FG Berlin-Brandenburg - 16 K 5148/20
From GDPRhub
| FG Berlin-Brandenburg - 16 K 5148/20 | |
|---|---|
 | |
| Court: | FG Berlin-Brandenburg (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 2(1) GDPR Article 4(1) GDPR Article 4(7) GDPR Article 12(5)(b) GDPR Article 15(1)(a) GDPR Article 15(3) GDPR AEUV Art. 288 § 2a AO § 78 FGO § 91 AO |
| Decided: | 27.10.2021 |
| Published: | 01.04.2022 |
| Parties: | Tax Authority |
| National Case Number/Name: | 16 K 5148/20 |
| European Case Law Identifier: | ECLI:DE:FGBEBB:2021:1027.16K5148.20.00 |
| Appeal from: | |
| Appeal to: | Decision overturned BFH (Germany) II R 47/21 IX R 35/21 |
| Original Language(s): | German |
| Original Source: | VIS Berlin (in German) |
| Initial Contributor: | Frank F |
The Financial Court of Berlin-Brandenburg held that the right to a copy of personal data pursuant to Article 15(3) GDPR does not entail the provision of copies of entire files by a tax authority.
English Summary
Facts
The controller is a tax authority. In October 2020, the data subject requested to be provided with copies of files containing his personal data pursuant to Article 15(3) GDPR. The controller refused, arguing that the right to access of Article 15 GDPR does not entail all internal processes of the controller or the right to have all exchanged correspondence, which is already known to the data subject, printed out and sent again.
Holding
The Finance Court Berlin-Brandenburg (Finanzgericht Berlin-Brandenburg - FG Berlin-Brandenburg) fully rejected the data subject's claim.
The court began with clarifying that - contrary to the controller's position - the GDPR is applicable to the administration of direct taxes in the area of tax administration. Furthermore, all information contained in a tax file is generally personal data.
Then, the court held that the data subject rights enshrined in Article 15(3) GDPR do not entitle the data subject to be provided with copies of personal data in the form of (electronic) duplicates of entire files by the controller. According to the court, Article 15(3) GDPR only contains a right to the catalogue information pursuant to Article 15(1)(a)-(h) GDPR.
The FG Berlin-Brandenburg based that decision on a narrow interpretation of the provision, arguing that Article 15(1) and 15(3) GDPR do not contain two independent rights but rather a single right. First, the court argued that it was sufficient for the data subject to receive a complete overview of the data reproduced in the draft document - i.e. including personal data contained in the legal analysis - in an intelligible form instead of a copy of the document or the original file containing that data. This had been decided by the CJEU in the context of the previous Data Protection Directive and had to be applied for the purpose of the interpretation of the GDPR. Second, the court argued with the drafting history of the GDPR which connects Article 15(3) GDPR to Article 20(1) GDPR, showing that the legislator deliberately chose not to apply the right to copies to all data sets containing personal data about the data subject. Third, the court argued with the wording of Article 15(3)(1) GDPR which is comparatively restrictive as it only provides for a copy of "the" personal data and, unlike Article 28(3)(g) or Article 58(1)(e) GDPR, does not speak of "all" personal data. Furthermore, according to the court, Article 15(3)(1) GDPR does not contain any prerequisites for a claim on the factual side, but merely stipulates the obligation of the controller to provide a copy as a legal consequence. Finally, the court argued that the right to copy flanks the rights of access under Article 15(1) GDPR and, together with these, serves the purpose of enabling the data subject to review the data processing concerning them. It is therefore not necessary to inform the person concerned about all documents or files stored by the controller.
In a second step, the court held that, even if Article 15(3) GDPR was to be interpreted widely and as a separate right, the data subject's request had to be considered as excessive pursuant to Article 12(5) GDPR.
Comment
On March 12 2024 I was in Munich at Federal Finance Court to IX R 35/21. The Federal Fiscal Court stated that this was its first decision on the General Data Protection Regulation.
The defendant essentially considered the claim to be unfounded due to the high expenses incurred by the tax office. The President of the Federal Fiscal Court countered that this would render Art. 15 GDPR meaningless. There was also a discussion about the inspection of files. However, this right of the plaintiff was presented by the Federal Fiscal Court as a different right. Questions were raised about the types of action, general action for performance or action for an obligation. This decision will probably be left open.
No judgment was handed down today.
Further Resources
The decision was overturned by the BFH. The BFH strictly adheres to the decisions of the ECJ. No significant peculiarities in the decision.'
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.
motto
1. The GDPR is also applicable to the administration of direct taxes.
2. A taxpayer has no right against the IA to be provided with a physical or electronic copy of the tax records.
3. A blanket request for a copy of the entire content of the tax files kept by the FA in relation to personal data concerning the taxpayer is excessive, so that the FA, as the person obliged to provide information, can refuse to provide the information.
tenor
The charges get dismissed.
