VG Ansbach - AN 14 K 19.01313
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| VG Ansbach - AN 14 K 19.01313 | |
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| Court: | VG Ansbach (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 77 GDPR Article 78(2) GDPR |
| Decided: | 03.08.2023 |
| Published: | |
| Parties: | |
| National Case Number/Name: | AN 14 K 19.01313 |
| European Case Law Identifier: | |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | Bayern.Recht (in German) |
| Initial Contributor: | mg |
A German court held that an email in which a data subject invites a DPA to investigate on an alleged GDPR violation is a complaint pursuant to Article 77 of the Regulation. The fact that the complaint is eventually held unfounded does not authorise the DPA to delay its action.
English Summary
Facts
The data subject lodged a complaint against a controller with the Bavarian DPA via email. The DPA never reacted to such an email. Therefore, the data subject brought an action against the DPA, lamenting that the latter did not take into consideration their original complaint within the legally established term of three months.
Eventually, the DPA took action, examined the data subject’s complaint and rejected it for lack of any GDPR violation. The data subject accepted the merit of the decision and withdrew its legal action but also asked the DPA to bear the costs of the procedure. In the data subject’s view, the DPA’s lack of response still amounted to a failure to act for which the DPA was liable.
The DPA refused to pay the costs arguing that the data subject’s email was not a complaint within the meaning of Articles 77 or 78 GDPR, as no GDPR violation by the controller was found.
Thus, the procedure continued exclusively with regard to the costs.
Holding
The Administrative Court of Ansbach (Verwaltungsgericht Ansbach – VG Ansbach) upheld the data subject’s view.
According to the court, the email sent to the DPA amounted to a complaint pursuant to Article 77 GDPR. The right to an effective remedy implies that the procedural requirements to file a complaint with a supervisory authority shall not be interpreted too strictly.
The lack of response within the legally established term of three months in turn entailed a liability pursuant to Article 78(2) GDPR. The DPA did not show any compelling reason for which the decision was delayed. The court completely disregarded the controller’s argument that Articles 77 and 78 GDPR did not apply as no violation was found.
As the data subject had withdrawn its action, the procedure was discontinued, but the court ordered the DPA to bear the costs.
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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.
Title: Cost decision analogous to § 161 Para. 3 VwGO when the legal dispute is settled after the data protection supervisory authority has not acted chains of standards: GDPR Art. 77 DS-GVO Art. 78 Para. 2 VwGO analogous to § 161 paragraph 3 Keyword: Cost decision analogous to § 161 Para. 3 VwGO when the legal dispute is settled after the data protection supervisory authority has not acted Source: BeckRS 2023, 20857 tenor 1. The proceedings are discontinued. 2. The defendant bears the costs of the proceedings. 3. The value in dispute is set at EUR 2,500.00. 4. The plaintiff is granted legal aid. reasons 1 With her lawsuit, the plaintiff requested the timely processing of her data protection complaint. 2 In an email dated April 4, 2019, the plaintiff complained to the defendant about what she believed to be a data protection violation by a company. As a result, the plaintiff initially received no confirmation of receipt from the defendant or any other feedback about the processing of her complaint. 3 In a letter dated July 5, 2019, the plaintiff therefore brought the present action and explained that, contrary to Art. 78 Para Complaints procedure has been communicated. 4 The defendant then processed the plaintiff's data protection complaint and informed her of the result with a final notification of September 6, 2019. 5 Thereafter, the plaintiff declared the legal dispute settled in a letter dated November 22, 2019 and applied for the costs to be imposed on the defendant in accordance with § 161 (3) VwGO, since it was an action for failure to act in this sense. The defendant agreed to the declaration of completion in a letter dated November 9, 2022, with safekeeping against the burden of costs, since the plaintiff's e-mail of April 5, 2019 was certainly not a complaint within the meaning of Articles 77, 78 GDPR because no breach of data protection had been demonstrated. 6 For further details, reference is made to the court and authority files. 7 The procedure is to be discontinued in accordance with Section 92 (3) sentence 1 VwGO, since the parties involved have declared the legal dispute to be settled. 8th 1. The costs of the procedure are borne by the defendant in accordance with Section 161 (3) VwGO. 9 Contrary to the plaintiff's view, Section 161 (3) VwGO was not directly applicable to the decision on costs, since the present case was not an action for failure to act within the meaning of Section 161 (3) and Section 75 VwGO. Because the plaintiff's request for action was not directed at a specific measure on the part of the defendant, which could be qualified as an administrative act, but at action by the defendant in the context of its data protection complaint under Art. 77 f. DS-GVO. Therefore, the action for failure to act according to § 75 VwGO was not the permissible type of action here, but the general action for performance. 