AG Frankfurt am Main - 31 C 2043/22 (78)

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Revision as of 14:20, 6 June 2023 by 10.90.129.158 (talk)
AG Frankfurt am Main - 31 C 2043/22 (78)
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Court: AG Frankfurt am Main (Germany)
Jurisdiction: Germany
Relevant Law: Article 4 GDPR
Article 15(3) GDPR
Article 15(4) GDPR
Decided: 14.03.2023
Published:
Parties:
National Case Number/Name: 31 C 2043/22 (78)
European Case Law Identifier: ECLI:DE:AGFFM:2023:0314.31C2043.22.78.00
Appeal from:
Appeal to: Unknown
Original Language(s): German
Original Source: Citizen Service Hessenrecht (in German)
Initial Contributor: n/a

A language test provider can refuse to provide an applicant with a copy of their test insofar as its interest in secrecy of the questions outweights the right to access of the applicant.

English Summary

Facts

After failing a language test, a data subject requested the test provider (controller) to provide her a copy of her examination paper under Article 15(3) GDPR. The controller offered the data subject to consult her paper at its office but refused to provide a copy. It argued that the majority of the paper did not contain personal data under the meaning of Article 4 GDPR and that it had an interest in secrecy that justified its refusal to provide a copy under Article 15(4) GDPR.

Unsatisfied, the data subject brought an action with the Amstgericht Frankfurt (local Court of Frankfurt).

Holding

First, the Court did not follow the argument stating that the content of the paper was not personal data. It considered that the answers of the data subjects and the comments of the examiner constituted personal data under Article 4 GDPR. The test questions however were not personal data.

Second, the Court weighed up the right of the data subject to obtain a copy and the interest of the controller in secrecy under Article 15(4) GDPR. It considered that the test questions constituted trade secrets within the meaning of national provisions and that the development of these language test represented a complex procedure involving considerable economic effort. These tests are used in naturalization procedure and due to a lack of secrecy, there could be a risk that the examination would no longer be considered sufficient to determine language skills in naturalization procedures. As a result, the entrepreneurial freedom of the controller could be threatened.

The Court therefore considered that on the basis of its interest to secrecy, the controller could refuse to provide a copy under Article 15(4) GDPR. It took into account that the right to access was not entirely denied since the data subject could consult her paper at the controller’s office.

Comment

According to Article 15(4) GDPR, the right to obtain a copy must "not adversely affect the rights and freedoms of others". In this decision, the Court refers to an "interest" in secrecy of the controller and mentions once the entrepreneurial freedom.

It appears curious that the holding focuses on this interest in secrecy and not on the entrepreneurial freedom since the text of Article 15(4) refers to "rights and freedoms of others". Also, the Court does not explain how these intrerests are adversely affected. This appears as a very flexible interpretation of Article 15(4) GDPR.

Regarding the right of access, see EDPB guidelines on the right of access.

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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.

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