BVwG - W137 2271316-1
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| BVwG - W137 2271316-1 | |
|---|---|
 | |
| Court: | BVwG (Austria) |
| Jurisdiction: | Austria |
| Relevant Law: | Article 6(1)(f) GDPR |
| Decided: | 18.07.2024 |
| Published: | |
| Parties: | |
| National Case Number/Name: | W137 2271316-1 |
| European Case Law Identifier: | ECLI:AT:BVWG:2024:W137.2271316.1.00 |
| Appeal from: | DSB (Austria) GZ. D124.0332/22 2023-0.158.053 |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | RIS (Austria) (in German) |
| Initial Contributor: | wp |
A court found an individual had a legitimate interest in monitoring a shared path via CCTV to bring cases against people misusing that path.
English Summary
Facts
An individual (the controller) installed a video surveillance system (CCTV) on their premises. The CCTV filmed a forest path, which run alongside their premises. The CCTV was active upon detection of movement and stored the recording on a SD card.
The path was on the property of the controller but members of a partnership had the right to use the path for forestry and hunting purposes. In principle, other strangers were not allowed to use the path.
As the controller explained, the members of the partnership decided, in majority but without the controller’s agreement, to use the path for hunting purposes. The route was necessary for the hunters to access the hunting area, located on the premises of a third party (a member of the partnership). According to the controller, the CCTV was installed as a protection and to gather evidence that unauthorised people used the path.
Two of the members of the partnership lodged a complaint with the Austrian DPA (DSB), claiming the controller violated their right to privacy.
The DPA found the controller filmed the area to collect evidence of the path’s misuse. However, the permanent surveillance of the path to make several potential complaints was not permissible. Nevertheless, the DPA noted that the controller removed the CCTV, so there was no mandate for further actions of the DPA.
The controller initiated the appeal proceedings before The Federal Administrative Court (Bundesverwaltungsgericht) against the DPA’s decision.
Holding
The court upheld the appeal, overturned the DPA’s decision and rejected the complaints by the data subjects.
The court examined the legitimate interest pursued by the controller. All criteria of the legitimate interest stemming from the CJEU case law was fulfilled. The controller had a legitimate interest to monitor access to the path and bring cases against people misusing it. The court found no alternative, less privacy intrusive way to supervise the path. Moreover, the legitimate interest of the controller, i.e. to prevent the use of the path by unauthorised persons, outweighed the fundamental rights and freedoms of path users.
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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
July 18, 2024
Standard
B-VG Art133 Paragraph 4
DSG §1
DSG §12
DSGVO Art4
DSGVO Art5
DSGVO Art6
B-VG Art. 133 today B-VG Art. 133 valid from January 1, 2019 to May 24, 2018 last amended by BGBl. I No. 138/2017 B-VG Art. 133 valid from January 1, 2019 last amended by BGBl. I No. 22/2018 B-VG Art. 133 valid from May 25, 2018 to December 31, 2018 last amended by BGBl. I No. 22/2018 B-VG Art. 133 valid from August 1, 2014 to May 24, 2018, last amended by BGBl. I No. 164/2013 B-VG Art. 133 valid from January 1, 2014 to July 31, 2014, last amended by BGBl. I No. 51/2012 B-VG Art. 133 valid from January 1, 2004 to December 31, 2013, last amended by BGBl. I No. 100/2003 B-VG Art. 133 valid from January 1, 1975 to December 31, 2003, last amended by BGBl. No. 444/1974 B-VG Art. 133 valid from December 25, 1946 to December 31, 1974, last amended by BGBl. No. 211/1946 B-VG Art. 133 valid from 19.12.1945 to 24.12.1946 last amended by StGBl. No. 4/1945 B-VG Art. 133 valid from January 3, 1930 to June 30, 1934
DSG Art. 1 § 1 today DSG Art. 1 § 1 valid from January 1, 2014 last amended by BGBl. I No. 51/2012 DSG Art. 1 § 1 valid from January 1, 2000 to December 31, 2013
DSG Art. 2 § 12 today DSG Art. 2 § 12 valid from May 25, 2018 to May 24, 2018 last amended by BGBl. I No. 120/2017 DSG Art. 2 § 12 valid from May 25, 2018 last amended by BGBl. I No. 24/2018 DSG Art. 2 § 12 valid from January 1st, 2014 to May 24th, 2018, last amended by BGBl. I No. 83/2013 DSG Art. 2 § 12 valid from January 1st, 2010 to December 31st, 2013, last amended by BGBl. I No. 133/2009 DSG Art. 2 § 12 valid from January 1st, 2000 to December 31st, 2009
Saying
W137 2271316-1/7E
IN THE NAME OF THE REPUBLIC!
The Federal Administrative Court, through Judge Mag. Peter HAMMER as chairman and the expert lay judges Mag. Ursula ILLIBAUER and MMag. Jakob KALINA as assessors on the complaint of XXXX , represented by Mag. Gerhard Moser, against the decision of the data protection authority dated March 29, 2023, GZ. D124.0332/22 2023-0.158.053, rightly ruled:The Federal Administrative Court, through the judge Mag. Peter HAMMER as chairman and the expert lay judges Mag. Ursula ILLIBAUER and MMag. Jakob KALINA as assessors, on the complaint of Roman 40 , represented by Mag. Gerhard Moser, against the decision of the data protection authority dated March 29, 2023, GZ. D124.0332/22 2023-0.158.053, rightly ruled:
A)
The appeal is upheld and the contested decision is amended to read as follows:
"The appeal is dismissed as unfounded."
B)
The appeal is not admissible according to Article 133, Paragraph 4, B-VG.The appeal is not admissible according to Article 133, Paragraph 4, B-VG.
Text
Reasons for the decision:
I. Procedure: Roman one. Procedure:
1. In the complaints of February 25, 2022, improved with a submission of March 15, 2022, and April 6, 2022, XXXX (= first complainant before the data protection authority and first party involved before the Federal Administrative Court) and XXXX (= second complainant before the data protection authority and second party involved before the Federal Administrative Court) alleged a violation of the right to confidentiality. In summary, the first party involved stated that XXXX (= respondent before the data protection authority and complainant before the Federal Administrative Court) had set up a game camera on his property. He and his family were being photographed, filmed, harassed and reported using this game camera. In addition, the complainant had passed on images to third parties and to a district authority. 1. In the complaints of February 25, 2022, improved with a submission of March 15, 2022, and April 6, 2022, roman 40 (= first complainant before the data protection authority and first party involved before the Federal Administrative Court) and roman 40 (= second complainant before the data protection authority and second party involved before the Federal Administrative Court) alleged a violation of the right to confidentiality. In summary, the first party involved stated that roman 40 (= respondent before the data protection authority and complainant before the Federal Administrative Court) had set up a game camera on his property. This game camera was used to photograph, film, harass and report him and his family. In addition, the complainant had passed on images to third parties and to a district authority.
