BVwG - W214 2224203-1
|BVwG - W214 2224203-1|
|Relevant Law:||Article 6(1)(c) GDPR|
Article 11 Regulation 883/2004
|Parties:||Natural person (complainant)|
Austrian social security (involved party)
Italian social security (involved party)
Austrian data protection authority (addressed authority)
|National Case Number/Name:||W214 2224203-1|
|European Case Law Identifier:||ECLI:AT:BVWG:2020:W214.2224203.1.00|
|Appeal from:||Austrian data protection authority (Datenschutzbehörde Österreichs)|
|Appeal to:||Not appealed|
|Original Source:||Rechtsinformationsystem des Bundes (RIS) (in German)|
|Initial Contributor:||Maïlys Lemaître|
The Austrian DPA held that a European social security administration can legitimately transfer data to another social security within the European Union in the context of an administrative procedure pursuant to Article 11 of the regulation on coordination of the social security systems.
The plaintiff, an Austrian resident, had asked the Austrian social security administration to inform him about the status of his son's insurance, a boy living under the care of his mother in Italy. After survey of both Italian social security administration and mother of the child, the Austrian administration informed the plaintiff that his son was not entitled to Austrian social security, since the place of residence of the child was not Austria, a fact which had been confirmed and proved by all the parties mentioned above.
Following this, the plaintiff lodged a complaint with the Austrian data protection authority, claiming that the confidentiality of both his' and his son's personal data had been breached by the illicit transfer of the said data from the Austrian to the Italian social security administration.
However, the Austrian data protection authority dismissed the complaint, arguing, regarding the alleged breach of his son's personal data, that the plaintiff was not authorized to act on behalf of the child and, regarding the alleged breach of the plaintiff's own personal data, that the Austrian social security administration had had to share the data with third parties, especially with the Italian social security, as part of the inquiry into the entitlement to Austrian social security of the plaintiff's son.
1) Can a parent lodge a complaint with a data protection authority on behalf of their child when the other parent has not given their consent for that purpose?
2) Does the transfer of data from one European social security administration to another constitute a breach of confidentiality?
The Higher Administrative Court of started by confirming that the Austrian data protection authority was right to dismiss the part of the complaint lodged by the plaintiff on behalf of his son. Indeed, the plaintiff lacked power of representation in this regard and could not produce evidence of the mother's consent for a joint complaint. Beyond that, it was also shown that the mother alone - contrary to the sayings of the plaintiff - had the right of custody of the child.
The Court then pointed out that data processing and possible transfer to third parties in the context of an administrative procedure would always be considered legitimate if they are necessary for establishing and confirming relevant facts. Since a person resident in the European Union can only be entitled to social security in one member state at a time, the Austrian social security administration was in its right to communicate with the Italian social security administration on the matter, in order to clarify the situation of the plaintiff's son pursuant to Article 11 of the regulation on the coordination of social security systems. In doing so, the Austrian social security administration also had to communicate data relating to the plaintiff himself. In accordance with Article 6(1)(c) GDPR, this data processing in form of a data transfer could be considered necessary for compliance with a legal obligation to which the controller is subject and not a breach of confidentiality of the plaintiff's data. Hence, the data protection authority was also right to dismiss the plaintiff's complaint on that regard.
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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.
Saying W214 2224203-1/510E ON BEHALF OF THE REPUBLIC! The Federal Administrative Court, through Judge Dr. Eva SOUHRADA-KIRCHMAYER as Chairwoman and the expert lay judges Viktoria HAIDINGER, LL.M., and Claudia KRAL-BAST as assessors, has ruled on the appeal of the XXXX against the decision of the data protection authority of 13.09.2019, Zl. DSB-D123.537/0005-DSB/2019, A1) was decided: In so far as the appeal relates to part 2 of the contested decision, it is dismissed for lack of an appeal and for lack of the right to appeal. A2) correctly recognised: For the rest, the appeal is dismissed pursuant to § 28 (2) of the Administrative Court Procedure Act, Federal Law Gazette No. 33/2013 as amended (VwGVG). B) Pursuant to Art. 133 para. 4 B-VG, the revision is not permitted. SText REASONS FOR DECISIONS: I. Course of proceedings: 1. With the submission to the data protection authority (authority prosecuted before the Federal Administrative Court, DSB) of 27 September 2018 and the further comments of 29 September 2018 and 3 October 2018, the complainant (first complainant in the proceedings before the authority prosecuted) alleged a violation of his right to secrecy. His underage son (second complainant in the proceedings before the authority complained of) had also been violated in his fundamental right to secrecy. In summary, the XXXX (party involved in the proceedings before the Federal Administrative Court) "communicates" personal data "behind his back", e.g. the XXXX . The insurance relationship of the co-involved party absolutely excludes "another legal insurance relationship" (for example in Italy)" for his son "from birth". Since the mother of the child is (was) also insured by the co-involved party, the co-involved party can see when which data "migrated" to Italy for the purpose of settling the claim. His son had a right to proper access to public health care from birth. The right to informational self-determination is infringed. The birth register of his son had been falsified on 5 June 2015 and he had received an incorrect Italian identity card dated 4 June 2015. The complainant, for his part, also had an "unclear identity" as a father with regard to his family, social and societal relations. 2. By letter of 12 November 2018, the authority in charge of the case asked the complainant to explain how he considered that the facts of the case constituted a violation of the right to confidentiality. The authority complained of further stated that the question of the insurance relationship or the lack of benefits under this insurance could not be clarified in the context of a data protection complaint. 3. In his opinion of 10 December 2018, the complainant submitted, in summary, that the "fundamental right to data protection retrospectively from birth and/or from 26 August 2015 on my son and on my own person" had been violated. For example, the statement in the letter of 6 December 2015 that the entitlement to a claim ended on 25 May 2015 did not correspond to the actual facts of the case. After 26.08.2015, both parents were demonstrably insured by the co-insured party. If the co-involved party informed the XXXX that the underage son "is currently not covered by any health insurance in Austria", the co-involved party considered the exchange of personal data with the XXXX as a violation of data protection with regard to personal data on his underage son and on his person. The co-involved party had to ensure that his underage son did not have to deal with "other insurers". The ECHR was infringed by the chaos of the co-involved party with regard to the data situation concerning the personal data of the second complainant. Furthermore, on the same date, the complainant submitted as "evidence of his custody of the minor son" a (partially blackened) decree of the Higher Regional Court XXXX - Foreign Division XXXX of 20 December 2017, which shows that the Regional Court XXXX transferred custody to both parents by decree of 27 March 2017. The complainant also submitted a judicial determination of his paternity with regard to the second complainant. 