VG Gießen - 4 K 252/19.GI

VG Gießen - 4 K 252/19.GI
Court:	VG Gießen (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 4(10) GDPR Article 15(1) GDPR §80 of the Data Protection Law of Hessen (Hessisches Datenschutz- und Informationsfreiheitsgesetz) §2a(5) of the German Tax Law (Abgabenordnung)
Decided:	23. 10. 2019
Published:	n/a
Parties:	anonymous
National Case Number:	4 K 252/19.GI
European Case Law Identifier:	ECLI:DE:VGGIESS:2019:1023.4K252.19.GI.00
Appeal from:	n/a
Language:	German
Original Source:	LaReDa Hessenrecht (in DE)

The Administrative Court of Gießen ruled that an insolvency administrator has no right of access on behalf of a debtor.

English Summary

Facts

The plaintiff was designated as insolvency administrator for the B. GmbH (a limited liability company), that was not able to communicate its financial records after the opening of the insolvency procedure. Needing those records for the procedure, the plaintiff requested that the tax office of Gießen provide him with the documents.

He based his demand, amongst other grounds, on §80 of the Hessian data protection law (freedom of information) and the the right of access (Article 15 GDPR) of the debtor on its behalf. This was possible as the applicable German law expands the right to access to legal entities in this specific case.

The tax office refused, arguing that the plaintiff could not be considered as the data subject concerned but only as a “third party” as defined in Article 4(10) GDPR.

Dispute

Can an insolvency administrator exercise the right to access on behalf of a company?

Holding

The Administrative Court of Gießen ruled in favor of the tax office. The Court started by demonstrating that the debtor, a corporation, had indeed a right of access under Article 15 GDPR in all taxation matters despite not being a natural person, in accordance with §2a(5) of the Abgabenordnung (national tax law).

The Court then agreed with the tax office that the plaintiff is a “third party” and pointed out that the right of access is a highly personal right which could neither be alienated nor transferred, not even in the event of the opening of an insolvency procedure. Thus, the insolvency administrator had no rightful claim against the tax office for the release of financial records of the debtor.

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English Machine Translation of the Decision

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

DECISION
"coveted tax account"

Guiding principle

1.) If an insolvency administrator requests annual account statements from the tax authority from the tax account of the insolvency debtor, administrative legal proceedings shall be opened for this purpose.
2.) An insolvency administrator shall have no claim against the tax authority for the provision of annual account statements from the tax account of the debtor.

Tenor

The action is dismissed.

Orders the applicant to pay the costs.

The judgment is provisionally enforceable because of the costs. The plaintiff may avert enforcement by means of a security or deposit in the amount of the costs to be determined, unless the defendant provides security in the same amount before enforcement.

The appeal shall be allowed.

Facts

With the action, the plaintiff, as a court-appointed insolvency administrator, requests the surrender of annual account statements from the tax account of the insolvency debtor.

The plaintiff, who is active as a lawyer, became the insolvency administrator of the assets of B. GmbH, C-Straße, D-Stadt, which are subject to the insolvency proceedings, on 23 February 2016 on the basis of an order of the Local Court of Friedberg (Hesse) - hereinafter referred to as the insolvency administrator: debtor -, was appointed. The latter did not provide the plaintiff with any annual tax account statements on its part in the course of the proceedings.

On 19 October 2018, the plaintiff requested the Giessen tax office to send him the last four annual account statements for the period prior to (insolvency) opening of the proceedings - assessment periods 2013-2016 - of all tax accounts held there for the debtor and stated that it was necessary to inspect the tax account statements in the course of his work as insolvency administrator. This did not violate the debtor's tax secrecy.

The Giessen tax office refused to send the requested documents in its notice of 24 October 2018. The reason given was that the insolvency administrator's right to information was limited to information which had not yet been disclosed to the debtor herself and to which the debtor would have been entitled to be informed without the insolvency proceedings being opened. Information in the form of a bank statement, however, would not be subject to this right to information. Moreover, the Freedom of Information Act of the State of North Rhine-Westphalia, which the plaintiff had mentioned in his application by reference to a similar case that had been decided by a court, did not apply in Hesse.

In a written statement dated January 17, 2019, received by the court on January 18, 2019, the plaintiff filed a suit.

