BVwG - W298 2252644-1
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| BVwG - W298 2252644-1 | |
|---|---|
 | |
| Court: | BVwG (Austria) |
| Jurisdiction: | Austria |
| Relevant Law: | Article 5 GDPR |
| Decided: | 05.04.2023 |
| Published: | 12.06.2023 |
| Parties: | |
| National Case Number/Name: | W298 2252644-1 |
| European Case Law Identifier: | ECLI:AT:BVWG:2023:W298.2252644.1.00 |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | BVwG (Austria) (in German) |
| Initial Contributor: | mg |
Data protection principles do not allow judicial review on the investigations carried out by a judicial disciplinary body.
English Summary
Facts
The data subject was a judge working at the Austrian Federal Administrative Court. An internal judicial body – the controller – opened a disciplinary investigation concerning the data subject’s performance at work, including the latter’s mental health. The disciplinary body concluded the investigation with a final report and an evaluation of the data subject, which were subsequently notified to them.
The data subject brought action against the controller for violation of Articles 5(1)(a) to (c), 6 and 9 GDPR. According to the data subject, the investigation would have been hampered by many inadequacies and investigative mistakes in the processing of their personal data. In particular, the controller would have picked and chosen pieces of evidence, deliberately ignoring fundamental elements.
Holding
The Austrian Federal Administrative Court dismissed the data subject’s claim. According to the judges, data protection law cannot override the rules delimiting jurisdictions. A review of the investigation methods by the Federal Administrative Court would encroach upon the competence of the disciplinary body, which is a judicial body as well. In other words, a data subject cannot use data protection law to limit the investigative powers of a judicial body whose jurisdiction is subject to.
Comment
This judgement suggests that data protection principles cannot be used as an additional or alternative system of appeal of judicial decisions. However, the court's decision is not uncontroversial, as judicial bodies are not excluded from the scope of application of the GDPR.
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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.
decision date
05.04.2023
standard
B-VG Art130 Para.2a
B-VG Art133 Para.4
BVwGG §10
DSG §1
DSG §4
GDPR Art5
GDPR Art6
GO §84
GO §85
RStDG §51
RStDG §52
RStDG §53
RStDG §54
RStDG §55
B-VG Art. 130 today B-VG Art. 130 valid from 02/01/2019 last amended by Federal Law Gazette I No. 14/2019 B-VG Art. 130 valid from 01/01/2019 to 01/31/2019 last amended by Federal Law Gazette I No. 22/2018 B-VG Art. 130 valid from 01/01/2019 to 05/24/2018 last changed by BGBl. I No. 138/2017 B-VG Art. 130 valid from 05/25/2018 to 12/31/2018 last changed by BGBl I No. 22/2018 B-VG Art. 130 valid from 01.01.2015 to 24.05.2018 last changed by Federal Law Gazette I No. 101/2014 B-VG Art. 130 valid from 01.01.2014 to 31.12.2014 last changed by Federal Law Gazette I No. 115/2013 B-VG Art. 130 valid from 01/01/2014 to 12/31/2013 last amended by Federal Law Gazette I No. 51/2012 B-VG Art. 130 valid from 01/01/2004 to 12/31/2013 130 valid from January 1, 1998 to December 31, 2003 last amended by Federal Law Gazette I No. 87/1997 B-VG Art. 130 valid from January 1, 1991 to December 31 .1997 last changed by BGBl. No. 685/1988 B-VG Art. 130 valid from 01.07.1976 to 31.12.1990 last changed by BGBl. No. 302/1975 B-VG Art. 130 valid from 18.07.1962 to 30.06 .1976 last changed by BGBl. No. 215/1962 B-VG Art. 130 valid from 25.12.1946 to 17.07.1962 last changed by BGBl. No. 211/1946 B-VG Art. 130 valid from 19.12.1945 to 24.12 .1946 last changed by StGBl. No. 4/1945 B-VG Art. 130 valid from 01/03/1930 to 06/30/1934
B-VG Art. 133 today B-VG Art. 133 valid from 01.01.2019 to 24.05.2018 last amended by Federal Law Gazette I No. 138/2017 B-VG Art. 133 valid from 01.01.2019 last amended by Federal Law Gazette I No. 22/2018 B-VG Art. 133 valid from 05/25/2018 to 12/31/2018 last changed by Federal Law Gazette I No. 22/2018 B-VG Art. 133 valid from 08/01/2014 to 05/24/2018 last changed by BGBl I No. 164/2013 Federal Constitutional Law Art by BGBl. I No. 100/2003 B-VG Art. 133 valid from 01.01.1975 to 31.12.2003 last amended by BGBl. No. 444/1974 B-VG Art. 133 valid from 25.12.1946 to 31.12.1974 last amended by Federal Law Gazette No. 211/1946 B-VG Art. 133 valid from December 19, 1945 to December 24, 1946 last amended by StGBl. No. 4/1945 B-VG Art. 133 valid from 01/03/1930 to 06/30/1934
BVwGG § 10 today BVwGG § 10 valid from 01/01/2014
DSG Art. 1 § 1 today DSG Art. 1 § 1 valid from 01.01.2014 last changed by Federal Law Gazette I No. 51/2012 DSG Art. 1 § 1 valid from 01.01.2000 to 31.12.2013
DSG Art. 2 § 4 today DSG Art. 2 § 4 valid from January 1st, 2020 last changed by Federal Law Gazette I No. 14/2019 DSG Art. 2 § 4 valid from May 25th, 2018 to December 31, 2019 last changed by Federal Law Gazette I No. 24/2018 DSG Art. 2 § 4 valid from 05/25/2018 to 05/24/2018 last changed by BGBl. I No. 120/2017 DSG Art. 2 § 4 valid from 01/01/2010 to 05/24/2018 last changed by BGBl I No. 133/2009 DSG Art
