BVwG - W252 2239742-1/11Z

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BVwG - W252 2239742-1/11Z
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Court: BVwG (Austria)
Jurisdiction: Austria
Relevant Law: Article 12(1) GDPR
Article 15(1)(a) GDPR
Article 15(3) GDPR
§ 17 VwGVG
§ 38 AVG
Art 133 Abs 4 B-VG
Decided: 05.07.2022
Published: 03.08.2022
National Case Number/Name: W252 2239742-1/11Z
European Case Law Identifier: ECLI:AT:BVWG:2022:W252.2239742.1.00
Appeal from:
Appeal to: Not appealed
Original Language(s): German
Original Source: Rechtsinformationssystem des Bundes (RIS) (in German)
Initial Contributor: n/a

The Austrian Federal Administrative Court stalled an appeal procedure until the CJEU's decision on the interpretation of Article 15(3) GDPR is published.

English Summary


The complainant saw his right of access violated, since video recordings of therapy sessions had not been sent to him. The DPA dismissed the complaint as unfounded. Consequently, the complainant filed an appeal against this decision.


The BVwG did not (yet) take a decision on the merit of the case but stalled the procedure it filed a request for preliminary ruling on the question the interpretation of Article 15(3) GDPR in August 2021. See decision BVwG - W211 2222613-2/12E.

Once the CJEU has passed its judgment on the matter, the BVwG will resume the case.


This GDPRhub entry will be adapted accordingly after the BVwG has reopened the case.

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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.


The Federal Administrative Court decides through the judge Mag.a Elisabeth SCHMUT LL.M. as chairperson and the expert lay judges Dr. Claudia ROSENMAYR-KLEMENZ and Mag.a Adriana MANDL as assessors on the complaint of XXXX XXXX (participating party before the Administrative Court Kepler Universitätsklinikum GmbH, XXXX [as participating party 1] and XXXX [as participating party 2]), against the decision of the data protection authority of February 12, 2021, GZ XXXX in a closed session on a data protection matter:

A) Pursuant to Section 17 VwGVG in conjunction with Section 38 AVG, the proceedings are suspended until the preliminary ruling by the Court of Justice of the European Union in Case C-487/21.

B) The revision is not permitted according to Art. 133 Para. 4 B-VG.



I. Procedure:

1. The complainant (hereinafter "BF") saw his right to information violated by the involved party 1, since video recordings of therapy sessions had not been sent to him. The information given to him is therefore incomplete.

2. With a decision dated February 12, 2021, the relevant authority dismissed the complaint as unfounded, both with regard to the violation of the right to information and the right to secrecy.

3. The BF filed a complaint against this decision on February 17, 2021.

4. By decision of August 9th, 2021, W211 2222613-2/12E, the BVwG submitted the following questions to the Court of Justice of the European Union (ECJ) for a preliminary ruling (pending at the ECJ under C-487/21):

"1. Is the term "copy" in Article 15 (3) of Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data, on the free movement of data and on the repeal of the directive 95/46/EG (General Data Protection Regulation, OJ L 119/1 of May 4, 2016, p. 1; hereinafter: "GDPR") to be interpreted in such a way that a photocopy or a facsimile or an electronic copy of an (electronic ) Datums is meant, or does the term also include a "copy", un "double" ("duplicata") or a "transcript" according to the understanding of the term in German, French and English dictionaries?

2. Is Article 15 (3) sentence 1 GDPR, according to which “the person responsible provides a copy of the personal data that is the subject of the processing”, to be interpreted in such a way that it contains a general legal right of a data subject to be issued a copy – also - is contained in all documents in which the personal data of the data subject is processed, or to the delivery of a copy of a database excerpt if the personal data is processed in such a way, or does this only give the data subject a legal right to a true-to-original reproduction of the Art 15 Para. 1 GDPR to be disclosed personal data?

3. In the event that question 2. is answered to the effect that the data subject only has a legal right to a true-to-original reproduction of the personal data to be disclosed under Article 15 (1) GDPR, Article 15 (3) sentence 1 GDPR applies to this effect to be interpreted that due to the type of data processed (e.g. in relation to the diagnoses, examination results, findings or documents referred to in recital 63 in connection with an examination within the meaning of the judgment of the Court of Justice of the European Union of December 20, 2017, C-434/16, ECLI:EU:C:2017:994) and the transparency requirement in Art. 12 Para. 1 GDPR may nevertheless be necessary in individual cases to also make text passages or entire documents available to the data subject?

