VG Neustadt an der Weinstraße - 3 L 763/22.NW
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| VG Neustadt an der Weinstraße - 3 L 763/22.NW | |
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| Court: | VG Neustadt an der Weinstraße (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 6(1)(e) GDPR Article 89 GDPR § 1 BStatG ZensG 2022 |
| Decided: | 27.10.2022 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 3 L 763/22.NW |
| European Case Law Identifier: | ECLI:DE:VGNEUST:2022:1027.3L763.22.NW.00 |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | Landesrecht Rheinland-Pfalz (in German) |
| Initial Contributor: | Julia Krämer |
The Administrative Court of Neustadt an der Weinstraße held that the data collection of a Ministry within framework of the 2022 census was legal based on Article 6(1)(e) GDPR. The data also was not processed in violation of Schrems II as there was no sufficient evidence that a third country gained access to the personal data.
English Summary
Facts
In 2022, the German Federal Statistical Office, the controller, ran the 2022 census. As part of the census 2022, it also conducted a building and housing census (GWZ).
In this vein, the controller requested information about the property of the data subjects in June 2022, which the latter did not comply with. The data is collected via an online form on the official Census 2022 homepage or via a paper form that is thereupon digitalized by a third party. In July 2022, the data subjects requested information about the data processing of the controller via Article 15 GDPR. Among other things, the data subjects wanted to know if the personal data would be processed in a third country.
The data subjects opposed the data collection, claiming that the collected personal data was not sufficiently protected and that the incorporation of Cloudflare was not in line with the Schrems II judgment of the CJEU. In its response, the controller clarified that all collected data is exclusively processed by servers of the Federal Statistical Office. The integration of the company Cloudflare within the official Census 2022 homepage concerns only the generally accessible information and its functionality.
In September 2022, the data subject filed a suit, claiming that, among other things, that the collected personal data was not sufficiently protected. Especially the incorporation of Cloudflare into the official Census 2022 was not in line with the Schrems II judgment by the CJEU.
Holding
Collection of data
The court held that the request by the defendant to provide information concerning the building and housing census did not violate the provisions of data protection law and was compatible with the provisions of the GDPR. The collection of data within the framework of the Census 2022 served the performance of a task in the public interest. The Census 2022 is a federal statistic and therefore a prerequisite for political decisions, to continuously collect, process, present and analyse data on mass phenomena and, through its results, to provide social, economic and ecological contexts for the federal government, the Länder, including municipalities and municipal associations, the economy, science and research. Therefore, the court upheld Article 6(1)(e) GDPR as the legal basis for the processing of personal data.
Furthermore, according to the court, Article 9(2)(j) GDPR states that the prohibition of processing of the particularly sensitive data does not apply if the processing meets certain legal and substantive requirements and is carried out for, among other things, statistical purposes pursuant to Article 89(1) GDPR. The conditions for this exception were met in the case at hand. Not only did the processing of personal data within the Census 2022 constitute a public interest, but the processing was also mandatory for the fulfilment of the legally mandated official statistics. Without the collection and processing of the data, the purpose of statistics as enshrined in § 1 BStatG (Law on the statistics for federal purposes) could not be achieved.
Concerning the role of Cloudflare
The court stated that the incorporation of Cloudflare within the Census 2022 homepage did not change anything about the legality of its implementation. The allegations by the data subject concerning conceivable access by U.S. security authorities remain speculative and did not stand in the way of data collection. The German Federal Constitutional Court has accepted in a previous ruling (BVerfG, Judgment of the 19 September 2018) that any remaining residual risks would be a necessary consequence of statistics ordered in the overriding general interest, despite the data controller taking all reasonable precautions. Furthermore, the German Federal Commissioner for Data Protection and Freedom of Information clarified that the personal data that is collected via the online form had not been accessed by Cloudflare. Although the Commission stated that Cloudflare's access to meta data, such as IP-addresses or the date of the page visit, is still under investigation, this would not compromise the safety of the data entered through the online form. Moreover, the controller has since stopped the use of Cloudflare's services. Consequently, the claims made about the Schrems II judgment did not take effect.
Therefore, the court rejected the claims.
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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.
Unsuccessful urgent application against the building and housing census (GWZ) as part of the 2022 census
motto
1. A notice of objection can turn a simple letter into an administrative act. (Rn. 40)
2. The information obligations existing in connection with the census of buildings and apartments in the 2022 census (GWZ) do not violate the owners' own rights. (Rn. 51)
3. The GWZ is not superfluous because some of the relevant existing registers are not up-to-date or show statistical over- or under-reporting. (Rn.58)
4. The handling of the so-called auxiliary variables by the State Statistical Office does not raise any legal concerns. (Rn.59)
5. The so-called hosting of an official homepage for the 2022 census by a US company does not automatically make the GWZ illegal. (Rn. 65)
tenor
The request will be denied.
The applicants bear the costs of the procedure.
