FG Berlin-Brandenburg - 16 K 16155/21
|FG Berlin-Brandenburg - 16 K 16155/21|
|Court:||FG Berlin-Brandenburg (Germany)|
|Relevant Law:||Article 79(2) GDPR|
Article 82 GDPR
Article 82(6) GDPR
Article 34 GG
Article 40(2) VwGO
|National Case Number/Name:||16 K 16155/21|
|European Case Law Identifier:||ECLI:DE:FGBEBB:2021:1027.16K16155.21.00|
28. Juni 2022
|Appeal to:||BFH II B 92/21|
|Original Source:||VIS Berlin (in German)|
|Initial Contributor:||Giel Ritzen|
The Finance Court Berlin-Brandenburg held that it is not compatible to rule on a claim for damages, pursuant to Article 82 GDPR, and stated that Article 79(2) GDPR only regulates international jurisdiction, rather than questions of jurisdiction within a particular Member State.
English Summary[edit | edit source]
Facts[edit | edit source]
Controller is a tax office. Data subject is an individual whose income from self-employment was audited. Data subject found that their personal data was processed unlawfully, and requested the Financial Court Berlin-Brandenburg to order the controller to pay (effective punitive) damages pursuant to Article 82 GDPR. The chairman on the Court informed the parties on 21.04.2021 that the claim for damages possibly needed to be brought before the ordinary courts, rather than the financial courts, since this could be regarded a claim for official liability (Article 34 GG and Article 40(2) VwGO). Data subject found that Article 82 GDPR constitutes a separate basis for a claim, and found that the financial court was compatible to rule.
Holding[edit | edit source]
The Court held the claim is inadmissible.
The Court stated that a claim, pursuant to Article 82 GDPR, directed at state authorities, must be asserted in accordance with the procedural rules of the respective Member State for the enforcement of claims in the event of breaches of official duties, in Germany therefore before the ordinary courts (Article 34 GG, Article 40(2) VwGO).
Moreover, the Court considered the reference to Article 79(2) GDPR from Article 82(6) GDPR, and the fact that one could argue that Article 82(6) GDPR overrides Member State procedural law. The Court, however, noted that Article 79(2) GDPR only regulates international jurisdiction. This means that this provision only regulates which courts of which state have jurisdiction in a claim for damages, and does not regulate which court within a Member State is compatible to handle such a claim. The Court claimed that this interpretation is supported by recital 145 because this recital only addresses cross-border situations, and the fact that the European Parliament and the Council of the European Union already have no regulatory competence for the procedural enforcement of claims within the Member States.
Comment[edit | edit source]
This Decission has been annulled by the BFH with decission from 28. Juni 2022
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English Machine Translation of the Decision[edit | edit source]
The decision below is a machine translation of the German original. Please refer to the German original for more details.
Compensation for damages under the GDPR as official liability Editorial The claim for damages against tax authorities under Art. 82 of the GDPR is not subject to the jurisdiction of the tax courts, but of the civil courts, as it is substantively a claim for official liability. Tenor (1) Recourse to the tax courts is inadmissible. (2) The proceedings are referred to the Regional Court C.... (3) The appeal is allowed. Facts I. Paragraph 1 The legal dispute is based on a tax audit carried out on the plaintiff's wife in connection with income from self-employed work. Paragraph 2 In an action filed on 22 March 2021, the plaintiff seeks information on stored data, deletion of data, a declaration that the data processing is unlawful and other relief. The proceedings are being conducted under file number 16 K .../21. Paragraph3 Among other things, the plaintiff claims damages and announces, mutatis mutandis, that he will apply for the oral hearing, order the defendant to pay (effective punitive) damages pursuant to Art. 82 DSGVO, Sec. 83 BDSG. Paragraph4 By letter of 21.04.2021, the chairman informed the parties that the action for damages could possibly not be brought before the financial courts, but before the ordinary courts, because it could be a claim for official liability (Article 34 sentence 3 of the Basic Law (Grundgesetz -GG-), Article 40 para. 2 of the Administrative