4. In a statement of 22 February 2019, the party involved submitted in summary that the complainant's right to custody with regard to his minor son was doubted, particularly as the complainant had not yet provided proof of his custody or of his power of representation. The complainant had been informed in the course of an administrative procedure that his son's entitlement to custody had been terminated retroactively as of 25 August 2018. The complainant had reported this to the competent supervisory authority. The allegation that data had been unlawfully transmitted to the XXXX was disputed. The correspondence with the Italian sickness insurance institutions was solely for the purpose of implementing Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2014 on the coordination of social security systems and the ASVG. Only the data which are essential for lawful implementation are exchanged. The decisive factor for the retrospective withdrawal of the second complainant's entitlement was several official perceptions of the party involved which had led to the residence of the son (and the associated entitlement) being considered doubtful. In an e-mail dated 19 April 2018, the XXXX had requested information regarding the son's health insurance status. By letter of 20 April 2018, XXXX had been informed on the basis of Regulation (EC) No. 883/2004 that the son was not entitled to claim in the present case as his residence was not in Austria. However, as the whereabouts of the son could not be conclusively determined until the confirmation of the XXXX had been received, the entitlement to claim had not been terminated for the time being. By letter XXXX of 29.11.2018, the party concerned was informed that the complainant's son had been insured (and resident) in Italy since 26.08.2015. On the basis of this confirmation, a national entitlement as a relative was in any event excluded. Therefore, the entitlement as a relative had to be terminated with retroactive effect. 5. In his observations of 19 March 2019 and 23 May 2019, the complainant submitted - to the extent relevant to the present appeal proceedings - that the other party involved was not entitled to express doubts as to his eligibility for parental leave. The opinion of 23.05.2019 is - due to a corresponding request by the prosecuting authority - accompanied by the Decree of the Higher Regional Court XXXX - Foreign Division XXXX (Decreto di rigetto n. cronol. XXXX ) in unblackened version. 6. On 19.06.2019, the prosecuting authority sent the complainant an order to remedy the deficiencies, in which it essentially reproached him with the following: It was apparent from that decree that the complainant and the mother of the child shared custody of the second complainant. The decree also stated that the complainant's habitual residence in Italy was with the mother of the child, who was separated from the complainant. According to the legal opinion of the authority complained of, the Hague Convention on the Protection of Children (CRC), which governs "parental responsibility and measures for the protection of children", is applicable in the present case. Both Austria and Italy are parties to the Convention. Article 16, paragraph 1, KSÜ stipulates: "The attribution or extinction of parental responsibility by operation of law without the intervention of a court or administrative authority shall be determined by the law of the State of the child's habitual residence". Since the habitual residence of the second complainant appears to be in Italy, Italian law is applicable in the present case. More specifically, the provisions of Title 9 ("Parental responsibility and the rights and duties of the child") of Section 2 ("Exercise of parental responsibility after separation, dissolution, lapse of civil effects, annulment and nullity of marriage or following proceedings concerning children born outside marriage") of the Italian Civil Code (codice civile) are applicable in this case. That is also apparent from Decree XXXX of the Higher Regional Court, submitted by the complainant. In the present proceedings, the complainant wished to invoke the right to confidentiality not only for his own person but also for his son, in particular with regard to his health insurance and the related data processing by the party concerned. According to the legal opinion of the authority complained of, the matter is a "matter of major importance" within the meaning of Article 337quater, third paragraph, of the Civil Code. This provision reads as follows: "Unless otherwise provided, decisions on matters of considerable importance to the children shall be taken by both parents". The complainant was therefore requested to provide evidence of the decision of both parents - i.e. the written consent of the mother of the child to conduct the present complaint proceedings for alleged violation of the right to secrecy of the minor son - within a period of two weeks from receipt of this letter, otherwise the complaint concerning the right to secrecy of the minor son would have to be rejected. 7. In his statement of 3 July 2019, the complainant then replicated in summary form that the ordinary Italian courts under Article 16 HCÜ (Convention on the Civil Aspects of International Child Abduction, Federal Law Gazette No. 512/1988 as amended, note) were not competent to make decisions on parental responsibility, but the juvenile court in whose district his minor son was actually to be held. In XXXX, the complainant was a "father recognised by family and society from the birth of his son" and in fact always exercised parental responsibility if he was not prevented from doing so. He was the provider of accommodation for mother and child. Both parents are covered by health insurance through the co-insured party. The co-involved party exchanged information with the XXXX after years, using incorrect personal data on father, mother and child, so that the result was that his son was no longer insured with the co-involved party since 26 August 2015. The right to secrecy of the complainant and his son was violated in the entire "international investigation proceedings" of the party involved. 8. By the contested decision of 13 September 2019, the complainant's appeal was dismissed and the appeal lodged on behalf of his son was dismissed. In support of its action, the authority complained of stated that the subject of the complaint was the question whether the rights to confidentiality of the first complainant had been infringed by the party concerned in that the latter had transmitted personal data of the first complainant to Italian health insurance companies. With regard to the confirmatory complaint, the Commission considers that it is necessary to examine whether the first complainant is entitled to bring the complaint on behalf of the minor son. According to settled case-law, the authority against which proceedings are brought assumes that its competence to assess the admissibility of the disclosure of data during administrative proceedings is limited to the prohibition of excessive use. If it is possible to imagine that the nature and content of the data ascertained by an authority competent in the matter are appropriate for establishing the relevant facts, the investigation is admissible from the point of view of data protection law. Under Paragraph 1(2) of the DSG, restrictions on the right to secrecy are permissible only if the use of personal data is in the vital interest of the person concerned or with his or her consent, if the legitimate interests of another person prevail or if there is a qualified legal basis. According to Article 11 of Regulation (EC) No 883/2004, a person can be insured only in one Member State and, therefore, in the view of the authority complained of, it was necessary, in order to clarify this issue, that the party concerned, as a sickness insurance institution, process the personal data of the complainant and transmit them to Italian sickness insurance institutions (since there was evidence that the complainant's habitual residence was in Italy). Against that background, it was also necessary that personal data of the first complainant (at least the category of data "name") as the father of the second complainant were also transferred to Italian sickness insurance institutions. The prohibition of excessive disclosure had not been infringed in the present case and the complaint of the first complainant had therefore to be dismissed. As regards the second complainant, the applicant submits that, despite the opportunity afforded, the written consent of the mother of the child was not submitted and that the complaint on this point should therefore be rejected. 