Data Protection in Germany: Difference between revisions

Revision as of 22:19, 20 March 2020

Data Protection in Germany

Data Protection Authority:	BfDI (Germany) and 16 State DPAs
National Implementation Law (Original):	Bundesdatenschutzgesetz (BDSG)
English Translation of National Implementation Law:	English Translation
Official Language(s):	German
National Legislation Database(s):	Link
English Legislation Database(s):	Link
National Decision Database(s):	Link

Legislation

History

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National constitutional protections

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National GDPR implementation law

In Germany the GDPR is implemented by the Bundesdatenschutzgesetz (BDSG).

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Age of consent

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Freedom of Speech

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Employment context

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Research

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Other relevant national provisions and laws

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National ePrivacy Law

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Data Protection Authorities

BfDI (Federal DPA)

The German Federal Data Protection Authority (Die Bundesbeauftragte für den Datenschutz und die Informationsfreiheit) is the national data protection authority for Germany. It is however only in charge of federal government authorities and private telecoms and postal services. Any other private entity in Germany is regulated by the relevant state DPA.

→ Details see BfDI (Germany)

German State DPAs for the private sector

The following DPAs are in charge of private sector controllers (except telecoms and postal services) in Germany:

Judicial protection

Civil Courts

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Administrative Courts

Appeals against decisions of German DPAs are brought before the district administrative courts (Verwaltungsgericht; e.g. for the Federal DPA in Bonn/North Rhine-Westphalia - the administrative court in Cologne, for the LDI in Düsseldorf (North Rhine-Westphalia) - the administrative court in Düsseldorf). In most cases appeal against the courts decision (Berufung) is possible to the Lands corresponding Higher Administrative Court (Oberverwaltungsgericht [OVG], Verwaltungsgerichtshof [VGH] in Baden-Württemberg, Bavaria and Hesse; Berlin and Bandenburg share one OVG). In some cases appeal against the Higher Administrative Court (Revision) is possible to the Federal Administrative Court (Bundesverwaltungsgericht [BVerfG])- this appeal is also possible in some rare cases if plaintiff and defendant both agree as an appeal to a district court's decision (Sprungrevision).

The German administative courts regularly are described as used to interpreting european law. The European Court of Justice is in high esteem.

Constitutional Court

If no more appeal is possible (Rechtswegerschöpfung) constitutional complaints to the corresponding Constitutional Court of the Land (Verfassungsgericht [VerfG], Landesverfassungsgericht [LVerfG], Verfassungsgerichtshof [VerfGH], Staatsgerichtshof [StGH]) or the Federal Constitutional Court (Bundesverfassungsgericht [BVerfG]) is possible.

The Federal Constitutional Court ruled in 1986 (As-long-as-2-decision)^[1]

As long as the European Communities, and in particular the case-law of the Court of Justice of the Communities, generally guarantee effective protection of fundamental rights against the sovereignty of the Communities, which is to be regarded as essentially equivalent to the protection of fundamental rights which the Basic Law requires as indispensable, especially since the essential content of fundamental rights is generally guaranteed, the Federal Constitutional Court will no longer exercise its jurisdiction over the applicability of secondary Community law, which is used as the legal basis for conduct by German courts and authorities in the sovereign territory of the Federal Republic of Germany, and will therefore no longer review this law against the standard of fundamental rights of the Basic Law; corresponding submissions under Article 100 Section 1 of the Basic Law are therefore inadmissible.

and added in 2019 (Right-to-be-forgotten-2-decision)^[2]

In accordance with the principle of the primacy of Union law, the application of rules which are fully harmonised in Union law is, as a general rule, governed not by the fundamental rights of the Basic Law but solely by the fundamental rights of the Union. This primacy of application is subject, inter alia, to the proviso that the protection of the respective fundamental right by the fundamental rights of the Union that are applied instead is sufficiently effective..

Since data protection law is fully harmonised in Union law, in most cases brought before German Constitutional Courts the Articles 7 and 8 of the Charter of Fundamental Rights of the European Union might be interpreted before the German fundamental right to Informational self-determination (Article 2 Section 1 in conjunction with Article 1 Section 1 of the Basic Law).

↑ Bundeverfassungsgericht, Second Chamber Ruling, Case 2 BvR 197/83 (in DE), 22. October 1986.
↑ Bundesverfassungsgericht, First Chamber Ruling, Case 1 BvR 276/17 (in DE), 6 November 2019. ECLI:DE:BVerfG:2019:rs20191106.1bvr027617

[1] Bundeverfassungsgericht, Second Chamber Ruling, Case 2 BvR 197/83 (in DE), 22. October 1986.

[2] Bundesverfassungsgericht, First Chamber Ruling, Case 1 BvR 276/17 (in DE), 6 November 2019. ECLI:DE:BVerfG:2019:rs20191106.1bvr027617

[1]

[2]

@@ Line 86: / Line 86: @@
 ===Constitutional Court===
-''You can help us fill this section!''
+If no more appeal is possible (''Rechtswegerschöpfung'') constitutional complaints to the corresponding Constitutional Court of the Land (''Verfassungsgericht'' [''VerfG''], ''Landesverfassungsgericht'' [''LVerfG''], ''Verfassungsgerichtshof'' [''VerfGH''], ''Staatsgerichtshof'' [''StGH'']) or the Federal Constitutional Court (''Bundesverfassungsgericht'' [''BVerfG'']) is possible.
+The Federal Constitutional Court ruled in 1986 (As-long-as-2-decision)<ref>''Bundeverfassungsgericht'', Second Chamber Ruling, Case [http://www.servat.unibe.ch/dfr/bv073339.html 2 BvR 197/83] (in DE), 22. October 1986.</ref>
+:<cite>As long as the European Communities, and in particular the case-law of the Court of Justice of the Communities, generally guarantee effective protection of fundamental rights against the sovereignty of the Communities, which is to be regarded as essentially equivalent to the protection of fundamental rights which the Basic Law requires as indispensable, especially since the essential content of fundamental rights is generally guaranteed, the Federal Constitutional Court will no longer exercise its jurisdiction over the applicability of secondary Community law, which is used as the legal basis for conduct by German courts and authorities in the sovereign territory of the Federal Republic of Germany, and will therefore no longer review this law against the standard of fundamental rights of the Basic Law; corresponding submissions under Article 100 Section 1 of the Basic Law are therefore inadmissible.</cite>
+and added in 2019 (Right-to-be-forgotten-2-decision)<ref>''Bundesverfassungsgericht'', First Chamber Ruling, Case [http://www.bverfg.de/e/rs20191106_1bvr027617.html 1 BvR 276/17] (in DE), 6 November 2019. [https://e-justice.europa.eu/ecli/ECLI:DE:BVerfG:2019:rs20191106.1bvr027617 ECLI:DE:BVerfG:2019:rs20191106.1bvr027617]</ref>
+:<cite>In accordance with the principle of the primacy of Union law, the application of rules which are fully harmonised in Union law is, as a general rule, governed not by the fundamental rights of the Basic Law but solely by the fundamental rights of the Union. This primacy of application is subject, inter alia, to the proviso that the protection of the respective fundamental right by the fundamental rights of the Union that are applied instead is sufficiently effective.</cite>.
+Since data protection law is fully harmonised in Union law, in most cases brought before German Constitutional Courts the Articles 7 and 8 of the Charter of Fundamental Rights of the European Union might be interpreted before the German fundamental right to Informational self-determination (Article 2 Section 1 in conjunction with Article 1 Section 1 of the Basic Law).