Court Code (Verwaltungsgerichtsordnung -VwGO-)). It appeared doubtful whether § 32i (2) of the Fiscal Code (Abgabenordnung -AO-) also covered claims for damages. Paragraph 5 In his statement of 22 April 2021, the plaintiff submitted on the question of the admissibility of the financial remedy that, in his opinion, Article 82 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data, on the free movement of such data and repealing Directive 95/46/EC (the Regulation) constitutes a separate basis for a claim. This basis of claim existed in addition to the basis of claim named by the court pursuant to § 839 of the German Civil Code (Bürgerliches Gesetzbuch - BGB) in conjunction with Article 34 of the Basic Law. This is because, in addition to the tortious claim for damages under Article 82 of the GDPR, there are general claims for damages based on a contract, such as Article 280 of the German Civil Code (BGB) or, in the case of the conclusion of a contract, Article 311 (2) of the German Civil Code (BGB), as well as tortious claims under Article 823 (1) of the German Civil Code (BGB) for violation of the right of personality, interference with the established and exercised business, Article 823 (2) of the German Civil Code (BGB) in conjunction with the violated norm of the GDPR, Articles 824, 826, 831 of the German Civil Code (BGB) or Article 839 of the German Civil Code (BGB) in conjunction with Article 34 of the German Constitution (GG). Art. 34 GG. The claim under Art. 82 GDPR is advantageous for the data subject because of the presumption of fault and the compensation for immaterial damages. Art. 82 GDPR is an independent tortious claim that is subject to the general national liability regime of the German Civil Code. Furthermore, it is suggested to obtain a decision of the ECJ on the question of legal recourse. Paragraph 6 The defendant commented on the question of legal recourse for the claim for damages in a written statement dated 6 May 2021. According to the BMF letter of 13.01.2020 on data protection in tax administration proceedings since 25.05.2018 (Bundessteuerblatt -BStBl- I 2020, 143), financial legal recourse is also given with regard to disputes on claims for damages under Article 82 of the GDPR, insofar as these relate to the processing of personal data by financial authorities within the scope of application of the AO (Article 82(6) and Article 79(2) of the GDPR i.V.m. Section 32 i(2) of the AO). The defendant adhered to this view. Paragraph 7 By decision of 26 October 2021, the proceedings regarding the claim for damages were separated from the proceedings conducted under case number 16 K .../21. Reasons for the decision II. Paragraph8 Pursuant to § 17a.1 sentence 1 GVG, the proceedings are to be referred to the Regional Court C..., as there is no recourse to the fiscal courts, but instead ordinary legal proceedings are available and the Regional Court C... is competent in terms of subject-matter and location. Paragraph9 1. The fiscal remedy is inadmissible. Paragraph10 a. Pursuant to section 33(1) no. 1 of the Financial Court Code (Finanzgerichtsordnung - FGO), recourse to fiscal law is only possible if the subject matter of the dispute is a tax matter. Pursuant to section 33(2) of the FGO, tax matters are all matters connected with the administration of taxes, including tax refunds, or otherwise with the application of the provisions of tax law by the tax authorities, including measures taken by the federal tax authorities to comply with prohibitions and restrictions on the movement of goods across the border; matters concerning the administration of financial monopolies are equivalent to tax matters. Paragraph11 In the present action, however, the plaintiff is not asserting a claim connected with the administration of duties or otherwise with the application of the provisions of tax law by the tax authorities, but is expressly seeking damages on account of an - alleged - unlawful act or omission on the part of the defendant tax office. Paragraph 12 According to the express jurisdiction provision of § 40.2 VwGO, which is a prerequisite of Article 34 sentence 3 GG and guaranteed by the Constitution (cf. Papier/Shirvani, in: Maunz/Dürig, GG, Art. 34 note 305, as at 94th EL January 2021), legal recourse to the ordinary courts is given. This means legal recourse to the civil courts (cf. Papier/Shirvani, in: Maunz/Dürig, GG, Art. 34 Note 317, as at: 94th EL January 2021). Paragraph13 b. Nothing