The value of the disputed item is set at €2,500.
reasons
I
marginal number1
With this urgent application, the applicants are opposing the building and housing census (GWZ) as part of the 2022 census.
marginal number2
The applicants live in the property S... in 67685 Weilerbach.
paragraph 3
The respondent reminded the applicants in a letter dated June 27, 2022 that they would have to answer and return the data request to the GWZ by July 10, 2022, after they had not fulfilled their obligation to declare by this time. With the reminder, the applicants were informed that they could answer the questions online or send them in paper form to Rhenus Docs to Data GmbH, which digitized the paper sheet and was obliged to maintain secrecy.
paragraph 4
On July 4, 2022, the applicants raised an objection to the respondent’s letter of June 27, 2022: The letter of June 27, 2022 was accompanied by a return envelope, which listed Rhenus Docs to Data GmbH as the addressee. On behalf of the respondent, this GmbH should evaluate and process the information, including very personal information, to be provided by the applicants. There are considerable concerns about this type of processing of their data. As they had learned from media reports, the data protection agreement of the "Zensus 2022.de" site stated that the data would be passed on to Twitter, Instagram and/or YouTube and that companies such as CloudFlare (American) would be worked with. They could not have really believed that and therefore requested information in accordance with Art. 15 GDPR on how their data was handled after it was collected:
Paragraph 5
"1. What is the purpose of which processing steps?
recital 6
2. Which categories of personal data are processed?
Margin number7
3. To which recipients is the personal data transmitted and/or disclosed?
paragraph 8
4. How long is the storage period or how is the storage period determined?
Paragraph 9
5. Is there a right to access, rectification (if recorded incorrectly) and/or deletion of this data?
Paragraph 10
6. Is there a right of appeal and if so, to which authority?
Paragraph 11
7. Please provide information as to whether data about me is also collected from other sources and if so, for what purpose.
Paragraph 12
8. Does profiling take place in accordance with Art. 22 GDPR and if so, after which login does it work?
Paragraph 13
9. Will data be transferred to a third country and/or an international organization? If yes, please describe the guarantees according to Art. 46 GDPR. Please describe this very precisely, as the data protection declaration does not provide any precise information here.
Paragraph 14
10. Please explain the general legal basis in more detail, because public relations does not entitle the disclosure of personal data. Also, public relations cannot be equated with public interest. There may be a public interest in the statistical recording of my data, but there is no public interest in the public relations work of the Federal Statistical Office."
Paragraph 15
Furthermore, they - the applicants - would have to inform the respondent that the website of the "Ministry of Justice" only contains an unofficial publication without the scope of the "BStG". Many paragraphs have been deleted in the meantime, so that this law now appears to them as a fragment. They asked for the entire valid official part of the "Act on Statistics for Federal Purposes - BStG" to be sent to them immediately and in advance, including its scope. Laws without a scope are invalid and void because they violate the requirement of legal certainty. A law that doesn't apply anywhere doesn't apply at all. They also asked the respondent to communicate the legal basis and legitimacy and to confirm this with a personal signature and by assuming responsibility. If the respondent could not do this, they expected him to stop the attempt to collect and process data "Census 2022" immediately. They only accepted data collection and processing in the event that the respondent discussed the open legal basis with them and also took a personally liable position on it.
Paragraph 16
In a letter dated July 8, 2022, the respondent explained various aspects addressed by the applicants, some of which were also addressed in the later notice of objection. He also informed the applicants which data was sent to him by the property tax office in preparation for the census and which companies were working, for example, for printing and sending cover letters, taking which security precautions were observed. He also pointed out that the information provided by the applicants went directly to a server of the Federal Statistical Office, to which the State Statistical Office had access. A transfer of personal data to a third country or international organizations does not take place. The integration of the company Cloudflare does not affect the survey data of the respondents to the census, but the generally accessible information on its website and its functionality. The survey data for the census would be processed without using the CDN Cloudflare and exclusively in federal data centers in Germany. A "profiling" does not take place. With regard to a possible right to erasure or correction, the respondent referred to Article 17 (3) lit. d, which conflicts with the erasure request; 89 GDPR, according to which such rights are excluded in the event that the statistical purpose is frustrated. The processing of the data obtained as part of the GWZ is lawful because it is necessary within the meaning of Article 6 (1) (e) GDPR. Art. 21 (6) GDPR thus excludes a right to object or a right to erasure or the like.
Paragraph 17
The respondent rejected the objection with an objection notice dated August 9th, 2022 and stated as a reason: According to Section 4 of the State Statistics Act (LStatG) in conjunction with Section 1 (1) of the Rhineland-Palatinate Implementation Act for the 2022 Census Act of February 3rd, 2021 (AGZensG 2022) for the state of Rhineland-Palatinate as part of the 2022 census legally ordered as of May 15, 2022. According to § 9 of the 2022 Census Act (ZensG 2022), the survey units of the GWZ are buildings with living space, inhabited accommodation and apartments. Since there is no nationwide register for buildings with living space and apartments in Germany, but this data is required under European law, among other things to fulfill reporting obligations to the EU Commission, a Germany-wide census of buildings and apartments is essential. This statistic was intended to collect data on properties that are currently or will be available to the housing market. In order to fulfill the purpose of the survey, there is a legal obligation to provide information according to § 24 ZensG 2022. According to this, the owners, the administrators and the other persons entitled to dispose of and use the buildings or apartments are obliged to provide information. The persons to whom the buildings and apartments are economically attributable according to § 39 Paragraph 2 of the Fiscal Code are also considered to be owners. According to Section 10 (1) ZensG 2022, the obligation to provide information includes structural information about the building, such as the municipality, postal code and official municipality key, type and type of building, ownership structure, year of construction, type of heating and energy source and the number of apartments. For apartments, information on the type of use, vacancy reasons/duration, area, number of rooms and net cold rent is required. According to the other specifications, which served to ensure statistical secrecy, the so-called statistical auxiliary characteristics, which are necessary as personal characteristics to control the collection and avoid double counting, for example, are not evaluated. This would be separated from the other information and, after the plausibility of the survey characteristics transmitted by those required to provide information, would be deleted, so that no conclusions could be drawn about the persons questioned. In the case of the GWZ, such auxiliary characteristics relate to the details listed in Section 10 (2) ZensG 2022. The non-personal technical support features would also be deleted or destroyed at the latest after the information to be collected as part of the implementation of the census had been checked for coherence and completeness (Section 12 (1) BStatG).