The second party involved filed a largely identical complaint against the complainant.
2. In a letter dated April 6, 2022, the data protection authority informed the parties involved that the two complaint proceedings would be combined because they essentially concern the same facts.
3. In a statement dated May 4, 2022, the complainant argued that it was correct that he had set up a camera in that area, as stated. The property in question is the sole property of the complainant. The camera was removed in April 2021. There is no other camera.
4. In a further letter, the parties involved stated that the camera was filming a forest path, a so-called cooperative path. This camera was only set up on the path of the property in question in order to carry out illegal surveillance.
5. The complainant made a statement in summary dated February 27, 2023 as follows:
The path of the haulage cooperative runs for several hundred meters over the complainant's land. The purpose of using the path of the forestry haulage cooperative is forestry use. In June 2022, the members of the haulage cooperative decided - without the consent of the complainant - that the path could also be used for hunting purposes. In this context, the complainant had found in recent months and years that the path had increasingly been used for hunting purposes and was being used by strangers (who are not part of the haulage cooperative).
The parties involved are the owners of their own hunting ground, and this private hunting area is opened up by the path of the forestry haulage cooperative. The path had been used for hunting purposes to an extent that was no longer reasonable. Furthermore, there is a hut in the private hunting area, although the purpose of building this hut was exclusively agricultural and forestry. This hut was subsequently converted into a residential area and was also used by the family of the parties involved for tourist purposes (rental). Holidaymakers should be given the opportunity to use this hut for recreational purposes for a fee.
It is true that the complainant installed a game camera in that area. He installed it for self-protection in order to be able to prove that the path was being used by unauthorized persons. Only by installing this game camera was he able to collect evidence that the path was being used by unauthorized persons.
6. With the decision of March 29, 2023 mentioned in the ruling, the data protection authority upheld the data protection complaints of February 25, 2022 and April 6, 2022 and found that the complainant had violated the parties involved's right to confidentiality by using a game camera on his property to take images of the parties involved using the path that runs there between December 2020 and April 2021.
In this decision, the data protection authority essentially made the following findings of fact:
The complainant is the sole owner of the property in question. The parties involved and the complainant are members of a transport cooperative. The path, which was built by the transport cooperative, also runs on the complainant's property, among other things. The parties involved are the owners of a private hunting ground, the area of which is opened up by the transport cooperative's path. The members of the bringing cooperative had - without the consent of the complainant - decided that the trail could also be used for hunting purposes. At an unknown point in time - in any case no later than December 27, 2020 - the complainant mounted a game camera on a tree on his property, which recorded the bringing cooperative's trail. The parties involved were regularly recorded by the game camera. The complainant removed the camera in April 2021. From December 27, 2020 to April 17, 2021, the recording area essentially covered a section of forest path (presentation of screenshots). The complainant stated that he operated the game camera to prove that the trail was being used by unauthorized persons. However, the complainant operated the game camera mainly to file charges against the parties involved. For this purpose, he submitted photographs to a police station for the purpose of filing charges against the parties involved. The responsible district authority then initiated administrative penal proceedings. The road monitored by the complainant is a private road in accordance with Section 7 Paragraph 1 Item 5 of the Styrian State Road Administration Act 1964 (LStVG. 1964). The complainant is the sole owner of the property in question. The parties involved and the complainant are members of a haulage cooperative. The road, which was built by the haulage cooperative, also runs on the complainant's property. The parties involved are the owners of a private hunting ground, the area of which is opened up by the haulage cooperative's road. The members of the haulage cooperative decided - without the consent of the complainant - that the road could also be used for hunting purposes. At an unknown time - in any case on December 27, 2020 at the latest - the complainant mounted a game camera on a tree on his property, which recorded the path of the transport cooperative. The parties involved were regularly recorded by the game camera. The complainant removed the camera in April 2021. From December 27, 2020 to April 17, 2021, the recording area essentially covered a section of forest path (screenshots provided). The complainant stated that he operated the game camera to prove that the path was being used by unauthorized persons. However, the complainant operated the game camera mainly to file charges against the parties involved. For this purpose, he submitted photographs to a police station for the purpose of filing charges against the parties involved. The responsible district authority then initiated administrative penal proceedings. The road monitored by the complainant is a road for interested parties in accordance with paragraph 7, subsection one, item 5, of the Styrian State Road Administration Act 1964 (LStVG. 1964).
On the basis of these findings of fact, the data protection authority concluded the following in legal terms:
The complainant is processing personal data and subsequently asks itself whether this processing was lawful. In the present case, the complainant's legitimate interest, on which he also bases the processing of the personal data, must be examined. The path in question is a public interest path. As the owner of the property surrounding the path, the complainant is to be granted a legitimate interest in ensuring that the path is not used by anyone other than those named in Section 7 Paragraph 1 Item 5 of the LStVG 1964. However, the recording of the parties involved in order to realize the interest in video surveillance stated by the complainant is not necessary. The parties involved are entitled to use the path as owners of a private hunting ground, the area of which is opened up by the path of the bringing cooperative. The complainant himself stated this in his statement of February 27, 2023. If he also stated that the hut on the private hunting grounds of the parties involved was rented out, it was not understandable to what extent extensive processing of the image data was necessary in this context in order to prove that the path was being used for tourist purposes. Even if the complainant did not state this, it should be noted with regard to the production of photographs for the purpose of filing reports that the necessity (and thus also the admissibility) is only affirmed when photographs are produced on an occasion-related basis to a reasonable extent for the purpose of filing a report with the responsible administrative [penal] authority. However, the permanent monitoring of the path in question for the purpose of filing several reports cannot be considered permissible. Since the camera has since been removed, there is no scope for a corresponding service order from the data protection authority. The complainant is processing personal data and subsequently asks whether this processing was lawful. In the present case, the complainant's legitimate interest, on which he also bases the processing of the personal data, must be examined. The path in question is a public interest path. As the owner of the property surrounding the path, the complainant must be granted a legitimate interest in ensuring that the path is not used by anyone other than those named in paragraph 7, paragraph one, number 5, LStVG 1964. However, it is not necessary to record the parties involved in order to implement the interest in video surveillance stated by the complainant. The parties involved are entitled to use the path as owners of their own hunting ground, the area of which is opened up by the path of the bringing cooperative. The complainant himself stated this in his statement of February 27, 2023. If he also stated that the hut on the private hunting grounds of the parties involved was rented out, it was not understandable to what extent extensive processing of the image data was necessary in this context in order to prove that the path was being used for tourist purposes. Even if the complainant did not state this, it should be noted with regard to the production of photographs for the purpose of filing reports that the necessity (and thus also the admissibility) is only affirmed if image material is produced on an occasion-related basis to a reasonable extent for the purpose of filing a report with the responsible administrative [penal] authority. However, the permanent monitoring of the path in question for the purpose of filing several reports cannot be considered permissible. Since the camera has now been removed, there is no scope for a corresponding service order from the data protection authority.