GOG § 84 today GOG § 84 valid from May 25th, 2018 last changed by Federal Law Gazette I No. 32/2018 GOG § 84 valid from January 1st, 2005 to May 24th, 2018 last changed by Federal Law Gazette I No. 128/2004 GOG § 84 valid repealed from July 10, 1945 to December 31, 2004 by Federal Law Gazette I No. 112/2003
GOG § 85 today GOG § 85 valid from May 25th, 2018 last changed by Federal Law Gazette I No. 32/2018 GOG § 85 valid from January 1st, 2005 to May 24th, 2018 last changed by Federal Law Gazette I No. 128/2004 GOG § 85 valid from August 1, 1989 to December 31, 2004 repealed by Federal Law Gazette I No. 112/2003 GOG § 85 valid from May 1, 1983 to July 31, 1989 last amended by Federal Law Gazette No. 135/1983
RStDG § 51 today RStDG § 51 valid from 01.07.1994 last changed by Federal Law Gazette No. 507/1994 RStDG § 51 valid from 01.05.1988 to 30.06.1994 last changed by Federal Law Gazette No. 230/1988 RStDG § 51 valid from 01.07 .1979 to April 30, 1988 last amended by Federal Law Gazette No. 136/1979
RStDG § 52 today RStDG § 52 valid from October 1st, 1995 last changed by Federal Law Gazette No. 507/1994 RStDG § 52 valid from July 1st, 1994 to September 30th, 1995 last changed by Federal Law Gazette No. 507/1994 RStDG § 52 valid from May 1st .1988 to 06/30/1994 last amended by BGBl. No. 230/1988 RStDG § 52 valid from 05/01/1962 to 04/30/1988
RStDG § 53 today RStDG § 53 valid from 31.12.2003 last changed by Federal Law Gazette I No. 130/2003 RStDG § 53 valid from 01.01.1999 to 30.12.2003 last changed by Federal Law Gazette I No. 5/1999 RStDG § 53 valid from 03/01/1968 to 12/31/1998 last amended by Federal Law Gazette No. 68/1968
RStDG § 54 today RStDG § 54 valid from 01/01/2009 last changed by Federal Law Gazette I No. 147/2008 RStDG § 54 valid from 01/01/2008 to 12/31/2008 last changed by Federal Law Gazette I No. 96/2007 RStDG § 54 valid from 12/31/2003 to 12/31/2007 last changed by BGBl. I No. 130/2003 RStDG § 54 valid from 05/01/1988 to 12/30/2003 last changed by BGBl. No. 230/1988 RStDG § 54 valid from 07/01/1978 to April 30, 1988 last amended by Federal Law Gazette No. 292/1978
RStDG § 55 today RStDG § 55 valid from December 31, 2003 last changed by Federal Law Gazette I No. 130/2003 RStDG § 55 valid from July 1, 1994 to December 30, 2003 last changed by Federal Law Gazette No. 507/1994 RStDG § 55 valid from August 1, 1971 to June 30, 1994 last amended by Federal Law Gazette No. 283/1971
saying
W298 2252644-1/22E
ON BEHALF OF THE REPUBLIC
The Federal Administrative Court, through the judge Mag. Mathias VEIGL as chairman and the judges Dr. Christine Amann and Mag. Gertrude Brauchart as assessors on the complaint pursuant to Art. 130 Para. 2a B-VG of XXXX, represented by RA XXXX, against the Personnel Senate of the Federal Administrative Court due to unlawful data processing in the procedure for the new job description for the calendar year 2020 in a non-public session Right recognized: The Federal Administrative Court has judged by the judge Mag. Mathias VEIGL as chairman and the judges Dr. Christine Amann and Mag. Gertrude Brauchart as assessors on the complaint pursuant to Article 130, paragraph 2 a, B-VG of roman XXXX, represented by attorney roman XXXX, against the personnel senate of the Federal Administrative Court due to unlawful data processing in the procedure for the new job description for the calendar year 2020 in rightly recognized in a non-public session:
A) The appeal is dismissed.
B) The revision is not permitted according to Art. 133 Para. 4 B-VG. B) The revision is not permitted according to article 133, paragraph 4, B-VG.
text
Reasons for decision:
I. Procedure: Roman one. Procedure:
1. In his complaint initiating the proceedings pursuant to Art. 130 Para. 2a B-VG of March 9th, 2022 to the Federal Administrative Court, XXXX (complainant) alleged a violation of the fundamental right to secrecy pursuant to Section 1 Para Data in accordance with Art. 5 GDPR and against the legality of the processing in accordance with Art. 6 and 9 GDPR based on the data processing in connection with or in the decision of the Personnel Senate of the Federal Administrative Court (respondent) of March 3rd, 2021 regarding the determination of the overall assessment, issued by the notification pursuant to Section 55 (1) RStDG on March 8th, 2021, Zl. 2021-0.010.0014, which was sent to him on March 12th, 2021. 1. In his complaint initiating the proceedings in accordance with Article 130, paragraph 2 a, B-VG of March 9th, 2022 to the Federal Administrative Court, roman XXXX (complainant) alleged a violation of the fundamental right to secrecy in accordance with paragraph one, paragraph one, DSG, against the principles for the processing of personal data in accordance with Article 5 GDPR and against the lawfulness of the processing in accordance with Articles 6 and 9 GDPR due to the data processing in connection with or in the decision of the Personnel Senate of the Federal Administrative Court (respondent) of March 3rd, 2021 regarding the determination of the overall assessment, issued by the notification pursuant to paragraph 55, paragraph one, RStDG on March 8th, 2021, Zl. 2021-0.010.0014, which was sent to him on March 12th, 2021.