The revision to the Federal Fiscal Court is allowed.
The costs of the proceedings are imposed on the plaintiff.
facts
marginal number1
The subject of the legal dispute is the obligation of the defendant (hereinafter also: tax office), according to Art. 15 Para. 3 of the Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons in the processing of personal data data, for the free movement of data and for the repeal of Directive 95/46/EC -GDPR- to provide copies of personal data in the form of (electronic) duplicates of files.
marginal number2
The plaintiff is pursuing legal proceedings against the tax office at the Berlin-Brandenburg tax court under the file number 5 K 5093/20 because of the trade tax amounts from 2013 to 2015, which were determined by the tax office.
paragraph 3
In these proceedings, the plaintiff (also) requests that the defendant be provided with personal data from his files in electronic form, alternatively in the form of free copies.
paragraph 4
First of all, the plaintiff applied to the court in a letter dated August 19, 2020 in the procedure 5 K 5093/20 electronically via the system "special electronic lawyer's mailbox" (beA) that the defendant use the stored data in corresponding application of Art. 15 para. 3 sentence 3 GDPR electronically.
Paragraph 5
The defendant did not respond to the plaintiff's request, addressed to him via the court, so that the plaintiff, also via the court, felt compelled to send a letter dated September 24, 2020 via the electronic system beA to the defendant with an inquiry about the status of the case judge. There was no communication from the FA.
recital 6
Since the court did not forward the electronic BeA application to the defendant electronically, the plaintiff repeated the application of August 19, 2020 electronically by email dated October 14, 2020 directly to the defendant and at the same time submitted the application to have the requested documents copied in accordance with Art. 15 para. 3 sentence 1 GDPR to be made available free of charge.
Margin number7
This request by the plaintiff was rejected by the defendant in a letter dated October 21, 2020. With the local lawsuit filed on November 3rd, 2020, the plaintiff is pursuing his request.
paragraph 8
As justification, he states that the requirements of Art. 15 Para. 3 Sentence 3 GDPR are met. The meaning and purpose of the right to information is, taking Recital 63 into account, to give the data subject the opportunity to check the legality of the processing of his personal data without any problems. Although the GDPR does not expressly regulate a right to inspect files, since personal data is processed in the defendant's files, the requested inspection in electronic form is already included in the general right to information in Art. 15 GDPR.
Paragraph 9
In the oral hearing, the plaintiff refers to the judgment of the Federal Court of Justice -BGH- of June 15, 2021 (Az.: VI ZR 576/19, NJW 2021, 2726), according to which the right to information under Art. 15 DSGVO of a policyholder against a life insurance company extends far to be interpreted. In addition, the plaintiff refers to the submission of the Federal Administrative Court of the Republic of Austria of August 9, 2021 to the Court of Justice of the European Union pursuant to Art. 267 TFEU (Case C-487/21) on questions relating to the provision of a copy of the processed personal data within the framework a request for information in accordance with Article 15 (3) GDPR.
Paragraph 10
The plaintiff requests
1.
to oblige the defendant to provide electronic copies of the personal data on the trade tax amounts from 2013 to 2015 (administrative files, tax audit files, appeal files and any manual files, all including all conversation notes and telephone notes about the person of the plaintiff);
2.
Alternatively, to oblige the defendant to provide copies of the personal data that are the subject of the processing for the trade tax measurement amounts 2013 to 2015 free of charge (administrative files, tax audit files, appeal files as well as any manual files, all including all conversation notes and telephone notes about the person of the plaintiff).
Paragraph 11
The defendant requests
reject the complaint.
Paragraph 12
As justification, he explains that it is already doubtful whether the claim for inspection of files asserted by the plaintiff falls under the material scope of the GDPR. Because the provisions of the GDPR are only applicable in the area of tax law to harmonized taxes, such as sales tax, but not in the area of income tax or trade tax.
Paragraph 13
In his opinion, the right to information under Art. 15 GDPR does not relate to all internal processes of the tax authority being sued or to the fact that the person concerned can have all exchanged correspondence that is already known to the person concerned printed out again and sent to him. Legal assessments or analyzes do not constitute personal data in this sense either. The claim under Art. 15 GDPR is only intended to ensure that the person concerned can assess the scope and content of the stored personal data. Consequently, Article 15 (3) GDPR stipulates that the data subject only receives a copy of the personal data that is the subject of the processing. As part of the statement of defense, the defendant therefore offered the plaintiff certain data processed about the plaintiff (such as an overview of the basic data, copies of the notices on the trade tax amounts from 2013 to 2015, information on the machine monitoring of tax cases, information from the database legal remedies) free of charge (P. 16 FG-A.).