7. In the appeal against this decision, which was filed within the deadline, the complainant essentially argued:
The decision in question was unlawful due to an incorrect legal assessment, a defective procedure and the violation of procedural regulations. The path in question was not a public interest path and the decision of the haulage cooperative on the admissibility of using it for hunting purposes was only made on June 30, 2022. In addition, the complainant wanted to prevent civil acquisition of rights and minimize his liability as a path owner.
8. By letter from the data protection authority dated April 28, 2023 (hg received on May 5, 2023), the complaint and the administrative act were sent to the Federal Administrative Court.
9. In a statement on the complaint, the parties involved essentially stated that the path in question was indeed a forestry haulage cooperative with a public interest. The path has been used "since always before and after 1974 as a forest path for all purposes of modern management by all cooperative members". The extent of use of the path was permitted for forestry purposes, agricultural purposes and hunting purposes among each other. This also applies to the legal predecessors. On June 30, 2024 (obviously meant: June 30, 2022), the cooperative again decided in a vote to allow use for hunting purposes. In addition, there was no illegal expansion of a hut.
II. The Federal Administrative Court considered: Roman II. The Federal Administrative Court considered:
1. Findings:
1.1. The complainant is the sole owner of the property XXXX .1.1. The complainant is the sole owner of the property Roman 40 .
1.2. The complainant and the parties involved are members of the transport cooperative XXXX in XXXX . The path built by the transport cooperative also runs, among other things, on the complainant's property named under 1.1 on his plot of land XXXX .1.2. The complainant and the parties involved are members of the transport cooperative Römer 40 in Römer 40 . The path built by the transport cooperative also runs, among other things, on the complainant's property named under 1.1 on his plot of land Römer 40 .
1.3. The section of the path monitored by the complainant is a prospective buyer's path in accordance with Section 7 Paragraph 1 Item 5 of the Styrian State Road Administration Act 1964 (LStVG. 1964).1.3. The section of the path monitored by the complainant is a path for interested parties in accordance with paragraph 7, paragraph one, item 5, Styrian State Road Administration Act 1964 (LStVG. 1964).
1.4. At an unknown time - in any case no later than December 27th, 2020 - the complainant mounted a game camera on a tree on his property XXXX , which recorded the path of the transport cooperative. The parties involved - as well as third parties with them in business relations (in particular hunters) - were regularly recorded by the game camera. The complainant removed the camera in April 2021.1.4. At an unknown time - in any case no later than December 27th, 2020 - the complainant mounted a game camera on a tree on his property Roman 40 , which recorded the path of the transport cooperative. The parties involved - as well as third parties with whom they have a business relationship (in particular hunters) - were regularly recorded by the game camera. The complainant removed the camera in April 2021.
1.5. The recording area of the game camera only covers a 20-30 meter long section of the prospective buyer's path on the complainant's property. The game camera in question is able to record photographs (up to 10 photos in series) and videos (3 seconds - 10 minutes) and save them on a local SD card. It is triggered when movement is detected by the built-in motion detector. The complainant used the game camera exclusively to take individual photographs.
1.6. The parties involved are the owners of their own hunting ground, the area of which is opened up by the path of the bringing cooperative. The members of the haulage cooperative - by a majority - passed the resolution on June 30, 2022 that the path can also be used for hunting purposes. Until this point in time, the statutes of the forestry haulage cooperative from 1974 provided for the following purpose: "The purpose of the cooperative is to establish and maintain a forest haulage facility, namely a forest path from ... to ... whereby all interested parties grant each other the right to haul forest products, as well as the right of travel on this facility necessary for the modern management of their property accessed by the path." The rights of the members include in particular "the proper and careful use of the facility for themselves and their permanent housemates and employees." By resolution of the haulage cooperative of June 30, 2022, it was decided under point 8: "Driving license on forest path XXXX for the commissioned hunters of XXXX". As well as under point 9: “Driving ban on forest road XXXX for person XX”. By resolution of the bringing cooperative of June 30, 2022, it was decided under point 8: “Driving license on forest road Roman 40 for the commissioned hunters from Roman 40”. As well as under point 9: “Driving ban on forest road Roman 40 for person XX”.
1.7. The parties involved own a former grain silo on their property, which was dismantled and moved in 1993. In this context, only an agricultural and forestry operation was in question; a fireplace was expressly not built at that time. In addition, the statutes of the transport cooperative were not changed. In the meantime, the silo has been upgraded to a habitable mountain hut, contains a fireplace and is used by the parties involved for tourism.
Driving on the forest path for tourist purposes is still not permitted.
1.8. The complainant operated the wildlife camera primarily to monitor the specified use of the forest path in accordance with the statutes of 1974 and, if necessary, to prove that the path was being used by a large number of unauthorized persons. The complainant demanded that several people (not involved in the proceedings here) pay a sum of money and refrain from using the path or threatened - if they refused - to file a claim for trespass. The complainant also filed charges against the other parties involved for various reasons. In this context, the XXXX district authority initiated administrative penal proceedings against the other parties involved.1.8. The complainant operated the wildlife camera primarily to monitor the specified use of the forest path in accordance with the 1974 statute and, if necessary, to prove that the path was being used by a large number of unauthorized persons. The complainant demanded that several people (not involved in the proceedings here) pay a sum of money and refrain from using the path or threatened - if they refused - to file a claim for trespass. The complainant also filed charges against the other parties involved for various reasons. In this context, the Roman 40 district authority initiated administrative penal proceedings against the other parties involved.