In justification, the complainant stated (summarized as far as relevant to the procedure) that he was a judge at the Federal Administrative Court and that the respondent had again carried out a service description for the year 2020, whereby this (qualified) breach of data protection obligations and thereby violated his right to secrecy. The respondent is the person responsible within the meaning of Art. 4 Z 7 GDPR for the data processing measures complained of, which would have led to the complainant's service description for 2020. Even the initiation resolution lacks legal conformity, on the one hand because both the President and the Vice President are members of the staff senate, and on the other hand because there is a lack of a legal basis. In particular, the President of the Federal Administrative Court had ordered unlawful, covert investigative measures (search of his office) for disciplinary proceedings directed against the complainant. In particular, it emerged that the data processing measures ordered were not commissioned within a constitutional process, but by a political leader. A hearing of the Complainant before the Respondent was also decisively incorrectly recorded. It also follows from this that the investigative proceedings were selective and one-sided, several documents provided by the complainant, as well as a statement to be obtained from the disciplinary lawyer in the parallel disciplinary proceedings, were ignored. The Respondent had made statements about the (mental) state of health of the Complainant which he could easily have refuted and he would have been willing to submit an expert opinion he had obtained privately as evidence to the contrary. In addition, the Respondent failed to make a cross-comparison, which would have been necessary. On March 3rd, 2021, the Human Resources Senate finally determined an overall assessment and sent this to the complainant with a notification dated March 8th. 2021 (GZ: 2021-0.010.0014). The complainant explained (summarized as far as relevant to the procedure) that he was a judge of the Federal Administrative Court and that the respondent had again carried out a service description for the year 2020, whereby this (qualified) against violated data protection obligations and thereby violated his right to secrecy. The respondent is the person responsible within the meaning of Article 4, Paragraph 7, GDPR for the data processing measures complained of, which would have led to the complainant's service description for 2020. Even the initiation resolution lacks legal conformity, on the one hand because both the President and the Vice President are members of the staff senate, and on the other hand because there is a lack of a legal basis. In particular, the President of the Federal Administrative Court had ordered unlawful, covert investigative measures (search of his office) for disciplinary proceedings directed against the complainant. In particular, it turned out that the ordered data processing measures had not been commissioned within a constitutional procedure, but by a political leader. A hearing of the Complainant before the Respondent was also decisively incorrectly recorded. It also follows from this that the investigative proceedings were selective and one-sided, several documents provided by the complainant, as well as a statement to be obtained from the disciplinary lawyer in the parallel disciplinary proceedings, were ignored. The Respondent had made statements about the (mental) state of health of the Complainant which he could easily have refuted and he would have been willing to submit an expert opinion he had obtained privately as evidence to the contrary. In addition, the Respondent failed to make a cross-comparison, which would have been necessary. On March 3rd, 2021, the Human Resources Senate finally determined an overall assessment and sent this to the complainant with a notification dated March 8th. 2021 (GZ: 2021-0.010.0014) brought to the attention.
The complainant listed a number of alleged investigative errors in connection with statements made by the respondent in the service description for 2020 and stated that evidence had not been taken into account, although this would have been obligatory (procedurally). As a violation of his fundamental right to data protection, the complainant complained in particular that the respondent acted arbitrarily and had not taken up offers of evidence without justification, had used other evidence, had unilaterally investigated selectively and had misjudged his mental health.
For these reasons, the complainant applied for a violation to be determined in accordance with Section 1 (1) DSG, since the data processing would violate the principles of Article 5 (1) lit. a, lit. b and lit. c GDPR and therefore not from a justification according to Art. 6 and 9 DSGVO would be borne and to conduct an oral hearing. For these reasons, the complainant applied for a violation to be determined in accordance with paragraph one, paragraph one, DSG, since the data processing would violate the principles of Article 5, paragraph one, litera, litera b and litera c, GDPR and therefore not from a justification would be borne according to Articles 6 and 9 GDPR and to conduct an oral hearing.
Attached to the complaint were two disciplinary notices, a list of the basis for the decision ("source material") for the job description, an occupational medical report by the complainant and a statement by the expert.
2. At the request of the Federal Administrative Court, the Respondent commented and essentially stated that the alleged unlawful search of the complainant's office had not taken place, which had also been established. Irrespective of the fact that the content of the presentation of the facts is disputed, the Respondent did not collect any health data on the complainant. In addition, data protection proceedings regarding the disciplinary proceedings against the complainant had not been decided or the alleged illegality had not been established. Furthermore, the complainant's complaint turned out to be time-limited, since he complained about data processing of which he was aware more than a year before the complaint was lodged.
3. In the hearing granted to the parties, the complainant contradicted the defense of the time limit and stated that the respondent conceded to processing the complainant's health data when he said that statements from the service description were based on direct perceptions by members of the respondent. In any case, a closer look shows that the data processing based on the disciplinary complaint is not independent of the investigative activity of the respondent. Furthermore, the complainant requested, to prove that the respondent would not have been competent to carry out a new job description, to obtain the corresponding application from the President of the Federal Administrative Court.
4. With the order of January 27, 2023, the file was transferred to the now responsible court department W298.
II. Statements: Roman II. Statements:
1. The procedure outlined under Item I. is used as a basis for the findings. 1. The below point Roman one. The stated procedure is used as a basis for the findings.
2. The complainant is employed under public law and has been a judge at the Federal Administrative Court since 2015.
3. The respondent is the Personnel Senate of the Federal Administrative Court. Among other things, the task of the personnel senate of the Federal Administrative Court is to carry out job descriptions. To this end, a rapporteur will submit a written proposal.
4. At the request of the President of the Federal Administrative Court, a procedure for the complainant's renewed job description for 2020 was initiated.
5. On March 3, 2021, a hearing was held before the meeting of the respondent's members. At this point in time at the latest, the complainant was aware that the respondent was using the following data or sources in this decision-making process:
6. With the decision of the respondent to Zl.: 2021-0.10.0014 of March 8th, 2021, the complainant's new job description for the year 2020 was made with the overall assessment according to § 54 Para. 3 RStDG "Very good".6. With the decision of the respondent to Zl.: 2021-0.10.0014 of March 8th, 2021, the complainant's new job description for the year 2020 was made with the overall assessment according to paragraph 54, paragraph 3, RStDG "Very good".
This decision of the Respondent was brought to the complainant's attention on the same day by notification of the overall assessment of the service description pursuant to Section 55 (1) RStDG one, RStDG notified.
The notification of the overall assessment was sent to the complainant on March 12, 2021.
7. On March 9, 2022, the complainant lodged the complaint at issue with the Federal Administrative Court.
III. Evaluation of evidence: Roman III. Evidence assessment:
The course of the proceedings and the findings result from the content of the court record.
