VG Cottbus - VG 4 K 1191/19
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| VG Cottbus - VG 4 K 1191/19 | |
|---|---|
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| Court: | VG Cottbus (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 4(2) GDPR Article 6(1)(c) GDPR Article 6(1)(e) GDPR Article 12(5) GDPR Article 18(1) GDPR Article 1(1) GG Article 13 GG Article 2(1) GG |
| Decided: | 04.02.2022 |
| Published: | 04.02.2022 |
| Parties: | Municipal administration association for water supply Property owner |
| National Case Number/Name: | VG 4 K 1191/19 |
| European Case Law Identifier: | ECLI:DE:VGCOTTB:2022:0204.4K1191.19.00 |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | VG Cottbus (in German) |
| Initial Contributor: | Lewin Rexin |
A administrative court considers the installation of a water meter with a radio module to be processing, which may be lawful under Article 6(1)(e) GDPR.
English Summary
Facts
A water meter with a radio module is installed at the claimant's home (data subject) by a municipal water supplier (defendant, controller). The data subject believes that the installation of the radio water meter violates his fundamental right to data protection, as the device allows conclusions to be drawn about individual water use, which constitutes personal data. At his request, the controller switched off the radio module, for which the controller imposed the costs on him in the form of an administrative fee notice. The applicant appeals against the fee notice.
Holding
The installation of a water meter with a radio module may already be considered data processing (Article 4(2) GDPR). Although the installation does not yet directly process data in the sense of storage, a necessary preparation, which is undoubtedly only aimed at enabling data processing, is also subject to Art. 4(2) GDPR. In the present case, the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller (Article 6(1)(e) GDPR). The municipal water supplier's by-laws explicitly state that it collects data on consumption via measuring equipment and that this is done using a water meter and its readout. Article 12(5) in conjunction with Article 18(1)(d) of the GDPR does not prevent the charging of an administrative fee for the deactivation of the radio module of the water meter if the interests of the controller outweigh those of the data subject and the customer only objects in principle to the collection of data and does not invoke any grounds under Article 21(1) of the GDPR arising from his or her particular situation. The mere concern for one's own data protection and fear of "forced digitisation" are only general or principled interests, but not particular or individual, that Art. 21(1) GDPR covers.
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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.
I. The court decides in agreement with the participants according to § 87a paragraph 2, 3 of the Administrative Court Code (VwGO) by the rapporteur and according to § 101 paragraph 2 VwGO without an oral hearing.II. The admissible lawsuit is not justified. The decision on administrative fees from May 2nd, 2019 (decision number: V...) in the form of the objection decision from August 14th, 2019 is lawful and does not violate the plaintiff's rights, § 113 Para. 1 S. 1 VwGO. 1. A suitable legal basis is available for charging fees. The administrative cost statute of M ... ) from 05/06/2010 in the version of the 3rd amendment statute from 08/30/2018 (VKS) meets the requirements of §§ 2, 4, 5 of the municipal tax law for the state of Brandenburg (KAG). According to § 2 para. 1 sentence 2 KAG, the statutes must specify the circle of those liable for the fee, the facts justifying the levy, the standard and the rate of the levy and the time it is due Debtors of the fees or expenses and in § 9 VKS the due date of the fee. In § 1, 2, 3 VKS in conjunction with the annex to the VKS, the various tax facts, as well as their rate and scale are determined. No objections have been raised or otherwise apparent to the formal or material effectiveness of the administrative cost statute. The charging of an administrative fee in relation to the shutdown of a radio module of a water meter is not fundamentally ruled out by the simultaneous levying of a user fee for the public facility of the central water supply. It is true that water meters specify the extent of the use of the public water supply system in connection with the assessment of the volume fee, because this is what the standard of § 3 of the water supply fee statute of M ... (WVGS 2010) is based on. However, this alone does not absolutely rule out the simultaneous charging of administration fees for the water meter and usage fees according to § 6 KAG for the use of the facility. Rather, it is at the organizational discretion of the tax-collecting body whether it makes specific administrative services in connection with the water meter the subject of a user fee or a separate administrative fee, as long as the ban on double assessment is taken into account (also for the freedom of decision of the municipal institution, its annex on connection fees and/or or to finance fees, OVG Berlin-Brandenburg, judgment of January 26, 2011 - OVG 9 N 62.11 - quoted from juris, para. 33; for the administration of a sales volume meter: VG Potsdam, judgment of April 18, 2012 - 8 K 2205/11 –, para. 22, juris)2. The obligation to submit has been fulfilled. Pursuant to § 5 Para. 1 KAG, administration fees may only be charged if the administration service has been requested by the party involved or if it benefits him directly. That's how it is here. The plaintiff applied for the radio meter to be switched off in a letter dated January 16, 2019. The basis for the submission of § 1 paragraph 1, § 2 VKS in conjunction with item 13 of the annex to the administrative cost statute is also met. According to this, fees and expenses, hereinafter costs, are charged for administrative activities within the M's own sphere of activity, if the performance of the administration has been requested by the person concerned or if it benefits him directly. The amount of the costs is calculated according to the cost tariff, which is an annex to these statutes. According to paragraph 13 of the Annex, a fee of EUR 72.08 is charged for the deactivation of the radio module of a water meter. The radio module installed in the water meter at the plaintiff's point of consumption was switched off by the defendant on April 17, 2019. There are also no apparent objections to the amount of the fee.3. The determination of the administrative fee for an incriminating official act requires that the official act itself is lawful or at least can no longer be challenged with legal remedies (Higher Administrative Court for the State of North Rhine-Westphalia, decision of November 7th, 2007 - 9 A 4822/05 - juris, principle 1 ; Thuringian Higher Administrative Court, judgment of August 20, 2020 - 3 KO 702/10 -, para. 39, juris). This so-called principle of connexity applies in any case in cases of the type at hand. The same applies if the official act for which the tax creditor collects the fee is beneficial, but represents the reversal of an incriminating official act because it interferes with the rights of the tax debtor. In this respect, it depends on whether the originally incriminating official act was unlawful or lawful. If it was unlawful, no administration fee may be charged for its reversal within the framework of the implicit elimination of consequences. In the present case, only the administration fee for the decommissioning of the radio module of a water meter is in dispute. After that, it depends on whether the installation of a water meter with radio module was legal. It is not relevant whether the water meter has other functions (e.g. a memory function) that could be subject to legal concerns. The only question is whether the radio module of the water meter or the associated function of transmitting or querying data by radio is illegal. The official act of installing the water meter with radio module does not violate the fundamental rights of the Basic Law. These are already not applicable (a). Even if one assumes their applicability, the scope of protection is not opened up in part, otherwise the encroachment is justified in any case (aa-cc). The installation also does not violate Regulation (EU) 2016/679 (b).a) The fundamental rights of the Basic Law are not applicable, so that the legality of the defendant's installation of a water meter with radio module cannot be measured against these. These are governed by Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data, on the free movement of data and on the repeal of Directive 95/46/EC (General Data Protection Regulation - DS-GVO) and the fundamental rights from Art. 7 and 8 of the Charter of Fundamental Rights (GRCh) completely superimposed. In the case of fully harmonized Union law, according to the latest case law of the Federal Constitutional Court, the fundamental rights of the Basic Law apply according to the principle of the primacy of application of Union law (Art. 23 Para.1 S 1 and 2 GG, preamble) not applicable. Rather, German (implementation or application) acts are to be measured exclusively against the standard of Union fundamental rights (basically BVerfG, decision of November 6, 2019 - 1 BvR 276/17 -, BVerfGE 152, 216-274 (233 ff. Rn. 42 ff .)). According to the assessment of the Federal Constitutional Court, the distinction between fully unified and open-ended Union law, which is decisive for the applicability of the fundamental rights of the Basic Law or the EU Charter of Fundamental Rights, can prove to be complex. The Federal Constitutional Court therefore emphasizes that the regular courts may "leave difficult questions of delimitation regarding the scope of standardization unsolved" insofar as "it is determined in individual cases that the application of the various fundamental rights in the specific context does not lead to different results" (BVerfGE 152, 216 (248 Paragraph 81)). For the applicability of the fundamental right to informational self-determination, for example, it is therefore important whether fully harmonized Union law exists in the specific case. In this case, German (implementation or application) acts are to be measured exclusively against the standard of Union fundamental rights (Art. 7 and Art. 8 GRCh). The constitutional basic right to informational self-determination (Art. 2 Para. 1 in conjunction with Art. 1 Para. 1 GG) then does not apply (in addition). The processing of personal data is completely standardized by the (cross-sectional) DS-GVO, so that the processing of personal data is to be measured solely by the standard of Union fundamental rights and the DS-GVO (for the whole see Gersdorf ZfWG 2021, special supplement 1/2021, 19 ( 20 et seq.); cf. BeckOK InfoMedienR/Gersdorf, 32nd Ed. May 1st, 2021, GG Art. 2 para Fundamental rights does not lead to diverging results and taking into account that the plaintiff asserts his fundamental rights under the Basic Law, the adjudicating court nevertheless also subjects the official act of the defendant to a (national) fundamental rights examination.aa) An applicability of the right to informational self-determination from Art 2 paragraph 1 i. 1 Paragraph 1 of the Basic Law, the following results: The fundamental right to informational self-determination guarantees the individual the authority to determine the disclosure and use of personal data (BVerfGE 65, 1 (43); 113, 29 ( 46); 117, 202 (228); 115, 166 (188); 115, 320 (341); 118, 168 (184); 120, 274 (312); 128, 1 (42); 130, 151 (183 ); 147, 50 (142 para. 236); 152, 152 (188 para. 84)). In parallel to the general right of personality, the basic right to informational self-determination develops a double protective function: It is both an expression of the right to self-preservation and the right to self-expression. As a specification of the right to self-preservation, the general right of personality or the right to informational self-determination guarantees the individual a spatially and thematically determined area that should remain free of unwanted inspection (cf. BVerfGE 27, 344 (350 ff.); 44, 353 (372 f.); 90, 255 (260); 101, 361 (382 f.); 120, 274 (311)). The right to informational self-determination protects the individual from the knowledge of his personal data by state agencies or by (private) third parties. The basic right to informational self-determination protects the individual from (unlimited) collection, storage, use and disclosure of his personal data (BVerfGE 65, 1 (43); stRspr, cf. such as BVerfGE 67, 100 (143); 84, 239 (279); 103, 21 (32 f.); 113, 29 (46); 115, 320 (341); 128, 1 (42); 130, 151 (184); 147, 50 (142 para. 236); BVerfG NVwZ 2021, 226 (229 para. 71)). As a rule, regulations that authorize the handling of personal data by state authorities justify various interventions that build on one another. In particular, a distinction must be made between the collection, storage and use of data (cf. BVerfGE 100, 313 (366 f.); 115, 320 (343 f.); 120, 378 (400 f.); 125, 260 (310 ); 130, 151 (184); BVerfG BeckRS 2018, 37186 para. 42). , 166 (190); 118, 168 (184)), ie all individualized or individualizable data (BVerfGE 147, 50 (142 para. 236). The scope of protection of the right to informational self-determination is not limited to information that is already of its kind are sensitive and are therefore protected under fundamental rights (BVerfGE 118, 168 (185); 120, 378 (398 f.); 130, 151 (183)). In view of the processing and linking possibilities, there is no such thing as absolute, i.e. regardless of the context of use , irrelevant personal data (cf. BVerfGE 65, 1 (45); 118, 168 (185); 120, 378 (39 8 f.); 130, 151 (183 f). The protection of fundamental rights mediated by the fundamental right to informational self-determination is not limited to a right of defense against state data collection and data processing. The fundamental right conveys procedural guarantees. In the case of interference with the right to informational self-determination, the procedural guarantees rooted in fundamental rights are of great importance. Obligations to provide information, information and deletion as well as prohibitions on utilization are recognized as procedural protective measures (BeckOK InfoMedienR/Gersdorf, 32nd Ed. May 1st, 2021, GG Art. 2 paras. 17-20). survey of the consumption of drinking water on a property intervened. Naturally, this also applies to the collection of this date by the water meter equipped with a radio module, which the defendant installed on the plaintiff's property a query of the meter reading and thus data collection by the defendant. It is not misunderstood that only the installation of the water meter with radio module or the mirror-inverted deactivation of the radio module is disputed. The mere installation of a radio module does not in itself lead to an encroachment on the right to informational self-determination. However, since its sole purpose is to prepare for the data collection or transmission via this radio module, the sentencing court assumes that this is also to be subsumed under the concept of encroachment. In this respect, the situation should not differ from when cameras or microphones are installed in an apartment as part of police measures. These should already be included in the encroachment even before the first transmission and the installation should therefore not be measured (solely) against Article 13 of the Basic Law. The encroachment is, however, justified. The fundamental right to informational self-determination is not guaranteed without restrictions. It finds its limit in paragraph 1 (BVerfGE 65, 1 (44); StRspr). The fundamental right to informational self-determination is thus limited by the constitutional order and by the rights of others. Interventions in the fundamental right to informational self-determination require a (constitutional) legal basis (BVerfGE 65, 1 (44); 100, 313 (359 f.); 115 , 320 (345); BVerfG NVwZ 2021, 226 (230 para. 84)). In addition to a formal law, sub-statutory legal provisions (ordinances, articles of incorporation) can also be considered as the basis for authorization. Unlike in the state of Bavaria (Article 24, Paragraphs 4-7 of the Municipal Code there), there is no express regulation for electronic water meters with or without a radio module. However, an overall view of the legal regulations shows that collecting data on water consumption was required by the parliamentary legislature when using the corresponding facilities. The parliamentary legislature then left the further details, in particular the technical implementation, to the legislator and the legislator Water supply serving the general public (public water supply) is a task of services of general interest. Pursuant to Section 50, Paragraph 3 of the WHG, the public water supply authorities work towards careful use of water. In particular, they keep water losses in their facilities low and inform end users about measures to save water, taking into account hygiene requirements. According to this, the public water supply is a self-governing task of the municipality in the state of Brandenburg according to § 59 of the Brandenburg Water Act (BbgWG). The financing is also in accordance with this task regulated by the public water supply. In the area of interest here, the implementation of the public water supply in public sponsorship, the financing is determined by the municipal tax law of the state of Brandenburg. Section 6 (1) of the KAG stipulates that user fees must be charged if a facility or system is primarily used for the benefit of individuals or groups of people, unless a fee under private law is required. In addition, fees may be charged. The estimated fee revenue should not exceed the expected costs of the facility or system and should generally cover them in the cases of sentence 1. In the area of the water supply of private households relevant here, fees must be charged, which should usually cover the costs. Section 6 (4) of the KAG stipulates that the fee is to be calculated based on the use of the facility or facility (reality standard). If this is particularly difficult or not economically justifiable, a standard of probability can be chosen which must not be manifestly disproportionate to the claim. In addition to the fee according to sentence 1 or 2, reasonable basic fees can be charged to cover the consumption-independent costs (provisional costs), regardless of the extent of the actual use - and waste water disposal are to be