2. Assessment of evidence:
The findings on the relevant facts arise from the administrative act, the complaint and the court file.
2.1. The findings regarding the forest path and the function and use of the game camera (points 1.1. to 1.5.) are based on the files and are undisputed.
2.2. The findings regarding the design of the private hunting area, the use of the hut and the design of the statutes of the forestry haulage cooperative (points 1.6. and 1.7.) are based on the files and the evidence provided, in particular the statutes (1974 version) and the minutes of the cooperative meeting of June 30, 2022.
In particular, the statement submitted by the complainant on February 27, 2023 shows that the members of the haulage cooperative only made a (definitive) decision on June 30, 2022 - without the consent of the complainant - that the path could also be used by the "commissioned hunters" of the parties involved. The statutes of the forestry haulage cooperative submitted on XXXX determine the scope of the cooperative and thus the right of way to be granted - with the flexibility clause for a contemporary management of the developed property. In particular, it emerges from the statement submitted by the complainant on February 27, 2023 that the members of the haulage cooperative only made a (definitive) decision on June 30, 2022 - without the consent of the complainant - that the path can also be used by the "commissioned hunters" of the parties involved. The statutes of the forestry haulage cooperative submitted on Roman 40 determine the scope of the cooperative and thus the right of way to be granted - with the flexibility clause for a contemporary management of the developed property.
2.3. The fact that the complainant operated the criticized game camera primarily to identify and in some cases report any unauthorized users of the trail facility is evident from his credible statements. What is crucial in this context is that at the relevant time, the use by "commissioned hunters" of the co-participating party in particular was not regulated with sufficient precision in the statutes.
The statutes of 1974 only provide for the "necessary right of travel" for management. Section 3 also specifies (only) the "proper and careful use of the facility for themselves and their permanent or temporary housemates and employees" as a right. Whether "commissioned hunters" still fall into this narrowly defined group of people when hunting on their own - especially in connection with a hut used for tourism - is doubtful and obviously prompted the cooperative to make a corresponding determination in June 2022. At the same meeting, a driving ban was also imposed on a specific person - which also indicates a fundamental interest in control. The 1974 statute only provides for the "necessary right of travel" for management. Paragraph 3 also specifies (only) the "proper and careful use of the facility for themselves and their permanent or temporary housemates and employees" as a right. Whether "commissioned hunters" still fall into this narrowly defined group of people when hunting on their own - especially in connection with a hut used for tourism - is doubtful and obviously prompted the cooperative to make a corresponding determination in June 2022. At the same meeting, a driving ban was also imposed on a specific person - which also indicates a fundamental interest in control.
Against this background, the complainant's argument regarding his motive for monitoring the forest path proves to be coherent, realistic and in line with the cooperative's statutes. If the data protection authority comes to the conclusion from the written submissions alone (in particular from the parties involved) that it was primarily concerned with reports against the (now) parties involved, it is confusing the cause and (possible) effect or motive of surveillance and the result of the same.
First of all, the reports against third parties (hunters) are largely ignored in the findings. In addition, it was overlooked that the cooperative's statutes also substantially limit the use by those entitled. The fact that point C.3. states that the use is for "hunting purposes" is at least imprecise in terms of content - this use has always been the case for the owners. It has now been expressly permitted (also) for "commissioned hunters", i.e. an additional (abstractly defined) group of people. Moreover, the authority does not take into account in any way that this extension only took place more than a year after the relevant images were taken by a game camera.
3. Legal assessment:
3.1. According to Article 130, Paragraph 1, Item 1 of the Federal Constitutional Court Act, the administrative courts decide on complaints against the decision of an administrative authority on the grounds of illegality. 3.1. According to Article 130, Paragraph 1, Item 1 of the Federal Constitutional Court Act, the administrative courts decide on complaints against the decision of an administrative authority on the grounds of illegality.
According to Section 6 of the Federal Administrative Court Act, the Federal Administrative Court decides by a single judge, unless federal or state laws provide for decisions to be made by senates. According to Paragraph 6 of the Federal Administrative Court Act, the Federal Administrative Court decides by a single judge, unless federal or state laws provide for decisions to be made by senates.
According to Section 27, Paragraph 1 of the Data Protection Act, the Federal Administrative Court decides by a senate on complaints against decisions due to violations of the duty to inform pursuant to Section 24, Paragraph 7 leg.cit. and the duty of the data protection authority to make a decision. According to Section 27, Paragraph 2, first sentence of the Data Protection Act, the senate consists of a chairperson and one expert lay judge each from the circle of employers and from the circle of employees. The Senate therefore has jurisdiction in this matter. According to paragraph 27, paragraph one, DSG, the Federal Administrative Court decides through its Senate on complaints against decisions due to violations of the duty to inform in accordance with paragraph 24, paragraph 7, leg.cit. and the data protection authority's duty to decide. According to paragraph 27, paragraph 2, first sentence DSG, the Senate consists of a chairman and one expert lay judge each from the circle of employers and from the circle of employees. The Senate therefore has jurisdiction in this matter.
The procedure of the administrative courts, with the exception of the Federal Finance Court, is regulated by the VwGVG, BGBl. I 2013/33 as amended by BGBl. I 2013/122 (§ 1 leg.cit.). According to § 58 paragraph 2 VwGVG, conflicting provisions that were already published 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, BGBl. Roman one 2013/33 in the version BGBl. Roman one 2013/122 (paragraph one, leg.cit.). According to paragraph 58, paragraph 2, VwGVG, conflicting provisions that were already published at the time this federal law came into force remain in force.
