VG Hamburg - 17 K 3920/19
From GDPRhub
| VG Hamburg - 17 K 3920/19 | |
|---|---|
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| Court: | VG Hamburg (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 6(1)(c) GDPR Article 6(1)(e) GDPR |
| Decided: | 16.01.2020 |
| Published: | |
| Parties: | anonymous |
| National Case Number/Name: | 17 K 3920/19 |
| European Case Law Identifier: | |
| Appeal from: | |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | OpenJur (in German) |
| Initial Contributor: | n/a |
The Hamburg Administrative Court decided that the publication of the plaintiff's salary by his employer as a public institution is lawful according to Article 6(1)(c), (e) GDPR and the applicable Hamburg transparency law. The Court argued that a high level of transparency with regard to the use of public funds represents a public concern of considerable importance and a mere aggregated publication does not create the same level of transparency.
English Summary
Facts
The plaintiff contests the publication of his remuneration in accordance with the Hamburg Transparency Act (§ 3 (1) No. 15 HmbTG). The plaintiff is employed by the University Medical Center in Hamburg, a corporation under public law. The defendant's financial authority informed the University Medical Center that its subsidiaries would largely fail to meet the requirements of the Hamburg Transparency Act on the disclosure of management remuneration. It is asked to influence the management and to ensure that the next year's remuneration report is published. The University Medical Center informed the plaintiff that the intention was to transmit the requested information on his remuneration and fringe benefits to the defendant.
Dispute
The Hamburg Administrative Court had to decide, if the publication of the remuneration of the plaintiff is lawful.
Plaintiff: The plaintiff argued his legitimate interest in determining that his salary information should not be published. He argued that the Hamburg Transparency Act is not applicable and therefore, the publication of his remuneration violates his general right of personality. In addition, according to the German Federal Data Protection Law (§ 26 BDSG,) personal data of employees for the purposes of the employment relationship should only be processed if this is for the decision on the establishment of an employment relationship or after the establishment of the employment relationship for its implementation or termination or for the exercise or fulfillment resulting from a law or a Collective agreement, a company or service agreement (collective agreement) resulting rights and obligations of the representation of interests of employees. This requirement is missing here.
Defendant: The defendant is of the opinion that the plaintiff's salary should be published. According to the Hamburg Transparency Act, which is applicable according to the defendant, essential company data of municipal holdings, including a description of the annual remuneration and fringe benefits for the management level, should be published. The interference with the plaintiff's personal rights brought about by the publication of his remuneration was therefore justified and proportional. Remuneration information does not concern tighter privacy, but the professional area and is therefore not highly sensitive data, especially since it does not allow any reliable conclusions to be drawn about the financial situation. Employment contract regulations would not prevent publication.
Holding
The court decided that the publication of the plaintiff's remuneration does not violate data protection regulations. The court stated that, contrary to the plaintiff's opinion, the inadmissibility of data processing does not arise from a law in the German federal data protection act (§ 26 BDSG). The respective law does not conclude on the admissibility of the processing of personal data of employees, so that in any case recourse to the general regulations of the GDPR would remain possible. In this respect, the legality of the data processing results from Art. 6 (1) (c), (e) GDPR and from the applicable Hamburg transparency law (§ 3 (1) No. 15 HmbTG). The court argued that the establishment of a high level of transparency with regard to the use of public funds, which is pursued by the regulation, represents a public concern of considerable importance. The provision of the Hamburg transparency law pursues a legitimate purpose insofar as it provides for the publication of the remuneration of the management level of urban participations. This consists in creating transparency with regard to the type and scope of the use of public funds for the purpose of economic activity what gives the public the opportunity to assess the appropriateness of this use of funds. In this respect, the publication not only serves to satisfy general curiosity, but also contributes to the public opinion-forming process in a democratic society.
The respective law is also suitable and necessary to achieve this purpose. In particular, a mere aggregated publication of the remuneration of a particular associated company does not create the same level of transparency with regard to the appropriateness of the use of funds in the respective individual case.
After all, there can be no objection to the fact that the legislature, in the context of its prerogative of assessment, has given (reasonable) preference to the legitimate interest of transparency in the public when weighing up the opposing interests.