Paragraph 14
In the oral hearing, the defendant also refers to the judgment of the Lower Tax Court of Baden-Württemberg of July 26, 2021 (Az.: 10 K 3159/20, EFG 2021, 1777), according to which the right to information under Art. 15 Para. 1 DSGVO does not have a The right to inspect files is identical, since a right to inspect files always goes beyond a mere right to information regarding the processed personal data, since files regularly contain components that do not fall under the scope of protection of the GDPR and Section 32c AO.
Paragraph 15
With regard to the details of the mutual submissions, reference is made to the case files.
Paragraph 16
In addition to the dispute files of the local proceedings, the court had a staple "Application for file inspection from August 19, 2020 in a common electronic form". The court also consulted the files in the case of case 5 K 5093/20.
Reasons for decision
Paragraph 17
I
The lawsuit did not have any success.
Paragraph 18
1.
The lawsuit is admissible.
Paragraph 19
a.
The financial legal recourse is given after the urgent special allocation according to § 32i paragraph 2 sentence 1 tax code -AO- in conjunction with § 33 paragraph 1 no.
Paragraph 20
b.
A lawsuit directed to the provision of copies of personal data is a general performance lawsuit within the meaning of Section 40 (1) 3rd case FGO combined with an action for rescission or obligation (Section 40 (1) 1st and 2nd case FGO) against the Notice of rejection acceptable.
Paragraph 21
Variously it is argued - also by the plaintiff - that the obligation action is the admissible type of action because the refusal to provide copies of personal data is preceded by an administrative decision (Federal Fiscal Court -BFH-, judgments of April 11, 2012, I R 63/11, Federal Tax Gazette -BStBl - II 2012, 539; of December 16, 1987 - I R 66/84 -, collection of officially unpublished decisions of the BFH -BFH/NV- 1988, 319; FG Hessen, judgment of December 11, 2018 - 4 K 977/16 -, decisions of the finance courts -EFG- 2019, 745; FG Munich, judgment of 08.07.2015 - 4 K 2738/14 - EFG 2015, 1886; judgment of 23.07.2021, 15 K 81/20, juris; Söhn in: Hübschmann/Hepp/ Spitaler, AO/FGO, § 91 AO marginal number 135, as of August 2021).
Paragraph 22
However, the provision of copies of personal data is a real act even if it is preceded by a (rejection) decision. The lawsuit for the provision of copies of personal data is therefore not the condemnation of the authority to issue an administrative act (complaint of obligation, § 40 para. 1, 2nd alternative FGO), but to a "different service" i.S. of § 40 para. 1, 3rd alternative FGO desired. The permissible type of action is therefore the general performance action (BFH, judgment of 05.10.2006 - VII R 24/03 -, BStBl II 2007, 243; Federal Administrative Court -BVerwG-, judgment of 20.08.2003 - 8 C 13/02 -, juris; FG Cologne, judgment of 01/28/2016 - 1 K 2368/10 -, EFG 2016, 949), combined with an action for rescission or obligation against the negative administrative act (also FG Hamburg, judgment of 04/29/2021 - 6 K 206/19 -, para. 29 f., juris; von Beckerath in: Gosch, AO/FGO, 162nd run (June 2021), § 40 FGO para. 122 f.; Braun in: Hübschmann/Hepp/Spitaler, AO/FGO, § 40 FGO marginal number 134 f., status: August 2021; Krumm in: Tipke/Kruse, AO/FGO, § 40 FGO marginal number 23 f., status: April 2021).
Paragraph 23
c.
Pursuant to Section 32i Paragraph 9 Sentence 1 AO, there are generally no preliminary proceedings in proceedings pursuant to Section 32i Paragraphs 1 to 3 AO. This means that unsuccessful preliminary proceedings (§ 44 FGO) are not required for the admissibility of the complaint regarding the rejection of the application for the provision of data copies.
Recital 24
2.
However, the lawsuit is unfounded.
Paragraph 25
The plaintiff has no right to the provision of copies of personal data in the form of (electronic) duplicates of entire files by the defendant FA. Such a claim arises neither from the GDPR (a.) nor on the basis of any other legal basis (b.).
Paragraph 26
a.
The GDPR is applicable to the processing of personal data by the defendant tax office (aa.). The claim of the plaintiff, who is personally entitled to claim as the person concerned, also contains personal data, so that the personal and material scope of the GDPR is opened up (bb.). The defendant tax office, as the person responsible, is also the real opponent (cc.), so that the requirements for a right to information and the issuance of a copy of the data according to Art. 15 Para. 1 and Para. 3 GDPR are basically met.
Paragraph 27
However, according to the conviction of the adjudicating Senate, the data subject rights enshrined in Art. 15 (3) GDPR do not entitle the plaintiff to the provision of copies of personal data in the form of (electronic) duplicates of entire files by the defendant tax office (dd.).
Paragraph 28
Even if Art. 15 (3) GDPR should be interpreted extensively in such a way that it grants the entitled person a right to be provided with copies, the plaintiff's request would be regarded as excessive within the meaning of Art. 12 (5) GDPR and the defendant would have to fulfill the Claim rightly denied (ee.).