According to Section 17 VwGVG, unless otherwise provided in this federal law, the provisions of the AVG with the exception of Sections 1 to 5 and Part IV, the provisions of the Federal Tax Code - BAO, Federal Law Gazette No. 194/1961, the Agricultural Procedure Act - AgrVG, Federal Law Gazette No. 173/1950, and the Civil Service Procedure Act 1984 - DVG, Federal Law Gazette No. 29/1984, and, in addition, those procedural provisions in federal or state laws that the authority applied or should have applied in the proceedings preceding the proceedings before the administrative court, shall apply mutatis mutandis to the procedure for complaints pursuant to Article 130 Paragraph 1 B-VG. According to Paragraph 17 of the Administrative Court Act, unless otherwise provided for in this federal law, the provisions of the Administrative Court Act, with the exception of Paragraphs 1 to 5 and Part IV of Roman Law, the provisions of the Federal Tax Code – BAO, Federal Law Gazette No. 194 of 1961, the Agricultural Procedure Act – AgrVG, Federal Law Gazette No. 173 of 1950, and the Civil Service Procedure Act 1984 – DVG, Federal Law Gazette No. 29 of 1984, and, in addition, those procedural provisions in federal or state laws that the authority applied or should have applied in the proceedings preceding the proceedings before the administrative court, shall apply mutatis mutandis to the procedure for complaints pursuant to Article 130, Paragraph 1, B-VG.
3.2. According to Section 31 Paragraph 1 of the Administrative Court Act (VwGVG), decisions and orders are made by resolution unless a ruling is to be made. 3.2. According to Paragraph 31, Paragraph 1 of the Administrative Court Act (VwGVG), decisions and orders are made by resolution unless a ruling is to be made.
According to Section 28 Paragraph 1 of the Administrative Court Act (VwGVG), the administrative court must settle the legal matter by ruling unless the appeal is to be rejected or the proceedings are to be discontinued. According to Paragraph 28, Paragraph 1 of the Administrative Court Act (VwGVG), the administrative court must settle the legal matter by ruling unless the appeal is to be rejected or the proceedings are to be discontinued.
According to Section 28, Paragraph 2 of the Administrative Court Act (VwGVG), the administrative court must decide on the merits of the complaint if the relevant facts are established or if the administrative court itself establishes the relevant facts in the interest of speed or is associated with significant cost savings.According to Section 28, Paragraph 2 of the Administrative Court Act (VwGVG), the administrative court must decide on the merits of the complaint if the relevant facts are established or if the administrative court itself establishes the relevant facts in the interest of speed or is associated with significant cost savings.
Regarding A)
3.3. The relevant provisions of the GDPR:
Article 4
Definitions
For the purposes of this Regulation, the following terms shall apply:
1. “personal data” means any information relating to an identified or identifiable natural person (hereinafter referred to as “data subject”); a natural person is considered identifiable if he or she can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more special characteristics that express the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
2. “processing” means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, comparison or linking, restriction, erasure or destruction;
3. “restriction of processing” means the marking of stored personal data with the aim of restricting their future processing;
4.-26. (…)
Article 5
Principles for the processing of personal data
(1) Personal data must
a) be processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’);
b) be 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, scientific or historical research purposes or statistical purposes shall not be considered incompatible with the original purposes in accordance with Article 89(1) (‘purpose limitation’);
c) be adequate, relevant and limited to what is necessary for the purposes of the processing (‘data minimisation’);
d) be accurate and, where necessary, kept up to date; every reasonable step shall be taken to ensure that personal data which are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’);
(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for a longer period provided that the personal data are processed solely for archiving purposes in the public interest or for scientific and historical research purposes or statistical purposes in accordance with Article 89(1), subject to the implementation of appropriate technical and organisational measures required by this Regulation to safeguard the rights and freedoms of the data subject ('storage limitation');
(f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, by means of appropriate technical and organisational measures ('integrity and confidentiality');
(2) The controller shall be responsible for compliance with paragraph 1 and shall be able to demonstrate compliance with it ('accountability').
Article 6
Legality of processing
(1) Processing shall be lawful only if at least one of the following conditions is met:
a) the data subject has given consent to the processing of personal data concerning him or her 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) the processing is necessary for compliance with a legal obligation to which the controller is subject;
d) the processing is necessary to protect the vital interests of the data subject or of another natural person;
e) the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.
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 to adapt the application of the rules of this Regulation with regard to processing for the purpose of complying with points (c) and (e) of paragraph 1 by specifying more precisely specific requirements for processing and other measures to ensure lawful and fair processing, including for other specific processing situations as set out in Chapter IX. (2) Member States may maintain or introduce more specific provisions to adapt the application of the rules of this Regulation with regard to processing carried out for the purpose of fulfilling points (c) and (e) of paragraph 1 by specifying more precisely specific requirements for processing and other measures to ensure lawful and fair processing, including for other specific processing situations as referred to in Chapter IX of this Regulation.
(3) The legal basis for processing referred to in points (c) and (e) of paragraph 1 shall be
a) Union law; or
b) Member State law to which the controller is subject.
The purpose of the processing must be specified in that legal basis or, as regards processing referred to in point (e) of paragraph 1, it must 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. That legal basis may contain specific provisions adapting the application of the rules of this Regulation, including provisions on the general conditions governing the lawfulness of processing by the controller, the types of data processed, the data subjects concerned, the entities to which and for which purposes the personal data may be disclosed, the purpose limitation, the storage period and the processing operations and procedures that may be applied, including measures to ensure lawful and fair processing, such as those for other specific processing situations referred to in Chapter IX. Union or Member State law must pursue an objective in the public interest and be proportionate to the legitimate purpose pursued. The purpose of the processing must be specified in that legal basis or, as regards the processing referred to in point (e) of paragraph 1, it must 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. That legal basis may contain specific provisions adapting the application of the rules of this Regulation, inter alia, provisions on the general conditions governing the lawfulness of processing by the controller, the types of data processed, the data subjects concerned, the entities to which and for which purposes the personal data may be disclosed, the purpose limitation, the storage period and the processing operations and procedures that may be applied, including measures to ensure lawful and fair processing, such as those for other specific processing situations referred to in Chapter IX. Union or Member State law must pursue an objective in the public interest and be proportionate to the legitimate purpose pursued.
(4) Where processing for a purpose other than that for which the personal data were collected is not based on the consent of the data subject or on a Union or Member State law which constitutes a necessary and proportionate measure in a democratic society to protect the objectives referred to in Article 23(1), the controller shall, in order to determine whether processing for another purpose is compatible with that for which the personal data were initially collected, 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 were collected, in particular as regards the relationship between the data subjects and the controller;
(c) the nature of the personal data, in particular whether special categories of personal data are processed pursuant to Article 9 or whether personal data concerning criminal convictions and offences are processed pursuant to Article 10;
(d) the possible consequences of the intended further processing for the data subjects Persons,
e) the existence of appropriate safeguards, which may include encryption or pseudonymization.