9. The complainant's complaint lodged within the prescribed period (which he expressly made [only] as "first complainant") is directed against that decision. In it, the complainant states that the mother of the child, the second complainant and he himself had been in Austria on 20 August 2015, i.e. before 23 August 2015, and that the mother of the child had also visited a midwife in Austria in December 2015. The Italian false certification on 5 June 2015 had been carried out against the verifiable objective will of both parents. From birth onwards and/or from 26 August 2015 onwards, the case concerned exclusively domestic Austrian facts which concerned the statutory health insurance relationship of the mother, the first complainant and the second complainant. The mother of the child, the underage son and the family structure were not a case for "foreign funds". The co-involved party infringed the law by working with incorrect Italian personal data concerning the second complainant, the mother of the child and the family structure and by unlawfully exchanging incorrect personal data across borders, for example with the XXXX. The complainant further referred, inter alia, to the decree establishing the joint custody of the parents. Furthermore, the complainant contradicted the legal statements made by the authority in question in its mandate to remedy the deficiencies and claimed that the case in question constituted "child abduction". The subject matter of the complaint had to be supplemented to the effect that the (first) complainant's right to confidentiality had also been violated "by the unlawful transfer of (incorrect) personal data in national files and systems". Furthermore, the subject matter of the complaint had to be formulated in such a way that it had to be examined to what extent the (first) complainant could represent his minor child. As regards the findings of fact, the complainant noted that the "Austrian central authority of the Ministry of Justice" had not established that his minor son was habitually resident in Italy. The decree of the Oberlandesgericht XXXX was irrelevant with regard to the data protection complaints. The Oberlandesgericht XXXX has no jurisdiction to rule on decisions concerning parental custody and responsibility. The two rulings in the decision of the authority against which proceedings had been brought were unlawful. Personal data were transmitted without consent. There were strong indications that the mother of the child had been registered in a place (named by the complainant) in XXXX since 1997. She would have been registered with the Italian health insurance institution long before the birth of her minor son. It was highly unlikely that the mother had unsubscribed either from the municipality or from the statutory health insurance institution, which she was obliged to do. There is no doubt that the mother and the minor son were duly insured in Austria in accordance with the law and received benefits from the other party through the insurance relationship. The mother of the child and the minor son were unlawfully insured from birth with the health insurance institution in Italy. The mother of the child was probably XXXX by the XXXX until the end of December 2016. In those circumstances, it was not necessary for any personal data relating to the minor son to have been communicated to Italian sickness insurance institutions. In the complainant's view, the request to show the consent of the mother of the child for the present complaint procedure was unlawful. The complainant seeks the annulment of the two grounds of the contested decision of the authority complained of and the "follow-up of the complaints" against the co-defendant. 10. The contested authority submitted the administrative act and the complaint - without making use of the possibility of a preliminary decision on the complaint - to the Federal Administrative Court by letter dated 7 October 2019 and issued a statement on it. The complainant had submitted a total of 81 further initial applications initiating proceedings, which concerned him and, for the most part, his son. The majority of these proceedings were based on the same facts, namely the fact that his son and the mother of the child were in Italy and that the complainant was of the opinion that personal data of his son (such as, inter alia, the insurance relationship and the indication of the place of birth) were misrepresented by various public and private bodies. On that basis, the authority complained of had made a request for assistance to the Italian supervisory authority and had asked it to check that the Decree of the Higher Regional Court XXXX - Foreign Division XXXX submitted by the complainant was up to date. The Italian supervisory authority had now complied with the request for assistance "after the issue of the administrative order". Following notification by the Higher Regional Court XXXX - Foreign Affairs Division XXXX, the above-mentioned decree was no longer up to date. The current decree of 19 April 2018 (apparently the date of the decision of LG XXXX, 2266/2018, was incorrectly stated here, which was confirmed by the decree of the Higher Regional Court, see also OZ 176 of the court file, the decision of OLG XXXX dates from 13 April 2018) is no longer valid. 10.2018, note), the Higher Regional Court XXXX - External Division XXXX had pronounced with final and binding effect that the mother of the child now had the sole right of custody and the complainant, as father of the child, was no longer entitled to represent the son. The original answer in English was quoted by the authority against which the case was brought, together with the relevant business figures. Therefore, taking into account the new facts of the case, the complaint of the minor son had to be rejected for lack of authority to represent the complainant. Reference was also made to the statements made in the contested decision. This opinion was brought to the attention of the complainant. 11. subsequently, by e-mail of 18.10.2019, the first complainant submitted a document in which the XXXX confirms that no consent to the processing of the data in the XXXX had been given for the person of his son, and a letter from the co-involved party relating to a ban on access to the son's data. Furthermore, he requested by e-mail dated 21.11.2019 a request for information to a municipality (named by him) regarding the residence of the mother of the child and the minor son as well as the family structure. Furthermore, he requested that an oral hearing be held and that the mother of the child and a person named by name be questioned by the State Ombudsman's Office XXXX. This letter is accompanied by documents relating to the calculation of entitlement to unemployment benefit. In an e-mail dated 12.12.2019, the complainant submitted a complaint against a decision of the Public Employment Service XXXX "as further evidence". By e-mail of the same day, the complainant submitted a further letter addressed to several addressees at the co-involved party and addressed to a specific employee, stating that his sickness benefit had not been transferred to him. By e-mail of the same day, the complainant submitted a further letter addressed to a number of persons at the co-involved party and addressed to a specific employee concerning the refusal to provide performance data and information on the performance data of his minor son, and a reply from the co-involved party. 