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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.
tenor The charges get dismissed. The applicant is ordered to pay the costs. The judgment is provisionally enforceable because of the cost. The plaintiff can avoid enforcement by providing security in the amount of the costs to be determined, unless the defendant provides security in the amount of the amount to be enforced prior to enforcement. Fact The plaintiff contests the publication of his remuneration in accordance with Section 3 (1) No. 15 of the Hamburg Transparency Act (HmbTG). The plaintiff is employed by the University Medical Center Hamburg-Eppendorf (UKE), a corporation under public law, whose sole sponsor is the defendant Free and Hanseatic City of Hamburg. The appointment was made - initially for a limited time until ... - with an employment contract from ... as commercial manager for ... at the UKE. The employment contract was subsequently extended on an ongoing basis, with the plaintiff serving in various departments and companies of the UKE. With an amendment agreement dated ... 2015, the UKE and the plaintiff agreed that the plaintiff would take over the management of ... GmbH ... from April 2015, the sole shareholder of which was UKE. In an amendment agreement dated ... 2015, the UKE and the plaintiff agreed that the plaintiff would dedicate his full workforce to the management of ... GmbH from ... 2015. In a letter addressed to the plaintiff dated "Letter of Intent" dated ... 2017, UKE announced that the position of a "..." should be created, which would be a staff position assigned to the UKE board act. It was assured that this position would be filled by the plaintiff, who, in addition to his work as sole managing director of ... GmbH, was to take this position. For further details, reference is made to the letter dated ... 2017. For his work, the plaintiff receives a fixed remuneration from the UKE plus a variable remuneration and various fringe benefits (including a middle class company car). In a letter dated November 19, 2018, the defendant's financial authority informed UKE that its subsidiaries would largely fail to meet the requirements of the Hamburg Transparency Act on the disclosure of management remuneration. It is asked to influence the management and to ensure that the next year's remuneration report is published. There are no indications that the management concerned still took stock protection aspects into account. In a letter dated August 9, 2019, the Authority for Science, Research and Equal Opportunities asked the UKE to ensure that it provided the data necessary to fulfill the obligation under Section 3 (1) No. 15 HmbTG the plaintiff is available by August 15, 2019. For details, please refer to the letter of August 9, 2019. The plaintiff became aware of this letter on August 12, 2019. On August 13, 2019, UKE informed the plaintiff that the intention was to transmit the requested information on his remuneration and fringe benefits to the defendant. On 16.08.2019 the plaintiff brought an (declaratory) action. He had a legitimate interest in determining that his salary information should not be published. Neither the UKE as a corporation under public law nor its subsidiaries are, according to the current legal situation, subject to the publication obligation under the Hamburg Transparency Act. The Hamburg Higher Administrative Court had already determined that, according to the current legal situation, the obligation to publish does not extend to institutions of indirect state administration. The publication of his remuneration violates his general right of personality. In addition, according to § 26 BDSG, personal data of employees for the purposes of the employment relationship should only be processed if this is for the decision on the establishment of an employment relationship or after the establishment of the employment relationship for its implementation or termination or for the exercise or fulfillment resulting from a law or a Collective agreement, a company or service agreement (collective agreement) resulting rights and obligations of the representation of interests of employees. This requirement is missing here. In addition, he, the plaintiff, does not receive his remuneration from ... GmbH, but solely from UKE. He was employed at the UKE as a simple employee and only acted on the basis of his employment contract relationship with the UKE as managing director of ... GmbH. Finally, it should be borne in mind that since 2017 he has received his remuneration not only for his work as managing director of ... GmbH, but also for his work as ... If his remuneration were published, it would misleadingly include remuneration components that had nothing to do with his management function as managing director of ... GmbH. The applicant claims that to determine that the defendant is not entitled to publish the annual remuneration including the ancillary services of the plaintiff for his work as managing director of ... GmbH in accordance with the Hamburg Transparency Act. The defendant claims that reject the complaint. The defendant is of the opinion that the