Paragraph 29
ah.
In the field of tax administration, the GDPR is also applicable to the administration of direct taxes. As an EU regulation, the GDPR applies in accordance with Art. 288 TFEU directly in every member state of the Union, without the need for further implementation by national law. Insofar as the direct application of the GDPR beyond the area of harmonized taxes under Union law is partially rejected (with reference to the literature FG Lower Saxony, judgment of January 28th, 2020 - 12 K 213/19 -, EFG 2020, 665), the Senate can As a result, the question can be left undecided, since the federal legislator has ordered the at least substantive validity of the GDPR for the entire data processing activity of the tax authorities by reference in § 2a AO (also FG Munich, court decision of 23.07.2021 - 15 K 81/20 - , EFG 2021, 1789 para. 36).
Paragraph 30
bb
The personal and material scope of the GDPR are open.
Paragraph 31
(1)
The plaintiff is identified or identifiable as a natural person based on the tax number or tax identification number and as such an "affected person" within the meaning of Article 4 No. 1 GDPR and is therefore personally entitled to claim.
Paragraph 32
(2)
In the event of a dispute, the material scope of the GDPR is open to the extent that the processing of personal data is to be assessed. In principle, all information contained in a tax file is also personal data.
Paragraph 33
The GDPR applies to the fully or partially automated processing of personal data as well as to the non-automated processing of personal data that is stored or intended to be stored in a file system (Art. 2 Para. 1 GDPR).
Paragraph 34
Art. 4 No. 1 GDPR defines personal data as "all information" relating to affected (identifiable) persons. When interpreting this term, the protective purpose of the GDPR is decisive. It is neither about the data itself, nor about the economic interests of the data processors. It is all about protecting the fundamental rights of natural persons when processing the data assigned to them. The expression "all information" is therefore to be understood broadly; the term is not limited to sensitive or private information, it encompasses all information about a data subject. Therefore, in principle, all information recorded in a tax file is to be understood as personal data because it can be linked directly or indirectly to a natural person via classification features (tax number or tax identification number).
Paragraph 35
cc
The defendant tax office, as the person responsible within the meaning of Art. 4 No. 7 GDPR, is also the real opposing party. According to Art. 4 No. 7 GDPR, “responsible person” is the natural or legal person, authority, institution or other body that alone or jointly with others decides on the purposes and means of processing personal data. The person responsible is the tax authority, which decides on the purposes and means of processing personal data; as a rule, therefore, the financial authority responsible for the subject matter and location, which also keeps the files in dispute.
Paragraph 36
dd.
However, according to the judgment of the Senate, the rights of data subjects enshrined in Art. 15 (3) GDPR do not entitle the plaintiff to the provision of copies of personal data in the form of (electronic) duplicates of entire files by the defendant tax office.
Paragraph 37
(1)
According to Art. 15 Para. 1 Half. 1 GDPR, the data subject has the right to request confirmation from the person responsible as to whether personal data relating to the data subject are being processed. If this is the case, Art.15 para. 1 half-s. 2 GDPR a right to information about this data as well as to additional information according to Art. 15 Para. 1 Halbs. 2 lit. a to h GDPR. In accordance with Art. 15 Para. 3 Sentence 1 GDPR, the person responsible provides the person concerned with a copy of the personal data that is the subject of the processing. The question of whether the rights under Art. 15 (1) and Art. 15 (3) GDPR are two different claims or a single claim is assessed differently in the literature and in case law.
Paragraph 38
(a)
The advocates of a uniform claim mainly assume a restrictive interpretation of the right to a data copy in accordance with Art. 15 (3) GDPR. After that, the right to a copy is limited to the transmission of an overview of the processed data (e.g. State Labor Court -LAG- Lower Saxony, judgment of October 22, 2021 - 16 Sa 761/20 - Rn. 214, juris; LAG Baden-Württemberg, judgment of 03/17/2021 - 21 Sa 43/20 -, NZA case law report on labor law -NZA-RR- 2021, 410 para 45; Paal, in: Paal/Pauly, DS-GVO, 3rd edition 2021, Article 15, paragraph 33; Franck, in: Gola, General Data Protection Regulation, 2nd edition 2018, Article 15, paragraph 27; Dausend, Journal for Data Protection -ZD- 2019, 103; Wybitul/Brams, New Journal for Labor Law -NZA- 2019, 672).
