BVwG - W211 2223654-1

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BVwG - W211 2223654-1
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Court: BVwG (Austria)
Jurisdiction: Austria
Relevant Law:
§ 8a VwGVG
Decided: 15.11.2019
Parties: Anonymous
National Case Number/Name: W211 2223654-1
European Case Law Identifier: ECLI:AT:BVWG:2019:W211.2223654.1.00
Appeal from: DSB (Austria)
Appeal to:
Original Language(s): German
Original Source: RIS (in German)
Initial Contributor: n/a

Federal Administrative Court denies legal aid for an appeal from the DSB (Austria) over the right to access Article 15 GDPR.

English Summary


A citizen requested a copy of his personal data from a controller under Article 15 GDPR. The controller requested a copy of an identity document for identification purposes. Following the request of an official identity document, the data subject (the complainant) submitted a complaint before the Austrian DPA for violation of his right to access. The DPA dismissed the complaint as unfounded. The applicant lodged an appeal before the Federal Court and requested legal aid.


The Court had to assess whether it was necessary to grant the complainant legal aid.


The Court found it was not necessary to grant legal aid for to have the complainant represented by a lawyer, as the complainant was obviously able to file a complaint with the DPA himself, the Judged at the BVwG have to assist the complainant in filing the case and during the hearing ("Manuduktionspflicht") and the factual and legal issues are rather trivial. The application for legal aid was denied. No decision on the material issues was made.


Given the duty of the Courts in Austria to aid the complainant in his appeal ("Manuduktionspflicht") and the simple and informal procedure before the BVwG it is consistent with existing case law not to grant legal aid in a case that does not involve complicated legal matters.

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English Machine Translation of the Decision

The decision below is a machine translation of the original. Please refer to the German original for more details.


The Federal Administrative Court decides by the judge Mag.a SIMMA as a single judge on the application of XXXX of XXXX for approval of the procedural aid in the context of the appeal against the decision of the data protection authority of XXXX :


I. The application for the granting of procedural assistance shall be granted to the extent that the applicant is exempted from the filing fee for filing an appeal and from any further costs and fees in the appeal proceedings.

II. The further application for procedural assistance and exemption from the costs of representation by a lawyer shall be rejected as unfounded.


Pursuant to Art. 133 para. 4 B-VG, the revision is not permissible.



I. Proceedings:

The applicant lodged a complaint with the Data Protection Authority (DPO) on XXXX .2019 and, in summary, submitted that he wished to lodge a complaint for violation of the right of access by XXXX. There, he had personally submitted requests for information to a "vicarious agent", but had not wanted to enclose a copy of the identity document, as there was no obligation to provide identification. In a statement dated XXXX 3019, XXXX subsequently announced, among other things, that the applicant had been instructed to submit a copy of an official identity document within two weeks, which had not been submitted. The applications would therefore be considered withdrawn pursuant to Sec. 13 (3) and (4) AVG. The applicant submitted a letter on XXXX .2019 in which the legal opinions of XXXX were denied. In Art. 12 DSGVO there would be no mention of identity documents. Since the applicant had submitted his applications in person, there would also be no well-founded doubts. The XXXX also had access to the CMR and could thus have ensured that the data on the registration address would be sent to the requesting party. In a letter dated XXXX .2019, the DPO again addressed the XXXX and asked two specific questions for an answer. The XXXX announced with statement of the XXXX .2019 that a reference to an XXXX -internal transaction number does not represent a suitable proof of identity. Names and addresses could also be obtained from public sources and registers by third parties. The requirement to disclose the (first) names of the applicant's parents had been necessary for the purpose of unambiguous and reliable identification of frequency names. In response to the statement, the applicant essentially replies that there is no general obligation to provide information in Austria.