3.4. The relevant provisions of the DSG:
Article 1
(Constitutional provision)
Basic right to data protection
Section 1 (1) (…) Paragraph one, (1) (…)
(2) To the extent that the use of personal data is not in the vital interest of the data subject or with his consent, restrictions on the right to confidentiality are only permissible to protect the overriding legitimate interests of another person, and in the case of interventions by a state authority only on the basis of laws that are necessary for the reasons stated in Article 8 paragraph 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Federal Law Gazette No. 210/1958. Such laws may only provide for the use of data that are particularly worthy of protection by their nature to protect important public interests and must at the same time establish appropriate guarantees for the protection of the data subjects' interests in confidentiality. Even in the case of permissible restrictions, the interference with the fundamental right may only be carried out in the mildest way that achieves the goal. (2) If 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 are only permissible to protect the overriding legitimate interests of another person, and in the case of interventions by a state authority only on the basis of laws that are necessary for the reasons stated in Article 8, paragraph 2, of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Federal Law Gazette No. 210 of 1958. Such laws may only provide for the use of data that are particularly worthy of protection by their nature to protect important public interests and must at the same time establish appropriate guarantees for the protection of the interests of the persons concerned in confidentiality. Even in the case of permissible restrictions, the interference with the fundamental right may only be carried out in the mildest way that achieves the goal.
(3) Anyone has, insofar as personal data concerning him or her are intended for automated processing or for processing in manual files, i.e. files kept without automated support, in accordance with statutory provisions
1. the right to information about who is processing which data about him or her, where the data comes from and what it is used for, in particular to whom it is transmitted;
2. the right to correct incorrect data and the right to delete data that has been processed in an unlawful manner.
(4) Restrictions on the rights under paragraph 3 are only permissible under the conditions set out in paragraph 2. (4) Restrictions on the rights under paragraph 3 are only permissible under the conditions set out in paragraph 2.
Permissibility of image recording
§ 12 (1) An image recording within the meaning of this section refers to the recording of events in public or non-public spaces for private purposes using technical equipment for image processing. The image recording also includes acoustic information that is processed in the process. This section applies to such image recordings, unless other laws specifically stipulate otherwise.Paragraph 12, (1) An image recording within the meaning of this section refers to the recording of events in public or non-public spaces for private purposes using technical equipment for image processing. The image recording also includes acoustic information processed in the process. This section applies to such image recordings, unless other laws specifically stipulate otherwise.
(2) An image recording is permissible, taking into account the requirements of Section 13, if(2) An image recording is permissible, taking into account the requirements of Section 13, if
1. it is necessary in the vital interest of a person,
2. the person concerned has consented to the processing of their personal data,
3. it is ordered or permitted by special legal provisions, or
4. in the individual case there are overriding legitimate interests of the person responsible or a third party and proportionality is given.
(3) In accordance with paragraph 2, item 4, an image recording is permitted in particular if (3) In accordance with paragraph 2, item 4, an image recording is permitted in particular if
1. it serves the preventive protection of persons or objects on private properties that are used exclusively by the controller and does not extend spatially beyond the property, with the exception of the inclusion of public traffic areas that may be unavoidable in order to achieve the purpose,
2. it is necessary for the preventive protection of persons or objects in publicly accessible places that are subject to the controller's house rules due to violations of the law that have already occurred or a special risk potential inherent in the nature of the place, or
3. it pursues a private documentation interest that is not aimed at the identification of uninvolved persons or the targeted recording of objects that are suitable for the indirect identification of such persons.
(4) (…)
(5) (…)
3.5. On the matter:
It is undisputed that the complainant processed (recorded and stored) personal data (Article 4, paragraph 1 GDPR) through the mounted game camera. It is undisputed that the complainant processed (recorded and stored) personal data (Article 4, paragraph 1, GDPR) through the mounted game camera.
According to the constitutional provision of Section 1, paragraph 1 of the Data Protection Act, everyone has the right to keep personal data concerning them confidential, in particular with regard to respect for private and family life, insofar as there is a legitimate interest in keeping it confidential. In this context, personal data worthy of protection is not only to be understood as information that is easily recognizable as personal, such as a person's name, gender, address or place of residence, but also, for example, value judgments and thus personal information per se. All personal data - i.e. both data processed using automated means and manual data - must be kept secret if there is a legitimate interest in confidentiality, or the processing of this data is not permitted. According to the constitutional provision of paragraph one, section one, DSG, everyone has the right to keep personal data concerning them confidential, particularly with regard to respect for private and family life, if there is a legitimate interest in confidentiality. In this context, personal data worthy of protection is not only to be understood as information that is easily recognizable as personal, such as a person's name, gender, address or place of residence, but also as value judgments and thus personal information per se. All personal data - i.e. both data processed using automated means and manual data - must be kept secret if there is a legitimate interest in confidentiality, or the processing of this data is not permitted.
The central point of reference as to whether a fundamental right claim according to Section 1 Paragraph 1 of the Data Protection Act actually exists is the existence of interests that are “worthy of protection”. When examining these interests, a balancing of interests must be carried out. In particular, the data protection principles of legality and proportionality must be taken into account.The central point of reference as to whether a fundamental right claim according to Section 1 Paragraph 1 of the Data Protection Act actually exists is the existence of interests that are “worthy of protection”. When examining these interests, a balancing of interests must be carried out. In particular, the data protection principles of legality and proportionality must be taken into account.
The parties involved claimed in their data protection complaints that their rights to confidentiality had been violated because the complainant filmed them several times while driving along the path and subsequently filed complaints.
According to Art. 6 Paragraph 1 Letter f of the GDPR, the processing of personal data is subject to a proportionality test. According to Article 6 Paragraph 1 Letter f of the GDPR, the processing of personal data is subject to a proportionality test.