raised. Otherwise there would be no basis for determining the level of utilization of the facility by the end user. The parliamentary legislature has therefore assumed without further ado that the right to informational self-determination can and must be intervened in order to collect the necessary data to ensure the financing of the public water supply. This is also indicated by the legal regulations of the federal legislature: In the former § 27 of the law regulating the law of general terms and conditions and today in Art. 243 of the Introductory Act to the Civil Code (EGBGB) there is the authorization basis for the enactment of a regulation regulating the general conditions for the supply of water and district heating as well as disposal of waste water including framework regulations on fees. On the basis of this authorization basis, the federal legislator then issued the Ordinance on General Conditions for the Supply of Water (AVBWasserV), which is set out in §§18ff. contains more detailed regulations on measurement and in particular on the corresponding measuring devices. The legislator then determined via § 35 Para. 1 AVBWasserV that legal provisions that regulate the supply relationship under public law are to be designed in accordance with the provisions of this ordinance; The regulations of the administrative procedure as well as municipal regulations for the regulation of the tax law remain unaffected.M ... has in its water supply statute of 02.12.2010 in the version of the 1st amendment statute of 07.05.2012 (WVS) in §§ 21ff. more precise regulations on the measuring devices made. According to § 21 paragraph 1, 2 WVS, the M ... determines the amount of water consumed by the connection owner using measuring devices that must comply with the calibration regulations. The M ... is responsible for ensuring that the amount of water used is measured correctly. He determines the type, number and size as well as the location of the measuring device. The delivery, attachment, monitoring, maintenance and removal of the measuring devices is also the task of M ... . He must listen to the subscriber and protect his legitimate interests. He is obliged to relocate the measuring devices at the request of the connectee if this is possible without impairing a proper measurement; the connectee is obliged to bear the costs for this. According to § 21 Para. 4 WVS, the connectee provides a suitable place for the measuring device. The measuring device includes the water meter. Pursuant to § 23 WVS ("Reading"), the measuring devices are read by the representative of M ... at equal intervals if possible or at the request of M ... by the connection owner himself. He must ensure that the measuring devices are easily accessible. As long as the representative of M ... cannot enter the premises of the connection user for the purpose of reading, M ... may estimate the consumption on the basis of the last reading. The actual circumstances must be taken into account appropriately. The defendant has not changed these regulations since 2012. Accordingly, he also saw no need for change through the introduction of the disputed water meter with radio module (and - not relevant here - memory function). According to the above-mentioned statutes, the authority of M ... to install measuring devices at the connectee and type, number and size as well as the place of installation of the measuring device. This is also sufficient as a basis for authorization for a measuring device with a radio module. In this respect, the court does not agree with the contrary opinions, some of which are represented by data protection officers of the federal states. In this respect, for example, the Bavarian State Commissioner for Data Protection - to which the plaintiff also refers - in 2016 referred to so-called "intelligent" water meters, which are equipped with a Memory function that records the respective water flow and consumption in short periods of time (e.g. several times per minute), every 24 hours the meter reading for several hundred days in the so-called daily register, once a month on a key date the respective monthly consumption for several years in the so-called monthly register and information on the store maximum and minimum flow and are equipped with the radio function - which is the only relevant here - that the use of such meters requires a concrete formal legal regulation on the application and operating requirements (cf. 27th activity report of the Landesbea Orders for data protection, January 31, 2017, No. 6.3, p. 107f.; available at: https://www.datenschutz-bayern.de/tbs/tb27.html). This legal opinion was justified by the fact that the legislature (parliament) is obliged to make the essential regulations for encroachments on fundamental rights itself and by law. Parliament not only has to pass "any" law, but must also regulate the content of the most important aspects in this law. The question of whether such a regulation is necessary with regard to the installation and operation of "intelligent water meters" cannot be answered in general terms. The answer depends on how intensive the encroachment on the fundamental right to informational self-determination associated with the installation and operation turns out to be. The intensity of the intervention in turn depends on the concrete functional options of the respective meter, in particular on which data is stored and for how long. The use of "intelligent" water meters is in any case an intervention in the fundamental right to informational self-determination (Art. 2 Para. 1 in connection with Art. 1 Para. 1 GG), possibly even interference with the inviolability of the home (Art. 13 Para. 1 GG). The right to informational self-determination is affected in connection with "intelligent" water meters because all consumption data stored in the water meter are related to individuals and enable the creation of a consumption profile. Even if the question cannot be answered in general terms, a formal legal basis is then necessary , if the citizens are obliged to tolerate the installation and operation of an "intelligent" water meter and the water meter collects personal data that is not necessary for billing purposes, especially if a very "small-scale" recording of consumption values with a long storage period, or such personal data can be transmitted "on the street" at regular intervals without the possibility of influence on the part of the person concerned and can be read remotely unnoticed and without the participation of the person concerned. The Bavarian legislator h at reacted to this and created a corresponding regulation for intelligent water meters in Art. 24 Para. 4-7 of the Municipal Code. The opinion of the Bavarian State Commissioner for data protection has not gone unchallenged. The Hessian data protection officer explains that there is a sector-specific legal provision in Art. 243 EGBGB, Section 18 Para. 2 Sentence 2 AVBWasserV in conjunction with the provisions in the water supply statutes for the data protection admissibility of water meters. The theory of essentiality does not preclude the determination of the type of measuring device in the articles of association. It is not about creating a data protection basis through the statute - this is regulated in §§ 18, 20, 24 AVBWasserV - but about exercising the power prescribed in the Federal Ordinance (§ 18 Para. 2 Clause 2 AVBWasserV), the type of determine the measuring device. The essential requirements, namely the data protection basis and the authority to determine the type of measuring device, are already regulated in the Federal Ordinance (AVBWasserV) issued on the basis of Article 243 EGBGB. According to this, no formal legal basis for radio meters is necessary, the adaptation of the water supply statute as a data protection processing basis is sufficient (Forty-third activity report of the Hessian data protection officer Professor Dr. Michael Ronellenfitsch, 4.1.5.8, p. 131; Forty-fifth activity report of the Hessian data protection officer Professor Dr. Michael Ronellenfitsch , No. 4.4.3; Forty-sixth activity report by the Hessian data protection officer, Professor Dr. Michael Ronellenfitsch, December 31, 2017, No. 17.3). The Thuringian State Commissioner for Data Protection and Freedom of Information, on the other hand, has agreed with the view of the Bavarian State Commissioner for Data Protection. In this respect, there is no agreement between the state commissioners for data protection (cf. also electronic water meters - legal framework and data protection, Germer and von Schenck, Versorgungswirtschaft, 2019, p. 109ff.). The Brandenburg legislator and the defendant are neither the Bavarian nor the followed the Hessian model. The Brandenburg legislature has not created a formal legal legal basis, the M ... has not adjusted its statutes. from which the prerequisites and the extent of the restrictions result clearly and are recognizable for the citizen and which thus corresponds to the constitutional requirement of legal clarity (BVerfG, judgment of December 15, 1983 - 1 BvR 209/83 -, BVerfGE 65, 1-71, 151; BVerfGE 45, 400 (420) with further citations). However, how specific this legal basis must be and whether in particular the regulation within the framework of a standard under the Parliament Act is sufficient is assessed in a differentiated manner by the Federal Constitutional Court in its previous case law the Federal Constitutional Court in its decision on automated license plate recognition (cf. BVerfG, Judgment of March 11, 2008 - 1 BvR 2074/05 -, BVerfGE 120, 378-433, Rn. 93 - 97), the authorization must meet the constitutional requirements of specificity and clarity of a statutory authorization. The norms attacked there for automated license plate recognition would not do justice to this. The requirement of certainty should ensure that the democratically legitimized parliamentary legislature makes the essential decisions about encroachments on fundamental rights and their scope themselves, that the government and administration find controlling and limiting standards of action in the law and that the courts have an effective to carry out legal checks. Furthermore, the specificity and clarity of the norm allowed the affected citizen to prepare for possible onerous measures (cf. BVerfGE 110, 33 <52 ff.