Paragraph 18
The building and apartment register kept centrally by the Federal Statistical Office as part of the 2022 census survey revealed that the applicants were the owners of the survey unit determined in the course of the GWZ, address "S.... ..., 67685 Weilerbach". As part of the mailing wave from May 16-19, 2022, the applicants were therefore obliged to provide information within the framework of the "building and housing census in the 2022 census" by June 5, 2022. The letter was accompanied by explanations on the survey, in which, among other things, the obligation to provide information and the relevant legal bases were pointed out. On this basis, the data could initially have been entered online via a secure reporting channel. It was pointed out that a paper questionnaire would be sent out (in the course of the reminder procedure already announced in the first letter in the event of non-reporting). Irrespective of this, it was possible to report the data by telephone.
Paragraph 19
The applicants had not reported by June 5, 2022.
Paragraph 20
They were therefore asked to report by 10 July 2022 in a reminder letter dated 27 June 2022, enclosing a paper questionnaire. The report could be submitted again in the usual ways, with the request that the paper questionnaire be sent with a free return envelope to the document reading service provider "Rhenus docs to data" used for this purpose.
Paragraph 21
The objection to the inclusion in the context of the "building and housing census in the 2022 census" is permissible, but unfounded.
Paragraph 22
The legal basis for using the information to provide information is the ZensG 2022, which prescribes a mandatory report by the key date of May 15, 2022. The selection basis is the address and building register, which the statistical offices created by merging existing register data in accordance with § 2 of the Census Preparation Act (ZensVorbG 2022).
Paragraph 23
Within the framework of the GWZ, the applicants are subject to the obligation to provide information in accordance with Sections 9, 23, 24 (1) ZensG 2022. They are indisputably the owner of the building on which the application is based or of an apartment in the named building. There are no reasons to refuse the information in whole or in part.
Recital 24
The concerns of the applicants did not change this.
Paragraph 25
a) During the survey for the 2022 census, the necessary technical, organizational and personnel measures would be taken in all parts of the survey in order to comply with data and statistical secrecy. The project will be carried out with the support of the respective (state) data protection officer and will follow a strict project plan. The applicants had already been informed that all persons entrusted with the survey would be separately obliged in writing to comply with data protection regulations and statistical confidentiality. The same applies to the specifications of the ZensG 2022, according to which personal data, such as the name of the property owner, is only requested as an aid to controlling the survey. These auxiliary characteristics are not evaluated and are separated from the other information and deleted as soon as possible - immediately after the data of the respective respondents have been received and checked for plausibility - cf. § 31 ZensG 2022, so that no conclusions can be drawn about the persons questioned. The sole aim is to collect the number of buildings and apartments and their equipment features. Finally, the non-personal auxiliary characteristics collected would be deleted or destroyed at the latest after the information to be collected as part of the implementation of the census had been checked for coherence and completeness (Section 12 (1) BStatG). The relevant auxiliary characteristics here are e.g. the questionnaire number and the document identifier. These served to differentiate between the units included in the survey and to organize and technically carry out the survey and processing procedures. They did not contain any information about personal or factual circumstances that went beyond the information collected.
Paragraph 26
b) In the course of the GWZ survey, no survey data would be transmitted to a third country, not even via the cloud provider Cloudflare. The websites of the 2022 Census of the Federal Statistical Office are hosted in the data centers of the Federal Information Technology Center (ITZ Bund). Cloudflare is a so-called Content Delivery Network (CDN) with the sole purpose of making the content of this website available with high availability and speed even during peak loads and, if necessary, attacks on the website that limit availability, such as e.g. B. DDoS attacks, to better fend off. Such measures are necessary for an offer with a wide range and relevance in order to ensure trouble-free operation - in particular the accessibility, performance and reliability of the website. According to the ZensVorbG 2022, the ITZ Bund acts as the federal service provider for the Federal Statistical Office for the technical operation. The other IT services for the technical operation were commissioned via the ITZ Bund, which also includes the use of Cloudflare. Cloudflare was commissioned via an award procedure by the ITZ Bund. Cloudflare has public IP addresses from America and Europe. The processing of information takes place on the basis of contractual agreements between the ITZ Bund and the provider exclusively in Cloudflare's European data centers. Only European registered IP addresses would be used. The data processing by Cloudflare does not affect the survey data of the respondents to the census, but only the generally accessible information on the website, e.g. IP address of the retrieval, Internet browser, operating system or time of the page view. The survey data for the census, which is transmitted online to "fragebogen.zensus2022.de", is end-to-end encrypted with a security certificate from the ITZ Bund and is processed exclusively in federal data centers in Germany without using the CDN Cloudflare. After registering for the online questionnaire, the secure and encrypted transmission channel to the data center of the ITZ Bund can be traced using the certificate by double-clicking on the lock symbol in the browser. It shows that a secure transmission channel has been established between the web browser of the respondents and the servers located in the data center of the ITZ Bund. The certificate contains e.g. information on the ownership (ITZ Bund) of the domain "fragebogen.zensus2022.de" and on encryption. The examination of the facts by the Federal Commissioner for Data Protection and Freedom of Information (BfDI) also revealed that there was never any danger to the personal data entered in the questionnaire. His assessment of the online questionnaire of the 2022 census has been publicly available on his homepage since May 18, 2022.