12. At the request of the Federal Administrative Court, the Österreichische Gesundheitskasse - Landesstelle XXXX sent a letter dated 31 March 2020 with enclosures containing in particular the evidence offered in the statement of 19 February 2019. 13. In an e-mail of 2 April 2020, the complainant submitted a request for an oral hearing and requested the examination of witnesses (the mother of the child, an employee of the AMS and the ombudsman of the party involved). 14. On 6 April 2020, the complainant submitted a letter for the opinion of the prosecuting authority dated 7 October 2019, in which, among other things, he partly repeated his previous statements, but also considered the decision of the Italian court to be "wrong", which awarded sole custody to the mother of the child. Furthermore, he accused the mother of having endangered the health of his son. He also stated that the party involved violated his right to information. Furthermore, the complainant referred to his previous custody proceedings. Finally, the complainant pointed out that XXXX, as well as the municipality in which his son was located, had the highest number of people infected with corona and that he did not receive any information about his son's health. 15. On 20 April 2020, the co-involved party submitted a statement in which it stated, in response to the complainant's allegation that his son's insurance relationship had been unlawfully reversed due to the unlawful exchange with XXXX, that an administrative procedure pursuant to §§ 123 in conjunction with 410 (410) (1) (b) of the German Civil Code had been initiated in this regard. 1 no. 7 ASVG had been carried out in this regard, and the complainant's complaint had been dismissed as unfounded by a final and absolute decision of the Federal Administrative Court of 10 October 2019, GZ I413 2218188-1/144E. The allegation of unlawful data exchange is still contested in its entirety. It was also incorrect that the party involved had infringed the right to information on the personal data of the complainant and his son. 16. Between 22 and 30 April 2020, the complainant, in response to the hearing granted to him to the letter of the co-defendant, submitted more than 470 submissions to the Federal Administrative Court by e-mail. Several e-mails concern alleged stays of the mother of the child in 2015 and 2016 and of his son in Austria until 2017; furthermore, the complainant again submitted a statement to the effect that the Italian insurance relationship of his son was completely unlawful and inadmissible, that a data transfer to other European countries was at no time necessary and lawful. According to the complainant, several submissions were intended to prove that the complainant's mother and son were insured by the co-involved party, that the facts were purely domestic and that third-party health insurance was inadmissible. Furthermore, the complainant submitted extracts (in some cases several times the same ones) from his correspondence in recent years with a large number of domestic and foreign state and private bodies, as well as complaints addressed to the authority in question concerning, inter alia, requests for information and correction of the personal data processed about him and his son, concerning "false" personal status data and a "false" documented living situation of his son, and concerning inadmissible data processing with regard to his and his son's personal data. Furthermore, the complainant repeatedly requested information on his son's vaccination and health data and repeatedly stated that he considered his son's health care to be insufficiently guaranteed. However, more than 100-page appendices were also transmitted, including the decree of the Higher Regional Court XXXX of 13 October 2018, which states that the sole custody of the complainant's underage son belongs to the mother of the child. In its decision of 6 March 2020, OLG XXXX again held, in relation to a further application for information under Articles 16, 18 and 19 Previous search termDSGFORnext search term of the complainant, that the sole custody of the complainant's son is vested in his mother and that the complainant has no authority to file an application on behalf of his underage son. Furthermore, the complainant submitted a decision of the Regional Court XXXX of 17 May which concerned him. 2018 imposing the preventive measures of prohibition of residence and prohibition of approaching the injured persons for having persistently threatened and harassed his former partner, filing criminal charges which even led to criminal proceedings in Italy but which were then filed, preventing his son from attending a certain day care centre in XXXX and causing the son to be removed from the patient list of two paediatricians. From another document (preliminary hearing on 14 January 2019) it appears that the ban on residence in province XXXX has been lifted. A decree of the Youth Court XXXX dated 23.05.2019, also submitted by the complainant, shows that the complainant was forbidden to have any contact with his son and that the complainant was also forbidden to approach the persons and institutions where the son was staying. Furthermore, the complainant was ordered to consult psychologists and psychiatrists in order to regain his psychological balance and to be able to concentrate on the welfare of his son. Finally, the social service was instructed to organise accompanied visits between father and son as soon as the complainant could document that he had received therapeutic treatment. Other documents concern the request for the examination of the testimony of a retired employee of XXXX [ed. OZ 163] and an Italian paediatrician [ed. OZ 176]. II The Federal Administrative Court considered 1. findings: The course of proceedings referred to in point I. above will form the basis of the findings. The minor XXXX is the son of the complainant and the XXXX, the latter being the sole guardian of the minor son. The habitual residence of the minor son is with the mother of the child in Italy and was in any event already in Italy at the time of the exchange of data which is the subject of the complaint between the party involved and the XXXX . In 2018, the XXXX corresponded with the co-involved party and, by e-mail of 19 April 2018 (inter alia, after the complainant wanted to deregister his son from the Italian health insurance scheme and the Provincial Health Service), requested the co-involved party, an Austrian social security institution, to inform it of the health insurance status of the complainant's son. By letter of 20 April 2018, the co-involved party informed the XXXX, on the basis of Regulation (EC) No 883/2004, that the son was not entitled to a claim in the present case because his residence was not in Austria. However, as the whereabouts of the son could not be conclusively determined until the confirmation of the XXXX had been received, the eligibility for a claim was not terminated for the time being. In a letter of the XXXX dated 29 November 2018, the co-involved party was informed that the complainant's son had been insured (and resident) in Italy since 26 August 2015. Thereupon, the co-involved party terminated the entitlement as a relative with retroactive effect from 26.08.2015. The co-participating party has thus provided the name, habitual residence and information on the insurance relationship of the minor son with the co-participating party to the XXXX. The correspondence with the XXXX also contained the name of the complainant as father of his son and that the complainant is insured with the co-involved party. These data were already known to the XXXX , who knew the complainant by name and therefore also asked the co-involved party for information about the insurance relationship of his son, through direct submissions of the complainant to the XXXX. The background to the above-mentioned submissions was an administrative procedure concerning the insurance relationship of the complainant's minor son with the co-involved party. The proceedings subsequently conducted at the Federal Administrative Court were dismissed with Zl. I413 2218188-1/144E (abridged version dated 28.10.2018). In his complaint to the authority in charge, the complainant alleged a violation of the right to secrecy by the party involved. He also complained on behalf of his son that his right to secrecy had been infringed by the other party involved. In the contested decision, the authority complained of dismissed the complaint concerning the alleged breach of the complainant's right to secrecy and rejected the complaint made on behalf of the minor son. The complainant lodged an appeal against that decision with the Federal Administrative Court. 