>; 113, 348 <375 ff.>). The legislature has reason to define the purpose and limits of the intervention in a sufficiently area-specific, precise and clear manner (cf. BVerfGE 100, 313 <359 f., 372>; 110, 33 <53>; 113, 348 <375>; BVerfG , NJW 2007, p. 2464 <2466>). This should ensure that decisions of such scope emerge from a procedure that offers the public the opportunity to develop and represent their views and encourages the people's representatives to clarify the necessity and extent of encroachments on fundamental rights in a public debate (cf. BVerfGE 85, 386 <403 f.>;108, 282 <312>). The specific requirements for the specificity and clarity of the authorization are based on the type and severity of the interference (cf. BVerfGE 110, 33 <55>). The basis for the intervention must therefore make it clear whether serious interventions should also be permitted. If the possibility of such encroachments is not ruled out with sufficient clarity, the authorization must meet the special requirements for certainty that are required for such encroachments (cf. BVerfGE 113, 348 <377 f.>; 115, 320 <365 f.> ;). If a statutory regulation authorizes an intervention in the fundamental right to informational self-determination, then the requirement of certainty and clarity also has the specific function of ensuring a delimitation of the reason for the measure and also the possible purpose of use of the information concerned (cf. BVerfGE 65, 1 <46>; 110, 33 <70>; 113, 29 <51>; 115, 320 <365>). This strengthens the constitutional requirement that the information collected be earmarked, which could otherwise come to nothing (cf. BVerfG, NJW 2007, p. 2464 <2466 f.>). In contrast, the Federal Constitutional Court has answered the question of whether §§ 94 ff. StPO, insofar as they allow the seizure and confiscation of data carriers and the data stored on them as evidence in criminal proceedings, corresponds to the constitutional requirement of legal clarity, stated that this is the case (BVerfG, decision of April 12, 2005 - 2 BvR 1027/02 –, BVerfGE 113, 29-63, Rn. 97 - 100): The relevant powers of intervention were originally tailored to physical objects. The historical legislator, who created the traditional norms on confiscation, could not yet count on the possibility that electronic data could become important as non-physical information for evidence in criminal proceedings. However, the addition of Sections 98 a et seq. to the Code of Criminal Procedure in 1992 shows that the changing legislature basically assumed that databases could be confiscated. Section 94 of the Code of Criminal Procedure also allows data to be secured on the authorities' own data carriers. The literal sense also allows non-physical objects to be understood as the "object" of access. The wording is not exceeded by the assumption that intangible objects are also covered by § 94 StPO, already with regard to the distinction from the narrower concept of the (physical) thing. Aligned with these standards, the court considers the authorization basis of Art. 243 EGBGB enacted regulations in §§ 18, 20, 24 AVBWasserV and the corresponding and here relevant regulations in §§ 21ff. WVS for sufficient legal bases for the installation and operation of a water meter with radio module. It can remain open whether this also applies to the more extensive storage functions of the newer meters, which are not related to the radio module. From the overall regulatory context, the reason, purpose and scope or limits of the intervention can be determined largely unequivocally by way of interpretation. It is clear from the regulations of § 21, § 23 WVS and the water supply fee statute of M ... (WVGS 2010) that the purpose is to determine and transmit the values of the respectively consumed amount of water to M ... for the purpose of billing for the accruing water and waste water fees, if applicable. In this respect, there is no doubt that this is the only purpose and that the transmission and collection of consumption data should not also be used for other purposes, such as averting danger or criminal prosecution or to justify further interventions. The reason also results from the interpretation of the named articles of association of the defendant. According to § 23 paragraph 1 sentence 1, alternative 1 WVS, the measuring devices are read by the representative of the M ... at equal intervals if possible. In connection with the fee statutes of the M ... (cf. § 7 WVGS 2010), it follows that the collection period for the fees is the calendar year at the end of which the fee debt arises, so that it can be seen that the reading is usually once per year will. Of course, it should be realistically taken into account that readings can be taken several times during the year. This applies, for example, in the event that there is a change of owner or user and consumption must be determined on a daily basis. However, even this scenario is likely to lose its area of application due to the additional memory function of the meter, which is not of interest here. In the opinion of the court, the occasion and the frequency can thus be determined with sufficient accuracy, whereby the court does not fail to recognize that the wording "at the same time intervals as possible" based on its pure wording would not rule out the variant feared by the plaintiff that the M ... drives down his street every day to call up the meter reading via the radio module. However, this can be adequately counteracted by the restrictive interpretation made by the court, regardless of the fact that this scenario appears rather unrealistic and, moreover, with regard to the memory function of the meter - which is not of further interest here - is likely to be unnecessary in order to record daily data of consumption. The limits of the intervention are already sufficiently defined in the existing statutes - as far as the radio module, which is the only one of interest here, is concerned. As explained, the statutes do not contain any indication that the consumption data are read out via radio. Comparable with the concept of the object, which was relevant in the decision of the Federal Constitutional Court in § 94 StPO (BVerfG, decision of April 12, 2005 - 2 BvR 1027/02 -, BVerfGE 113, 29-63, Rn. 97 - 100), However, the term "reading" in § 23 Para. 1 WVS is still sufficiently open to interpretation. In the literal sense, this indicates that a person is standing directly in front of the meter and reading the values given on it verbatim. When these values are queried via a radio module, it is probably more a case of "reading out". The regulation contained in § 23 Para. 1 Clause 2 WVS, according to which the connectee has to ensure that the measuring devices are easily accessible, as well as the authorization to estimate contained in § 23 Para. 2 WVS, speaks for the case that the representative of M ... cannot enter the premises of the connection user for the purpose of reading, clear for the traditional procedure in which the association enters the apartment or property to physically carry out a reading directly on the meter. However, in the opinion of the Court this does not contradict the interpretation caused by technical progress, which also understands reading in a query of the values via the radio module. The objection raised against it that a radio function enables both a secret and a more frequent determination of the consumption data and thus a broader one at any rate possible violation of fundamental rights cannot be dismissed out of hand. On the other hand, it must be taken into account that at the same time the deeper intervention of entering the apartment, which otherwise regularly occurs - according to the court (more on this below) - is eliminated. Even the correct argument that for the holder of fundamental rights and connection user, when reading the technical statutes of the M ... impartially, it is not recognizable that meters with radio functions are (should) be used, does not lead to the unsuitability of the legal basis in the opinion of the court adjudicating. On the one hand, the technical functions of the measuring device used are generally not recognizable from the statutes, nor do they have to be. Rather, § 21 Para. 2 S. 2 WVS is limited in almost word-for-word implementation of § 