10 Section 161 (3) VwGO is to be applied analogously to the present case, since it is an interest situation that is comparable to that of an action for failure to act, but for which there is an unplanned regulatory gap. 11 In the event of a lawsuit pursuant to Art. 78 Para. 2 Alt. 2 VwGO, there is an unplanned regulatory gap with regard to the cost decision, since Sections 154 et seq. VwGO, which also apply in the case of a lawsuit pursuant to Art Para. 2 Alt. 2 VwGO apply, do not contain any special cost regulation for this legal constellation. In this constellation, however, the interests involved are comparable overall to those of an action for failure to act under Section 75 VwGO, since both cases are based on the fact that an authority breached its duty and did not take action (in good time). 12 Therefore, in cases such as the present one, in which the defendant did not inform the complainant about the status of the complaint within three months, contrary to the provision of Art. 78 (2) alternative 2 GDPR, and the complainant then has a complaint has raised to apply § 161 para. 3 VwGO analogously. 13 The requirements of Section 161 (3) VwGO are present here. Due to the provision of Art. 78 Para. 2 Alt. 2 VwGO, the plaintiff could generally expect that the defendant would inform her about the status of her data protection complaint of April 5, 2019 within three months. Contrary to the view of the defendant, this e-mail from the plaintiff was also a complaint within the meaning of Articles 77 and 78 GDPR, because the requirements for the mere initiation of a complaint procedure must not be overstated in the sense of the effective legal remedy intended here. In this e-mail, the plaintiff expressly complained about a violation of the coupling ban (Art. 7 Para. 4 DS-GVO), so that the treatment of her e-mail as a complaint within the meaning of Art. 77, 78 DS-GVO with the corresponding obligation to inform Art. 78 para. 2 alternative 2 GDPR would have been appropriate. 14 Since the substantive requirements for notification within the meaning of Article 78 (2) alternative 2 GDPR are probably not too high, the official time required for this should also be limited and can usually be implemented within three months. In the present case, there are also no exceptional indications that could possibly justify an extension of the rigid period of Art. 78 (2) alternative 2 GDPR. Therefore, the plaintiff could expect the defendant to take action before the action was filed, analogous to Section 161 (3) VwGO. 15 Therefore, the costs of the proceedings were to be imposed on the defendant in accordance with Section 161 (3) VwGO. 16 2. The determination of the amount in dispute is based on Section 51 (2) GKG. Since the plaintiff's request was aimed solely at the implementation of a complaints procedure and thus falls short of a request for such implementation of a complaints procedure including a specific official decision, the determination of a value in dispute of half the value in dispute from § 52 para 2 GKG appropriate (§ 52 Abs. 1 GKG) (cf. VG Ansbach, U.v. 12.10.2022 - AN 14 K 19.01728 - juris Rn. 48-50). 17 3. The plaintiff was also to be granted legal aid. 18 According to Section 166 Paragraph 1 Sentence 1 VwGO in conjunction with Section 114 Paragraph 1 Sentence 1 ZPO, a party who, based on their personal and economic circumstances, cannot pay the costs of the litigation, or can only do so in part or only in installments, will receive legal aid at their request, if the intended prosecution offers sufficient prospects of success and does not appear willful. Legal aid is thus regularly only granted for intended prosecution. If the main proceedings for which legal aid is sought have already ended as a result of a settlement, withdrawal of the action or - as here - mutual declarations of settlement, the approval of legal aid is generally ruled out, since this presupposes that the legal prosecution in question is still "intended" (cf. Kopp/ Schenke, VwGO, 22nd edition 2016, § 166 para. 14; BayVGH, B.v. 13.7.2010 - 11 C 10.1212). In exceptional cases, however, retrospective approval of legal aid can also be considered after the end of the main proceedings if the applicant party has already done everything necessary for the approval of legal aid, i.e. has submitted a complete application for legal aid by submitting the prescribed and other necessary documents and in addition to the sufficient prospects of success, their personal and economic circumstances can also be assessed unequivocally - without additional explanations (cf. BayVGH, B.v. 7.7.2014 - 7 C 14.1020; B.v. 13.7.2010 - 11 C 10.1212; B.v. 8.1.2007 - 9 C 05.532; B.v. 12.12.2006 - 9 C 06.2407 - juris para. 13). 19 These conditions are given in the present case. Before the main issue was settled, the plaintiff had already done everything necessary for the legal aid approval, in particular submitted a declaration of her personal and economic circumstances. Although the statement submitted in these proceedings was faxed incompletely, the court was able to use the statement on her personal and economic circumstances submitted two days earlier in the parallel proceedings by the plaintiff under file number AN 14 K 19.02093, since this full statement was also there was submitted before the present legal dispute was settled. 20 The intended legal prosecution, which has now been completed, also had a reasonable chance of success, since the defendant, as explained above, did not inform the plaintiff (in good time) of the status of her complaint within the meaning of Article 78 (2) alternative 2 GDPR, so that the Plaintiff with the necessary certain probability (cf. Happ in Eyermann, VwGO, 15th edition 2019, § 166 para. 26) a claim under Article 57 Paragraph 1 Letter f DS-GVO in conjunction with Article 78 Paragraph 2 DS -GVO against the defendant for a corresponding action (cf. VG Ansbach, U.v. 12.10.2022 - AN 14 K 19.01728 - juris marginal number 37; U.v. 8.8.2019 - AN 14 K 19.00272 - juris marginal number 39 with further references).
