BVwG - W176 2245174-l/3E
| BVwG - W176 2245174-l/3E | |
|---|---|
 | |
| Court: | BVwG (Austria) |
| Jurisdiction: | Austria |
| Relevant Law: | § 24(4) DSG |
| Decided: | 22.06.2022 |
| Published: | |
| Parties: | Osterreichische Post AG (controller) |
| National Case Number/Name: | W176 2245174-l/3E |
| European Case Law Identifier: | |
| Appeal from: | DSB (Austria) ZI. D205.543, 2020-0.168.430 |
| Appeal to: | Unknown |
| Original Language(s): | [[:Category:|]] [[Category:]] |
| Original Source: | [ (in )] |
| Initial Contributor: | MW |
The Austrian Federal Administrative Court (BVwG) annulled a decision by the Austrian DPA (DSB) and referred it back to investigate whether the data subject's right to file a complaint had actually expired as the controller claimed.
English Summary
Facts
The data subject submitted an access request to the controller, Osterreichische Post AG, and she received a letter in response dated 10.12.18. The data subject submitted a complaint to the Austrian DPA (DSB) on 18.02.20 alleging that the controller's processing of her personal data violated her right to privacy and that the response she received to her request was incomplete and thus violated her right to access her personal data.
The DPA rejected the data subject's complaint on the grounds that her right to file a complaint had expired per § 24(4) DSG because more than a year had elapsed between the time she discovered the alleged violation and the time she filed her complaint.
The data subject appealed on the grounds that the violation of her right to privacy had continued until 13.11.19 when her personal data were deleted by the controller. The controller admitted in a letter to the DPA that the last of its marketing data had been deleted on 13.11.19, but claimed the complainant data subject's personal data had been deleted almost a year earlier on 13.12.18.
Holding
The Federal Adminstrative Court annulled the contested decision and remanded the matter back to the DPA to investigate whether the alleged infringement had ended on 13.11.19 as the data subject claimed or on 13.12.18 as the controller claimed. Whether the data subject's right to file a complaint had expired depended on the answer.
Comment
This decision falls into a line of a cases where the BVwG has had to refer matters back so that the DSB properly invesitgates the underlying facts. Also, it's doubtful that § 24(4) DSG is in line with Article 77 GDPR or even applicable.
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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.