to the contrary also results from § 33.1 no. 4 FGO in conjunction with § 32i.2 AO. § 32i (2) AO. Paragraph14 The Senate is convinced that the wording of section 32i(2) AO already indicates that it is limited to (public law) actions by affected persons against tax authorities with regard to the processing of personal data due to a violation of data protection provisions. Paragraph15 Even if Section 32i (2) AO were to be understood to mean that the wording of the provision could also extend to claims for damages due to a violation of the GDPR, the provision would at any rate have to be interpreted in a constitutional manner to the effect that it does not cover claims for damages against the state due to a violation of the GDPR, while respecting the constitutionally guaranteed legal recourse to the civil courts (Article 34 sentence 3 GG). Paragraph16 The split allocation of legal recourse may lead to a duplication of legal recourse and to an additional burden for those affected seeking legal protection (according to Jarass in Jarass/Pieroth, Grundgesetz, 16th ed. 2020, Art. 34 marginal no. 25; Wieland in Dreier, Grundgesetz, 3rd ed. 2015, Art. 34 marginal no. 63), but corresponds to applicable law directly shaped by the Constitution. To the extent that various people point to the danger of divergent decisions by the fiscal and civil courts, this cannot be contradicted on the merits. However, insofar as the conduct of a fiscal authority has already been the subject of a substantively final decision of the fiscal court, the civil court is bound in the subsequent public liability proceedings by the findings of the fiscal court on the lawfulness or unlawfulness of the administrative action as a result of the substantive legal force of the decision of the fiscal court (also Detterbeck in Sachs, Grundgesetz, 9th ed. 2021, Art. Aufl. 2021, Art. 34, marginal no. 89; Papier/Shirvani, Münchener Kommentar zum BGB, 8th ed. 2020, § 839 marginal no. 445, in each case with further references on the binding of the civil courts on administrative court decisions). Paragraph17 2. Nor does a different jurisdiction arise from the GDPR or other Union law. Paragraph18 a. Pursuant to Article 82(1) of the GDPR, in the event of a breach of the GDPR, any person has a claim for compensation for his or her material and non-material damage against the controller or processor. This claim, insofar as it is directed against state authorities, must be asserted in accordance with the procedural rules of the respective Member State for the enforcement of claims in the event of breaches of official duties, in Germany therefore before the ordinary courts (Article 34 sentence 3 GG, Section 40 (2) VwGO, Section 71 (2) no. 2 GVG). Paragraph19 b. The reference to Article 79 (2) of the GDPR contained in Article 82 (6) of the GDPR could be understood as a prohibition of a domestic division of jurisdiction. In this respect, it is occasionally argued that Member State procedural law is overridden in this respect by Article 82(6) of the GDPR (see Frenzel in Paal/Pauly, DS-GVO BDSG, 3rd ed. 2021, Art. 82 of the GDPR, para. 18). margin number20 According to the prevailing opinion in the literature, however, Article 79(2) of the GDPR only regulates international jurisdiction, i.e. the courts of which state have jurisdiction for the claim for damages, but not the factual and local jurisdiction within the Member State, which is governed by national law in each case (according to Franzen in Kommentar zum europäischen Arbeitsrecht, 3rd ed. 2020, Art. 82 DS-GVO marginal no. 26; Bieresborn, DRi. 26; Bieresborn, DRiZ 2019, 18, 23; similarly Sydow in DS-GVO, 2nd ed. 2018, Art. 82 para. 26; Piltz in Gola, DS-GVO, 2nd ed. 2018, Art. 82 para. 29; Bergt in Kühling/Buchner, DS-GVO BDSG, 3rd ed. 2020, Art. 82 DS-GVO para. 63; Horváth in Spindler/Schuster, Recht der elektronischen Medien, 4th ed. 2019, Art. 82 DS-GVO marginal no. 17; Quaas in BeckOK Datenschutzrecht, status 01.11.2020, Art. 82 DS-GVO marginal no. 48; Kohn, ZD 2019, 498, 499). margin number21 c. In the view of the Senate, the interpretation of Art. 79(2) DSGVO, to which Art. 82(6) DSGVO refers, is preferable in the sense of an international jurisdiction rule. Recital22 This result is supported by Recital 145 of the GDPR, according to which in proceedings against controllers or processors, it should be left to the plaintiff to decide whether to bring proceedings before the courts of the Member State in which