2. assessment of evidence: The findings result from the administrative act, the court act in question and the published social security law act GZ I413 2218188-1. It is apparent from the comments of the party concerned that the complainant's mother and son have been registered and resident in Italy since August 2015. The complainant also stated at the oral hearing on GZ I413 2218188-1 that his son had already been deregistered from the residential address in XXXX in August 2015, that he last entered the complainant's home in 2016 and that he resides in XXXX. It is therefore beyond doubt that the habitual residence of the complainant's son was in Italy at the time of the transmission of the data by the co-involved party. The transmitted data result from the documents submitted by the co-involved party to the Federal Administrative Court in a letter dated 31.03.2020. Thus, even without taking into account the numerous documents submitted by the complainant in the judicial procedure by e-mail, the facts of the case are already clear. With regard to the complainant's "evidence" submitted by the complainant in the present court proceedings, the following should be noted: According to Paragraph 1(1) of the Federal Chancellor's regulation on electronic communication between the Federal Administrative Court and the parties (BVwG-EVV), BGBl II No 515/2013, as amended by BGBl II No 222/2016, e-mail is not an admissible form of electronic submission of written submissions within the meaning of that regulation. Attachments for which the administrative provisions provide for a specific type of contribution are invalid if the contribution is made in a manner other than that provided for by law (see again VwGH 11.10.2011, 2008/05/0156). Accordingly, according to the last sentence of § 1 (1) BVwG-EVV 2014 e-mail is not a permissible form of electronic submission of written submissions within the meaning of this regulation and therefore a written submission submitted by e-mail cannot have any legal effects (cf. VwGH 15.12.2015, Ra 2015/01/0061; 26.03.2019, Ra 2019/19/0014). The Federal Administrative Court is therefore not obliged to deal with these submissions. Moreover, the e-mails (nevertheless sighted by the Federal Administrative Court), such as those concerning the refusal of benefits and information on his son's benefits as well as the non-payment of sickness benefit, which have nothing to do with the subject matter of the proceedings, would not be capable of invalidating the established facts. There is also nothing to be gained from the numerous correspondences and requests to national and Italian governmental and non-governmental bodies and other documents submitted (these even include notices of absence and a 187-page extract from a textbook on administrative procedures and administrative jurisdiction from 2011, which was forwarded to the Federal Administrative Court without comment) to support the complainant's legal position. On the contrary, some documents even prove that the complainant visited the mother of the child, her family and his son at their addresses of residence in XXXX and persistently harassed and frightened them, and also visited his son's kindergarten in 2019 and obstructed the work of the kindergarten by means of shouting and threatening gestures, which finally led to the decree of the Youth Court XXXX (OZ 176 of the Official Gazette) mentioned under item 15 of the course of proceedings. It also emerges from various interrogations of the parents and the child mother's friend (also published in OZ 176) that the child mother moved to XXXX with her son in August 2015 due to bad treatment and abuse by the complainant. Even the statement of the complainant of 6 April 2020, in which he himself assumes that his son is in XXXX and is particularly threatened by the current situation (Covid 19 pandemic), does not provide any findings to the contrary, but confirms the fact that the complainant's son has his habitual residence in XXXX. As far as the sole custody of the mother of the child is concerned, the prosecuting authority has established that the decree on joint custody submitted by the complainant has meanwhile been superseded by another decree of OLG XXXX and the existence of this decree was not disputed by the complainant, but merely considered "wrong". Incidentally, the complainant himself even submitted the decree of OLG XXXX of 13 October 2018 (and the decree of 19 April 2018 on which it is based). The fact that the sole custody of the mother of the child continues to be maintained is also apparent from the letter of the OLG XXXX of 6 March 2020 (ed. OZ 261). In this context, it must be noted that the complainant apparently wilfully submitted to the prosecuting authority an outdated decree in which the joint custody of the mother of the child and the complainant had been laid down, but which has been superseded by the following judgments. In other respects, too, the complainant repeatedly alleges "false certifications" (although he even visited his wife's family in XXXX and found that his son was there) and even claims in an e-mail of 23 January 2020 that his son was living at his home address in XXXX (ed. OZ 306). The repeated accusation of "child abduction" has not been confirmed either (see also the decree of the Higher Regional Court XXXX of 13 October 2018, ed. OZ 177), which apparently does not prevent the complainant from continuing to make such assertions (as was also the case in the present complaint proceedings). The complainant's allegations thus prove to be incorrect in relevant points and are even refuted by the documents and correspondence submitted by himself. For the present case, it is only relevant whether the complainant's son has his habitual residence abroad and therefore a clarification under insurance law was necessary between the party involved and the XXXX, and who is the representative of the minor son. This can already be regarded as proven on the basis of evidence submitted by the co-involved party. 