Paragraph 27
A corresponding explanation on the use of the CDN Cloudflare can also be found in the data protection declaration on the homepage for the 2022 census (www.zensus2022.de), under "How does the census work, questions and answers on the security of the online questionnaire in the 2022 census".
Paragraph 28
The applicants were informed again in a letter dated July 8, 2022 of this and the possibility of reporting using a paper questionnaire, which was included as standard with the reminder.
Paragraph 29
c) The BStatG is valid in its current version. A law is valid when it has come into force. According to Article 82(1) of the Basic Law, a law comes into force when it has been countersigned by the Federal President and promulgated in the Federal Law Gazette. The first version of the BStatG was countersigned by the then Federal President Weizsäcker on January 22, 1987 and promulgated in the Federal Law Gazette on January 29, 1987 (No. 8 of January 29, 1987, p. 462 ff.). According to Art. 82 (2) GG, § 28 BStatG provided for entry into force on the day of promulgation. The fact that various paragraphs have been deleted today does not conflict with the validity of the law. Amendments and deletions of paragraphs within a law are possible if they are based on the criteria specified in Art. 82 GG. The BStatG in its current version was countersigned on October 20, 2016 and published in the Federal Law Gazette on October 31, 2016 (No. 51 of October 31, 2016, p. 2394). Since the law did not contain any provisions on entry into force, it entered into force fourteen days after the end of October 31, 2016 in accordance with Article 82(2) of the Basic Law. The applicant's reference to the judgment of the Federal Administrative Court does not change that. The Federal Administrative Court was based on facts in which a disputed law was not legally valid.
Paragraph 30
The fundamental basis of legitimacy of the respondent for the implementation of federal or state surveys is based on § 4 Para. 1 LStatG. For the 2022 census, responsibility follows from Section 1 (1) ZensG 2022 in conjunction with Section 1 (1) AGZensG 2022.
Paragraph 31
After the notice of objection was served (12.8.2022), the applicants filed a lawsuit on 12.9.2022 (Az.: 3 K 762/22.NW) and submitted the present urgent application.
Paragraph 32
They argue that the relevant legal provisions of the ZensG 2022 are unconstitutional and violate their fundamental rights with regard to the requirements in BVerfGE 61.1. They questioned the clear-cut legislation. Effective protection of digitally stored data can no longer be guaranteed nowadays - for reasons explained in more detail, with reference to incidents that sometimes happened a long time ago. They do not consider the protection of the data from the 2022 census to be sufficient. Deanonymization cannot be ruled out. The treatment of the auxiliary features by the respondent violates constitutional requirements; the storage period of up to four years is too long. Cloudflare cannot access the encrypted data of the online questionnaire. However, this provider can access "technical" data. Cloudflare also offers a contact form in the public part of the website, which users can use to write to the statistical offices. For this purpose, however, a whole range of personal data has to be entered. Cloudflare's contractually guaranteed promise to process the data exclusively on European servers is not helpful in view of the CLOUD Act of May 23, 2018. The integration of Cloudflare violates the "Schremps II" judgment of the ECJ. The risk of misuse is disproportionate to the usefulness of the census. The respondent does not comply with its duty to provide information, according to which only a computer of the respondents that is free of malware etc. can guarantee the security of the transmitted data. They had not received the letter of July 8, 2022.
Paragraph 33
Accordingly, the applicants request
Paragraph 34
to order the suspensive effect of their objection to the notice of access to the "building and housing census in the 2022 census" and to delete all data related to their person and stored in connection with the 2022 census and the data processed from it.
Paragraph 35
The respondent requests
Paragraph 36
to reject the application
Paragraph 37
He also replies: The right to informational self-determination can be restricted by law if there is an overriding interest in the processing of personal data. This is given here because the data on the population and their living and working situation are the basis for many important decisions. Statistical secrecy, the principle of isolation and separation were observed. The ban on replay, according to which processed individual data sets, insofar as they still contain a personal reference, may not be "replayed" to the offices from which the original data came and may not be transmitted to other administrative offices, is not violated. The 2022 census serves to fulfill specified reporting obligations under European law. The GDPR and the BDSchG would set protection standards for him - the respondent - and comply with them. The fact that there are still "slumps" is not a census-related problem. Further statements by the applicants are often of a speculative nature. Statistical auxiliary characteristics (§ 10 Abs. 2 ZensG 2022, 12 Abs. 1 BStatG) are not evaluated, but deleted as soon as the transmitted survey characteristics have been checked for plausibility. He would like to reiterate that the data processing by Cloudflare does not concern the survey data of the respondents to the census, but only the generally accessible information on the website, e.g. IP address of the retrieval, etc.