18 Para. 2 S. 2 AVBWasserV to the little detailed specification that the M ... determines the type, number and size as well as the location of the measuring device. On the other hand, reading the consumption values by radio hardly deviates from reading the consumption values by entering the apartment, at least as far as the fundamental legal dimension, in particular the severity of the interference, and probably more in favor of the connection user. The principles of transparency, certainty and The reason why standard clarity is of less importance here is that intervention by the radio module is extremely low-threshold. As already explained, according to the case law of the Federal Constitutional Court, the specific requirements for the specificity and clarity of the authorization depend on the type and severity of the encroachment (cf. BVerfGE 110, 33 <55>; BVerfG, judgment of March 11, 2008 - 1 BvR 2074/05 -, BVerfGE 120, 378-433, paragraphs 93 - 97). Aligned with this, the statutes of the M ... can be taken as a legal basis with sufficient certainty that no more serious interference than the determination of the consumption value for the purpose of charging by radio is to be expected and this interference will usually only occur once a year. It must be taken into account It is true that according to the case law of the Federal Constitutional Court, given the processing and linking options, there is no such thing as an irrelevant personal data item, i.e. regardless of the context of use (cf. BVerfGE 65, 1 (45); 118, 168 (185); 120, 378 (398 f.); 130, 151 (183 f.)). However, there is still a difference relevant to fundamental rights between data that is particularly in need of protection, because it is assigned to the private sphere or a particularly important area of privacy, and data that is less in need of protection. It must also be taken into account that the question of whether the data is transmitted wirelessly to the defendant or read out by the defendant only relates to the way in which it was collected, but not to the undoubtedly justified collection of the date at all. In this respect, it is also possible to delimit the "how" and "whether" of data collection and data transmission. Against this background, the "whether" the data collection by the M ... is mandatory and also not fundamentally objectionable. A partial aspect of the "how" is covered by the installation and use of a radio module. Based on this, both the date of the consumed amount of water and the transmission path by radio appear as minor items at best. It is true that all kinds of conclusions can be drawn from water consumption data, especially from intelligent water meters, about the behavior of the subscribers, although it is difficult to reliably assign a single person to buildings that are occupied or used by several people. In any case, given the water consumption on a given day, one can draw the conclusion that a person – whoever – was in the house that day. Since the M... doesn't even know which person this is, the intervention is then put into perspective to some extent. The date – even of the daily – water consumption can at best be used in connection with a series of other data that is not regularly available to the M ... to create extremely incomplete “stay profiles”. This scenario then also seems remote. This is certainly not linked to the radio function at issue here, since the same data collection should actually be possible for the M ... - bearing in mind the storage function - even without a radio function, if he intends it. In this respect, the change from personal reading to radio reading is not associated with a qualitatively significant leap at the expense of the holder of fundamental rights, which in turn means that the standards for the “how” of the measure are to be set even lower at the level of the specificity of the norm. If that happens The court then came to the conclusion that there is a formally lawful barrier, the encroachment is also substantively constitutional, in particular proportionate. In this respect, the radio module, like the water meter itself, serves the legitimate purpose of transmitting and collecting consumption data, and it is also suitable for this purpose. There are essentially two other conceivable means within the scope of necessity: self-reading by the user of the public water supply facility and entering the property by a representative of the M ... . The former is not equally effective, since both the timing and the accuracy of the survey when reading it yourself are subject to doubt. The latter should not be milder. The radio function theoretically enables more frequent queries: The M ... could drive down the street where the property is located several times a year, "ping" the radio module and thereby collect the consumption data without the user of the public water supply being aware of this would. However, this possibility is purely theoretical and - as already explained - rather unrealistic. Conversely, entering the property is regularly associated with an encroachment on Art. 13 GG and the perception of countless other data by the association (cf. on this, for example, in the context of the obligation to connect and use: VG Cottbus, decision of February 26, 2021 - 6 L 462/19 –, juris): This starts with which person opens the door for the association’s staff sent to take the reading, which in turn allows conclusions to be drawn about the whereabouts, identity and other personal data. In addition, entering is regularly associated with the perception of further data – not for a specific purpose, but realistically unavoidable. This applies, for example, to the perception of other members of the household, the furnishing and layout of the apartment, etc. In addition, entry of the property by a representative of the M ... for the purpose of reading the water meter will regularly presuppose that the user or at least another holder of fundamental rights is staying on the property for the purpose of granting access. This ultimately interferes with his general freedom of action, since he has to be on site at this point in time. Therefore, it cannot be assumed that entry by an officer of the M ... per se or regularly is the milder means of collecting the consumption figures than the - scheduled - once a year "pinging" of the radio module from the street on which the Property is out. Finally, there are no objections to the appropriateness or proportionality in the narrower sense of the installation and use of a water meter with radio module assumes that its scope of protection is not open, but is excluded by the scope of protection of the right to informational self-determination. It is already doubtful whether the water meter with radio module is an information technology system within the meaning of the case law of the Federal Constitutional Court. According to this, if a system "according to its technical construction only contains data with selective reference to a certain area of life of the person concerned", the fundamental right to informational self-determination should continue to offer protection (BVerfGE 120, 274 (313 f.)). The water meter with radio module is used to collect and transmit an extremely limited data set. In addition, the distinction from the fundamental right to informational self-determination, which is also rooted in Article 2(1) in conjunction with Article 1(1) of the Basic Law, is based on the case law of the Federal Constitutional Court quantitative aspects. While the basic right to informational self-determination protects against access to individual personal data, the basic right to guarantee the confidentiality and integrity of information technology systems offers protection against access to a comprehensive database stored on an information technology system. On the other hand, the new fundamental right protects the integrity of information technology systems and therefore guarantees protection that goes beyond the fundamental right to informational self-determination (BeckOK InfoMedienR/Gersdorf, 32nd Ed. May 1st, 2021, GG Art. 2 para. 24). at most access to a datum, namely the water consumption at a certain point in time, is permitted by the radio module at issue here. From a quantitative point of view, this should not meet the requirements for opening up the scope of protection of the fundamental right to guarantee the confidentiality and integrity of information technology systems. In addition, the additional criterion of integrity should not lead to an opening of the protection area. It is true that the water meter with radio module is not confidential from the outset, since it can and should be read remotely as intended. However, this does not distinguish it significantly from the water meter without a radio module, which is also aimed at data collection from the outset and for which there can never be a legitimate expectation of confidentiality of the data collected by it. The possibility of remote reading of the water meter with radio module is therefore inherent in it. His lack of "integrity" is in the nature of things. But then the direction of protection is quite different from the case included in the scope of protection by the Federal Constitutional Court, in which an information technology system, which in principle is not