3. legal assessment: 3.1 According to Art. 130 (1) line 1 B-VG, the administrative courts recognise complaints against the decision of an administrative authority on the grounds of illegality. Under Article 6 of the BVwGG, the Federal Administrative Court decides by single judges, unless federal or Land legislation provides for decisions to be taken by senates. Under Section 27 of the Data Protection Act (DSG) as amended, the Federal Administrative Court decides on appeals against notices, on breaches of the duty to inform under Section 24(7) and of the duty of the data protection authority to take decisions by senates. The Senate consists of a chairman and one expert lay judge each from among the employers and the employees. The procedure of the administrative courts, with the exception of the Federal Finance Court, is governed by the VwGVG, Federal Law Gazette I 2013/33 as amended by Federal Law Gazette I 2013/122 (section 1 leg.cit.). Pursuant to Article 58(2) of the VwGVG, conflicting provisions already announced at the time of entry into force of this federal act shall remain in force. Pursuant to Article 17 of the Administrative Procedure Act (VwGVG), unless otherwise provided for in this Federal Act, the procedure on complaints pursuant to Article 130(1) of the Federal Constitution Act (B-VG) shall be governed by the provisions of the Administrative Procedure Act (AVG), with the exception of Articles 1 to 5 and Part IV, the provisions of the Federal Fiscal Code (Bundesabgabenordnung - BAO), Federal Law Gazette No 194/1961, the Agricultural Procedure Act (Agrarverfahrensgesetz - AgrVG), Federal Law Gazette No 245/1961, and the provisions of the Federal Law on the Supervision of Agricultural Procedures (Agrarverfahrensgesetz - AgrVG). No. 173/1950, and the Service Procedure Act 1984 - DVG, Federal Law Gazette No. 29/1984, and, moreover, to apply mutatis mutandis those procedural provisions in federal or Land laws which the authority has applied or would have had to apply in the proceedings preceding the proceedings before the administrative court. Pursuant to Paragraph 28(1) of the VwGVG, the administrative court is required to settle the case by judgment unless the complaint is to be rejected or the proceedings discontinued. Under Article 31(1) of the VwGVG, decisions and orders are made by way of a decision, unless a ruling is required. Pursuant to Article 28(2) VwGVG, the Administrative Court must decide on the substance of complaints pursuant to Article 130(1)(1) B-VG if (1.) the relevant facts have been established or (2.) the establishment of the relevant facts by the Administrative Court itself is in the interest of expedience or entails considerable cost savings. 3.2. on part A): 3.2 Legal situation: The authority complained of based its decision on the following legal bases: Sections 1(1) and (2) and Section 24(1) and (5) of the Data Protection Act (Datenschutzgesetz - DSG), Federal Law Gazette I No 165/1999, as amended; Section 13(3) of the General Administrative Act 1991 (Allgemeines Verwaltungsgesetz 1991 - AVG), Federal Law Gazette No 51/1991, as amended, Article 11 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, OJ L 166 of 30 April 2004. These provisions shall also be applied in the present appeal proceedings before the Federal Administrative Court. In addition, Article 6 of Regulation (EU) 2016/679 (Basic Data Protection Regulation), OJ L 2016/119, 1 (hereinafter: Previous Search TermDSGVONnext Search Term) is also relevant. § Section 1(1) and (2) of the DSG read as follows "(1) Everyone has the right, in particular with regard to respect for his or her private and family life, to the confidentiality of personal data relating to him or her, insofar as there is an interest worthy of protection. The existence of such an interest is excluded if data are not accessible to a claim for confidentiality due to their general availability or due to their lack of traceability to the person concerned. (2) Insofar as the use of personal data is not in the vital interest of the data subject or with his or her consent, restrictions on the right to confidentiality shall only be permissible in order to safeguard the overriding legitimate interests of another, and in the case of intervention by a state authority only on the basis of laws which are necessary for the reasons stated in Article 8 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), Federal Law Gazette No. 210/1958. Such laws may provide for the use of data which by their nature merit special protection only to safeguard important public interests and must at the same time lay down appropriate safeguards to protect the confidentiality interests of the persons concerned. Even in the case of permissible restrictions, the encroachment on the fundamental right may only be carried out in the least restrictive way possible and in such a way as to achieve the objective". § Section 24(1) and (5) shall read as follows "(1) Every data subject shall have the right to lodge a complaint with the Data Protection Authority if he/she considers that the processing of personal data relating to him/her is in breach of the Previous Search TermDSGVONächste Suchbegriff or of Section 1 or Article 2 1. main body. [...] (5) If a complaint proves to be justified, it shall be followed up. If an infringement is attributable to a person responsible in the private sector, that person shall be instructed to comply with the complainant's requests for information, correction, deletion, restriction or data transmission to the extent necessary to eliminate the infringement established. If the complaint proves to be unjustified, it must be rejected. Art. 6 Previous search termDSGVONnext search term is "Article 6 Lawfulness of processing 1. Processing shall be lawful only if at least one of the following conditions is met: (a)- the data subject has given his consent to the processing of personal data relating to him for one or more specified purposes; (b)- processing is necessary for the performance of a contract to which the data subject is party or in order to implement pre-contractual measures taken at the request of the data subject; (c)- processing is necessary for compliance with a legal obligation to which the controller is subject; (d)- processing is necessary in order to protect the vital interests of the data subject or of another natural person; (e)- 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)-- [...] [...] 2. Member States may maintain or introduce more specific provisions adapting the application of the provisions of this Regulation in relation to processing for the purposes of complying with paragraph 1(c) and (e), by defining more precisely specific requirements for processing and other measures to ensure fair and lawful processing, including for other specific processing situations referred to in Chapter IX. 3. The legal basis for the processing operations referred to in paragraph 1(c) and (e) shall be determined by (a) -Union law; or (b) -the law of the Member States to which the person responsible is subject. The purpose of the processing must be specified in this legal basis or, as regards the processing referred to in paragraph 1(e), 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. This legal basis may contain specific provisions to adapt the application of the provisions of this Regulation, including provisions on the general conditions applicable to the lawfulness of processing by the controller, the types of data processed, the persons concerned, the entities to whom and for what purposes the personal data may be disclosed, the purposes for which they are to be processed, the purposes for which they may be stored, the period for which they may be stored and the processing operations and procedures that may be carried out, including measures to ensure that processing is lawful and fair, such as those laid down for other specific processing situations in Chapter IX. Union law or the law of the Member States must pursue a public interest objective and be proportionate to the legitimate aim pursued. (4) [...]" § Section 13(3) of the AVG reads "(3) Deficiencies in written submissions do not authorise the authority to reject them. Rather, the authority shall, ex officio, immediately arrange for the defect to be remedied and may instruct the rider to remedy the defect within a reasonable period of time with the effect that the affixing will be rejected if this period expires without result. If the defect is remedied in time, the attachment is deemed to have been correctly introduced originally. Articles 11 and 76 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems read "TITLE II DETERMINATION OF THE APPLICABLE LAW Article 11 General scheme 1. Persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. Which legislation is applicable shall be determined by this Title. 2. For the purposes of this Title, persons receiving a cash benefit by virtue of or as a result of their activity as employed or self-employed persons shall be considered to be engaged in that activity. This shall not apply to invalidity, old-age or survivors' pensions or pensions in respect of accidents at work or occupational diseases or to cash sickness benefits covering treatment of unlimited duration. 