VGH Kassel - 10 E 1898/22

VGH Kassel - 10 E 1898/22
Court:	VGH Kassel (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 5(1)(e) GDPR Article 6(1)(e) GDPR Article 6(1)(f) GDPR Article 7(1) GDPR Article 9(1) GDPR Article 12(3) GDPR § 17a Abs. 4 Satz 3 GVG § 44 Abs.1 S2 BDSG
Decided:	01.12.2022
Published:	21.01.2023
Parties:
National Case Number/Name:	10 E 1898/22
European Case Law Identifier:	ECLI:DE:VGHHE:2022:1201.10E1898.22.0A
Appeal from:	VG Wiesbaden 6 K 1188/22.WI vom 25.10.2022
Appeal to:	Unknown
Original Language(s):	German
Original Source:	OpenJur (in German)
Initial Contributor:	Frank F

The responsive Court for internal data operation is the proper local court of residential the plaintiff.

English Summary

Facts

The plaintiff request the responsive legal Court is the local Court where the plaintiff lives. The Superior Administrative Court Kassel say the plaintiff get the right ti referred this case to local court of Oranienburg.

Holding

the local proper court of Oranienburg is responsive to decide this case because the statistic authority do not act in the exercise of sovereign powers himself if the data are internal operated or the request the data by a technical operating by webservers. the operation of webserver is not in the exercise of sovereign powers.

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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.

tenor

In response to the plaintiff's complaint, the decision of the Wiesbaden Administrative Court of October 25, 2022 - 6 K 1188/22.WI - is amended. The legal dispute is referred to the District Court of Oranienburg.
reasons

The plaintiff's appeal against the decision of the Wiesbaden Administrative Court of October 25, 2022, with which administrative legal action was declared inadmissible and the legal dispute was referred to the Wiesbaden District Court, is admissible and justified.

With the complaint, the plaintiff expressly does not object to the decision made by the administrative court on the inadmissibility of the administrative legal process taken, but merely requests with the complaint to change the court's decision in such a way that the legal dispute in which the plaintiff claims damages from the defendant according to Art. 82 para. 1 General Data Protection Regulation (GDPR) requested (cf. letter of August 22, 2022) to be referred to the district court of Oranienburg, alternatively to the district court of Berlin-Mitte. In justification, the plaintiff essentially argues that he would be entitled to a corresponding right of choice under Art. 79 DS-GVO, which the court had disregarded.

The object of the complaints procedure pursuant to Section 17a (4) sentence 3 GVG is in principle only the decision made by the administrative court on legal recourse (cf. Bay. VGH, decision of May 5, 2014 - 4 C 14.449 -, para. 17; OVG Hamburg, Resolution of August 14, 2000 - 3 So 54/00 -, paragraph 6; each juris). Because the decision is only binding for the court to which the legal dispute has been referred, according to § 17a para. 2 sentence 3 GVG with regard to the legal process. This court is therefore not prevented from continuing to refer the legal dispute within "its" legal process for reasons of local jurisdiction (cf. VGH Baden-Württ., decision of May 18, 2006 - 12 S 664/06 -, juris, para. 3 ). Against this background, the complaints court called under § 17a (4) sentence 3 GVG would not be able to clarify the competent court with binding effect within the other legal process (cf. Bay. VGH, decision of February 28, 2017 - 22 C 17.375 -, juris, para. 10), so that the plaintiff cannot usually claim with the complaint that the legal dispute should have been referred to another court within the legal process.

However, something else applies if the court of first instance violated the rights of a participant that were granted to him in § 17a GVG and this violation of rights can no longer be corrected later (cf. OVG Hamburg, decision of August 14, 2000 - 3 So 54/00 -, juris, para. 6). This is the case if, within the framework of the referral, there is a right of choice under Section 17a (2) sentence 2 GVG between the court to which the legal dispute has been referred and another court, and this right of choice was not taken into account by the court of first instance. In this case, the court to which the legal dispute was referred could no longer refer the legal dispute further within its legal process due to lack of jurisdiction (§ 281 Para. 1 ZPO) (cf. Bay. VGH, decision of May 5, 2014 - 4 C 14.449 -, para. 17; OVG Hamburg, loc.cit., para. 6; each juris).

Art. 79 (2) GDPR does not grant the plaintiff the right to choose the locally competent court in the present proceedings. Because Art. 79 Para. 2 DS-GVO only regulates special places of jurisdiction in the sense of international jurisdiction. The rules on domestic jurisdiction remain the responsibility of the Member States. The factual and local jurisdiction of the court invoked in Germany is therefore still measured according to national law (cf. Werkmeister, in: Gola/Heckmann, Data Protection Basic Regulation Federal Data Protection Act [Status: 3rd edition 2022], DS-GVO, Art. 79 , paragraph 10; Bergt, in: Kühling/Buchner, DS-GVO BDSG [status: 3rd edition 2020], DS-GVO, Article 79, paragraph 15; Martini, in: Paal/Pauly, DS-GVO BDSG [Status: 3rd edition 2021], DS-GVO, Art. 79, para. 23). According to national law, however, the plaintiff has the right to choose the locally competent court in accordance with § 44 BDSG. The provision of Art. 79 Para. 2 DS-GVO is supplemented by § 44 Para. 1 and 2 BDSG with regulations on domestic local jurisdiction for civil law actions, which transfer the regulations on international jurisdiction one-to-one to domestic local jurisdiction ( cf. Bergt, in: Kühling/Buchner, DS-GVO BDSG [status: 3rd edition 2020], BDSG, § 44, para. 2). According to Section 44 (1) sentence 1 BDSG, complaints by the data subject against a person responsible or a processor due to a violation of data protection provisions within the scope of the GDPR or the rights of the data subject contained therein can be brought before the local court, where an establishment of the controller or processor is located. On the other hand, lawsuits pursuant to sentence 1 pursuant to Section 44 (1) sentence 2 BDSG can also be filed with the court of the place where the person concerned has their habitual residence.

In this respect, the administrative court did not adequately consider the right to choose that the plaintiff had under Section 44 (1) of the Federal Data Protection Act. The decision of the administrative court must therefore be amended in such a way that the legal dispute is referred to the district court of Oranienburg. In addition to the District Court of Wiesbaden, in whose area of responsibility the Federal Statistical Office has its headquarters, the District Court of Oranienburg also has local jurisdiction in accordance with § 2 Para des Rubrums has his residence in the municipality of Mühlenbecker Land - district Schildow. The plaintiff's right to vote is also not excluded under Section 44 (2) BDSG. It is not apparent that the Federal Statistical Office in the violations of Articles 5-7, 9, 12-15, 24-26, 28-30, 32, 33, 35, 40, 44-47 DS-GVO due to any disclosure of personal data of the plaintiff by sending an email outside the DE-Mail environment and the untimely fulfillment of the right to information according to Art. 15 DS-GVO and the integration of Cloudflare on the website "zensus2022.de" including the use of JA3 fingerprints and a lack of a data protection declaration from Cloudflare in German, a lack of the plaintiff’s consent to the further processing of the data obtained through the operation of the website and a lack of information in accordance with Art. 13, 14 DS-GVO in the exercise of sovereign powers acted on the plaintiff. This applies in particular to the technical design of the "zensus2022.de" website and the processing of the data obtained as a result, since the alleged violations only affect the internal data processing by the Federal Statistical Office.

A decision on costs is not required (§ 17b Para. 2 GVG).

The complaint is not admitted because the requirements of Section 17a (4) sentence 5 GVG are not met.