The ECJ has set out a “test scheme” for the largely identical predecessor provision (Article 7(f) of the Data Protection Directive), according to which the processing of personal data is permissible under three cumulative conditions, which is also used by the data protection authority and the Supreme Court in their decision-making practice: The ECJ has set out a “test scheme” for the largely identical predecessor provision (Article 7(f) of the Data Protection Directive), according to which the processing of personal data is permissible under three cumulative conditions, which is also used by the data protection authority and the Supreme Court in their decision-making practice:
1. Existence of a legitimate interest pursued by the controller or by the third party(ies) to whom the data is transmitted,
2. Necessity of processing the personal data to achieve the legitimate interest and
3. No override of the fundamental rights and freedoms of the data subject.
In essence, a balancing of interests must be carried out in each individual case, "whereby it must also be examined whether a data subject can reasonably foresee at the time the personal data is collected and in view of the circumstances under which it is collected that processing for this purpose may take place (cf. Kastelitz/Hötzendorfer/Tschohl in Knyrim, DatKomm Art. 6 GDPR, Rz 51 [as of 7.5.2020, rdb.at]).In essence, a balancing of interests must be carried out in each individual case, "whereby it must also be examined whether a data subject can reasonably foresee at the time the personal data is collected and in view of the circumstances under which it is collected that processing for this purpose may take place (cf. Kastelitz/Hötzendorfer/Tschohl in Knyrim, DatKomm Article 6, GDPR, Rz 51 [as of 7.5.2020, rdb.at]).
It should be noted that this is a past matter that has been resolved between December 2020 and April 2021. However, according to the minutes of the meeting of June 30, 2022, the cooperative only decided on this date to allow the use of the forestry transport facility (also) for commissioned hunters from the families of the parties involved. As before - but even more clearly at the time of the recordings - the use of the forest path is substantially limited both in terms of the persons authorized to use it and in terms of the purpose.
In the present case, the complainant is deemed to have a legitimate interest in the processing of personal data because the monitored path is a public path for interested parties. These are in accordance with Section 7 Paragraph 1 Item 5 of the LStVG. 1964 roads for public transport of local importance which predominantly only serve the owners, possessors and residents of a limited number of properties and have been declared as such. As the owner of the land surrounding the path, the complainant therefore has a legitimate interest in the path not being used by anyone other than those named in Section 7 Paragraph 1 Item 5 LStVG 1964 (or those listed in the cooperative's statutes). In the present case, the complainant is deemed to have a legitimate interest in the processing of personal data because the monitored path is a public interest path. According to Section 7, Paragraph one, Item 5, LStVG. 1964, these are roads for public transport of local importance which predominantly only serve the owners, possessors and residents of a limited number of properties and have been declared as such. As the owner of the property surrounding the path, the complainant therefore has a legitimate interest in ensuring that the path is not used by anyone other than those named in paragraph 7, paragraph one, item 5, LStVG 1964 (or those listed in the cooperative statutes).
The surveillance was carried out by a single wildlife camera, which only saved a single photograph locally on an SD card when movement was detected in the area covered. This means that the surveillance intensity is lower than with a camera that continuously films an entrance area or a parking lot. Conversely, there are several people authorized to use the monitored forest path, whereas the surveillance was carried out exclusively by the complainant.
Ultimately, however, it is difficult to imagine any other way of monitoring the (correct) use of a delivery facility - which is not freely usable or accessible to the public - without disproportionate effort. It cannot be expected that the complainant personally monitors the use and only takes pictures when necessary - which would be possible and reasonable in areas immediately adjacent to the residence or a business. Ultimately, this was not excessive or disproportionate data processing. There are therefore no less lenient means that lead to the same goal when viewed in practical terms.
The data controller must then determine the interests or fundamental rights and freedoms of the data subjects. All relevant interests and the fundamental rights and freedoms of the data subjects must be taken into account. The scope of protection for data subjects is therefore defined more broadly than the scope of legitimate interests on which a controller can rely.
Ultimately, the balancing of interests involves examining the relationship between the interests of the respective parties. The general maxim for the review is that a minor and not particularly compelling interest of a controller is usually only to be given greater weight than the interests and rights of the data subject if the impact on these interests and rights of the data subject is minimal. The more important and compelling the legitimate interests of the controller are, the more massive interference with the interests and rights of the data subject can be justified. Protective measures to mitigate unreasonable consequences for data subjects must also be taken into account here, and play a special role in the balancing of interests. The balancing of interests must also always be carried out from an objective point of view. The balancing of interests ends with an assessment of the legitimate interests of the controller on the one hand and an impact assessment for the interests and rights of the data subject on the other.
An important and very helpful aid to interpretation in this balancing exercise can be found in Recital 47, sentence 1: "In doing so, the reasonable expectations of the data subject based on his or her relationship with the controller must be taken into account." Sentence 4 of the same Recital also goes in the same direction: "In particular, when personal data are processed in situations where a data subject cannot reasonably expect further processing, the interests and fundamental rights of the data subject may outweigh the interests of the controller." When considering what the reasonable expectations of the data subject include in the respective processing context, it is important to consider whether the data subject could reasonably expect, taking into account the circumstances, at the time the data was collected, that data processing would take place for a specific purpose. In a somewhat more specific way, Braun/Hasenauer (Yearbook Data Protection Law 2018, 34) add as a further criterion that the factual connection between the essential core of the relationship between the data subject and the controller is decisive. The closer and more typical this connection is due to the circumstances, the more likely the data subject must reasonably expect the processing (cf. Jahnel, Commentary on the General Data Protection Regulation Art. 6 GDPR, paras. 77-79 [as of 1 December 2020, rdb.at]). An important and very helpful aid to interpretation in this balancing exercise can be found in Recital 47, sentence 1: "In doing so, the reasonable expectations of the data subject based on his or her relationship with the controller must be taken into account." Sentence 4 of the same Recital also goes in the same direction: "In particular, when personal data are processed in situations where a data subject cannot reasonably expect further processing, the interests and fundamental rights of the data subject may outweigh the interests of the controller." When considering what the reasonable expectations of the data subject include in the respective processing context, it is important to consider whether the data subject could reasonably expect, taking into account the circumstances, at the time the data was collected, that data processing would take place for a specific purpose. In a somewhat more specific way, Braun/Hasenauer (Yearbook Data Protection Law 2018, 34) add as a further criterion that the factual connection between the essential core of the relationship between the data subject and the controller is decisive. The closer and more typical this connection is due to the circumstances, the more likely the data subject must reasonably expect the processing (see Jahnel, Commentary on the General Data Protection Regulation Article 6, GDPR, paras. 77-79 [as of December 1, 2020, rdb.at]).