3. Subject to Articles 12 to 16, the following shall apply: (a) a person who pursues an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State (b) a civil servant shall be subject to the legislation of the Member State to which the administrative unit employing him is subject; (c) a person receiving unemployment benefits under the legislation of the Member State of residence in accordance with Article 65 shall be subject to the legislation of that Member State; (d) a person called up or recalled for military or civilian service in a Member State shall be subject to the legislation of that Member State; (e) any other person not covered by subparagraphs (a) to (d) shall be subject to the legislation of the Member State of residence, notwithstanding any provisions of this Regulation to the contrary, under which he is entitled to benefits under the legislation of one or more other Member States. (4) [...] Article 76 Cooperation The competent authorities of the Member States shall inform each other: (a)- all measures taken for the application of this Regulation; (b)- any changes in their legislation which may affect the application of this Regulation. 2. For the purposes of this Regulation, the authorities and institutions of the Member States shall lend one another their good offices and act as though implementing their own legislation. Mutual assistance between these authorities and institutions shall in principle be free of charge. However, the Administrative Commission shall determine the nature of the eligible expenditure and the thresholds for the reimbursement of such expenditure. For the purposes of this Regulation, the authorities and institutions of the Member States may communicate directly with each other and with the persons concerned or their representatives. 4. The institutions and persons falling within the scope of this Regulation shall have a duty of mutual information and cooperation in order to ensure that this Regulation is properly applied. The institutions shall, in accordance with the principle of good administration, reply to all enquiries within a reasonable time and, in this connection, provide the persons concerned with all the information necessary to enable them to exercise the rights conferred on them by this Regulation. [...] (5) to (7) [...]". Sections 123 and 321 (1) ASVG read as follows "Eligibility for dependants § (1) Relatives are entitled to health insurance benefits, 1. if they have their habitual residence in Germany and 2. if they are neither insured under the provisions of this Federal Act nor under any other statutory provision and if they are not covered by the sickness insurance scheme of a public-law employer. (2) The following shall be deemed to be relatives: 1. the spouse or registered partner 2. the children and children of choice; (Note: lines 3 and 4 repealed by Federal Law Gazette I no. 86/2013) 5. stepchildren and grandchildren, if they live permanently with the insured person in the same household; 6. foster children, if they are provided with free meals by the insured person or if the foster relationship is based on an official permit. The permanent household community within the meaning of no. 5 continues to exist if the child is only temporarily outside the household community or is outside the household community for the purpose of schooling (vocational) training or temporarily for medical treatment; the same applies if the child is in the care of a third party at the insurer's instigation and predominantly at the insurer's expense or by order of the youth welfare office or the guardianship court. (3) to (11)[...] Mutual administrative assistance § (1) The insurers and the tax authorities shall be obliged to support each other in the performance of their duties; in particular, they shall comply with requests addressed to them for this purpose within the scope of their material and local competence and shall also send other insurers and tax authorities any information of importance for their business operations without being requested to do so. The insurance institutions must forward applications and notifications received by them on behalf of other insurance institutions within the prescribed period. The obligation to provide mutual assistance also applies to the transfer of personal data in automated data traffic between the insurance carriers, which is necessary for the implementation of the notification and contribution procedure, the provision of services and the enforcement of claims for compensation". 3.3 In concrete terms, this means the following: Re A1) The transfer of personal data of the complainant's son: With regard to the transfer of personal data of the complainant's son, it should first be noted that the complainant only lodged a complaint with the Federal Administrative Court as a "first complainant" (and not expressly on behalf of the second complainant). Insofar as the complainant also alleges in his complaint an unlawful transfer of personal data of his son and objects to ruling part 2 of the decision of the prosecuted authority, he lacks the corresponding complaint and legitimation to lodge a complaint, since the data in question are not personal data of the complainant and, as already explained by the prosecuted authority, he has no power of representation of his son (and he did not lodge a complaint on his son's behalf or was not even allowed to lodge one). First of all, it must be noted that the complainant did not - as required by the prosecuting authority after the Italian legal situation had been explained in a deficiency rectification order pursuant to Article 13 (3) AVG - submit a written consent of the mother of the child to lodge the complaint on behalf of the common minor son, which is why the prosecuting authority rejected the complaint. Moreover, as the prosecuting authority stated in its opinion of 7 October 2019, the complainant is no longer entrusted with the custody of his underage son, but the mother of the child has the exclusive right of custody. The "evidence" submitted by the complainant for the custody and representation of his underage son is irrelevant for this reason, too. The authority in charge has therefore rightly rejected the complaint concerning the complainant's son. For the sake of completeness, it should be noted that the Decree of the Higher Regional Court XXXX of 19 April 2018 cited in the course of the proceedings (which the complainant, incidentally, withheld from the authority against which the complaint was brought in the complaint proceedings), even if it is considered "wrong" by the complainant, cannot be challenged in court proceedings before the Federal Administrative Court or the proceedings could be reopened. Insofar as the complainant alleges in his complaint a breach of data protection with regard to the transfer of his son's data, this was therefore to be rejected. Re A2) On the transfer of the complainant's personal data: The authority complained of rightly refers to settled case-law according to which its competence to assess the admissibility of the transfer of data in administrative proceedings is limited to the prohibition of excessive use. If it is possible to imagine that the nature and content of the data identified by an authority competent in the matter are appropriate for establishing the relevant facts, the admissibility of the investigation from the point of view of data protection law is given. The recourse to a more detailed assessment of the suitability of the investigative steps chosen by the authority competent in the matter would result in an encroachment on the investigating authority's competence, which would violate the principle of a precise delimitation of the authority's competence according to objective criteria derived from the right to bring proceedings before the legal judge (VfSlg. 3.156, 8.349), in a precise (VfSlg. 