Paragraph 39
As justification, it is pointed out, among other things, that the wording of Art. 15 Para. 3 Sentence 1 GDPR does not speak of a photocopy or a printout of processed data and the legal purpose of Art. 15 Para. 2 GDPR lies in the transparency and the legality of the processing (LAG Baden-Württemberg, judgment of 17.03.2021 - 21 Sa 43/20 -, NZA-RR 2021, 410 para. 49). Art. 15 Para. 3 Sentence 1 GDPR only regulates a special form of information, which is why the information content of Art. 15 Para. 3 Sentence 1 GDPR cannot go further than that of Art. 15 Para. 1 GDPR. According to Art. 15 Para. 3 Sentence 1 GDPR, only the data covered by Art. 15 Para. , GDPR Art. 15 para. 85 with further reference to the dispute).
Paragraph 40
In tax literature, too, it is predominantly argued that data protection rights to information do not confer a right to access official files (von Armansperg, Deutsches Steuerrecht -DStR- 2021, 453, 458 with further references). With regard to the wording, it was explained - using different language versions of the GDPR - that the information under Art. 15 GDPR should not be understood as a right of inspection (access to the file) (Poschenrieder, DStR 2020, 21, 23). Rather, when interpreting Art. 15 (1) and (3) GDPR, the objectives pursued with the right to information should be taken into account. These rights are not isolated, but should be seen in their serving function in the overall data protection context. In a first stage (Art. 15 Para. 1 Clause 1 GDPR), the data subject should be able to find out whether personal data is being processed at all. In a second stage (Art. 15 Para. 1 Clause 2 GDPR), the person concerned should then be able to check the legality of the data processing. This verification by the data subject could then trigger the rights of Section 3 (Chapter III) of the GDPR on the third level: right to rectification (Article 16 GDPR), right to erasure or right to be forgotten (Article 17 GDPR) , right to restriction of processing (Article 18 GDPR), right to data portability (Article 20 GDPR) and right to object (Article 21 GDPR). The right to information under Art. 15 GDPR cannot be "separated" from the context of data protection law, it only serves - also to the administration - to check whether data processing itself is lawful. Measured against national law, the taxpayer should be able to check whether the data processing is carried out in accordance with §§ 29b, 29c AO (cf. Schober, Finanzrundschau -FR- 2020, 558, 561).
Paragraph 41
(β)
Those who take the view that the rights under Article 15 (1) and Article 15 (3) GDPR are two different claims, on the other hand, predominantly assume an extensive interpretation of the right to a data copy in accordance with Article 15 (3). GDPR off. According to this, the documents in question are to be transmitted in the form in which they are available to the person responsible (e.g. Higher Administrative Court -OVG- NRW, judgment of 08.06.2021 - 16 A 1582/20 -, marginal number 92, juris; BeckOK DatenschutzR/Schmidt- Wudy (as of May 1st, 2021), DS-GVO Article 15 marginal number 85; Bäcker in: Kühling/Buchner, DS-GVO, BDSG, 3rd edition 2020, Article 15 marginal number 6 and 39a; Koreng, Neue Legal weekly -NJW- 2021, 2692, 2693; Engeler/Quiel, NJW 2019, 2201, 2203).
Paragraph 42
As justification, reference is made, among other things, to the fact that, in addition to the system and the wording of Art. 15 GDPR, the legislative history suggests this interpretation result. Otherwise, the distinction in Art. 15 Para. 1 and Art. 15 Para. 3 GDPR would be superfluous and the legislator could have left it at adopting the wording from Art. 12 of Directive 95/46/EC (Data Protection Directive) (Koreng, NJW 2021, 2692, 2693 w.w.N.).
Paragraph 43
The meaning and purpose of the right under Art. 15 (3) sentence 1 GDPR also argue against a restrictive interpretation of the right to a copy of the personal data being processed. The reason and regulatory aim of the General Data Protection Regulation is the protection guaranteed in Art. 8 Para. 1 of the Charter of Fundamental Rights of the European Union (Charter of Fundamental Rights -GRCh-) and in Art. 16 Para. 1 of the Treaty on the Functioning of the European Union -TFEU- natural persons in the processing of personal data concerning them (cf. Art. 1 Para. 2 GDPR and recital 1 of the GDPR). Already at the level of the Charter of Fundamental Rights, the right of every person is enshrined to receive information about the data collected concerning them and to be able to have the data corrected (Art. 8 para. 2 sentence 2 GRCh). The data subject rights of the General Data Protection Regulation are rooted in the consideration of the European standard-setter that the individual must be able to determine the disclosure and use of his or her personal data. Natural persons should therefore always be in control of their own data (cf. recital 7 sentence 2 of the GDPR). For this purpose, Art. 8 Para. 2 Sentence 2 GRCh and Art. 15 Para. 1 GDPR grant the data subject a right to information about which personal data has been collected by third parties. According to recital 63 sentence 1 of the DGSVO, the regulatory objective is that the data subject is aware of the processing and can check its legality on this basis (according to OVG NRW, judgment of 08.06.2021 - 16 A 1582/20 -, para. 105, legal).
