authority shall decide on the request within two months of receiving the request (fifth paragraph of Article 32 of ZVOP-1). The national supervisory authority for the protection of personal data is the Information Commissioner, as stipulated in the third paragraph of Article 3 of the Information Commissioner Act (hereinafter ZInfP). Among other things, this also decides on the right to delete personal data, since according to point 3 of Article 6 ZVOP-1, the deletion of personal data also means their processing.431. ZVOP-1 therefore establishes both the right to delete personal data and the procedure for exercising this right, if the person believes that, among other things, they were collected or processed in violation of the law. From the information in the file relating to the case, it is clear that the plaintiff requested the issuing of a declaratory decision from the first-instance authority in connection with the request to the controller of personal data for familiarization, addition, correction, blocking and deletion of personal data and in this connection claimed a violation protection of personal data. The first-level authority rejected his request as unfounded and informed him of his right to appeal to the Ministry of Agriculture, Forestry and Food. The plaintiff acted in accordance with the legal instruction given in this way, and after the appeal was rejected, he initiated an administrative dispute. 32. Based on the aforementioned, the court notes that in the case under consideration, the legal remedy against the administrative act of the first-level authority, in accordance with the fourth paragraph of Article 32 ZVOP-1, should first be requested from the Information Commissioner. Only against the decision of the Information Commissioner could the plaintiff initiate an administrative dispute under the provisions of ZUS-1. The Supreme Court, in its decision I Up 258/2016 of 9 November 2016, has already adopted the position that Article 34 of ZVOP-1 allows for direct judicial protection in some cases, as this is clear from the third paragraph of Article 34 of ZVOP-1 . This stipulates that the proceedings are decided by the competent court according to the provisions of the law governing the administrative dispute, unless ZVOP-1 provides otherwise - and ZVOP-1 does not provide for a different judicial protection when a preliminary decision-making procedure is provided for the protection of rights under ZVOP-1 of a state authority (in this case, the Information Commissioner). 33. As can be seen from the contested decision and points 30 and 31 of the reasoning of this judgment, the defendant did not act correctly, given the content of the plaintiff's request, when it transferred his complaint for consideration to a body which, according to the clear provisions of ZVOP-1, is not a competent decision-making body at the second stage. Incorrect legal instruction on the right to appeal and wrongful conduct by the first-instance authority cannot be to the detriment of the party acting on it.5 That his appeal was decided by an authority that is not competent to do so is reasonably evident from the plaintiff's statement of claim .34. Based on the stated starting points of ZVOP-1 and the decision of the Supreme Court I Up 258/2016 of 9 November 2016, the court granted the plaintiff's claim and canceled the contested administrative act of the Ministry of Agriculture, Forestry and Food, as it is not competent to decide on the plaintiff's appeal (first point of the first paragraph of Article 64 ZUS-1). Because of the above, the court cannot return this case to the defendant for retrial, but sent the appeal against the decision of the Krško Administrative Unit, number 330-850/2019/8 of 12 September 2019, to the Information Commissioner for decision (third paragraph 64. Article ZUS-1). In view of the aforementioned, the court did not assess the other allegations in the lawsuit, which refer to the content of the decision of the first-instance authority, i.e. also the plaintiff's constitutional objections. 35. The court decided on the basis of written pleadings and written evidence, as all parties waived the main hearing in writing (Article 279a of the Civil Procedure Act in relation to the first paragraph of Article 22 ZUS-1).-------- ------------------------1 The third paragraph of Article 5 of the ZKme-1 stipulates that a member of a farm is a natural person older than 15 years who has a permanent residence at the same address as the holder.2 The second paragraph of Article 3 of the Rulebook on RKG stipulates that farm members who have permanent residence at the same address as the holder shall be registered in the RKG ex officio.3 Point a) of the third paragraph of Article 5 of the Rulebook on RKG stipulates that the administrative unit does not issue an extract from the RKG ex officio if the change to the entry was due to the reconciliation of data with the records of entities or other data collections ex officio.4 See also the decision of the Supreme Court I Up 258/2016 of 9 November. 2016.5 On this, the rich case law VSL II Cp 698/2002 of 25/09/2003, decisions of UPRS I U 1820/2018 of 17/06/2020, I U 1653/2018 of 13. 7. 2020. Association: ZVOP-1 Article 6, 30, 30/1, 32. ZInfP Article 3, 3/3 Associated documents: **Cases in which the court adopted the substantive same position on procedural or. substantive legal issues. Date of last change: 22.02.2023