The plaintiff submits in support of its claim that it is entitled to a claim under § 80.1 of the Hessian Data Protection and Freedom of Information Act (HDSIG) in conjunction with the Insolvency Code (Insolvenzordnung, InsO). He requires access to information in order to be able to contest any claims for avoidance pursuant to sections 129 et seq. InsO in order to be able to determine and assert any claims for avoidance in accordance with §§ 129 et seq. of the Insolvency Code (InsO), in order to be able to fulfil his duties of care. The claim is subject to § 32e AO in conjunction with Articles 12 to 15 of Regulation (EU) 2016/679 (GDPR) do not contradict this claim, as the scope of protection of the AO is not affected at all. Nor does the debtor's tax secrecy stand in the way, as the information is not relevant for substantive tax claims, but for payment flows relevant under insolvency law. The claim to restitution of payments challenged under insolvency law was therefore not a claim arising from the tax relationship. Through the opening of the insolvency proceedings, the right arising from § 80, Subsection 1, InsO - Asset Management and Disposition of Assets - had been transferred to him. Pursuant to § 34, Subsection 3 in conjunction with para. 1 AO as asset manager in the fulfilment of tax law obligations in place of the debtor, which is also during the insolvency proceedings tax subject and tax debtor in the sense of § 43 AO and thus a taxpayer in accordance with § 33 AO. Consequently, the plaintiff could now assert all rights to information formerly due to the debtor.

If the insolvency administrator's administrative authority is extended to include measures to expand the insolvency estate by way of contestation, the plaintiff can dispose of all the debtor's secrets which are relevant to this. The right to maintain tax secrecy could not exceed the principles of insolvency law, as it did not constitute a fundamental right. The use of the information was in the public interest, since it served the statutory purpose - the satisfaction of creditors pursuant to § 1 sentence 1 of the Insolvency Statute. Since the plaintiff's claim is derived from insolvency law, i.e. civil law, and § 32c, Subsection 1, No. 2, HS 2 AO regulates that the tax authority's obligations to provide information under civil law remain unaffected, the obligation to provide information continues to exist. A disadvantage of the defendant compared with the other creditors was not evident - also with regard to § 32e AO. Rather, the information even represented an adequate balance between the individual creditors and the state privileged on account of its public-law position. Moreover, the insolvency estate could also increase when information is provided, so that creditors could be satisfied to a greater extent. Due to its position as a legal person, the debtor could also not invoke the protection of the personal sphere. Nor could the requested information be qualified as highly personal data. The obligation to provide information would also not impose on the defendant an obligation to examine which could not be performed, since the extracts could be easily identified as relating to the insolvency assets of the insolvency proceedings. Nationwide, every insolvency administrator must be entitled to the same rights and powers, so that a corresponding interpretation of the HDSIG would be unconstitutional and would violate the rights of the plaintiff. A different interpretation of the respective Land laws and the associated fragmentation would run counter to the will of the legislature, which would result in legal uncertainty and would constitute a violation of the requirement of equality in the application and implementation of the law under Article 3 of the Basic Law and of the requirement of loyalty to the Federation.

The Plaintiff contends,

order the defendant to provide information on the information stored at the Gießen tax office in relation to the insolvency debtor (B. GmbH - AG Friedberg (Hesse), file no. 65 IN 2/16) by issuing (in the form of copies) annual account statements of all types of tax held at the Gießen tax office for the assessment periods from 2013 to the opening of the insolvency proceedings, while annulling the decision of the Gießen tax office of 24 October 2018, in accordance with the request of the plaintiff of 19 October 2018

The defendant applies,

dismiss the action.