By decision of XXXX .2019, the applicant's complaint was dismissed as unfounded. The reasons given were summarised as follows: the creation of a data protection claim presupposed, among other things, that the identity of the person seeking information had been established. If a person responsible had reasonable doubts as to the identity, he could request additional information pursuant to Art. 12 (6) DSGVO, which was necessary to confirm the identity of the data subject. With more detailed justification in the decision, the result was that the respondent's doubts as to the identity of the applicant were justified and that the respondent rightly failed to comply with the applications because the identity of the applicant had not been established.

On XXXX .2019, the applicant filed the present application for the granting of procedural assistance for the drafting and filing of a complaint to the extent required, at least by providing a lawyer, and attached a confession of property to this application.

The DPO submitted the application and the administrative act to the Federal Administrative Court in a letter dated XXXX .2019.

II The Federal Administrative Court has considered:

1. findings:

In a letter dated XXXX .2019, the applicant lodged a complaint with the DSB, claiming that his right to information had been infringed.

By decision of XXXX 2019, this complaint was dismissed as unfounded.

On XXXX 2019, thus within the appeal period, an application was filed for the granting of procedural assistance including confession of property.

The result is that the applicant lives in a rented apartment and receives emergency assistance. He has no material assets.

Finally, it is established that the applicant was able to explain and explain reasons for his application or complaint in the course of his application to the XXXX , but also in the proceedings before the DPO and in the course of the application for procedural assistance.

2. assessment of evidence:

The findings result from the administrative act and are not disputed.

3. legal assessment:

Regarding A)

3.1 § 8a VwGVG (extract):

§ 8a. (1) Unless otherwise stipulated by federal or Land law, procedural assistance shall be granted to a party if this is required on the basis of Art. 6 para. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Federal Law Gazette No. 210/1958, or Art. 47 of the Charter of Fundamental Rights of the European Union, OJ No. 8a, p. 1. No. C 83 of 30.03.2010 p. 389, the party is unable to meet the costs of conducting the proceedings without impairing the necessary maintenance, and the intended prosecution or legal defence does not appear to be manifestly wanton or futile. (...).

(2) Unless otherwise provided in this paragraph, the conditions and effects of the granting of procedural assistance shall be assessed in accordance with the provisions of the Code of Civil Procedure - ZPO, RGBl. Nr. 113/1895. The granting of procedural assistance shall include the right to be provided with a lawyer without further request for the drafting and filing of the complaint, the application for a preliminary ruling, the application for reopening of the proceedings or the application for restitutio in integrum or for representation at the hearing.

According to § 8a para. 1 VwGVG, procedural assistance must be granted to a party if this is required on the basis of Art. 6 para. 1 ECHR or Art. 47 of the Charter of Fundamental Rights of the European Union, OJ No. C 83, 30.03.2010, p. 389. By the reference to art. 6 exp. 1 ECHR and art. 47 GRC it is guaranteed that the procedure assistance in the administrative judicial procedure corresponds to the requirements of the European human right protection (see also VwGH v. 03.09.2015, Zl. Ro 2015/21/0032).

According to the case law of the European Court of Human Rights, it is not necessary for procedural assistance to be granted in all conceivable proceedings. Rather, an examination in the individual case is required. In its decision of examination, which led to the repeal of § 40 VwGVG, the Constitutional Court summarised the case law of the European Court of Human Rights to the effect that "access to a court must be guaranteed not only theoretically and illusorily, but effectively"; in those cases in which it is "indispensable that the party to a proceeding be provided with a free procedural assistant," such an assistant must be provided. Various criteria are relevant for that assessment. Those are, on the one hand, criteria relating to the person of the parties, namely their financial circumstances or their abilities in dealing with authorities; on the other hand, criteria relating to the case, namely the prospects of success, the complexity of the case or the importance of the matter for the parties (see 1255 of Supplements XXV. GP - Regierungsvorlage - Erläuterungen zu § 8a VwGVG).