4. Is the term "information" which, according to Art. 15 (3) sentence 3 GDPR, is to be made available to the data subject "in a common electronic format" if the application is made electronically, "unless they state otherwise “, to be interpreted as meaning that only the “personal data that are the subject of the processing” mentioned in Article 15 (3) sentence 1 are meant?

a. If question 4. is answered in the negative: Is the term “information” to be made available to the data subject “in a common electronic format” according to Art. 15 (3) sentence 3 GDPR if the application is submitted electronically? "Unless otherwise stated", to be interpreted to mean that the information pursuant to Art 15 Para. 1 lit a) to h) GDPR is also meant?

b. If question 4.a. The answer is no: Is the term "information" which, according to Art. 15 para. 3 sentence 3 GDPR, if the data subject submits the application electronically, "must be made available in a common electronic format", "unless otherwise stated indicates”, to be interpreted in such a way that, in addition to the “personal data that are the subject of the processing” and the information specified in Art. 15 Para. 1 lit a) – h) GDPR, this means, for example, associated metadata?”

II. The Federal Administrative Court considered:

1. The following facts are established:

The procedure described under I. is fixed.

2. The findings are based on the following evidence assessment:

The findings result from the unobjectionable administrative and court act and the quoted decision of the Federal Administrative Court.

3. Legally it follows:

to A)

3.1. According to § 38 AVG, which according to § 17 VwGVG is also to be applied mutatis mutandis in administrative court proceedings, an authority can suspend proceedings until a final decision has been taken on a preliminary question, which should be decided as the main question by other administrative authorities or by the courts, if the preliminary question already is the subject of pending proceedings before, inter alia, the competent court or such proceedings are pending at the same time.

3.2. A main question in this sense can also be a question referred in a preliminary ruling procedure pending before the ECJ. It entitles you to suspension according to § 38 AVG if it is prior to the administrative court proceedings (cf. e.g. VwGH 13.12.2011, 2011/22/0316). A legal question is also prejudicial to a "merely" similar legal question, even if the same legal regulation of the same legislator is not affected (cf. recently VwGH September 13, 2017, Ra 2017/12/0068).

3.3. In the present case, the authority concerned rejected the BF's data protection complaint with regard to the right to information. The legal assessment raises the question of how far the right to a copy extends and to what extent the BF is entitled to the publication of the entire video material, i.e. a complete, true-to-original reproduction of the video.

3.4. The under I.4. The questions cited, which were submitted to the Court of Justice of the European Union, are in any case similar to the legal questions to be resolved in the present proceedings in the sense of the case law cited above and are also prejudicial. The questions submitted are relevant to the present procedure in order to be able to assess the scope and scope of the right to information in accordance with Art. 15 GDPR.

3.5. The suspension of the complaints procedure - with not just a procedural decision (cf. Administrative Court of December 20, 2017, Ra 2017/12/0019) - will therefore be suspended until the preliminary ruling by the ECJ (pending under ECJ C-487/21) with regard to the questions submitted by the BVwG (see VwGH October 20, 2021, Ra 2021/20/0246).

3.6. It was therefore to be decided accordingly.

Re B) Inadmissibility of the revision:

Pursuant to § 25a Para. 1 VwGG, the administrative court has to pronounce in its ruling or resolution whether the revision is admissible in accordance with Art. 133 Para. 4 B-VG. This statement needs a brief justification.

According to Art. 133 para. 4 B-VG, the revision is not permitted because the decision does not depend on the solution of a legal question that is of fundamental importance. With regard to the application of § 38 AVG, the adjudicating court was able to rely on a well-established case law of the Administrative Court, which was cited in each case. The assessment that the legal question in question – pending before another court (the ECJ) – is preliminary or “similar” to the proceedings here, was based on the principles established by the Administrative Court and is not reversible as an individual case-related assessment (cf. VwGH September 13, 2017 , Ra 2017/12/0068).