II.
(A)
Paragraph 38
The request is allowed.
Paragraph 39
The request of the applicant, which is to be interpreted if their request is reasonably assessed (§§ 122, 88 Administrative Court Code - VwGO -), the suspensive effect of their objections of July 4th, 2022 against the reference to the provision of information contained in the letter of June 27th, 2022, is to be ordered according to § 80 paragraph 5 sentence 1, paragraph 2 sentence 1 no. 3 VwGO in conjunction with § 15 paragraph 7 BStatG permissible.
Paragraph 40
The court expressly leaves open whether the letter from the respondent dated June 27, 2022 has the quality of an administrative act. Because with the issuance of the notice of objection dated August 9, 2022, this letter has become an administrative act that can be contested even if the administrative act quality is (assumed) to be lacking (cf. VG NW, judgment of November 21, 2011 - 4 K 817/11.NW, with further references). The State Statistical Office as the objection authority has given it this "shape" (§ 79 Para. 1 No. 1 VwGO). According to § 79 Para. 1 No. 1 VwGO, the object of the action for annulment is the original administrative act in the shape it was given by the objection notice has found. The objection authority has comprehensive control powers in the review process. It basically has the same decision-making powers as the first authority. It is authorized to change, revoke and replace the initial decision, including its justification and discretionary considerations (BVerwG, judgment of 23.8.2011 - 9 C 3.11) According to the settled case law of the Federal Administrative Court, which the Chamber follows, there is a change of form within the meaning of Section 79 (1) No. 1 VwGO even if no administrative act originally existed and the objection notice from a (simple) declaration of intent is an administrative act power (Federal Administrative Court, judgment of 23.8.2011, loc. cit.) In the reasons for the contradiction According to the decision, the objection to the use of the GWZ in the 2022 census is expressly treated as permissible (and only unfounded). The applicants were able to base their further behavior on this and also take provisional legal protection under § 80 VwGO.
Paragraph 41
The local jurisdiction of the court making the decision follows § 52 No. 3 Clause 2 VwGO.
Paragraph 42
The more extensive request for cancellation, which is treated analogously to Section 80 (5) sentence 3 VwGO as an annex to the present request for an order for the suspensive effect, is also unsuccessful.
(B)
Paragraph 43
The present application is unfounded.
Paragraph 44
The request for information contained in the notice of June 27, 2022 within the framework of the GWZ census 2022 proves to be obviously lawful, so that within the framework of the balancing of interests to be made and against the background of § 80 paragraph 2 sentence 1 No. 3 VwGO in conjunction with § 15 (7) BStatG, the respondent's interest in enforcement outweighs the applicant's interest in ordering the suspensive effect.
Recital 45
The BStatG, the LStatG, the ZensVorbG 2022, the ZensG 2022 and the AGZensG 2022 form the basis for the implementation of the GWZ as part of the 2022 census.
Paragraph 46
In order to avoid repetition, the court refers in analogous application of Section 117 (5) VwGO to the correct statements made by the respondent in the notice of objection dated August 9th, 2022 and in the non-remedial letter of July 8th, 2022, which the applicants have at least after being sent by the court.
Paragraph 47
1) The respondent's request for information is formally unobjectionable.
Paragraph 48
a) The responsibility of the State Statistical Office follows from § 4 Para. 1 LStatG; Section 1 (1) ZensG 2022 in conjunction with Section 2 (1) AGZensG 2022.
Paragraph 49
b) The use of the applicant for the requested information is sufficiently specified in terms of content (Section 37 (1) VwVfG). The content of and the deadline for submitting the requested information are readily apparent from the letter dated June 27, 2022 in connection with the data request previously sent by the respondent.
Recital 50
c) A possible lack of hearing (cf. § 28 VwVfG) was remedied in the objection procedure (§ 45 Para. 1 No. 3, Para. 2 VwVfG).
Recital 51
2) The use of applicants for the information requested as part of the GWZ in the 2022 census is also materially lawful and does not violate the applicants' right to informational self-determination (Art. 2 Para. 1 in conjunction with Art. 1 Para. 1 Basic Law - GG - ). This legal institution conveys the authority of the individual to decide for themselves when and within what limits personal circumstances are disclosed. However, it is not guaranteed without restrictions, but can be limited in particular on the basis of a law, provided that this is in the overriding public interest, the conditions and scope of the restrictions are clear and recognizable for the citizen from the law and the principle of proportionality is observed (BVerfG , Judgment of September 19, 2018 - 2 BvF 1 and 2/15).