plaintiff's salary should be published. Both the UKE and the ... GmbH are information-requiring bodies under the Hamburg Transparency Act. According to Section 3, Paragraph 1, No. 15 of the HmbTG, the essential company data of municipal holdings, including a description of the annual remuneration and fringe benefits for the management level, should be published. The interference with the plaintiff's personal rights brought about by the publication of his remuneration was justified. In particular, the intervention is proportional. Remuneration information does not concern tighter privacy, but the professional area and is therefore not highly sensitive data, especially since it does not allow any reliable conclusions to be drawn about the financial situation. Employment contract regulations would not prevent publication. reasons I. The action is admissible (1.), but unfounded (2.). 1. The application is admissible. a) The action is admissible as a declaratory judgment in accordance with Section 43 (1) VwGO. The parties argue about the application of a legal norm to a specific, manageable situation that specifically affects the plaintiff (see BVerwG, judgment of 25.10.2017, 6 C 46/16, juris, para. 12), namely whether § 3 Paragraph 1 No. 15 HmbTG entitles the defendant to (and obliges) to publish the remuneration that the plaintiff receives for his work as managing director of ... GmbH. b) The plaintiff has a legitimate interest in the coveted early determination. The defendant will promptly publish the plaintiff's remuneration; an unauthorized or legal publication would constitute an illegal interference in the plaintiff's right to informational self-determination (see BVerfG, decision of 25.02.2008, 1 BvR 3255/07, juris, margin no. 17 ff.). c) The principle of subsidiarity does not conflict with the admissibility of the declaratory judgment. The provision of Section 43 (2) VwGO, according to which the determination of the existence or non-existence of a legal relationship cannot be sought, insofar as the plaintiff can or could have pursued his rights through an action for performance or performance, is to be interpreted and applied in a restrictive manner . If the question in dispute between the parties involved can be clarified properly and in full consideration of their interest in legal protection by a declaratory judgment, it is forbidden to refer the plaintiff to an action for performance or performance, in the context of which the legal relationship, in the independent determination of which he has a legitimate interest, on the one hand, would only be a preliminary question, on the other hand, the other elements of the claim to be asserted - as here - would only be of secondary importance (see BVerwG, judgment of 29 April 1997, 1 C 2/95, juris, para. 25). 2. However, the application is unfounded. The defendant Free and Hanseatic City of Hamburg is entitled to publish the remuneration including fringe benefits that the plaintiff receives for his work as managing director of ... GmbH. In this respect, Section 3 (1) No. 15 HmbTG establishes the defendant's duty to publish (see a). The provision of Section 3 (1) No. 15 HmbTG is compatible with the Basic Law (see b)). An inadmissibility of the publication does not follow from data protection regulations (see c)). a) Section 3 (1) No. 15 HmbTG obliges - and therefore authorizes - the defendant to publish the plaintiff's remuneration for his work as managing director of ... GmbH. According to this regulation, the essential corporate data of municipal holdings, including a presentation of the annual remuneration and fringe benefits for the management level, are subject to the obligation to publish under the HmbTG. aa) Addressee of the publication obligation according to § 3 Paragraph 1 No. 15 HmbTG is (alone) the defendant Free and Hanseatic City of Hamburg. This is supported by both the concept of “urban participations”, which takes the defendant's perspective, and the fact that the legislator created the annual law before the HmbTG came into force when the § 3 Paragraph 1 No. 15 of the HmbTG was created The defendant's participation report (see Bü-Drs. 20/4466, p. 15), in which the defendant presents the essential company data of its participations, including participations that - like the UKE as a corporation under public law - according to are not subject to the obligation to publish until 31.12.2021 (see Article 5 of the Act amending the Hamburg Transparency Act and the Hamburg Environmental Information Act as well as the decree implementing the Consumer Information Act of 19.12.2019, HmbGVBl. 