He is of the opinion that there is no activity on the part of the tax authority under the German Tax Code, since a decision must be made on a claim to information outside a specific tax obligation; consequently, § 81.1 no. 5 HDSIG, which regulates the scope of application for provisions on access to information, does not preclude the claim. Rather, the claim for information fails because of § 32e AO, which refers to the standards of the GDPR and the AO. The right to information of the person concerned from Art. 15 para. 1 GDPR , with regard to § 32c para. 1 No. 2 AO, does not exist insofar as the provision of information would impair the legal entity of the tax authority in the assertion, exercise or defence of civil law claims or in the defence of civil law claims asserted against it within the meaning of Art. 23 para. 1 lit. j GDPR, whereby obligations to provide information under civil law remain unaffected. § Section 32c AO therefore constitutes a bar to the right guaranteed in Section 80 (1) sentence 1 HDSIG. The aim and purpose of the provision was not to place the tax authorities in a better or worse position than other debtors or creditors in the case of civil law claims. By providing information, it would be possible that the state as creditor - contrary to the equality of all creditors as intended in the InsO - would have to disclose information for reasons for avoidance which could not be claimed from other creditors; as a result, the state itself would provide reasons which would result in an insolvency avoidance against itself. The defendant considers administrative legal proceedings to have been initiated. Also not the pressing special assignment to the finance courts standardized in § 32i exp. 2 AO stands against that. This would only apply if a "person affected" by a violation of data protection provisions in the scope of application of the DSGVO asserted a claim. In the present case, however, the insolvency administrator is a "third party" - and not the data protection person himself - so that the administrative courts are competent.

For further details of the facts of the case and the state of the dispute, reference is made to the contents of the court file and the administrative proceedings brought by the defendant, all of which were the subject of the decision.

Reasons for the decision

The admissible action is unfounded.

The action is to be regarded as an action for breach of obligations pursuant to § 42 (1), old. 2 VwGO is admissible.

It is true that the transmission of tax account statements qualifies as simple administrative action. However, before any requested documents are sent, the defendant decides within the scope of its discretion whether the requested information is to be made available to the applicant. This prior examination of the asserted claim is the focus of the administrative action. (OVG Hamburg, judgement of 08.02.2018,3 Bf 107/17).

The subsequent decision - also with regard to §§ 80 et seq. HDSIG - constitutes an administrative act within the meaning of § 35 HVwVfG. Although the defendant's letter of 24 October 2018 does not at first glance constitute an administrative act, it turns out to be such an administrative act with regard to the regulated relationship, in that it has the same quality and the necessary prerequisites as a "normal" administrative act (see Hamburg Higher Administrative Court, judgment of 8 February 2018,3 Bf 107/17).

Administrative legal recourse is possible under § 40.1 sentence 1 of the Rules of the Administrative Courts (VwGO), as a public law dispute is not of a constitutional nature. Both with regard to the theory of subordination (relationship of superiority/subordination between the plaintiff and the defendant) and to the modified subject theory (dispute about norms of public law, in this case the HDSIG), there is a dispute under public law, so that the general clause of § 40.1 sentence 1 VwGO applies (see also OVG Lüneburg, judgement of 20 June 2019, 11 LC 121/17).

There is no relevant urgent special allocation within the meaning of § 40.1 sentence 1, 2nd HS, p. 2 VwGO. Admittedly, § 32i of the German Fiscal Code (Abgabenordnung, AO) does contain such an allocation to the fiscal courts. Pursuant to paragraph 2, actions brought by the data subject with regard to the processing of personal data against financial authorities or their processors on the grounds of a breach of data protection provisions within the scope of Regulation (EU) 2016/679 [DPA] or the rights of the data subject contained therein are subject to financial law. In the present case, the plaintiff, as insolvency administrator, is asserting a claim for information or disclosure based on Section 80 HDSIG, which in turn is a Data Protection and Freedom of Information Act. The prerequisite is therefore the assertion of the right by the person concerned (data protection person) due to a violation of data protection regulations within the scope of application of the GDPR, in particular Art. 15 GDPR. However, the plaintiff acts as the insolvency administrator of the debtor, who is the data protection affected party. The plaintiff is therefore a third party, so that § 32i para. 2 AO does not apply.

Something else does not result also from § 33 exp. 1, 2 financial court order (FGO), according to which the financial course of law is given in public-legal disputes over delivery affairs. According to Section 33 para. 2 FGO, tax matters within the meaning of this Act are all matters related to the administration of taxes including tax rebates or otherwise to the application of the tax regulations by the tax authorities, including measures taken by the federal tax authorities to comply with the prohibitions and restrictions on the movement of goods across the border; matters related to the administration of financial monopolies are equivalent to tax matters.