Recital 52
The design of the 2022 census corresponds to the specifications made by the Federal Constitutional Court in its judgment of September 19, 2018 (loc. Like the 2011 census, the 2022 census is a register-based census (cf. § 1 sentence 1 ZensVorbG 2022). The BVerfG (judgment of September 19, 2018, loc. cit.) ultimately did not object to the ZensG 2011 in the cited judgment (albeit primarily with a view to the household sample at the time). The legal protective mechanisms of the ZensG 2022 - with a comparable intensity of intervention of the current census - do not lag behind those of the ZensG 2011. In its fundamental decisions, the Federal Constitutional Court established that the state, in order to be able to fulfill its tasks, needs information about the citizens, which it can collect by means of a survey. Furthermore, the Federal Constitutional Court has set out requirements for the design of the procedure, in particular how to ensure that the data of the individual is anonymized (as early as possible) in order to protect the privacy of the respondents. In addition, it is necessary for the collection to be based on a formal law that defines the intended use of the information concerned with sufficient precision.
Recital 53
The constitutional requirements are met in the present case.
Recital 54
a) As already mentioned above, the requested data is collected on the basis of a formal law (here primarily in the form of the ZensG 2022 and the BStatG).
Recital 55
b) The chamber does not share the concerns expressed by the applicants about the validity of the Federal Statistical Office (BStatG) and in this respect refers again to the correct statements in the objection notice of August 9, 2022 (analogously to Section 117 (5) VwGO).
Recital 56
c) The purpose of the data collection is explained in more detail in § 1 Para. 3 ZensG 2022, which also refers to the fulfillment of European legal requirements. The BVerfG (judgment of September 19, 2018, loc. cit.) even assumes that the federal government has a constitutional mandate, e.g. to determine the population figures of the federal states using empirically ascertainable and factually comprehensible objective points of view. Since it is part of the nature of statistics that the data, after statistical processing, are used for a wide variety of tasks that cannot be determined in advance, exceptions to the requirements of a specific description of purpose, the prohibition to retain personal data and the the requirements for disclosure and utilization (Federal Constitutional Court, judgment of September 19, 2018, loc. cit.).
Recital 57
d) According to this, the applicants are obliged to provide information as the owner of the designated property in accordance with Sections 9, 23 and 24 (1) ZensG 2022.
Recital 58
e) Furthermore, the principle of proportionality is maintained, because it is not apparent in particular that, due to the further development of statistical science, there are possibilities of data collection that protects fundamental rights (cf. BVerfG, judgment of 19.9.2018, loc. cit.). In addition, the survey is necessary because not all data from the 2022 census is already available in registers. Existing registers are evaluated as comprehensively as possible in order to keep the burden on the population as low as possible. The statistical offices of the federal and state governments only request data from citizens where registers of the public administration provide no or insufficient information. Although the residents are recorded in the population registers, some of the registers are incomplete and no longer up-to-date. In some cases, for example, people are recorded who now live at a different place of residence (over-recording) or residents are not recorded (under-recording). Therefore, no precise population figure can be determined on the basis of the population register alone. In order to determine the magnitude of the over- and under-coverage and to include this in the calculation of the population figures, part of the population has to be interviewed. Since there is no uniform administrative register that covers the stock of apartments and buildings across the board, the GWZ is carried out.
Paragraph 59
A register-based survey also includes interventions in the right to informational self-determination, insofar as it provides for data transfers from administrative registers. However, these are of considerably less weight than direct questioning, for example, because they only affect data that is available in registers and has already been collected (BVerfG, judgment of September 19, 2018, loc. cit.). In addition, the law takes precautions to counteract the risk of a violation of the right to informational self-determination. The ZensG 2022 sufficiently ensures that the information provided by applicants about their household is not used or misused for other purposes. The information requested is for statistical purposes only and is ultimately processed in an anonymous form. § 16 BStatG defines extensive precautions to keep the data collected confidential. There is also a criminal ban on combining individual information from federal statistics or such individual information with other information for the purpose of creating, among other things, a personal reference outside the scope of this law or the legal provision ordering federal statistics (§§ 21, 22 BStatG). Furthermore, according to Section 31 (1) ZensG 2022 and Section 12 (1) BStatG, the information on the so-called auxiliary variables must be separated from the information on the survey variables immediately after the survey and auxiliary variables have been checked for their conclusiveness and completeness and keep the auxiliary features separately. The so-called auxiliary characteristics - which the BVerfG did not object to as such (judgment of December 15, 1983, loc. cit.) - include data such as the first and last name of the household members, their contact details and the home address according to Section 10 (2) ZensG 2022 . Furthermore, the survey documents including the auxiliary characteristics according to §§ 31 para. 1 sentence 3 ZensG 2022; 12 Federal Statistics Law; 16 Para. 3 ZensVorbG at the latest after completion of the processing of the last follow-up survey (cf. the detailed explanations in the contested objection decision, Section 117 Para. 5 VwGO for the "treatment" of the auxiliary characteristics). The period for deletion is a maximum period and, at 4 years from the census reference date, is not excessively long. Because the deletion must - apart from a few exceptions - take place as soon as the statistical offices have completed the review of the survey and auxiliary characteristics for their coherence and completeness and the generation of the characteristics according to § 30 (§ 31 para. 1 sentence 2 ZensG 2022). These regulations - in particular for the separation and deletion of data - implement the requirements of the census ruling of the Federal Constitutional Court (cf. VG Mainz, decision of August 31, 2022 - 3 L 422/22.MZ).