Paragraph 44
(2)
Taking into account the principles mentioned and after weighing up all the circumstances, the Senate is of the opinion that Art. 15 (3) GDPR is to be interpreted restrictively and that the plaintiff is not entitled to the provision of copies of personal data in the form of (electronic) duplicates of files by the defendant tax office gives.
Recital 45
(a)
In the opinion of the Senate, the legal principles developed in the case law of the ECJ on Art. 12 of Directive 95/46/EC (Data Protection Directive), i.e. a direct predecessor of Art. 15 DSGVO, can also be used for the purpose of interpreting the content and scope of the rights of the data subject Art. 15 GDPR can be used.
Paragraph 46
In the decision of the ECJ on Art. 12 of Directive 95/46/EC (Data Protection Directive) (judgment of July 17, 2014, related cases C-141/12 and C-372/12 “Y.S. and M. and S ./Minister voor Immigratie", Official Journal of the European Union -OJ EU- 2014, C 315, 2; European Law -EuR- 2015, 80), the applicants in the procedure underlying the request for a preliminary ruling requested insight into a so-called "draft document", the data about the parties involved in the proceedings, but also contained a legal analysis. The ECJ makes it clear that the data contained in this draft document, which constitutes the factual basis for the legal analysis also contained in the draft document, is personal data of the party involved in the proceedings. In this respect, he affirms a right to information. On the other hand, he denies a right to information regarding the legal analysis. This could not be the subject of a review by the applicant and a correction. In reality, extending the right of access to this legal analysis would not serve the aim of the directive, which is to ensure the protection of the privacy of that applicant when data concerning him are processed, but rather the aim of guaranteeing him a right of access to administrative documents , to which Directive 95/46 is not directed (ECJ, judgment of June 17, 2014, OJ EU 2014, C 315, 2, para. 46).
Paragraph 47
The ECJ also makes it clear that the directive leaves it up to the member states to determine the specific form in which the information is to be provided, insofar as it enables the data subject to gain knowledge of the personal data concerning them and to check whether it is correct and processed in accordance with the Directive, so that it can, if necessary, exercise the rights conferred on it by the Directive (ECJ, judgment of 17/06/2014, OJ EU 2014, C 315, 2, para. 57). In order to safeguard the right to information, it is sufficient if the applicant receives a complete overview of the data presented in the draft document - i.e. also such personal data that are contained in the legal analysis - in an understandable form (ECJ, judgment of 17.6.2014, OJ EU 2014, C 315, 2, paragraph 59). Insofar as this information can be used to achieve the objective pursued with the right to information, the data subject does not have the right, either under the right to information or under Article 2(2) of the Charter, to a copy of the document or the original file in which this data is contained , to obtain.
Paragraph 48
(β)
The legislative history of the GDPR also speaks in favor of a restrictive interpretation of Art. 15 Para. 3 Sentence 1 GDPR.
Paragraph 49
According to the justification of the original draft for the GDPR, Art. 15 of the draft version is based on Art. 12 of Directive 95/46/EC (Data Protection Directive) (cf. proposal for the regulation of the European Parliament and of the Council on the protection of natural persons with regard to processing personal data and the free movement of data (General Data Protection Regulation) of January 25, 2012, COM (2012) 11 final, p. 9).
Recital 50
A right of disclosure was only added to the original draft by a resolution of the European Parliament of March 12th, 2014 in Art. 15 Para. cf. Position of the European Parliament adopted at first reading on 12 March 2014 with a view to adopting Regulation (EU) No. .../2014 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free Data traffic (General Data Protection Regulation), P7_TC1-COD(2012)0011, p. 139).
Recital 51
In the opinion of the Senate, the claim under Art. 15 Para. 3 GDPR in the final version should therefore be seen in conjunction with Art. 20 Para made available to a person responsible, in a structured, common and machine-readable format." This shows that the European legislator has deliberately decided not to apply the right to copies to all data sets containing personal data about the data subject ( so also Laoutoumai/Hoppe, Kommunikation & Recht -K&R- 2019, 296, 298 f.).
Recital 52
(γ)
From the point of view of the Senate, systematic aspects also speak in favor of the fact that the right to a copy only includes the catalog information within the meaning of Article 15 (1) lit. a to h GDPR and that data subjects have no further claims. Because the wording of Art. 15 Para. 3 Sentence 1 GDPR is worded comparatively restrictively; it only provides for a copy of “the personal data” and, unlike Article 28(3)(g) or Article 58(1)(e) GDPR, it does not refer to “all” personal data.
Recital 53
The fact that Art. 15 Para. 3 Sentence 1 GDPR does not contain any prerequisites for a claim on the facts side, but only the obligation as a legal consequence, also speaks in favor of the view that Art. 15 Para. 1 and 3 GDPR do not contain two independent claims, but one uniform claim of the person responsible standardized to make a copy available.