The determination of the date of delivery of the new job description for 2020 to the complainant results from the return receipt in the file.
The Respondent only contests the allegations of the Complainant to the extent that it states that there was no secret investigation of the Complainant's office and that the service description in particular was the result of a separate, separate decision-making process that was not linked to the disciplinary allegations.
IV. Legal assessment: Roman IV. Legal assessment:
to A)
1) Staffing and Jurisdiction
Art. 130 para. 2a B-VG reads: Article 130, paragraph 2 a, B-VG reads:
The administrative courts recognize complaints from persons, which the respective administrative court in exercising its jurisdiction in their rights under Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data, on the free movement of data and on the repeal of Directive 95/ 46/EG (General Data Protection Regulation) – GDPR, OJ No. L 119 of 4 May 2016 p. 1, claim to be violated.
According to § 6 in connection with § 24a BVwGG, the Federal Administrative Court decides in matters according to §§ 84 and 85 GOG through senates. Pursuant to Section 7 (1) BVwGG, the Senate consists of a chairman and two other members as assessors. According to paragraph 6, in connection with paragraph 24 a, BVwGG, the Federal Administrative Court decides in matters according to paragraphs 84 and 85 GOG through senates. According to paragraph 7, paragraph one, BVwGG, the Senate consists of a chairman and two other members as assessors.
The procedure of the administrative courts, with the exception of the Federal Finance Court, is regulated by the VwGVG, Federal Law Gazette I 2013/33 as amended by Federal Law Gazette I 2013/122 (§ 1 leg.cit.). Pursuant to Section 58 (2) VwGVG, conflicting provisions that were already promulgated at the time this federal law came into force remain in force. The procedure of the administrative courts with the exception of the Federal Finance Court is regulated by the VwGVG, Federal Law Gazette Roman one 2013/33 in the version Federal Law Gazette Roman one 2013/122 (paragraph one, leg.cit.). Pursuant to Section 58, Paragraph 2, VwGVG, conflicting provisions that were already promulgated at the time this federal law came into force remain in force.
According to § 17 VwGVG, unless otherwise specified in this federal law, the provisions of the AVG with the exception of §§ 1 to 5 and Part IV, the provisions, apply to the procedure for complaints pursuant to Art. 130 Para. 2a B-VG the Federal Fiscal Code - BAO, Federal Law Gazette No. 194/1961, the Agricultural Procedures Act - AgrVG, Federal Law Gazette No. 173/1950, and the Service Law Procedures Act 1984 - DVG, Federal Law Gazette No. 29/1984, and otherwise those procedural provisions in federal or state laws, which the authority applied or should have applied in the proceedings before the administrative court. Pursuant to paragraph 17, APA, unless otherwise specified in this federal law, the complaints procedure pursuant to Article 130, paragraph 2 a, B-VG the provisions of the AVG with the exception of paragraphs one to 5 and Roman Part IV, the provisions of the Federal Tax Code - BAO, Federal Law Gazette No. 194 from 1961, the Agricultural Procedures Act - AgrVG, Federal Law Gazette No. 173 from 1950, , and the Service Law Procedure Act 1984 – DVG, Federal Law Gazette No. 29 from 1984, and otherwise apply those procedural provisions in federal or state laws mutatis mutandis which the authority applied or should have applied in the proceedings before the administrative court.
According to Section 28 (1) VwGVG, the administrative court has to settle the legal matter by finding it unless the complaint is to be rejected or the proceedings are to be discontinued. According to paragraph 28, paragraph one, VwGVG, the administrative court has to settle the legal matter by cognizance, unless the complaint is to be rejected or the proceedings are to be discontinued.
2) Governing Legal Provisions
2.1. § 1 DSG reads: 2.1. Paragraph one, DSG reads:
(constitutional provision)
fundamental right to data protection
§ 1. (1) Everyone has the right to confidentiality of their personal data, in particular with regard to respect for their private and family life, insofar as there is a legitimate interest in doing so. The existence of such an interest is excluded if data are not accessible due to their general availability or because they cannot be traced back to the person concerned. Paragraph one, (1) Everyone has, in particular with regard to respect for their private and family life, Right to confidentiality of the personal data concerning him, insofar as there is a legitimate interest in it. The existence of such an interest is excluded if data are not accessible to a non-disclosure claim due to their general availability or due to their lack of traceability to the data subject.
(2) Insofar as personal data is not used in the vital interests of the person concerned or with his or her consent, restrictions on the right to secrecy are only permissible to protect overriding legitimate interests of another, and in the case of interventions by a state authority only on the basis of laws, which are necessary for the reasons stated in Art. 8 Para. 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (EMRK), Federal Law Gazette No. 210/1958. Such laws may only provide for the use of data, which by their nature are particularly worthy of protection, to protect important public interests and must at the same time provide for appropriate guarantees for the protection of the confidentiality interests of the data subjects. Even in the case of permissible restrictions, the encroachment on the fundamental right may only be made in the mildest way that leads to the goal. (2) Insofar as the use of personal data is not in the vital interest of the person concerned or with his consent, restrictions on the right to Confidentiality is only permissible to protect overriding legitimate interests of another, and in the case of interventions by a state authority only on the basis of laws resulting from the provisions of Article 8, Paragraph 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (EMRK), Federal Law Gazette No. 210 from 1958, the reasons mentioned are necessary. Such laws may only provide for the use of data, which by their nature are particularly worthy of protection, to protect important public interests and must at the same time provide for appropriate guarantees for the protection of the confidentiality interests of the data subjects. Even in the case of permissible restrictions, the encroachment on the fundamental right may only be carried out in the mildest way that leads to the goal.
(3) Everyone has, insofar as he/she has personal data for automated processing or for processing manually, ie. files managed without automation support, in accordance with statutory provisions
1. the right to information about who processes which data about him, where the data comes from and what it is used for, in particular to whom it is transmitted;
2. the right to correct inaccurate data and the right to delete inadmissibly processed data.
(4) Restrictions on the rights under paragraph 3 are only permitted under the conditions specified in paragraph 2. (4) Restrictions on the rights under paragraph 3 are only permitted under the conditions specified in paragraph 2.