the controller or processor has an establishment or the Member State in which the data subject is domiciled. Cross-border situations are thus addressed. Recital23 Furthermore, it follows from Recital 147 that the specific rules of jurisdiction of the GDPR - in particular with regard to proceedings for a judicial remedy, including damages, against a controller or processor - are without prejudice to Regulation (EU) No 1215/2012 of the European Parliament and of the Council (Regulation (EU) No 1215/2012). This addresses the relationship of the GDPR with the central rules of Union (civil) procedural law. Paragraph24 Last but not least, this interpretation is supported by the fact that the European Parliament and the Council of the European Union already have no regulatory competence for the procedural enforcement of claims within the Member States. Such a competence does not result from Article 16 of the Treaty on the Functioning of the European Union (TFEU), on which the GDPR is primarily based, nor from any other explicit authorisation or annex competence. Recital25 For the latter reason, a referral of the legal question to the ECJ, as suggested by the plaintiff, is also out of the question. Paragraph26 3. The Regional Court C... has jurisdiction over the dispute. Paragraph27 a. Pursuant to § 71.2 no. 2 GVG, the Regional Court is competent to rule on the merits of the case. Paragraph28 b. The local jurisdiction of the Regional Court C... is given pursuant to §§ 18, 32 Code of Civil Procedure -ZPO-. Paragraph29 (1) The general place of jurisdiction (§ 18 ZPO) is determined by the seat of the representative authority (here: Senate Administration for Finance in C...), cf. §§ 21, 22 Law on Jurisdiction in the General C... Administration -AZG- in the version of 22.07.1996 (GVBl 302, 472; GlNr 2001-1), last amended by law of 12.10.2020 (GVBl 807). margin number30 (2) The special place of jurisdiction for tort (§ 32 ZPO) applies in principle to all offences under §§ 823-826, 829, 831 and 833-840 BGB. This also includes public liability claims (see Schultzky in Zöller, Zivilprozessordnung, 33rd ed. 2020, § 32 ZPO, marginal no. 5). Public liability claims under section 839 BGB constitute a special offence of tort (Staudinger/Wöstmann, Neubearbeitung 2020, section 839 BGB, marginal no. 22). Paragraph31 Also in the context of other liability elements of state liability law in the broader sense, including the liability claim under Union law, jurisdiction is governed by § 32 ZPO. In principle, the concept of tort is to be understood broadly (BGH NJW 1974, 411) and includes any unlawful encroachment on foreign legal spheres (BGH NJW 1956, 911; NJW 2011, 2518; Schultzky in Zöller, Zivilprozessordnung, 33rd ed. 2020, section 32 ZPO, marginal no. 4). Paragraph32 The special place of jurisdiction for tort pursuant to section 32 of the Code of Civil Procedure is not only linked to the infringement of absolute rights, but also includes tortious acts that lead to pure pecuniary damage, which may be the case, for example, with public liability claims pursuant to section 839 of the Civil Code. Paragraph33 The connecting factor is the place where the tortious act was committed ("place of commission", cf. Schultzky in Zöller, Zivilprozessordnung, 33rd ed. 2020, section 32 ZPO, marginal no. 19). The place of commission is any place where even one of the essential elements of the offence has been realised. In the case of offences of commission, this is both the place where the offender acted (place of action) and the place where the protected legal interest was interfered with (place of success). The place of damage as such is irrelevant (Schultzky in Zöller, Zivilprozessordnung, 33rd ed. 2020, § 32 ZPO, marginal no. 19). This applies in the same way to the state liability claim under Union law (OLG Hamburg, OLGR Nord 20/2013 note 6, ZfWG 2013, 151, juris). Paragraph34 Thus, a place of commission of the unlawful act within the meaning of § 32 ZPO is given at the defendant's office and thus in the area of jurisdiction of the Regional Court C.... III. Paragraph35 The appeal is admitted pursuant to § 17a.4 sentence 5 GVG because of the fundamental importance of the question of jurisdiction. Due to the broad impact, it appears worthy of clarification and in need of clarification whether ordinary legal action or financial legal action is available for claims against financial authorities for damages due to asserted violations of the GDPR.