2020, 19). bb) The claimant's remuneration for his work as managing director of ... GmbH, including ancillary services, falls within the scope of the publication obligation in accordance with section 3 (1) no. 15 HmbTG. (a) The ... GmbH is an urban (corporate) participation i.S.d. Regulation. It is a legal person under private law, the sole shareholder of which is the University Medical Center Hamburg-Eppendorf (UKE), which in turn is a corporation under public law (Section 1 (1) UKEG), which is under the supervision of the defendant ( Section 3 (5) UKEG). It operates economically on the market. Already in the annual participation reports of the defendant Free and Hanseatic City of Hamburg published before the HmbTG was issued, it was reported as a (corporate) participation of the defendant (see e.g. participation report for the year 2010, Bü-Drs. 20/2343, p. .. .). (b) The statutory feature of the "Presentation of annual remuneration and fringe benefits for management level" also includes the claimant's remuneration for his work as managing director of ... GmbH. (aa) The plaintiff belongs to the management level of ... GmbH. In this respect, it can be left open whether the indefinite and therefore in need of interpretation term management level only the managing bodies of the respective participation (so Maatsch / Schnabel, HmbTG, 1st edition 2015, § 3 marginal 132 mwN) or beyond that also possible other owners of higher management functions recorded without such an organ position. As the sole managing director of ... GmbH, the plaintiff is in any case associated with its management level. The applicability of Section 3 (1) No. 15 HmbTG does not prevent the plaintiff from receiving his remuneration from ... GmbH, but from UKE, since he only works at UKE and only on the basis of UKE's labor law instructions as managing director of ... GmbH is active. In this respect, the wording "for the management level" already suggests that it is not a question of who, but for which activity the remuneration is paid. This is also required by the purpose of Section 3 (1) No. 15 HmbTG, which is to improve the control of the use of public funds in the area of the defendant's economic activity (see Maatsch / Schnabel, loc. Cit., Section 3 marginal note 126). . In the present case, the plaintiff receives his remuneration, at least insofar as its publication is the subject of the lawsuit, precisely for his work as managing director of ... GmbH. (bb) In the present case, the "presentation of the annual remuneration and fringe benefits for the management level" also includes the concrete, individualized figure of the remuneration of the plaintiff for his work as managing director of ... GmbH, including any fringe benefits granted. With a view to the wording of the law, the summarizing term “management level” could indicate that the regulation only provides an aggregated representation of the remuneration of all members of the management level. The term “representation” as such could also speak for this, which is not used again in the description of the other subjects of the publication obligation pursuant to Section 3 (1) No. 15 HmbTG; rather, this term in Section 9 (1) HmbTG denotes the summarized, prepared presentation of such information, the direct disclosure of which is prohibited. However, these conclusions are not mandatory. For example, the legislature may simply have chosen the non-technical term management level as a generic term for the different types of management bodies depending on the legal form of participation, without wanting to express a decision against an individualized publication. Furthermore, the justification of the law, in which, without any reference to the term of the presentation, simply speaks of a “publication of remuneration and fringe benefits at management levels” (Bü-Drs. 20/4466, p. 15), indicates that this Term in the context of § 3 Paragraph 1 No. 15 HmbTG should not have such a meaning. Taking legal and systematic aspects into account, it can rather be assumed that the legislator always had an individualized publication in mind when creating Section 3 Paragraph 1 No. 15 HmbTG. This is supported by the fact that at the time of the adoption of the HmbTG, the Hamburg Corporate Governance Code applicable to companies with a majority stake in the defendant in para. 4.2.6 already explicitly provided for the disclosure of the remuneration of the individual members of the management. It is not clear why the publication obligation pursuant to Section 3 Paragraph 1 No. 15 HmbTG should have deliberately lagged behind this already established standard. Accordingly, the defendant's authorities have made several statements to the Hamburg citizens that they understand Section 3 Paragraph 1 No. 15 HmbTG as an individualized obligation to publish (cf. Bü-Drs. 20/7029, p. 1; Bü-Drs. 20/11657, p. 2), and published a corresponding annual remuneration report from 2013 onwards (see for 2013: Bü-Drs. 20/13676). It can be assumed that this interpretation also corresponded to the will of the legislature. Otherwise it would be difficult to explain why § 3 Paragraph 1 No. 15 HmbTG not only remained unchanged in the context of the amendment of the HmbTG in 2019, but the scope of the regulation on the occasion of this amendment, as far as can be seen, was not discussed at all. The regulations of the HmbTG for the protection of personal data also speak in favor of the acceptance of an individualized obligation to publish. Section 4 (1) sentence 1 of the HmbTG stipulates that personal data must be made unrecognizable before publication. Since section 4 (1) sentence 2 of the HmbTG does not exclude publication in accordance with section 3 (1) no.15 of the HmbTG, the conclusion