2.2. § 4 DSG reads: 2.2. Paragraph 4, DSG reads:
Article 2
1. main piece
Implementation of the General Data Protection Regulation and supplementary regulations
1st section
General Provisions
Scope and Implementation Provision
§ 4 paragraph 4,
(1) The provisions of Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data, on the free movement of data and on the repeal of Directive 95/46/EC (General Data Protection Regulation), OJ No. L 119 of 4.5 .2016 S. 1, (hereinafter: GDPR) and this federal law apply to the fully or partially automated processing of personal data of natural persons as well as to the non-automated processing of personal data of natural persons that are stored or are to be stored in a file system, unless the more specific provisions of Chapter 3 of this federal law take precedence
2.3. Art. 5 GDPR reads: 2.3. Article 5, GDPR reads:
"Article 5
Principles for the processing of personal data
(1) Personal data must
a)
processed lawfully, fairly and in a manner that is transparent to the data subject (“lawfulness, fair processing, transparency”);
b)
collected for specified, explicit and legitimate purposes and not further processed in a manner incompatible with those purposes; further processing for archiving purposes in the public interest, for scientific or historical research purposes or for statistical purposes shall not be deemed incompatible with the original purposes pursuant to Article 89(1) ("purpose limitation");
c)
adequate and relevant to the purpose and limited to what is necessary for the purposes of processing (“data minimization”);
d)
be accurate and, where necessary, up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without undue delay ("accuracy");
e)
kept in a form that permits identification of data subjects only for as long as is necessary for the purposes for which they are processed; personal data may be stored for a longer period to the extent that the personal data are used exclusively for archiving purposes in the public interest or for scientific and historical research purposes, subject to the implementation of appropriate technical and organizational measures required by this regulation to protect the rights and freedoms of the data subject, or processed for statistical purposes in accordance with Article 89(1) ("storage limitation");
f)
processed in a manner that ensures appropriate security of the personal data, including protection against unauthorized or unlawful processing and against accidental loss, destruction or damage, using appropriate technical and organizational measures ("integrity and confidentiality");
(2) The person responsible is responsible for compliance with paragraph 1 and must be able to demonstrate compliance (“accountability”).”
2.4. Art. 6 GDPR reads:2.4. Article 6, GDPR reads:
Article 6
lawfulness of processing
(1) The processing is only lawful if at least one of the following conditions is met:
a) The data subject has given their consent to the processing of their personal data for one or more specific purposes;
b) the processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
c) processing is necessary for compliance with a legal obligation to which the controller is subject;
d) processing is necessary to protect vital interests of the data subject or another natural person;
e) the processing is necessary for the performance of a task that is in the public interest or in the exercise of official authority that has been delegated to the controller;
f) processing is necessary to safeguard the legitimate interests of the person responsible or a third party, unless the interests or fundamental rights and freedoms of the data subject that require the protection of personal data prevail, in particular if the data subject is a child acts. Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their duties.
2. Member States may maintain or introduce more specific provisions adapting the application of the rules of this Regulation in relation to processing to comply with points (c) and (e) of paragraph 1 by specifying specific requirements for processing and other measures to ensure a lawful and to ensure fair processing, including for other specific processing situations as referred to in Chapter IX. (2) Member States may retain more specific provisions adapting the application of the rules of this Regulation in relation to processing to comply with points (c) and (e) of paragraph 1 or introduce them by specifying specific requirements for processing and other measures to ensure lawful and fair processing, including for other specific processing situations pursuant to Chapter Roman IX.
(3) The legal basis for the processing pursuant to paragraph 1 letters c and e is determined by
a) Union law or
b) the law of the Member States to which the controller is subject. The purpose of the processing must be specified in this legal basis or, with regard to the processing referred to in paragraph 1 letter e, be necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. This legal basis may contain specific provisions adjusting the application of the provisions of this Regulation, including provisions on which general conditions apply to regulate the lawfulness of processing by the controller, what types of data are processed, which subjects are concerned, to which entities and for what purposes the personal data may be disclosed, the purpose limitations, how long they may be stored and what processing operations and procedures may be used, including measures to ensure lawful and fair processing, such as those for others special processing situations according to Chapter IX. Union law or the law of the Member States must pursue an objective of public interest and be proportionate to the legitimate purpose pursued. b) the law of the Member States to which the controller is subject. The purpose of the processing must be specified in this legal basis or, with regard to the processing referred to in paragraph 1 letter e, be necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. This legal basis may contain specific provisions adjusting the application of the provisions of this Regulation, including provisions on which general conditions apply to regulate the lawfulness of processing by the controller, what types of data are processed, which subjects are concerned, to which entities and for what purposes the personal data may be disclosed, the purpose limitations, how long they may be stored and what processing operations and procedures may be used, including measures to ensure lawful and fair processing, such as those for others special processing situations according to chapter roman IX. Union law or the law of the Member States must pursue an objective in the public interest and be proportionate to the legitimate aim pursued.
(4) If the processing for a purpose other than that for which the personal data was collected is not based on the consent of the data subject or on a legal provision of the Union or of the Member States which, in a democratic society, is a necessary and proportionate measure to protection of the objectives referred to in Article 23(1), in order to determine whether the processing for another purpose is compatible with the one for which the personal data were originally collected, the controller shall take into account, inter alia
a) any link between the purposes for which the personal data were collected and the purposes of the intended further processing,
b) the context in which the personal data was collected, in particular with regard to the relationship between the data subject and the person responsible,
c) the nature of the personal data, in particular whether special categories of personal data are processed in accordance with Article 9 or whether personal data relating to criminal convictions and offenses are processed in accordance with Article 10,
d) the possible consequences of the intended further processing for the data subjects,
e) the existence of appropriate safeguards, which may include encryption or pseudonymisation.