initially open to access by the state, is suddenly open to the state as a result of a measure by the state and which is not primarily related to the Use of the device related data collection by the state becomes accessible. However, the integrity protected by fundamental rights is only impaired if the system is accessed in such a way that its services, functions and memory contents can be used by third parties. Because "then the decisive technical hurdle for spying, monitoring or manipulation of the system has been taken" (BVerfGE 120, 274 (314)).cc) As far as the fundamental right from Art. 13 GG is concerned, this is through the installation of a meter not injured with radio module. According to Art. 13 Para. 1 GG, the apartment is inviolable. It is true that the plaintiff's house is undoubtedly an apartment. It is also recognized that an encroachment on the area of protection of Art. 13(1) GG is, for example, the installation of listening devices and their use in the home, but not the collection and obtaining of information that can be carried out without entering or staying in the home , can be seen (BVerfG, judgment of December 15, 1983 - 1 BvR 209/83 -, BVerfGE 65, 1-71, para. 141). The purpose of this is, however, to protect the living and private area that the apartment offers, since this serves as a retreat for the individual, in which no further intervention should be made. This purpose justifies the installation of wiretapping devices, which are aimed at determining information about statements and behavior of the householders in the apartment, to qualify as an encroachment. It might be different, however, if - like the water meter with radio module - the device is in the apartment and information can be called up from or about it, but this information is abstracted from the personality sphere in the same way water consumption is and With regard to the information, there is also a legal obligation to disclose. b) The installation of the water meter with radio module does not contradict the regulations of VO (EU) 2016/679. The material scope of VO (EU) 2016/679 is open. According to Art. 2 Para. 1 VO (EU) 2016/679, the regulation applies to the fully or partially automated processing of personal data as well as to the non-automated processing of personal data that is stored or is to be stored in a file system. In any case, the latter is the case with the data transmitted via the radio module. The temporal scope of application is also open, since the regulation applied from May 25th, 2018 (cf. Art. 99 Para. 2 VO (EU) 2016/679). The exception of Art. 2 Para. 2 lit. a VO (EU) 2016/679 is not available. Accordingly, the regulation does not apply to the processing of personal data in the context of an activity that does not fall within the scope of EU law. For data processing by sovereign authorities of the Member States, it is decisive how far the scope of application of Union law extends. The Court of Justice interprets this concept broadly with reference to recital 16 of the Regulation. According to this, only data processing carried out by state bodies in the context of an activity serving to safeguard national security or an activity that can be assigned to the same category is excluded from the scope of application of Union law (ECJ (Grand Chamber), judgment of 06/22/2021 - C-439/19 - para. 66; BeckOK DatenschutzR/Bäcker, 38th Ed. 11/01/2021, DS-GVO Art. 2 para. 9). That is not the case here. The requirements of Art. 3 VO (EU) 2016/679 on the spatial scope are also met. The installation of a water meter with radio module at issue here, which the defendant is able to do without further knowledge of the plaintiff Reading out the consumption data from the meter at a point in time selected by the defendant does not initially violate Art. 6 Para. 1 VO (EU) 2016/679. According to this, the processing is only lawful if at least one of the conditions listed there is met. It is doubtful whether the installation of a water meter with a radio module is processing. Because according to Art. 4 No. 2 VO (EU) 2016/679, "processing" is any process carried out with or without the help of automated processes or any such series of processes in connection with personal data such as collection, recording, organization, ordering , storage, adaptation or modification, reading out, retrieval, use, disclosure by transmission, distribution or any other form of provision, comparison or linking, restriction, deletion or destruction. Although it is indubitable that as soon as the defendant determines the consumption values of the water meter with the help of the radio module, this represents processing within the meaning of Art. 4 No. 2 VO (EU) 2016/679, although it may remain open whether this falls under the variant of the offense of "querying" or "reading out “ falls. However, the mere installation of a water meter with radio module, which is at issue here, may not in itself constitute processing, but at most the necessary preparation for such processing that is intended at a later date. It may be doubtful whether the pure preparation also falls under the concept of processing. From a broad perspective, virtually every activity would fall under the term processing. Conversely, the installation of a water meter with a radio module is undoubtedly aimed only at enabling data processing. Ultimately, it cannot and should not serve any other purpose. Conversely, when the data of a water meter is "queried" or "read out" with a radio module, the person concerned usually only finds out about this process after the processing has taken place, so that there should no longer be any room for consent at the time of processing, which may speak in favor of it in such cases, to include the preparation in the concept of processing. The question may be left open. In any case, even if the installation of a water meter with radio module is considered to be processing, the requirements of Article 6 Paragraph 1 lit is in the public interest or is carried out in the exercise of official authority, which has been transferred to the person responsible, see Article 6 Paragraph 1 Letter e of Regulation (EU) 2016/679. the specification of a factual task or a factual task/authority connection is not sufficient according to the standard text and also for teleological reasons. Data processing-related legal bases create a connection between data processing and the tasks required by lit. The purpose of the processing (in the sense of Art. 5 Para. 1 lit. b) in no way coincides with the (material) task assigned to the person responsible for processing. Rather, it lies at right angles to it and relates it to it. By means of these basic regulatory mechanisms, data processing is bracketed with the factual administrative competences (BeckOK DatenschutzR/Albers/Veit, 38. Ed. 1.11.2021, DS-GVO Art. 6 Rn. 57 with reference to ECJ, judgment of 27.09.2017, C- 73/16, para. 111 – Puškár).In recital 41, the legislator makes it clear that – at least under Union law – insofar as the regulation refers to a legal basis or a legislative measure, it does not necessarily have to be made by parliamentary law, as long as it is clear , accurate and predictable to those subject to the law. Insofar as it is compatible with German constitutional law, permissible forms of legislation are, in addition to formal federal and state laws, statutory ordinances and statutes of legal entities under public law (see the opening clause: BeckOK DatenschutzR/Albers/Veit, 38th Ed. 1.11.2021, DS-GVO Art. 6 para. 82). These requirements are met by the articles of association contained in § 21 and § 23 WVS. They do not only contain the conclusion from the task to the authority or a corresponding task/authority connection, but also expressly stipulate that the M ... collects data on consumption via the measuring devices and this is done using a water meter and its reading. As already presented in the context of the authorization basis for the intervention in the right to informational self-determination, this legal basis is also sufficient with regard to the use of a radio module. The standards of the Basic Law and the General Data Protection Regulation are different in this respect. The same substantive arguments, in particular with regard to the purpose and severity of the interference that is to be made possible by the legal basis, also apply here with regard to data processing. The measure is also necessary. The Union law concept of necessity within the meaning of Art. 6 Para. 1 VO (EU ) 2016/679 is not yet fully contoured as far as can be seen. In the Puškár case on the predecessor directive of the General Data Protection Regulation, namely Directive 95/46/EC and the concept of necessity used therein in a similar or identical regulatory context, the Court of Justice stated that the necessity test should include: the exact purpose for which the - there - disputed list was created, the legal consequences for the persons listed in it and the fact whether this list is public (ECJ, judgment of September 27th, 2017, C-73/16, 111, juris). It can also be seen that the concept of necessity is in any case also a starting point for a proportionality test. For example, the Court of Justice explains the requirement that the processing of personal data is necessary for the realization of the perceived legitimate interest, that the exceptions and limitations in relation to protection of personal data must be limited to what is strictly necessary (ECJ, judgment of June 17, 2021 – C-597/19 –, MICM, para. 110, juris; ECJ, judgment of May 4, 2017, Rīgas satiksme, C-13/ 16, EU:C:2017:336, para. 30). Collected data would also have to be appropriate and relevant to the purpose and limited to what is necessary for the purpose of collecting this personal data - within the scope of the permission of the fulfillment of a legal obligation (ECJ, judgment of January 16, 2019 - Deutsche Post, C-496/17 -, para. 63, juris; cf. also Art. 5 (1) lit. c VO (EU) 2016/679). In the case there, which concerned a tax identification number, the Court of Justice further stated that this data was collected for specified, clear and legitimate purposes and therefore processed (ECJ, judgment of January 16, 2019 - C-496/17 -, Deutsche Post, para . 