could be drawn that section 3 (1) no. 15 of the HmbTG does not provide for individualized publication because it does so would be inadmissible anyway. In the board's view, however, section 4 (1) sentence 1 HmbTG should not be applied to the publication pursuant to section 3 (1) no.15 HmbTG because the provision is superseded by section 4 (4) HmbTG as a more specific regulation, insofar as personal data etc. are concerned about employees of bodies obliged to provide information. In this respect, section 4 (4) sentence 2 HmbTG provides that such data should not be excluded from publication in accordance with section 3 (1) no. 15 HmbTG. This regulation allows the conclusion that Section 3 Paragraph 1 No. 15 HmbTG provides for an individualized publication of the remuneration (Maatsch / Schnabel, loc. Cit., Section 3 marginal number 134): If only an aggregated publication would be desired, Section 4 would have Paragraph 4, sentence 2 of the HmbTG, because personal data is not affected at all - there is no scope at all - unless an individualized publication would be permitted in exceptional cases if the management level consisted of only one person, i.e. aggregated publication was impossible (see Maatsch / Schnabel, ibid). However, the legislature could not have wanted this given the objectified approach (see BVerfG, judgment of 17.01.2017, 2 BvB 1/13, juris, marginal 555), since there is no reason for such unequal treatment. (c) An application of Section 3 (1) No. 15 HmbTG to the plaintiff's specific remuneration for his work as managing director of ... GmbH does not prevent the plaintiff's remuneration to be published from misleadingly including such remuneration components who have nothing to do with the activity as managing director of ... GmbH. It may be a question of whether the plaintiff actually performs another job as ... besides his job as managing director of ... GmbH, as he put forward. Because the defendant's obligation and authorization to publish the plaintiff's remuneration is limited to that part of the plaintiff's remuneration that is attributable to his work as managing director of ... GmbH. It is not apparent that the defendant should, after consultation with the UKE and inspection of the employment contract documents relating to the plaintiff, not be able to determine this part of the plaintiff's remuneration or to influence the UKE, the remuneration for the The applicant's activities as managing director of ... GmbH and the remuneration for any further activities of the applicant must be clearly separated in the employment contract. (d) Finally, the plaintiff is also not to be excluded from the scope of Section 3 (1) No. 15 HmbTG from the point of view of the protection of legitimate expectations. In this respect, it can be left open whether those members of the management levels of municipal holdings who already held their respective function before the HmbTG came into force on October 6, 2012 are not subject to the publication obligation in accordance with 3 (1) No. 15 HmbTG. The plaintiff has been working for the UKE since ...; he was appointed managing director of ... GmbH - only in this capacity is he affected by the publication at issue here - but was only appointed in 2015. b) Furthermore, the court has no doubts about the compatibility of § 3 Paragraph 1 No. 15 HmbTG with the Basic Law. The regulation is constitutionally as well as formally. aa) Section 3 (1) no.15 HmbTG is formally constitutional. The regulation is covered by the legislative competence of the Free and Hanseatic City of Hamburg (see above) and is also not within the meaning of Article 31 GG incompatible with federal law (see bb.). (1) The subject matter of Section 3 Paragraph 1 No. 15 of the HmbTG falls under the legislative competence of the Free and Hanseatic City of Hamburg as a state according to the general allocation rule of Article 70 Paragraph 1 GG. In particular, it does not concern the “law of the economy” as the subject of competing legislation in accordance with Section 74 (1) No. 11 GG. In the Chamber's view, corresponding concerns regarding the provision of Section 3 (1) No. 15 HmbTG are unfounded. The regulation contained therein is not the law of the economy i.S.d. 74 Paragraph 1 No. 11 of the Basic Law. According to the case law of the Federal Constitutional Court, this includes all standards that regulate economic life and economic activity as such (BVerfG, decision of July 11, 2006, 1 BvL 4/00, juris, para. 57). However, the obligation to publish according to Section 3 Paragraph 1 No. 15 HmbTG lacks such a specifically economic regulating tendency. First of all, the regulation is not aimed at the companies in which the Free and Hanseatic City of Hamburg is involved; rather, the obligation to publish applies to the Free and Hanseatic City of Hamburg itself (see above). Accordingly, the regulation does not provide for publication in the annual financial statements of the respective company; rather, the publication for all the companies concerned is collected in an annual remuneration report (see, for example, Bü-Drs. 20/13676). This alone makes a decisive difference to the regulations of other state