2.5. § 84 GOG reads: 2.5. Paragraph 84, GOG reads:
§ 84.Paragraph 84,
In the case of data processing in the context of judicial activity in matters of jurisdiction in civil legal matters and the administration of justice to be carried out in senates, Art. 12 to 22 and Art. 34 of Regulation (EU) 2016/679 on the protection of natural persons during processing are based of personal data, on the free movement of data and repealing Directive 95/46/EC (General Data Protection Regulation), OJ No. L 119 of 05/04/2016 p. 1 (hereinafter: GDPR), and resulting from the right of access , correction and deletion according to § 1 DSG resulting rights and obligations as well as their enforcement according to the procedural laws and the regulations based thereon as well as the regulations of this federal law are based on Articles 12 to 22 and Article 34 of Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data, on the free movement of data and on the repeal of Directive 95/46/EC (General Data Protection Regulation), OJ No. L 119 of 05/04/2016 p. 1 (hereinafter: GDPR), and the rights and obligations resulting from the right to information, rectification and deletion according to paragraph one, DSG and their enforcement according to the procedural laws and the thereon based ordinances and the provisions of this federal law.
2.6. § 85 GOG reads: 2.6. Paragraph 85, GOG reads:
§ 85paragraph 85,
(1) Any person whose fundamental right to data protection has been violated by an organ acting in the exercise of its judicial activity in matters of jurisdiction in civil legal matters and the administration of justice to be dealt with in senates may request the Federation to establish this violation.
(2) The higher court in the instance chain is responsible for deciding on this complaint. If the complaint concerns a violation by an organ of the Supreme Court, the latter is responsible for the decision. The court decides in proceedings other than disputes, unless otherwise specified below.
(3) The complaint shall indicate and justify where the complainant sees the violation of his right. The decision on which the complaint was made or the corresponding process must be precisely described. The day on which the person concerned became aware of the decision or the process must be stated.
(4) The person concerned may only be represented by a lawyer when filing a complaint. The complaint is to be filed with the competent court pursuant to paragraph 2 within one year from the day on which the person concerned became aware of the decision or the process. After three years after the decision or the process, the determination can no longer be sought. (4) The person concerned can only be represented by a lawyer when the complaint is raised. The complaint must be lodged with the competent court pursuant to paragraph 2 within one year from the day on which the person concerned became aware of the decision or the process. After a period of three years after the decision or the process, the determination can no longer be sought.
(5) The court shall pronounce whether the alleged violation of rights has taken place and, if necessary, issue the necessary instructions to the competent court. An appeal to the Supreme Court is permissible against the decision, provided that it was not already made by the Supreme Court and the decision depends on the solution of a legal question that is of considerable importance for maintaining legal unity, legal certainty or legal development. The party must be represented by a lawyer for the filing of the appeal and in the further proceedings. In an affirmative decision, the federal government is to be ordered to reimburse the complainant for the costs of the complaint.
2.7. § 10 BVwGG reads: 2.7. Paragraph 10, BVwGG reads:
staff senate
§ 10 paragraph 10,
(1) The staff senate consists of the president, the vice-president and five members elected by the general assembly from among themselves (elective members). For the elective members, 15 substitute members are to be elected by the General Assembly from among their midst
(2) Otherwise, the provisions of the Service Act for Judges and Public Prosecutors - RStDG, Federal Law Gazette No. 305/1961, on the staff senates shall apply mutatis mutandis to the composition, election and management of the staff senate.(2) Otherwise, the composition the election and management of the staff senate to apply the provisions of the Judges and Public Prosecutor's Service Act - RStDG, Federal Law Gazette No. 305 from 1961, on the staff senates
2.8. § 51 - § 55 RStDG read: 2.8. Paragraph 51, - Paragraph 55, RStDG read:
Service Description
§ 51.Paragraph 51,
(1) If a judge is to be described, this must be done in the first quarter of the calendar year for the past calendar year.
(2) The judges in salary groups I and II, with the exception of the vice presidents and senate presidents of the higher regional courts and the presidents of the courts of first instance, are to be described for the second calendar year following their appointment. (2) The judges in salary groups Roman one and Roman II , with the exception of the vice presidents and senate presidents of the higher regional courts and the presidents of the courts of first instance, are to be described for the second calendar year following their appointment.
(3) The President of the Court of Justice (the head of the district court) shall apply for a new description of a judge if there are reasons to believe that the last overall assessment of this judge is no longer correct.
(4) The judge may request a new description if he is of the opinion that his overall assessment is no longer correct and at least one calendar year has passed since the last year for which the job description was determined.
(5) If the overall assessment of a judge is not at least "very good", the judge must also be described for the following calendar year.
(6) A job description according to paragraph 2 or 3 is to be postponed to the next calendar year if the judge has served less than six months in the calendar year in question or if his service has temporarily deteriorated solely for reasons he cannot be blamed for. (6) A job description according to paragraph 2 or 3 is to be postponed to the next calendar year if the judge has worked for less than six months in the calendar year in question or if his service has temporarily deteriorated solely for reasons he cannot be blamed for.
Responsibility for the service description
§ 52.Paragraph 52,
(1) The following is responsible for the job description of the judges:
1. The Staff Senate of the Court of First Instance with regard to the judges employed at the subordinate district courts and at the Court of Justice, with the exception of the President and the Vice-President(s);
2. the staff senate of the higher regional court with regard to the judges for the district of the higher regional court, the presidents and vice-presidents of the courts of first instance and the judges employed at the higher regional court with the exception of the president and the vice-president;
3. the staff senate of the Supreme Court with regard to the presidents and vice-presidents of the higher regional courts and the judges employed at the Supreme Court, with the exception of the president and the vice-presidents.
(2) For those judges who are used exclusively or predominantly in criminal matters at one of the district courts subordinate to the regional courts for civil law matters in Vienna and Graz, the staff senate of the respective regional court for criminal matters is responsible, in derogation of paragraph 1 no. 1. (2) For those judges who are used exclusively or predominantly in criminal matters at one of the district courts subordinate to the regional courts for civil law matters in Vienna and Graz, the personnel senate of the respective regional court for criminal matters is responsible, in derogation of paragraph one, number one.
Drafting and definition of the service description
§ 53.Paragraph 53,
(1) The rapporteur of the staff senate has to draft the job description in writing according to the questions of Section 54. (1) The rapporteur of the staff senate has to draft the job description in writing according to the questions of paragraph 54.