The delimitation of the relevant legal recourse is to be determined according to the nature of the claim based on the underlying facts. The legal nature of the claim raised, as it results from the actual submissions of the plaintiffs, is decisive (see VG Stade, decision of 22 September 2016, 1 A 2323/15 with further reference). Insofar as an insolvency administrator bases the application for the provision of information to the competent tax office on an existing Freedom of Information Act of the Land, it has been clarified by the supreme court that legal recourse to the administrative courts has been opened for a corresponding action for information (on the issue in dispute, see only Eisolt, DStR 2013, 1872-1874 with reference to the Federal Court of Finance, decision of 8 January 2013, VII ER-S 1/12; VG Stade, decision of 22 September 2016, 1 A 2323/15). Finally, no tax matter within the meaning of the legal definition from § 33, Subsection 2, FGO, is of significance for the proceedings.

Further provisions, in particular from the Insolvency Code or the Tax Code, do not preclude recourse to the administrative courts either.

This result is also reflected in the provision of § 9, Subsection 4, Sentence 1, Freedom of Information Act (IFG) and § 87, Subsection 5, Sentence 1, of the Hessian Data Protection and Freedom of Information Act (HDSIG), according to which an appeal and an action for breach of duty are admissible against a negative decision or administrative recourse is possible.

Finally, the admissibility of the action is also not precluded by the fact that, contrary to § 68.1 sentence 1, paragraph 2 of the German Rules of the Administrative Courts (VwGO), no preliminary proceedings were conducted. For the scope of application of Part IV of the HDSIG, this follows from § 87.5 sentence 2; moreover, according to the prevailing case-law, for reasons of procedural economy, this is also not relevant if the defendant - as happened in the present case - has expressed an opinion on the merits of the case without reservation (see Hamburg Higher Administrative Court, judgment of 8 February 2018, 3 Bf 107/17, judgment of 8 February 2018, 3 Bf 107/17, judgment of 8 February 2018, 3 Bf 107/17, judgment of 8 February 2018, 3 Bf 107/17). 30 October 2013, 2 C 23/12, BVerwGE 148, 217; judgment of 4.8.1993, 11 C 15/92 ww. N.; judgment of 18.4.1988, 6 C 41/85, BVerwGE 79, 226).

However, the action is unfounded.

The plaintiff has no claim against the defendant for the provision of information or the publication of the debtor's annual account statements. The defendant's rejection notice of 24 October 2018 is lawful and does not violate the plaintiff's rights (§ 113 (5) sentence 1 VwGO).

There is no claim under section 80 (1) HDSIG (in conjunction with the InsO); section 80 (2) HDSIG stipulates that special legal provisions, insofar as they regulate the provision of information, take precedence over the provisions of Part Four of HDSIG, which also applies pursuant to section 1 (2) with regard to other legal provisions regulating data protection, whereby pursuant to section 1 (5) HDSIG, the HDSIG does not apply in the case of direct application of the DSGVO.

On the basis of these exceptions to the scope of application, the plaintiff has no claim under § 80 HDSIG because, pursuant to § 32e p. 1 AO, Articles 12 to 15 of Regulation (EU) No. 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data, on the free movement of such data and repealing Directive 95/46/EC (Basic Data Protection Regulation) (OJ EU No. L 119 p. 1, No. L 314 p. 72) - GDPR - in conjunction with §§ 32a to 32d AO apply accordingly and with priority, insofar as the person concerned or a third party has a claim to access to information vis-à-vis the tax authority under the Freedom of Information Act of 5 September 2005 (Federal Law Gazette I p. 2722) as amended or under corresponding laws of the Länder (see Tipke/Kruse, AO, as of February 2019, § 32e marginal no. 8). After § 32e S. 2 AO further information claims about fiscal data are excluded in this respect. This is based on the position of §§ 32a et seq. AO as leges speciales and/or priority federal law (Klein/Rüsken, AO, 14th edition 2018, § 32e). Measured against the wording of § 32e AO, which also covers third parties, § 32c AO is also applicable to third parties via the reference there. As a result, § 80 Para. 1 Sentence 1 HDSIG ("Everyman's Right"), which also refers to third parties, is displaced by these (federal) regulations. With the entry into force of the DSGVO on 25 May 2018, it will take precedence over the federal and state law regulations, thus also over HDSIG, from this date. Consequently, its scope of application - and taking into account the priority of the AO as set out above - is only opened up if the law of the European Union, in particular the GDPR in its currently valid version, is not directly applicable at the same time (Section 1 (5) HDSIG). However, the GDPR only applies to natural persons. With regard to the 14th recital of the GDPR, it is clear that legal persons such as the insolvency debtor cannot rely on the GDPR.