recital 60
f) If the applicants fear (re-)identification based on the survey characteristics to be provided and draw the conclusion from this that the data collected could be used to create illegal personality profiles, they also do not show a violation of the law. First of all, it should be pointed out that re-identification is prohibited by law and punishable by law (§§ 21 and 22 BStatG). Although it cannot be completely ruled out that the required personal reference can be produced from the survey characteristics used for the statistics (e.g. municipality and municipality part, month and year of birth and gender). is to be oriented to the reality of life, which does not correspond to illegal or even criminal acts - which include re-identification outside the scope of the census (cf. OVG HH, decision of 22.1.1997 - Bs III 154/96). The Federal Constitutional Court stated the following in its decision of September 28, 1987 (1 BvR 1063/87):
Recital 61
“Observing the constitutional requirement for (factual) anonymization as early as possible, combined with precautions against re-anonymization, is not called into question by the remaining options, even after the removal of identifiers, of carrying out a re-identification based on the survey characteristics. The only constitutional requirement is factual anonymity of the data. This can - in accordance with § 16 Para. 6 BStatG - be regarded as given if data recipients or third parties can only provide information with a disproportionate amount of time, money, Associate manpower and other resources (e.g., risk of punishment) to an individual. The possibilities of re-identification put forward by the complainant consistently neglect the actual conditions and possibilities of such a re-identification, in particular the measures for data security and the requirement that additional knowledge has to be available. For the statistical offices of the federal states, however, the data remain personal because they can be related to individuals. In the case of statistics based on individual data and broken down into small areas, this cannot be avoided solely through legal requirements and prohibitions. The individual must accept the remaining risk of re-identification as a necessary consequence of statistics ordered in the overriding general interest if and to the extent that internal organizational precautions within the statistical offices ensure compliance with the requirement for earmarking and the ban on re-identification in addition to the separation and deletion requirements.
Recital 62
The Chamber agrees with these statements.
Recital 63
g) The use of information to provide information does not violate data protection regulations; in particular, it is compatible with the provisions of the GDPR. The respondent has commented in detail on this in his notification and non-remedial letter, to which reference can be made (analogous to Section 117 (5) VwGO).
Recital 64
The fact that the 2022 census collects and processes personal data within the meaning of Art. 4 No. 1 GDPR (Art. 4 No. 2 GDPR), which is only permissible in accordance with Art. 5 et seq reservation of permission), does not conflict with the legality of the disputed order. Because the GDPR expressly permits the collection and processing (including special categories) of personal data for statistical purposes without requiring the consent of the person concerned (on the importance of statistical surveys: BVerfG, judgment of September 19, 2018, loc. cit.). Art. 6 Para. 1 Sentence 1 Letter e) GDPR stipulates that the processing of personal data is permitted, among other things, if this is necessary for the performance of a task that is in the public interest or in the exercise of official authority, which is attributable to the person responsible was transferred. This is the case here, because the collection of data as part of the 2022 census serves to perform a task that is in the public interest (cf. the above comments on Section 1 (3) of the 2022 ZensG). In addition, it follows from § 1 Para. 1 BStatG - this provision is applicable here because the census is a federal statistic (§ 1 Para. 1 ZensG 2022) - that the statistics for federal purposes in the federally structured overall system of official Statistics has the task, as a prerequisite for political decisions, to continuously collect, collect, process, present and analyze data on mass phenomena and, through their results, to create social, economic and ecological connections for the federal government, states including municipalities and municipal associations, society, economy and science and research (§ 1 sentences 1, 4 and 5 BStatG). It is therefore of considerable importance for state policy that is committed to the principles and guidelines of the Basic Law. In this context, there is a need for comprehensive, continuous and constantly updated information about the economic, ecological and social relationships. Only knowledge of the relevant data and the possibility of using the information it conveys for statistics with the help of the opportunities offered by automatic data processing create the basis for action that is indispensable for politics (cf. BVerfG, judgment of March 15, 1983, a.a.O.). In addition, it follows from Art. 9 Para. 2 Letter j) GDPR that the ban on the processing of the particularly sensitive data specified in Art. 9 Para. 1 GDPR does not apply if the processing satisfies certain legal and content-related requirements and for Among other things, statistical purposes according to Art. 89 Para. 1 DSGVO is required. These conditions exist. As explained above, the collection and processing of the characteristics mentioned in §§ 10 ZensG 2022 serves public interests. It is also absolutely necessary for the fulfillment of the official statistics required by law, because without the collection and processing of this data, the purpose of the statistics standardized in § 1 BStatG cannot be achieved. In addition, with § 31 ZensG 2022 and §§ 12, 16, 21 and 22 BStatG there are also adequate protective measures based on an adequate legal basis, which specifically include anonymization of the data collected (Article 89 (1) sentence 4 GDPR, § 27 Para. 3 Federal Data Protection Act - BDSG -) and prevent tracing or re-identification. If the requirements of Art. 9 Para. 2 Letter j DSGVO are met, the processing of the data is permissible without the consent of the person concerned (§ 27 Para. 1 BDSG). Against this background, it can be assumed with the Respondent that, within the framework of a balancing of interests to be carried out under the GDPR, the interest of the Respondent in the collection and processing of this data significantly outweighs the interest of the applicant in excluding the processing (cf. also VG Mainz, decision of 31.8 .2022, loc.cit.).