(2) The Personnel Senate shall determine the job description after examining the written draft. If he considers additional clarifications to be necessary, he can carry out the investigations he deems necessary.
(3) Before the resolution is passed on the job description of the judges employed at the district courts, a statement from the judge in charge shall be obtained and the chairman of the appeals panel shall be heard, if necessary by being consulted.
overall assessment
§ 54.Paragraph 54,
(1) The following must be taken into account in the service description:
1. Scope and topicality of the technical knowledge, in particular the regulations necessary for the performance of the office;
2. the skills and perception;
3. diligence, perseverance, conscientiousness, reliability, determination and determination;
4. the social skills (§ 14 paragraph 2), the ability to communicate and the suitability for party traffic; 4. the social skills (paragraph 14, paragraph 2), the ability to communicate and the suitability for party traffic;
5. the ability to express yourself (written and spoken) in the German language and, if required for the service, knowledge of foreign languages;
6. the other behavior on duty, in particular towards superiors, employees and parties, as well as behavior outside of the service, if there are repercussions on the service;
7. in the case of judges who have been appointed to a senior position or who are eligible for appointment to such a position, the suitability for this;
8.the success of the use.
(2) Special circumstances that are decisive for the description of the service must be expressly stated.
(3) The overall assessment must read:
1. excellent, with excellent knowledge, skills and performance;
2. very good, with above-average knowledge, skills and performance;
3. good, with average knowledge, skills and performance;
4. accordingly, if the minimum level of performance that is essential for the proper provision of the service is constantly achieved;
5. Not appropriate if the minimum level of performance that is essential for the proper provision of the service is not achieved.
Notification of the overall assessment
legal remedy
§ 55.Paragraph 55,
(1) The overall assessment is to be communicated in writing to the person described in confidential form.
(2) He has the right to inspect his job description. At his request, a photocopy of the job description is to be given to him.
(3) The judge may appeal against the overall assessment to the staff senate of the higher court within two weeks after delivery of the notification.
(4) A copy of the job description personally signed by the President of the Court of Justice is to be included with the professional identification card.
3) Subject of the Complaint
The object of the complaint in the proceedings before the Federal Administrative Court is the data processing by the Personnel Senate in the complainant’s job description for the 2020 calendar year of March 8, 2021, which the complainant complained of as being unlawful.
4) Process Requirements
4.1. jurisdiction
The Respondent is a legally established collegial body consisting of the President, the Vice-President and five members elected by the General Assembly of the members of the Federal Administrative Court. The Respondent decides as a collegial body on the tasks assigned to him under Section V of the RStDG. (cf. § 48 Para. 1 RStDG) The creation of a job description according to §§ 51 ff. RStDG for a judge of the Federal Administrative Court is a statutory task of the Personnel Senate. The Respondent is a legally established collegial body consisting of the President, the Vice-President and five members elected by the General Assembly of the members of the Federal Administrative Court. The Respondent decides in the five according to him. Section of the RStDG assigned tasks as a collegial body. compare paragraph 48, paragraph one, RStDG) The creation of a job description according to paragraphs 51, ff. RStDG for a judge of the Federal Administrative Court is a statutory task of the personnel senate.
In its decision of October 28, 2021, Ro 2021/09/0007, with reference to the previous case law of the Constitutional Court of March 1, 2012, B 743/11, VfSlg. 19.618, as well as VwGH 14.06.1995, 95/12/0051 pronounced that a service description according to the RStDG is to be qualified as a decision of the respondent against which the appeal of the revision to the Administrative Court is available. The more recent case law of the courts of public law also shows that an appeal is (in principle) permissible against a decision made by the respondent as in the present case (cf. VwGH 28.11.2022, Ro 2021/09/0014 and VfGH 07.03.2023 , G 282/83/2022, Rn 35). In its decision of October 28, 2021, Ro 2021/09/0007, with reference to the previous case law of the Constitutional Court of March 01, 2012, B 743/11, VfSlg. 19.618, as well as VwGH 14.06.1995, 95/12/0051 pronounced that a service description according to the RStDG is to be qualified as a decision of the respondent against which the appeal of the revision to the Administrative Court is available. The more recent case law of the courts of public law also shows that an appeal is (in principle) permissible against a decision made by the respondent as in the present case, compare VwGH 28.11.2022, Ro 2021/09/0014 and VfGH 07.03.2023, G 282/83/2022, para. 35).
It follows that the Federal Administrative Court has jurisdiction within the meaning of Art. 130 Para. 2a B-VG with regard to the present complaint, which is directed against a court decision 130, paragraph 2 a, B-VG with regard to the present complaint, which is directed against a court decision.
4.2. timeliness of the complaint
Pursuant to Art. 130 Para. 2a B-VG in conjunction with Section 85 Para has become aware of the decision or the process, is to be submitted to the competent court. According to article 130, paragraph 2 a, B-VG in conjunction with paragraph 85, paragraph 4, GOG, a data protection complaint about an alleged infringement by an organ of an administrative court in the exercise of judicial independence must be lodged within one year from the day on which the person concerned has become aware of the decision or the process is to be submitted to the competent court.
In the complaint that is the subject of the proceedings, the complainant complains of unlawful data processing by the respondent in the course of the procedure for the service description for the year 2020. Since the respondent's decision regarding the complainant's service description (by sending the notification of the overall assessment in accordance with Section 55 (1) RStDG) became known on March 12, 2021, the complaint lodged against it (within the one-year preclusion period on March 9, 2022) has proven to be timely. In the complaint that is the subject of the proceedings, the complainant complains of unlawful data processing by the respondent in the course of the procedure for the service description for the year 2020. Since the respondent's decision regarding the complainant's service description (by sending the notification of the overall assessment in accordance with paragraph 55, paragraph one, RStDG ) became known on March 12, 2021, the complaint against it (within the one-year preclusion period on March 9, 2022) has proven to be timely.