Via the detour of § 2a Para. 5 AO in conjunction with para. 3 AO, the GDPR also applies in this respect. According to § 2a Para. 5 AO, unless otherwise specified, the provisions of the GDPR, this law and the tax laws on the processing of personal data of natural persons apply accordingly to information relating to identified or identifiable corporate bodies, associations of persons with or without legal capacity or assets. The provisions of § 2a AO applicable to living natural persons shall be applied accordingly to this wider circle (Klein/Gersch, AO, 14th edition 2018, § 2a marginal no. 13). § 2a para. 3 AO regulates that the regulations of this law and the tax laws on the processing of personal data are not applicable, as far as the law of the European Union, in particular the GDPR in the respective valid version directly or according to para. 5 applies accordingly. The insolvency debtor as a GmbH constitutes a corporation, also with regard to Section 1 (1) No. 1 of the Corporation Tax Act (Körperschaftsteuergesetz - KSG), so that the scope of application of the GDPR is opened. In addition, the plaintiff as insolvency administrator is, as a natural person, an "Everyman" within the meaning of § 32e AO (cf. Gosch, AO, status as of 01.06.2018, § 32e marginal no. 4: Tipke/Kruse, AO, status as of February 2019, § 32e marginal no. 4 et seq.)

The claim asserted by the plaintiff is thus based solely on Art. 15 (1) GDPR. Accordingly, the plaintiff cannot demand the annual tax account statements he is seeking because he is not a "person affected" within the meaning of Art. 15 para. 1 GDPR. The right to information under Article 15.1 of the GDPR is also not transferred to the insolvency administrator when insolvency proceedings are opened because this is a highly personal right (cf. OVG Lüneburg, decision of 26 June 2019, 11 LA 274/18).

According to Art. 15 para. 1 GDPR, the data subject has the right to request confirmation from the controller as to whether personal data relating to him or her is being processed; if this is the case, he or she has the right to obtain information about this personal data. Since the plaintiff is not the "data subject", the conditions necessary for asserting the right to information under Art. 15, para. 1 GDPR are not met. According to the legal definition in Art. 4 No. 1 GDPR , a "data subject" is the identified or identifiable natural person to whom personal data refer. The "data subject" is the person to whom protection against adverse effects must be afforded when handling personal data relating to him or her (sign, in: Wolff/Brink, BeckOK Datenschutzrecht, Status: 1.2.2019, DS-GVO, Art. 4, marginal no. 28) - he or she is the sole "subject of protection" (OVG Lüneburg, Urt. v. 20.6.2019, 11 LC 121/17).

Consequently, the right to information is only available to the person actually "affected" and is limited to the data stored about him/her (cf. Ambs, in: Erbs/Kohlhaas, Strafrechtliche Nebengesetze, Stand: Jan. 2019, BDSG 2003, § 19, marginal no. 1 a, regarding the right to information according to § 19 BDSG 2003).

A right to information under data protection law (e.g. from Art. 15 Para. 1 DSGVO) does not pass to the insolvency administrator when insolvency proceedings are opened (OVG Lüneburg, decision of 26.06.2019, 11 LA 274/18; OVG Hamburg, judgement of 08.02.2018, 3 Bf 107/17). Upon the opening of the insolvency proceedings, the debtor's right to manage and dispose of the assets forming part of the insolvency estate is transferred to the insolvency administrator, section 80 (1) InsO. The insolvency administrator enters into the insolvency proceedings in accordance with § 34 section 3 in conjunction with para. 1 AO, the insolvency administrator takes the place of the insolvency debtor as asset manager in the fulfilment of tax obligations. During the insolvency proceedings, the latter continues to be subject to a tax liability as a tax subject or tax debtor within the meaning of § 43 AO and § 33 AO. However, only the pecuniary rights to which a person is entitled are assets belonging to the insolvency estate itself within the meaning of §§ 80 (1), 35 (1) InsO. Objects and rights, the realisation of which cannot lead to the satisfaction of the creditors' monetary claim, do not represent an asset; are not subject to execution and do not belong to the insolvency estate in accordance with § 36 Paragraph 1 InsO. In particular, assets of the highly personal sphere are not subject to execution (OVG Lüneburg, decision of 26.06.2019, 11 LA 274/18; see also BVerwG, decision of 15.11.2018, 6 B 147/18).