61, juris).As is emphasized in the 39th recital of the GDPR, the requirement of necessity is not met if the objective pursued, which is in the general interest, can be achieved in a reasonable manner just as effectively by other means which are less strongly the fundamental rights of the persons concerned, in particular the rights to respect for private life and to the protection of personal data guaranteed in Articles 7 and 8 of the Charter, the exceptions and limitations to the principle of the protection of such data being limited to what is strictly necessary (cf. ECJ, judgment of December 11, 2019, Asociaţia de Proprietari bloc M5A-ScaraA, C-708/18, EU:C:2019:1064, para. 46 and 4 7; CJEU, judgment of June 22, 2021, C-439/19, para. 110). In the literature it is then also linked to this proportionality component, but it is also argued that the regulatory element of necessity is also in Article 6 (1). Subparagraph 1 letter e is a complex term. It is not about using the "least means", but on a basic level about establishing a dependency relationship between the processing of personal data and the specified purposes, which includes the description of the degree of dependency with which the data processing body is dependent on the respective processing operation. The regulatory element of necessity supplements the earmarking. It thus contributes to linking data processing on the one hand and factual competencies on the other: In order to perform a task that is in the public interest or in the exercise of official authority, the bodies addressed may process personal data, but only to the extent that the respective step of the processing of the data in question in personal form is required. This presupposes, first of all, that the task cannot be fulfilled anyway, not completely or not in a lawful manner. This could still include a certain bandwidth (BeckOK DatenschutzR/Albers/Veit, 38th Ed. 1.11.2021, DS-GVO Art. 6 para. 59). The requirement of necessity requires, in accordance with the protective purpose of the DS-GVO (Art 1 (2)) to limit the processing of personal data to what is absolutely necessary. The processing must therefore be necessary both for the performance of tasks in the public interest and for the exercise of official authority, so that the person responsible can fulfill this task efficiently. This is to be assessed according to objective criteria from which there is a connection between the data and the purpose of the processing (Ehmann/Selmayr/Heberlein, 2nd edition 2018, DS-GVO Art. 6 para. 23). Necessity is not the task in the public interest (lit. e) or the legitimate interest (lit. f), but the more precisely defined purpose of processing and use within the meaning of Art. 5 Para. 1 lit. b. However, it can and must also be included here that, for example, the official fulfillment of a task can include certain accompanying, ancillary and auxiliary functions. At the same time, the tasks are performed with regard to the technologies used and with a view to the given organization, which in turn is subject to a certain extent to independent data protection requirements, such as those relating to the system design. Last but not least, the performance of tasks is also characterized by principles that may be separately recorded, such as cost-effectiveness, efficiency or citizen-friendliness (BeckOK DatenschutzR/Albers/Veit, 38th Ed. 1.11.2021, DS-GVO Art. 6 paras. 17-19). first of all, the respective processing step with the functions assigned to it must be For example, it may be necessary to collect data but not to store it, and it may be necessary to store it but not for the intended period of time. Secondly, the processing of the very personal information and data to which the processing relates must be necessary. Thirdly, one can further differentiate whether the processing of personal information and data is necessary or whether anonymous or pseudonymised data are sufficient (BeckOK DatenschutzR/Albers/Veit, 38th Ed. 1.11.2021, DS-GVO Art. 6 para. 17- 19).Aligned with these standards, the installation of a radio module for the purpose of reading consumption data from the water meter is necessary to perform the public task of water supply and the associated collection of fees for water consumption. Data collection via the radio module is appropriate and significant for the purpose and limited to what is necessary for the purpose of collecting this personal data. It seems easy to understand that the reading of the consumption data via radio is just as appropriate for the purpose of determining the consumption data as the traditional reading directly from the water meter. The data collected in this way is also significant for this. Within the framework of the transmission of the data via the radio module, which is the only interesting thing here, it cannot be based on the exact data that is transmitted. Because this is a question that is not related to the transmission path (radio), but would also arise when reading the meter on site. Any further data collection associated with the storage function should therefore not be taken into account here. In this respect, the test is limited to the processing method of reading out the data, which is the only processing method that is of interest here. Of course, it is also necessary to collect personal data or at least property-related data here, since it is relevant on which property the water consumption occurred and only through this feature is the connection to the person made at all. The person will then often be the party liable for the fee. Anonymization is out of the question in this respect, whereby it must be taken into account that, at least in the constellation of several users of the property, an exact assignment of any water consumption to the individual persons is impossible solely on the basis of the consumption data and other information is regularly not available. According to the court also meets the requirement that the exceptions and limitations in relation to the protection of personal data must be limited to what is absolutely necessary (cf. on this criterion ECJ, judgment of June 17, 2021 - C-597/19 -, MICM, paragraph 110, juris; CJEU, judgment of 4 May 2017, Rīgas satiksme, C-13/16, EU:C:2017:336, paragraph 30). This also applies, taking into account the bandwidth available afterwards with regard to the choice of means of data collection. As already explained in the context of the fundamental right to informational self-determination, there is some evidence that data retrieval via the radio module is no more serious interference than reading the Consumption values on the meter itself. While the former would in principle allow more frequent and clandestine intervention or data processing, the latter is regularly associated with entering the apartment. The situation can then be described in such a way that the radio module enables a broader intervention in terms of frequency, but less with regard to the data "collected" - even if only incidentally and unintentionally - when entering the property and the apartment wide and less deep intervention required. According to this, one may at best assume that both interventions or data processing operations are of approximately equal weight, while the court considers reading by radio to be the weaker intervention. However, it seems clear that one of the two interventions or data processing operations for determining the meter values will regularly be necessary in order to fulfill the purpose of correctly determining the consumption values and subsequently the task of water supply and fee collection. As a rule, this will not replace self-reading, which in any case is likely to lack sufficient reliability and to which the association does not have to refer to in order to fulfill its tasks. If this leaves only the choice between one of the two data processing procedures, both appear to be limited in their design to what is absolutely necessary. Ultimately, this is also the assumption of the European legislator. It is true that he has not made any arrangements for cold water meters. However, Article 9c of Directive (EU) 2018/2002 of the European Parliament and of the Council of 11 December 2018 amending Directive 2012/27/EU on energy efficiency ("remote reading requirement") for meters for district heating, district cooling and water heating contains a Obligation