Finally, "procedural assistance must only be granted to the extent that it is actually required by the party to conduct the proceedings against the background of the relevant criteria of Art. 6 ECHR or Art. 47 GRC. It also follows from § 63 (1) ZPO, which is to be applied to this extent, that procedural assistance "must be granted in whole or in part". The VwG must therefore assess on a case-by-case basis whether procedural assistance is to be granted for the entire appeal procedure or only for parts of it and which benefits are to be granted" (cf. Eder, Martschin, Schmid: Das Verfahrensrecht der Verwaltungsgerichte, 2. Auflage, K7 zu § 8aVwGVG).

3.2 On the individual criteria:

The matter in question essentially concerns the question as to whether there were objectively justified doubts on the part of the person responsible ( XXXX ) within the meaning of Art. 12 (6) DSGVO as to the identity of the information seeker/applicant, from which no complex legal or procedural questions can be derived. Special legal or actual difficulties, which make a lawyer's representation necessary in the complaint and in a possible negotiation, are thus not to be expected. In order to assess the chances of success, reference must be made to a complaint that may still have to be lodged.

It follows from the administrative act that the applicant has so far been able to submit a request for information to the XXXX in the proceedings, to formulate a complaint to the DPO and to respond to the opinions of the XXXX and present his arguments in the proceedings before the DPO. The request for procedural assistance was also filed without defects. No difficulties can be derived from the applicant's previous dealings with the DPO in official and possible court proceedings which would make representation in the proceedings by a lawyer appear necessary.

Finally, the presiding judge is obliged to carry out a necessary manuduction in any oral hearing, e.g. when a statement may be refused, which is why the applicant will not experience any disadvantages as a result of a failure to provide a lawyer.

Thus, neither complex legal nor procedural questions arise in the possible appeal proceedings at issue and, in the event of an oral hearing, the applicant can expect that he would not suffer any disadvantages due to the manu-facturing obligation. From the submissions of the applicant in the official proceedings to date, but also in connection with his procedural aid application, there are no doubts as to his ability to formulate and explain his reasons for a possible complaint. This means that the applicant has access to fair and effective legal protection, even without the assistance of a procedural assistant.

Even the proven limited financial situation of the applicant does not change this, since, as explained above, it cannot be assumed that a lawyer will be required in the appeal proceedings.

This financial situation of the applicant must, however, be taken into account with regard to the €30 filing fee. In principle, it can be assumed that the applicant will not have to bear any costs for his participation in the hearing, nor those of any witnesses to be summoned, since such travel expenses will be reimbursed. Nevertheless, in the light of the economic situation of the applicant, it should be noted that he will also be exempted from the payment of any other costs and fees that may be incurred.


The applicant is informed that, in accordance with § 8a (7) VwGVG, the period for lodging an appeal against the decision of the DPO of XXXX .2019 begins to run with the service of the present decision. Within four weeks of notification of the decision in question, an appeal against the decision of the DPO can therefore be filed, which must be filed with the relevant authority (the DPO) (cf. Wessely in Raschauer/Wessely (Hrsg), Kommentar zum VwGVG Verwaltungsgerichtsverfahrensgesetz § 8a VwGVG, RZ 21).

Regarding B) Inadmissibility of the appeal:

Pursuant to § 25a para. 1 VwGG, the Administrative Court must pronounce in its decision whether the appeal is admissible pursuant to Art. 133 para. 4 B-VG. The statement of reasons shall be brief.

The appeal is not admissible pursuant to Art. 133 para. 4 B-VG. Despite the absence of a case law of the Administrative Court on § 8a VwGVG, there is no legal question of fundamental importance, since the legal situation regarding the granting of procedural assistance has been sufficiently clarified both by the European Court of Human Rights and by the European Court of Justice (see VwGH 20.12.2016, Ro 2014/03/0049). In addition, the case-law of the Administrative Court on § 40 VwGVG and on the relevant provisions of the ZPO can be applied to the examination of the necessity of providing a procedural aide pursuant to § 8a para. 2 VwGVG in conjunction with § 64 para. 1 no. 3 ZPO. Ultimately, the decision to grant procedural assistance is always a case-by-case assessment.