According to their wording, rights of the highest personal nature are rights of the highest personal nature. They are therefore indispensable, inalienable and non-transferable. Insofar as a combination of elements of property and personal rights exists, it must be delimited which element is in the foreground. On this basis - contrary to the plaintiff's view - the right to information under data protection law under Article 15.1 of the DPA is a highly personal right of the "person concerned" (see Rosenke, in: Pfirrmann/Rosenke/Wagner, BeckOK AO, as at 1.4.2019, § 32c, marginal no. 64 f).

Thus, even in the case of an indirect asset-relevant effect, the protection of non-material interests and thus the personal nature of the person concerned is paramount. The right to information under Art. 15 para. 1 DSGVO is therefore not an annex to a property right, but a right to which the person concerned - in this case the debtor - is exclusively entitled in person. Pursuant to section 36 (1) sentence 1 InsO, the right to information is therefore not part of the insolvency estate and is consequently not covered by the transfer of the right of administration and disposal to the insolvency administrator pursuant to section 80 (1) InsO (OVG Lüneburg decision of 26 June 2019, 11 LA 274/18; OVG Lüneburg, judgement of 26 June 2019, 11 LA 274/18; OVG Lüneburg, judgement of 26 June 2019, 11 LA 274/18). 20.6.2019, 11 LC 121/17). Moreover, the right to information under Article 15 para. 1 DSGVO is not designed to enable "third parties" (cf. Article 4 no. 10 DSGVO) to obtain information on the data held by state agencies (cf. Schaffland/Holthaus, in: Schaffland/Wiltfang, DSGVO/BDSG, as of May 2019, DSGVO, Article 15, marginal no. 1 a, and OVG Hamburg, judgement of 20 June 2019, 11 lc 121/17). 8.2.2018 - 3 Bf 107/17, NordÖR 2018, 336).

This interpretation may indeed be correctable or limited in a certain way in view of what has been said above about § 32c AO. The extension of the claim to third parties (pursuant to § 32e AO) is in principle possible. Nevertheless, the claim pursuant to § 32c para. 1 no. 2, 1st HS AO against a tax authority pursuant to Art. 15 GDPR does not exist insofar as the provision of information would impair the legal entity of the tax authority in the assertion, exercise or defence of civil law claims or in the defence of civil law claims asserted against it within the meaning of Article 23 para. 1 lit. j GDPR.

In addition, it has been recognised by the highest court that there are no bases for claims which enable the insolvency administrator to obtain information from third parties - i.e. also from the defendant - about personal data of the insolvency debtor, neither in the Insolvency Code nor in the Fiscal Code (cf. OVG Lüneburg, decision of 26.06.2019, 11 LA 274/18; regarding the AO: Federal Court of Finance, judgement of 26 June 2019, 11 LA 274/18. 19 March 2013, II R 17/11, loc. cit., decision of 15 September 2010, II B 4/10; regarding the InsO: BVerwG, decision of 15 November 2018, 6 B 147/18; Federal Court of Justice, decision of 7 February 2008, IX ZB 137/07).

Any existing duties of the tax authority to provide information under civil law, including the Insolvency Code subject to civil law, remain unaffected - with regard to § 32c, Subsection 1, No. 2, 2nd HS - AO, but according to the above explanations, such duties do not exist.

It may therefore be left open whether the provision of information would impair the legal entity of the tax authority in the assertion, exercise or defence of civil law claims or in the defence of civil law claims asserted against it within the meaning of Article 23 Paragraph 1 lit. j GDPR.

Finally, the same also applies to the obligations of the insolvency debtor to provide information and to cooperate as stipulated in section 97 InsO. This is because these only concern the legal relationship under private law between the parties involved in the insolvency proceedings and do not regulate access to official information vis-à-vis state authorities (cf. OVG Lüneburg, decision of 26 June 2019, 11 LA 274/18).

Finally, § 30.4 AO, in concrete No. 2, does not regulate the desired access to official information. Rather, the norm only acquires significance on the side of the grounds for exclusion and refusal (OVG Lüneburg, decision of 26.06.2019, 11 LA 274/18; OVG NRW, judgement of 24.11.2015, 8 A 1032/14).