Recital 54
(δ)
From the point of view of the Senate, the result of the interpretation found is also confirmed by a teleological interpretation of Art. 15 Para. 3 Sentence 1 GDPR. The right to a copy flanks the information rights of Art. 15 Para. 1 GDPR and, together with these, serves the goal of enabling the data subject to check the data processing that affects them. According to recital 63 of the GDPR, the data subject’s right to information under Art. B. to allow deletion or restriction of processing. This goal of enabling the verification is achieved if the information following from Art. 15 Para. 1 DSGVO is made available in copy. It is not necessary to inform the person concerned about all documents or files stored by the person responsible.
Recital 55
hey
Even if Art. 15 (3) GDPR should be interpreted extensively in such a way that it grants the entitled person a right to be provided with copies, the plaintiff's request would be regarded as excessive within the meaning of Art. 12 (5) GDPR and the defendant would have to fulfill the Claim rightly denied.
Recital 56
(1)
The claim of the plaintiff to a free copy in the form of (electronic) duplicates of entire files is contrary to Art. 12 Para. 5 Sentence 2 GDPR. Accordingly, in the case of manifestly unfounded or excessive requests from a data subject, the person responsible can either demand an appropriate fee (Article 12 (5) sentence 2 lit. a GDPR) or refuse to act on the basis of the request (Article 12 (5) sentence 2 lit. b GDPR). According to Art. 12 (5) sentence 3 GDPR, the person responsible must provide evidence that the request is manifestly unfounded or excessive.
Recital 57
However, Art. 15 GDPR does not grant a data subject a general right to information. According to recital 67 sentence 7 of the GDPR, the type of personal data about which information is to be provided should be specified in more detail if the person responsible processes a large amount of information about the person concerned. The same applies to the right to a copy pursuant to Art. 15 Para. 3 GDPR, the content of which cannot be more comprehensive than the claim pursuant to Art. 15 Para. 2 GDPR (also Engeler/Quiel, NJW 2019, 2201, 2203 f.).
Recital 58
(2)
The plaintiff has asserted his claim to the provision of a copy of the entire content of the defendant's files in relation to personal data concerning him by means of a blanket request for information aimed at the provision of copies of entire files of the defendant. The plaintiff also did not react to the plaintiff's offer to provide certain personal data of the plaintiff. Thus, the plaintiff's request for information is obviously excessive and therefore unfounded. The defendant therefore rightly refused to fulfill the claim in accordance with Art. 12 (5) sentence 2 GDPR.
Paragraph 59
Nothing else results from the decision of the Federal Court of Justice of June 15, 2021 (file no.: VI ZR 576/19, NJW 2021, 2726). In contrast to the decision of the Federal Court of Justice referred to by the plaintiff, according to which a policyholder's right to information under Art. 15 GDPR against a life insurance company is to be interpreted broadly, the plaintiff's claim does not relate to a specific, narrowly limited life situation, but includes the lump sum Request for submission of (electronic) duplicate files.
recital 60
The Senate is convinced that there is no need for the defendant to prove the unfounded or excessive nature of the application, since the circumstances leading to the unfoundedness of the application are already apparent from the wording of the claim and are therefore obvious.
Recital 61
According to the Senate's assessment, the plaintiff's request does not serve the purpose of the GDPR, which is to ensure the protection of the plaintiff's privacy when processing data relating to him. Rather, the plaintiff tries to use the right to information inappropriately in order to gain access to entire inventories of administrative documents relating to him. However, such access does not result from Art. 15 GDPR or the opposing party should be entitled to a right to refuse performance in accordance with Art. 12 Para. 5 Sentence 2 GDPR in these cases.
Recital 62
onwards
In the opinion of the adjudicating senate, the lawsuit is also not partially justified as a minus to the complaint "transfer of data copies of complete files" with regard to the provision of certain information or the transfer of certain data copies. The provision of certain information or copies of data represents something qualitatively different (aliud) in relation to the application for "transfer of data copies of complete files" and is no less (minus) to the plaintiff's request (also BFH, decision of May 5th, 2017 - X B 36/ 17 -, BFH/NV 2017, 1183 para. 20).
Recital 63
vs.
Insofar as the plaintiff suggests submitting certain questions on the interpretation of the GDPR to the ECJ by way of a preliminary ruling, the Senate sees no need for this. Nor does the Senate consider it necessary to wait for the outcome of the preliminary ruling procedure in Case C-487/21.
Recital 64
(1)
As the court of first instance, there is no obligation to refer the case to the ECJ. Pursuant to Article 267 (2) TFEU, the finance courts are entitled to submit questions of interpretation, but are not obliged to do so. The BFH has therefore decided that there is no obligation for the tax courts to submit a referral for reasons of Union law, although no admission-free appeal is possible (Levedag in: Gräber, FGO, 9th edition 2019, appendix, para. 171). However, if there is no obligation to submit an appeal even if the appeal is not admitted, this applies all the more if the lower court allows the appeal.