In this context, it can be assumed that, as part of the balancing of interests to be carried out in individual cases, the complainant's interest in preventing or controlling the use of the path by unauthorized persons and that of the parties involved in not being recorded by the mounted wildlife camera and in this context being prosecuted by the complainant must be weighed against each other. Since both the complainant and the parties involved are part of the transport cooperative that maintains and manages the interested parties' path in question, they have a close relationship with each other and knew about the nature of the path and the (narrowly defined) group of people authorized to use it.
Due to the fact that the circle of those authorized to use the property was not expanded to include “commissioned hunters” or even tourist use at the time of data processing (cf. the resolution of the Bringungsgenossenschaft of June 30, 2022 and the statutes of the Bringungsgenossenschaft from 1974), the complainant’s interest prevails, as this is also in the interest of the entire Bringungsgenossenschaft when viewed objectively. In its statutes, the latter also repeatedly speaks of “careful” and “necessary” use – which amounts to a substantial self-restriction.Due to the fact that the circle of those authorized to use the property was not expanded to include “commissioned hunters” or even tourist use at the time of data processing (cf. the resolution of the Bringungsgenossenschaft of June 30, 2022 and the statutes of the Bringungsgenossenschaft from 1974), the complainant’s interest prevails, as this is also in the interest of the entire Bringungsgenossenschaft when viewed objectively. The statutes also repeatedly speak of “careful” and “necessary” use – which amounts to a substantial self-restriction.
The fact that this can at best be detrimental to the personal (economic) interests of a member of the cooperative must be ignored. In addition, it is up to the cooperative itself to expand the circle of those entitled - as far as legally permissible. The latter has indeed been done - obviously in the wake of the complainant's actions relevant to the proceedings here.
For these reasons, the complainant's legitimate interests outweigh the fundamental rights and freedoms of the parties involved and, in the present case, the processing of the photographs can rightly be based on the provisions of Article 6, paragraph 1, letter f, GDPR.For these reasons, the complainant's legitimate interests outweigh the fundamental rights and freedoms of the parties involved and, in the present case, the processing of the photographs can rightly be based on the provisions of Article 6, paragraph 1, letter f, GDPR.
3.5. For the sake of completeness and with regard to the history and background of the current proceedings, the production of photographs (in an identical manner) for the purpose of securing evidence and reporting (administrative) criminal law relevant facts is a significant interest within the meaning of Art. 6 Paragraph 1 Letter f of GDPR regarding the processing of personal data. In addition, Art. 10 GDPR in conjunction with Art. 6 GDPR and Section 4 Paragraph 3 DSG enables the processing of personal data with regard to criminal offenses. Due to the processing situation already discussed in detail, this is in any case limited to what is absolutely necessary and there are no milder means apparent. The proportionality in relation to the interference with the rights of the parties involved is given and outweighs that of the parties involved not being confronted with investigations or (administrative) criminal proceedings.3.5. For the sake of completeness and with regard to the history and background of the current proceedings, the production of photographs (in an identical manner) for the purpose of securing evidence and reporting (administrative) criminal law relevant facts is a significant interest within the meaning of Article 6, Paragraph 1, Letter f, GDPR regarding the processing of personal data. In addition, Article 10, GDPR in conjunction with Article 6, GDPR and Paragraph 4, Paragraph 3, DSG allows the processing of personal data with regard to criminal offenses. Due to the processing situation already discussed in detail, this is in any case limited to what is absolutely necessary and there are no milder means apparent. The proportionality in relation to the interference with the rights of the parties involved is given and outweighs that of the parties involved not being confronted with investigations or (administrative) criminal proceedings.
3.6. According to Section 24, Paragraph 1 of the Administrative Court Act (VwGVG), the administrative court must hold a public oral hearing upon request or, if it considers this necessary, of its own motion.3.6. According to Paragraph 24, Paragraph 1 of the Administrative Court Act (VwGVG), the administrative court must hold a public oral hearing upon request or, if it considers this necessary, of its own motion.
The complainant did not make an application for a public hearing in this case. The same applies to the other parties involved.
In the present case, the failure to hold an oral hearing can be based on the fact that the facts of the case were clear from the files. The Federal Administrative Court had to rule exclusively on a legal question (cf. ECHR 20.06.2013, Appl. No. 24510/06, Abdulgadirov/AZE, para. 34ff). According to the case law of the Constitutional Court, an oral hearing can be omitted if the facts are undisputed and the legal question is not particularly complex (VfSlg. 17.597/2005; VfSlg. 17.855/2006; most recently VfGH 18.06.2012, B 155/12). In the present case, the omission of an oral hearing can be based on the fact that the facts were clear from the files. The Federal Administrative Court had to rule exclusively on a legal question (cf. ECHR 20.06.2013, Appl. No. 24510/06, Abdulgadirov/AZE, para. 34ff). According to the case law of the Constitutional Court, an oral hearing can be omitted if the facts are undisputed and the legal question is not particularly complex (VfSlg. 17.597/2005; VfSlg. 17.855/2006; most recently VfGH 18.06.2012, B 155/12).
According to Section 24, Paragraph 1 of the Administrative Court Act, an oral hearing was therefore not required.According to Section 24, Paragraph 1 of the Administrative Court Act, an oral hearing was therefore not required.
Regarding B) Inadmissibility of the appeal:
According to Section 25a, Paragraph 1 of the Administrative Court Act, the administrative court must state in its ruling or decision whether the appeal is admissible in accordance with Article 133, Paragraph 4 of the Federal Constitutional Court Act. The ruling must be briefly justified. According to paragraph 25a, paragraph one, VwGG, the administrative court must state in its ruling or decision whether the appeal is admissible according to Article 133, paragraph 4, B-VG. The ruling must be briefly justified.
The appeal is not admissible 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 decision in question does not deviate from the previous case law of the Administrative Court, nor is there no case law; furthermore, the present case law of the Administrative Court cannot be judged to be inconsistent. There are also no other indications of the fundamental importance of the legal question to be resolved. The appeal is not admissible 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 decision in question neither deviates from the previous case law of the Administrative Court, nor is there no case law; furthermore, the present case law of the Administrative Court cannot be judged to be inconsistent. There are also no other indications of a fundamental importance of the legal question to be resolved.