Nor can the plaintiff invoke Article 3.1 of the Basic Law and a violation of the requirement of loyalty to the federal government as grounds for his claim. The requirement of loyalty to the Federation (alternatively: "pro-Federal conduct") must be interpreted in such a way that a permissible exercise of competence by one part - the Federation or a Land - does not restrict or render impossible the equally permissible exercise of competence by the other part, contrary to the idea of federalism (Maunz/Dürig/P. Kirchhof, 86 EL January 2019, Basic Law Article 3.1 marginal no. 169), the principle of equal treatment of Article 3 Basic Law is limited to the local sphere of competence of the authority acting in each case and eo ipso does not establish a claim to be treated in the same way by other authorities outside this sphere. Article 3.1 of the Basic Law could only be violated if the same sovereign authority treated similar circumstances differently without sufficient reason (stRspr; see inter alia BVerfG, (Chamber) decision of 29 December 2004,1 BvR 113/03, NVwZ-RR 2005, 297 with further references; BVerwG, decisions of 26 June 2014, 1 C 1.13, NVwZ 2014, 1516 and 27 September 2012, 3 C 17.12, NVwZ-RR 2013, 141). Moreover, the plaintiff is already wrongly of the opinion that any provisions of state law would give rise to a right to information which differs from state to state. This is no longer the case under the GDPR, which entered into force on 25 May 2018, and the simultaneously amended and adjusted German Fiscal Code, as all information claims of an insolvency administrator must now be assessed solely on the basis of the GDPR and the German Federal Fiscal Code.

The plaintiff is also not entitled to a simple-law right to inspect files. The law formerly derived from the principle of the rule of law (Article 20.3 of the Basic Law) on the basis of the legal situation applicable at the time provided for a claim to an error-free discretionary decision if the applicant had asserted an interest of its own that was important and otherwise unsatisfactory (BVerwG, Judgment of the Federal Administrative Court of 23 August 1968, IV C 235/65, see also Hamburg Higher Administrative Court, decision of 30 December 1982, Bs III 1141/82). However, due to the statutory right to information that has been created in the meantime, this law is no longer applicable (Hamburg Higher Administrative Court, judgment of 8 February 2018, 3 Bf 107/17); since the entry into force of the GDPR, this also follows from the primacy of Community law (for details: Lüneburg Higher Administrative Court, judgment of 20 June 2019, 11 LC 121/17).

Apart from this, the plaintiff as insolvency administrator has no interest of his own that is important and cannot be satisfied in any other way. It is not sufficient to claim that the information is needed to conduct the insolvency proceedings properly or to protect any existing interests that may be subject to a duty of confidentiality under §§ 129 et seq. 129 et seq. InsO, in order to be able to assert them in the following and thereby increase the insolvency assets (OVG Lüneburg, decision of 26.06.2019,11 LA 274/18 m.w.N.). Even an asserted public interest in the satisfaction of creditors - in each case as high as possible - is not sufficient. In this context, the question of whether the defendant would be favoured or disadvantaged by possible challenges is ultimately also irrelevant, as such a right to information and disclosure does not exist in any case.

Since the claim asserted by way of action does not exist, it can be left open whether tax secrecy could also be used as a reason for exclusion. § 30 Abs. 4 AO, present in the concrete No. 2, - tax secrecy -, does not regulate the entrance to official information. Rather, the norm acquires significance on the side of the grounds for exclusion and refusal (OVG Lüneburg, decision of 26.06.2019, 11 LA 274/18; OVG NRW, judgement of 24.11.2015, 8 A 1032/14). Furthermore, § 32e sentence 3 AO regulates that § 30 para. 4 no. 2 AO in this respect - with the validity of the GDPR in conjunction with §§ 32a to 32d AO - in this respect is not to be applied.

According to all of the above, the plaintiff is not entitled to the claim asserted in the action and the action must be dismissed with the consequence of costs arising from § 154.1 VwGO.

The statement on provisional enforceability and the power to avert the consequences follows from § 167 para. 2 VwGO in conjunction with §§ 708 no. 11, 711 ZPO.

The appeal is to be allowed pursuant to § 124 Para. 2 No. 3 VwGO because the case is of fundamental importance and is submitted to the Hessian court. VGH will have the opportunity to clarify the legal question submitted for decision in a way that is binding for the Federal State of Hesse

DECISION

The amount in dispute is set at EUR 5,000.

Reasons

The determination of the amount in dispute is based on sec. 52 para. 2 of the Court Costs Act.