Recital 65
h) The hosting of the public area of the 2022 Census homepage by the company Cloudflare does not change the legality of the implementation of the 2022 Census. Here the court again refers to the convincing statements in the objection decision, which it follows (§ 117 Para. 5 VwGO analogue). It is explained in more detail there that the processing of hosting data by Cloudflare takes place exclusively in European data centers and using only European registered IP addresses. However, it is essential here that the data processing by Cloudflare does not include the survey data of the respondents to the census, but only generally accessible information on the website, e.g. IP address of the call, Internet browser operating system or time of the page view, which the applicants have also conceded . After Cloudflare has made the corresponding contractual commitments to use it as a service provider, the respondent can assume that, for example, no data processing takes place on US servers (similar in result: OLG Karlsruhe, decision of September 7th, 2022 - 15 Verg 8/22). The submissions of the applicants regarding a conceivable access by US security authorities within the framework of the so-called "CLOUD Act" remain speculative and do not prevent data collection by the respondent because the BVerfG - as explained above - recognized remaining residual risks despite all reasonable efforts accepted precautions by the applicant as a necessary consequence of a statistic ordered in the overriding general interest. The Federal Commissioner for Data Protection and Freedom of Information also noted on his website on May 18, 2022:
Recital 66
"Therefore, it was initially to be feared that through the involvement of a US IT service provider in connection with the operation of the zensus2022.de website, the online questionnaire accessible via this and the personal data transmitted therein could also have come to the knowledge of unauthorized persons.
Paragraph 67
However, the immediately initiated check showed that at no time was there a risk for the personal data entered in the questionnaire. Whether the transmission of metadata (e.g. date and time of the call, amount of data transferred, references to origin and IP address) when the page was accessed is lawful is the subject of the ongoing review. However, this has no effect on the security of the data entered after registration in the online questionnaire. Due to the intervention of the BfDI, a change was made to the website on Friday, so that the IT service provider is no longer used when the online questionnaire is called up and metadata is no longer transmitted."
Recital 68
The concerns expressed by the ECJ (case C-311/18 "Schrems II") against the transfer of personal data from EU citizens to the USA do not apply.
Paragraph 69
This means that after May 18, 2022, the applicants were able to meet their obligation to provide information within the deadline set for them without the reservations formulated against Cloudflare. It is therefore still decisive that the Federal Statistical Office - and no third parties - maintains the IT infrastructure required for processing and data storage in cooperation with the Federal Information Technology Center (§ 2 Para. 2 Sentence 3 ZensVorbG 2022).
Recital 70
i) The transmission of the actual survey data is encrypted in compliance with the requirements of § 14 ZensVorbG 2022, which means that there is no risk for the personal data entered in the questionnaire, as the Federal Commissioner concluded on May 18, 2022 (see above). In any case, the applicants are free to submit the questionnaire in paper form in addition to the digital transmission provided for in Section 23 (1) sentence 2 ZensG 2022. The company Rhenus Docs to Data GmbH, which is involved in the technical implementation in the form of digitization, has been sworn to secrecy. It has no data access rights and therefore does not provide a service under data protection law that allows more intensive access to the applicant's data than, for example, commissioning a private postal company which, when a letter is handed over, potentially also has access to the data contained therein.
Recital 71
j) To the extent that the applicants complain that the respondent did not point out that only a "clean" computer enables secure transmission, this approach is misguided. The Respondent does not have to explain things that are self-evident, especially since the security of the private computer used by the person required to make the declaration (e.g. freedom from malware or other viruses) affects their sphere of influence and - for good reason - cannot be influenced by the Respondent.
Recital 72
Last but not least, it seems unclear whether aspects relevant to data protection law are the main motivation of the applicants for pursuing the present and pending legal proceedings. Because the applicants initially submitted the present urgent application and their lawsuit to the court by e-mail. This transmission method does not offer a sufficient guarantee of secure transmission, but in any case less security than the encryption technology used by the respondent when conducting the 2022 census. The information contained in the statement of claim is congruent in not insignificant areas with the survey characteristics requested by the respondent pursuant to Section 10 (1) ZensG 2022.
Recital 73
For the above reasons and those set out by the respondent in his letter of explanation and non-remedy (to which the court in turn refers pursuant to Section 117 (5) VwGO), the applicants have no right to immediate deletion, objection or correction under the GDPR, because this would make the purpose of statistical recording impossible (Article 89 GDPR a.e.).
Recital 74
The decision on costs is based on Section 154 (1) VwGO. The determination of the amount in dispute follows Sections 52 (2) and (3); 53 Para. 2 No. 2 Court Costs Act - GKG - in conjunction with the catalog of amounts in dispute for administrative jurisdiction. With regard to the request for information, a main disputed amount of €5,000 is to be assumed, which is to be reduced by half (€2,500) in accordance with Section 1.5 of the catalog of amounts in dispute.