of the member states to enact legislation according to which already installed meters and heat cost allocators that cannot be read remotely must be retrofitted with this function or replaced by remotely readable devices by January 1st, 2027 and installed meters and heat cost allocators must be readable remotely after October 25th, 2020. Since directives and regulations are on the same level in the hierarchy of standards, this should lead to the conclusion that the European legislator has no fundamental data protection problems with a remote reading function - such as the radio module here - even if it even makes its use mandatory. It is not clear to the court that there should be a significant difference in data protection law between cold water and hot water meters. The federal legislator sees this in a recognizable similar way and has issued extensive regulations, e.g. also for so-called intelligent electricity meters (cf. § 21g EnWG old version and now in the Metering Point Operation Act (§ 19ff. on the one hand, §§ 49 ff. on the other hand). In implementation of the Energy Efficiency Directive 2018 it is also stipulated in Section 5 (2-8) Ordinance on the consumption-based billing of heating and hot water costs (HeizkostenV) for hot water and heat meters that they can be read remotely. In contrast, the requirements of Article 6 (1) lit. c VO (EU) 2016/679 must not be fulfilled. According to this, the processing is lawful if it is necessary to fulfill a legal obligation to which the person responsible is subject. This should generally be affirmed for the collection of consumption data, but not for the possibility of the Remote reading (by radio). There is no legal obligation for the defendant to do this. Rather, he is legally free, ie If the court then assumes that the installation of a radio module for the water meter was necessary under the General Data Protection Regulation, there is also no reason to believe that this would be the case - be it in an interpretation that conforms to fundamental rights , be it in additional application - should be different because of Art. 7 and Art. 8 GRCh. The requirements of Art. 5 VO (EU) 2016/679 are also met as far as can be seen. In particular, it is not apparent that the data would not be adequately protected against unauthorized access. Obviously, this is not data that would be assigned to a special category of personal data according to Article 9 of Regulation (EU) 2016/679. The lawfulness of the installation of the radio module does not then have a right of objection for the plaintiff according to Article 21 Para. 1 VO (EU) 2016/679. Accordingly, the data subject has the right, for reasons arising from their particular situation, to object at any time to the processing of personal data relating to them, which is based on Article 6 paragraph 1 letters e or f; this also applies to profiling based on these provisions. The person responsible no longer processes the personal data unless he can demonstrate compelling legitimate grounds for the processing which outweigh the interests, rights and freedoms of the data subject, or the processing serves to assert, exercise or defend legal claims the objection only excludes the future processing of the data and therefore cannot retrospectively make the installation of the radio module, which is only aimed at preparing this data processing, unlawful. The objections raised by the plaintiff in this respect are also not ones that would arise from a special situation of the plaintiff.4. The defendant was also not obliged to switch off the radio module of the meter free of charge in accordance with Art. 12 (5) VO (EU) 2016/679 in conjunction with Art. 18 VO (EU) 2016/679. According to Art. 12 (5) VO (EU) 2016 /679, information pursuant to Articles 13 and 14 and all notifications and measures pursuant to Articles 15 to 22 and Article 34 shall be made available free of charge. In the case of manifestly unfounded or, in particular in the case of frequent repetition, excessive requests from a data subject, the controller may either (a) charge a reasonable fee, taking into account the administrative costs of providing the information or communication or taking the requested action, or (b) refuse to act on the application. The person responsible must provide evidence of the manifestly unfounded or excessive nature of the request. Pursuant to Art. 18 Para the following conditions are met: a) the accuracy of the personal data is disputed by the data subject, for a period enabling the controller to verify the accuracy of the personal data, b) the processing is unlawful and the data subject rejects the deletion of the personal data and instead requests the restriction of the use of the personal data; c) the person responsible no longer needs the personal data for the purposes of processing, but the data subject needs them to assert, exercise or defend legal claims, or d) the data subject objects to the processing pursuant to Article 21 Paragraph 1, as long as it is not certain whether the legitimate reasons of the person responsible outweigh those of the data subject. Pursuant to Article 18 Paragraph 1 of Regulation (EU) 2016/679, if the processing pursuant to Paragraph 1 is restricted was processed, this personal data - apart from their storage - only with the consent of the person concerned or to assert, exercise or defend legal claims or to protect the rights of another natural or legal person or for reasons of important public interest of the Union or a Member State Assuming that the installation of the meter with radio module already involves data processing, there is no room for Article 18(1) lit (EU) 2016/679. Because the accuracy of the data collected can neither be disputed, nor can their deletion be rejected, nor can the person responsible no longer need this data. The only thing that can be considered is that the plaintiff has raised an objection. It is clear in this respect that after the installation of the water meter with radio module, the plaintiff objected to this installation in a letter dated January 16, 2019. The defendant responded to this objection and the further justification with his letter dated March 20, 2019. Only when the plaintiff continued to insist on the deactivation did he switch off the radio module on April 17th, 2019. After the defendant's examination, which was completed with the letter of March 20th, 2019, it was clear that the legitimate reasons of the person responsible compared to those of the data subject prevail, cf. Article 18(1)(d) of Regulation (EU) 2016/679. Because Art. 21 Para. 1 VO (EU) 2016/679 requires that the person concerned asserts the right for reasons arising from their particular situation. How exactly this feature is to be defined has not yet been conclusively clarified in case law. However, the court assumes that the reasons may not only result from the processing situation as such, but must be based on the person concerned (arg: "their" special situation, SJTK/Atzert Rn. 23; BeckOK DatenschutzR/Forgó , 38th Ed. 1.11.2021, GDPR Art. 21 para. 8). It is not sufficient that the person concerned simply does not want the processing (BGH, ECJ submission of July 27, 2020 - VI ZR 476/18 -, juris, para. 30 f.; Ehmann/Selmayr/Kamann/Braun para. 20; HK-DS-GVO/Helfrich note 61; Paal/Pauly/Martini note 30; Veil NJW 2018, 3337 (3341); Roßnagel ZD 2020, 88 (91)). That's how it is here. As reasons against the processing, the plaintiff has asserted interference with his fundamental rights under Article 2(1) in conjunction with Article 1(1) GG, Article 13 GG. Furthermore, in his objection, he stated that he did not want to be forced to digitize for precautionary reasons. This shows that he wanted and wants to defend himself against remote reading by radio in general and not because of an individual situation that was specific to him. This is also indicated by his reference to the statements of the Bavarian State Commissioner for Data Protection, which also relate to fundamental and not individual considerations of the legality of radio meters. However, the right to object is not intended for the assertion of fundamental objections to data processing as such. Rather, it should take into account the special, individual interests of the objector. If the defendant's assessment was not objectionable for the above reasons, if his interests outweighed the objection reasons asserted by the plaintiff, then the processing was not in accordance with Art. 18 para. 1 lit d in conjunction with Article 12 Paragraph 5 of Regulation (EU) 2016/679 free of charge. The subsequent cessation of data processing by switching off the radio module of the meter did not have to be provided free of charge afterwards. The defendant was therefore entitled to charge the administration fee he had levied.5. Finally, there are no other objections to the specific survey process. III. The decision on costs follows from Section 154 (1) VwGO. In view of the cost consequences, there is no need for legal protection for the declaration of necessity for the plaintiff to consult an authorized representative for the preliminary proceedings pursuant to Section 162 (2) sentence 2 VwGO. IV. The decision on the provisional enforceability follows from § 167 VwGO i. V. m. Sections 708 No. 11, 711 of the Code of Civil Procedure.