Recital 65
In addition, the case law of the ECJ on the question of whether and to what extent data protection rights to information also grant rights to access official documents must be regarded as clear and clarified from the Senate's point of view, so that it is also in the way of a referral to the ECJ for this reason a preliminary ruling procedure (Article 267 TFEU) is not required.
Recital 66
(2)
Nor does the Senate consider it necessary to wait for the outcome of the preliminary ruling procedure in Case C-487/21. Because the questions referred by the Federal Administrative Court of the Republic of Austria from August 9th, 2021 to the Court of Justice of the European Union in accordance with Art. 267 TFEU are neither preliminary nor relevant to the decision, because they do not influence the decision of the Senate that recognized that the case law of the ECJ on Art. 12 of the Directive 95/46/EG (Data Protection Directive) is still applicable and the defendant tax office has moreover rightly refused pursuant to Art. 12 Para.
Paragraph 67
b.
Although the plaintiff bases his claim for the provision of copies of data solely on Art. 15 (3) sentence 3 GDPR, the court of admissible legal action decides the legal dispute under all possible legal aspects. This follows from § 17 para. 2 sentence 1 of the Courts Constitution Act -GVG-, which is also applicable in the financial process via § 155 sentence 1 FGO (also BFH, judgment of 08.06.2021 - II R 15/20 -, para. 16, legal).
Recital 68
However, a claim by the plaintiff to the provision of copies of data does not result from the general administrative procedural law of the tax authorities (aa.) nor from the State Freedom of Information Act (bb.) nor from the procedural right to inspect files in fiscal court proceedings (cc.).
Paragraph 69
ah.
The AO already does not provide for any entitlement for those involved in the proceedings to inspect the files and certainly does not grant any entitlement to the provision of data copies in the form of duplicate files.
Recital 70
According to the settled case law of the BFH, a right to inspect files can neither be derived from Section 91 (1) AO and the application decree for the tax code -AEAO- issued for this, nor from Section 364 AO and the AEAO issued for it. According to a judgment of the Lower Tax Court of Baden-Württemberg on July 26, 2021 (Az.: 10 K 3159/20, EFG 2021, 1777), a bound right to access files is also not supported by the right to information about personal data according to Art. 15 Para. 1 GDPR because a right to inspect files always goes beyond a mere right to information regarding the processed personal data, since files regularly contain components that do not fall under the scope of protection of the GDPR and Section 32c AO.
Recital 71
However, the BFH assumes in settled case law that the taxpayer requesting access to files during administrative proceedings or his representative is entitled to a dutiful discretionary decision by the authority (BFH, judgment of 23.02.2010 - VII R 19/09 -, BStBl II 2010 , 729).
Recital 72
In the present case, however, no errors of discretion can be identified. The defendant tax office offered the plaintiff information about and copies of certain data relating to the plaintiff. In addition, it rejected a claim for the provision of copies of data in the form of duplicates of entire administrative files without making any errors of judgement.
Recital 73
bb
Finally, there is no entitlement to the provision of duplicate files under the law to promote freedom of information in the state of Berlin (Berliner Informationsfreiheitsgesetz -IFG Berlin-) of October 15, 1999 (Gesetz- und Ordinance Gazette -GVBl.- 1999, 561), because the law grants in § 3 paragraph 1 in conjunction with § 4 paragraph 1 and § 13 IFG Berlin only gives a right to file inspection and file information, but does not convey a blanket right to the provision of complete duplicate files.
Recital 74
cc
A claim by the plaintiff against the defendant for the provision of duplicate files does not result from § 78 FGO either, because the opponent of the procedural claim is the tax court and not the tax office being defendant. The BFH recently decided this in an appeals procedure regarding the plaintiff's parallel proceedings at the Berlin-Brandenburg Finance Court under file number 5 K 5093/20 (BFH, decision of 07.06.2021 - VIII B 123/20 -, BFH/NV 2021, 1292 ) and additionally pointed out that the plaintiff cannot derive the asserted right to inspect the paper case files in a "common electronic form" from Art. 15 Para. 3 Sentence 3 GDPR (BFH, decision of August 29th, 2019 - X p 6/19 -, BFH/NV 2020, 25), there is still an obligation of the tax authority to digitize official files (BFH, decision of 06.09.2019 - III B 38/19 -, BFH/NV 2020, 91; decision of 04.07. 2019 - VIII B 51/19 -, BFH/NV 2019, 1235).
Recital 75
II.
The revision is allowed according to § 115 Abs. 2 Nr. 1 FGO due to its fundamental importance. Due to the broad impact, it seems worthy of clarification as to whether and to what extent and in what form the rights of data subjects under Art. 15 (3) GDPR grant a right to the provision of copies of personal data from the files of the tax authorities.
Recital 76
III.
The decision on costs is based on Section 135 (1) FGO.