5) In the matter
The complaint is unfounded:
According to the RStDG, the respondent is responsible for carrying out job descriptions for judges of the Federal Administrative Court. In the case at hand, he also acted within the scope of his legal authorization or obligation when he carried out a new job description for the calendar year 2020 in the case of the complainant.
On this basis, the complainant's complaint does not reveal what a data protection violation should be based on.
The complaint is directed against the activities of the Personnel Senate of the Federal Administrative Court as the competent judicial body.
The complainant believes that the decision of the respondent violates his fundamental right to data protection in accordance with Section 1 (1) DSG due to unlawful data acquisition or data processing, since the principles of data processing in accordance with Section 4 (1) DSG in conjunction with Article 5 (1) 1 lit. b) GDPR had not been complied with Paragraph 4, paragraph one, DSG in connection with Article 5, paragraph one, litera b,) GDPR have not been complied with.
However, it must be countered that if it is conceivable that the type and content of the data determined by a judicial body is suitable for determining the relevant facts, the determination is permissible from a data protection point of view. Claiming a more in-depth assessment of the suitability of the chosen investigative steps would interfere with the factual competence of the body actually responsible for the content. As a result, this would lead to the fact that the (fine) data protection control in the preliminary proceedings is inadmissibly in breach of the right to a procedure before the statutory judge, which can be derived from the principle of precise delimitation of responsibility according to objective criteria (VfSlg. 3156, 8349), in exact (VfSlg. 9937, 10.311) and clearly (VfSlg. 11.288, 13.029, 13.816).
But nothing else is the aim of the complainant:
The complainant would like to know that the Personnel Senate of the Federal Administrative Court is restricted in the exercise of the statutory tasks assigned to it due to data protection barriers in such a way that the Senate of the Federal Administrative Court that recognizes this prohibits the Personnel Senate of the Federal Administrative Court from certain investigative steps and data processing. However, there is no room for this, especially with regard to the guarantees of Art. 6 ECHR and the associated risk that legal matters would be unduly withdrawn from the competent judicial body. Because in the present case, contrary to the statutory order, the judging senate would take the place of the personnel senate of the Federal Administrative Court if it were only to declare certain investigative activities permissible. As a result, the data protection complaint in question aims inadmissibly to influence, correct or control the (main) judicial proceedings regarding the complainant's service description. However, a complaint pursuant to Sections 84 and 85 GOG does not serve this purpose (see Fellner/Nogratnig, RStDG, GOG and StAG II5.01 Section 84 GOG [as of February 1, 2022, rdb.at], RZ 5, with reference to OGH February 23 .2016, 6 Ob 225/15d). The complainant would like to know that the Personnel Senate of the Federal Administrative Court is restricted in the exercise of the statutory tasks assigned to it due to data protection barriers in such a way that the Senate of the Federal Administrative Court recognizing here instructs the Personnel Senate of the Federal Administrative Court to carry out certain investigative steps and Data processing prohibited. However, there is no room for this, especially with regard to the guarantees of Article 6, ECHR and the associated risk that legal matters would be inadmissibly withdrawn from the competent judicial body. Because in the present case, contrary to the statutory order, the judging senate would take the place of the personnel senate of the Federal Administrative Court if it were only to declare certain investigative activities permissible. As a result, the data protection complaint in question aims inadmissibly to influence, correct or control the (main) judicial proceedings regarding the complainant's service description. However, a complaint pursuant to Sections 84 and 85 GOG does not serve this purpose (see Fellner/Nogratnig, RStDG, GOG and StAG II5.01 Section 84, GOG [status 02/01/2022, rdb.at], RZ 5, with reference to OGH 02/23 .2016, 6 Ob 225/15d).
The Respondent has used data that are suitable in terms of their type and content for determining the relevant facts, in concrete terms for creating a service description, in accordance with the procedural laws, which is why the use of the data from a data protection point of view is not objectionable - is permissible. The complaint did not give any other indication that the respondent violated any mandatory data processing principles.
Against this background, the present complaint cannot succeed.
6) Carrying out an oral hearing:
Pursuant to Section 24 (1) VwGVG, the administrative court shall hold a public oral hearing upon application or, if it deems it necessary, ex officio reserves the right to hold a public oral hearing ex officio.
Pursuant to Section 24 (4) VwGVG, the administrative court can - insofar as nothing else is determined by federal or state law - refrain from a hearing, regardless of a party's application, if the files indicate that the oral discussion does not give reason to expect any further clarification of the legal matter, and neither Art. 6 Para. 1 ECHR nor Art. 47 GRC stand in the way of the omission of the hearing. According to paragraph 24, paragraph 4, VwGVG - unless otherwise provided by federal or state law - the administrative court can refrain from a hearing regardless of a party's application, if the files indicate that further clarification of the case cannot be expected from the oral discussion, and if neither Article 6, paragraph 1, ECHR nor Article 47 CFR preclude the omission of the hearing.
In the present case, the omission of an oral hearing could be based on the fact that the facts had been clarified from the file situation. The use of further evidence was not necessary to clarify the facts.
It was therefore not necessary to conduct an oral hearing.
to B)
Pursuant to § 25a Para. 1 VwGG, the administrative court has to pronounce in its ruling or decision whether the revision is admissible according to Art. 133 Para. 4 B-VG. The verdict must be briefly reasoned. According to paragraph 25 a, paragraph one, VwGG, the administrative court has to pronounce in its ruling or decision whether the revision is permissible according to Article 133, paragraph 4, B-VG. The statement must be briefly justified.
According to Art. 133 para. 4 B-VG, the revision is not permitted because the decision does not depend on the solution of a legal question that is of fundamental importance. The present decision neither deviates from the previous case law of the Administrative Court, nor is there any case law; Furthermore, the case law of the Administrative Court is not to be judged as inconsistent. There are also no other indications of a fundamental importance of the legal question to be solved. The revision is not permitted according to Article 133, paragraph 4, B-VG because the decision does not depend on the solution of a legal question that is of fundamental importance. The present decision neither deviates from the previous case law of the Administrative Court, nor is there any case law; Furthermore, the case law of the Administrative Court is not to be judged as inconsistent. There are also no other indications of a fundamental importance of the legal question to be solved.