legislatures, which have already raised the question of a direct collision with the regulations of the HGB. In fact, the obligation to publish does not serve to regulate the economic activity of the companies concerned. Its sole purpose is to disclose in what manner and to what extent the state is economically involved with public funds (Maatsch / Schnabel, loc. Cit., § 3 marginal no. 136). Such requirements regarding the transparency of state action are to be attributed to the state organization law of the Free and Hanseatic City of Hamburg as a state. In contrast, any effects of the obligation to publish on the economic activity of the respective companies are of a purely indirect nature and do not give the regulation any specific economic regulatory character (cf. ibid.). (2) Finally, the provision of section 3 (1) no.15 HmbTG is also not within the meaning of Article 31 GG incompatible with federal law. In particular, there is no collision i.S.d. Art. 31 GG compared to §§ 285 sentence 1 No. 9 lit. a, 286 (4) HGB. Such a collision presupposes that the relevant standards of federal and state law relate to an identical subject of regulation and contain mutually incompatible standard commands (cf. Hellermann, in: Epping / Hillgruber, GG, 41st Ed. 2019, Art. 31 marg. 13 mwN ). These requirements are not met. According to § 285 S. 1 No. 9 lit. a HGB have medium-sized and large corporations in the notes to the annual financial statements to provide the total remuneration granted to the members of their management body for their work in the financial year. Section 286 (4) HGB exempts companies that are not listed stock corporations from this obligation if the remuneration of a particular member of the management body can be determined on the basis of this information. Listed stock corporations have additionally according to § 285 S. 1 No. 9 lit. a p. 5-7 HGB separately state the remuneration of each individual member of the Board of Management by name, which, according to Section 286 (5) HGB, can only be waived if the Annual General Meeting has passed a corresponding resolution. Section 3 (1) no.15 HmbTG, as well as sections 285 sentence 1 no.9 lit. a, 286 (4) HGB disclose the remuneration of the management bodies (among others) of corporations and clearly differs from the federal law regulations with regard to the scope of this disclosure; However, the two regulations differ on the one hand with regard to their addressee, but above all in their purpose in such a considerable way that no identical subject of regulation i.S.d. Art. 31 GG exists, which is why the deviating standard commands are compatible with each other. Sections 285 sentence 1 no.9 lit. a, 286 (4) HGB are part of the legal requirements for the annual financial statements of a corporation. This pursues several purposes, in particular the control of the management by the shareholders and the information of current or potential creditors and capital market participants in advance of their decisions about granting or maintaining credit or the purchase and sale of equity and debt (Reiner, in: MünchKomm-HGB, 3rd edition 2013, § 264 Rn. 27; see also Maatsch / Schnabel, loc. cit., § 3 Rn. 136). The obligation to disclose the remuneration of the management bodies also serves the specific economic interests of the market participants or the shareholders of the respective company, in particular the shareholders of a stock corporation (see the justification of the law, BT-Drs. 15/5577, p. 5) Section 3 (1) no.15 HmbTG, on the other hand, is aimed at the state as a dispatcher via public funds and subjects them to special transparency obligations that exist in the general public interest regardless of the specific economic activity of the respective associated companies (cf. already above). bb) Section 3 (1) No. 15 HmbTG is also constitutionally substantive. The provision does indeed encroach on the right to informational self-determination from Art. 2 Para. 1 in conjunction with 1 sec. 1 GG; however, this interference is constitutionally justified. (1) The publication of the remuneration of the management level of municipal holdings in the form provided for by section 3 (1) no. 15 of the HmbTG, which, in the board's opinion, provides for individualized publication (see above), falls within the scope of protection provided for by article 2, section 1 in conjunction Art. 1 para. 1 GG guarantees the fundamental right of the data subjects to informational self-determination. This includes the authority of the individual to decide for himself whether, when and within what limits a personal life fact is disclosed; an intervention is in particular the public disclosure of personal data (see BVerfG, decision of 25.02.2008, 1 BvR 3255/07, juris, para. 18). This is given when the amount of remuneration that the data subject receives for their work is published. (2) However, the interference is constitutionally justified. The fundamental right to informational self-determination is not guaranteed without restrictions. Rather, the individual has to accept such restrictions that are justified by overriding general interests and are based on a constitutional legal basis (BVerfG, loc. Cit., Para. 21). These requirements are met in relation to Section 3 (1) No. 15 HmbTG. In particular, the regulation maintains the principle of proportionality. (a) The provision of Section 3 Paragraph 1 No. 15 HmbTG pursues a legitimate purpose insofar as it provides for the publication of the remuneration of the management level of urban participations. This consists in creating transparency with regard to the type and scope of the use of public funds for the purpose of economic activity (Maatsch / Schnabel, op. Cit., § 3 marginal no. 136 f.). This is intended to give the public, in particular voters, taxpayers and the users of the services of urban companies, the opportunity to assess the appropriateness of this use of funds (cf. Bü-Drs. 20/7236, p. 1). In this respect, the publication not only serves to satisfy general curiosity, but also contributes to the public opinion-forming process in a democratic society (see also BVerfG, cited above, para. 24 in relation to Section 35 (6) sentence 2 SGB IV). (b) The regulation is also suitable and necessary to achieve this purpose. In particular, a mere aggregated publication of the remuneration of a particular associated company does not create the same level of transparency with regard to the appropriateness of the use of funds in the respective individual case. (c) The regulation is also appropriate, i.e. proportionate in the narrower sense. The severity of the procedure is not disproportionate to the weight of the intended purpose. The individualized publication of their remuneration initially means a not inconsiderable intervention for the persons affected by Section 3 Paragraph 1 No. 15 HmbTG. The relevant information enables, albeit to a limited extent, conclusions to be drawn about the private economic situation of those affected. There is also the risk that the remuneration will be the subject of objective, public discussions characterized by envy and denial (see BVerfG, loc. Cit., Para. 32). On the other hand, it must be taken into account already within the scope of the severity of the intervention that the information collected by Section 3 Paragraph 1 No. 15 HmbTG as such does not relate to the closer privacy of the data subject, but to their professional area. Companies with government participation are also under special public scrutiny anyway. In view of the fact that the public sector either finances the activities of these companies directly or in any case bears their risk, the members of the management levels can in principle also be expected to have a controversial public discussion about the appropriateness of their remuneration (see Pommer, NWVBl. 2010, 459, 461 f.). Insofar as such a discussion should leave the level of objectivity in individual cases, the person concerned is at liberty to counter any violations of his or her right to privacy with the appropriate criminal and civil law legal protection options (see BVerfG, loc. Cit., Para. 41). In addition, the establishment of a high level of transparency with regard to the use of public funds, which is pursued by the regulation, represents a public concern of considerable importance. In addition to satisfying the public's justified interest in information as such, the individualized publication of the remuneration can provide concrete conclusions about financial management and enable any savings potential of urban participations. Remuneration can not only be viewed in isolation, but also in terms of its development and in connection with other information that is also accessible to the public (see BVerfG, loc. Cit., Para. 37). After all, there can be no objection to the fact that the legislature, in the context of its prerogative of assessment, has given preference to the legitimate interest of transparency in the public when weighing up these opposing interests. c) Finally, the publication of the plaintiff's remuneration does not violate data protection regulations. The associated processing of the plaintiff's personal data by the defendant initially corresponds to section 4 of the HmbDSG, since it is carried out to fulfill a task within its area of responsibility, namely the obligation under section 3 (1) no. 15 of the HmbTG. Contrary to the plaintiff's opinion, the inadmissibility of data processing does not arise from section 26 (1) sentence 1 BDSG. The transmission of the remuneration data for the purpose of publication should not fall into any of the case groups mentioned in section 26 (1) sentence 1 BDSG. However, § 26 BDSG does not conclude on the admissibility of the processing of personal data of employees, so that in any case recourse to the general regulations of the GDPR would remain possible (see Paal / Pauly, DS-GVO / BDSG, 2nd edition 2018, § 26 BDSG margin note 10 f.). In this respect, the legality of the data processing according to Art. 6 Para. 1 lit. c and e GDPR also from the defendant's obligation standardized in § 3 Paragraph 1 No. 15 HmbTG. II. The decision on costs is based on Section 154 (1) VwGO. The decision on the provisional enforceability results from § 167 Paragraph 1 Clause 1 and Paragraph 2 VwGO in conjunction. §§ 708 No. 11, 711 ZPO.