9.937, 10.311) and unambiguous manner (VfSlg. 11.288, 13.029, 13.816) (cf. inter alia the decision of the data protection authority of 09.11.2017, GZ DSB-D122.706/0005-DSB/2017). On the "possibility of reflection", see also VfGH of 9 October 2014, KR1/2014. The fundamental right to data protection is not an absolute right, but is subject to a legal reservation. According to Section 1 (2) of the German Data Protection Act, restrictions on the right to confidentiality are only permissible if the use of personal data is in the vital interest of the person concerned or with his or her consent, if the legitimate interests of another person prevail or if there is a qualified legal basis. In the present case, the co-involved party relied on the fact that the transfer of the complainants' personal data was based on Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems for the purpose of clarifying the insurance relationship of the second complainant. Pursuant to Article 11 of that regulation, a person can be insured in only one Member State, and it was therefore necessary that the co-involved party, as a social security institution, process the personal data of the second complainant and transfer them to Italian sickness insurance institutions (in this case, to the XXXX ) in order to clarify this issue. Against this background, it was also necessary that personal data of the first complainant (the name and the fact that the complainant is the biological father of the second complainant) were also transferred to the XXXX and this is justified by the above-mentioned Regulation, in particular Article 76(2) in conjunction with Section 321 ASVG. Also Art. 6 Previous Search TermDSGVONnext Search Term, which considers data processing to be justified if the processing is necessary to fulfil a legal obligation to which the person responsible is subject (para. 1 lit. c) or if 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 (paragraph 1(e)), leads to the same result: in the case in question, a legal basis within the meaning of Article 6(3) Previous search termDSGVONächster SuchbegriffDSGVONächster Suchbegriff for the transmission of data by Union law in conjunction with the ASVG. The transmission of the data in question is necessary and justified for the fulfilment of the tasks of the Authority (on the basis of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems). Such an exchange of data is - as explained above - also expressly provided for in Article 76 (2) of Regulation 883 in conjunction with Section 321 (1) ASVG. The authority in question was therefore right to find that the prohibition of excessive processing was not infringed in the present case and that the data processing was lawful. Apart from that, the data relating to the complainant transmitted by the co-involved party were in any event known to the XXXX from the submissions made directly to it. For the sake of completeness, it is stated that the complainant, in its improved complaint, referred to the exchange of data between the co-involved party and the XXXX as the object of the complaint. The extent to which - as he claims - his right to secrecy was also violated "by the unlawful transfer of (incorrect) personal data in national files and systems" cannot be inferred from his complaint (improved by letters of 3 October 2018 and 10 December 2018), was not the subject of the proceedings before the prosecuting authority relevant here and is therefore not the subject of the judicial appeal proceedings. Nor are any other further arguments, such as those relating to the fight against an AMS decision, the failure to provide information and a possible refusal to provide benefits by the party involved, as well as countless correspondences such as requests for information and corrections, subject to the procedure. Finally, it must be pointed out that even if the mother of the child and the son were still (on a case-by-case basis) to have stayed in Austria between 2015 and 2017, this does not change anything about the legality of the exchange of data between the co-participating party and the XXXX, as in 2018 the necessity arose to examine the insurance status of the complainant's son. The fact that the complainant's son already had his habitual residence in Italy at that time is - as stated above - also apparent from the Ed. act GZ I413 2218188-1. Moreover, the documents submitted by the complainant also show that the complainant's son has been residing in Italy since 2015 and is registered there (see, for example, OZ 65, Notice of XXXX, Confirmation of Residence by Municipality XXXX, OZ 58, and the interviews mentioned in point 15 of the procedural steps [OZ 176], according to which the mother and son moved to XXXX in August 2015. The remainder of the complaint was therefore to be dismissed. On the omission of oral proceedings: Pursuant to § 24.1 VwGVG, the Administrative Court must conduct a public oral hearing upon application or, if it considers it necessary, ex officio. Pursuant to Section 24(4) of the VwGVG, the Administrative Court may - unless otherwise provided by federal or Land law - dispense with a hearing, notwithstanding any application by a party, if the files show that the oral debate is unlikely to clarify the case further and neither Article 6(1) ECHR nor Article 47 GRC precludes the omission of the hearing. In the present case, the omission of an oral hearing could be based on the fact that the facts of the case had been clarified from the file. The use of further evidence, in particular the examination of witnesses, was not necessary to clarify the facts of the case. In the present case, the Federal Administrative Court has to rule exclusively on a question of law (cf. ECHR 20.6.2013, Appl. No. 24510/06, Abdulgadirov/AZE, margin no. 34 et seq.) According to the case law of the Constitutional Court, an oral hearing may also be omitted if the facts of the case are undisputed and the legal question is not particularly complex (VfSlg. 17.597/2005; VfSlg. 17.855/2006; most recently for instance VfGH 18.6.2012, B 155/12). It was therefore not necessary to hold an oral hearing. On the wilful recourse to the Federal Administrative Court: As has been explained above, despite the decision in the insurance law proceedings of which he is aware and despite his knowledge that his son is in Italy and is therefore rightly insured there, the complainant has alleged facts in the proceedings before the Federal Administrative Court that are manifestly incorrect. Nor did he give a reasoned opinion in the course of the hearing of the parties, but instead submitted (with no legal effect) a large number of submissions to the Bundesverwaltungsgericht, from which it is also not apparent to what extent they could even serve as "evidence" of the complainant's position. The complainant is hereby expressly informed by the Federal Administrative Court of the possibility of imposing a penalty for unlawful intent: Pursuant to § 35 AVG, the authority may impose a penalty for wanton conduct of up to 726 euros on persons who apparently wilfully make use of the authority's services or provide incorrect information with the intention of delaying the matter. Pursuant to § 17 VwGVG, this provision can also be applied by the Federal Administrative Court. 3.3 B) Inadmissibility of the appeal: Pursuant to § 25a (1) VwGG, the Administrative Court must state in its ruling or order whether the appeal is admissible under Article 133 (4) B-VG. The statement must briefly state the reasons for the ruling. The appeal is not admissible under Article 133, paragraph 4 of the Federal Constitution because the decision does not depend on the solution of a legal question of fundamental importance. The present case law is in line with the case law of the highest courts (see point 3.2.) and can also be inferred from the clear wording of the Previous Search TermDSGVO and the DSG. Nor are there any other indications of a fundamental significance of the legal issue to be resolved. 3.4 It was therefore to be decided in accordance with the ruling.