OVG Greifswald - 2 LB 565/17

OVG Greifswald - 2 LB 565/17
Court:	OVG Greifswald (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1)(c) GDPR
Decided:	07.07.2020
Published:
Parties:
National Case Number/Name:	2 LB 565/17
European Case Law Identifier:
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Dienstleistungsportal - Mecklenburg-Vorpommern (in German)
Initial Contributor:	ML

The court held that according to Article 6 (1) (c) GDPR, access to data of members of a hunting cooperative be granted to fellow members GDPR, as it is necessary to fulfil a legal obligation of the controller; only then can he or she claim the rights as a member, which, are essentially determined by the ownership and size of the areas that can be hunted.

English Summary

Facts

The plaintiff would like to inspect the defendant's hunting register, a hunting cooperative. The plaintiff is a member of the defendant.

The plaintiff based his claim on the necessity of being able to verify compliance with the corresponding distribution key in view of his claim to payment of the share of the income from the hunting lease to which he was entitled.

Furthermore, he stated that he could only meaningfully exercise his membership rights in knowledge of the other members of the Hunting Cooperative. Finally, the plaintiff referred to the Freedom of Information Act of Mecklenburg-Vorpommern.

Dispute

The defendant refused the requested access in order to protect the personal data of the other members of the hunting cooperative, who would refise to have their addresses published. Nor could it be seen why the plaintiff needed the data in order to be able to assert its claim for a pro rata payment of the defendant's earnings.

Holding

A member of a hunting cooperative has a claim against the hunting cooperative to inspect the current hunting cadastre of the hunting cooperative, insofar as this contains the names, addresses and size of the areas of the individual hunting companions

If these claims cannot be excluded obviously and unambiguously, the Hunting Cooperative owes the hunting companion disclosure of its books and other documents. The type and scope of the documents to which this disclosure extends in detail depends largely on the data required for the effective verification of the respective claim prerequisite

The plaintiff is therefore entitled to inspect the hunting cadastre of the defendant, as far as the names of the other hunting companions contained therein, their addresses as well as the information on the size of the respective property areas of the individual owners are concerned. Only on the basis of this information can he effectively exercise his rights as a member of the Hunting Cooperative and thus as part of the General Meeting. It must be possible for the plaintiff to make arrangements with other members in advance of such meetings and therefore to contact them. In particular, the statutes also provide for the possibility that a certain quorum of members may call an extraordinary general meeting.

All these rights can only be exercised if the claimant has the possibility to contact other hunting companions. This requires that not only the names but also the addresses are accessible to him.

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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.

    Right to inspect the hunting register of the hunting cooperative

    A member of a hunting cooperative has a claim against the hunting cooperative to inspect the current hunting cadastre of the hunting cooperative, insofar as this contains the names, addresses and size of the areas of the individual hunting companions. 

Higher Administrative Court for the State of Mecklenburg-Western Pomerania 2nd Senate, ruling of 07.07.2020, 2 LB 565/17

Article 6(1c) TEU 2016/679
Tenor

    The ruling of the Greifswald Administrative Court of 6 July 2017 is amended.

    The defendant is ordered to grant the plaintiff access to the defendant's current hunting cadastre, insofar as this contains the names, addresses and the size of the areas of the individual hunting companions.

    Orders the defendant to pay the costs.

    The judgment is provisionally enforceable as regards the costs. The defendant may avert enforcement against provision of security in the amount of the costs determined by the court, unless the plaintiff provides prior security in the same amount.

    The appeal is not allowed.

Facts of the case

1

    The parties involved are in dispute over the question of whether and to what extent the plaintiff is entitled to inspect the defendant's hunting register, a hunting cooperative. The plaintiff is a member of the defendant with a base area of 1.0855 hectares of forest. Since 2016 the hunting lease has been uniformly 0.80 Euro/ha for all areas.

2

    The plaintiff based his claim filed on 30 May 2016 on the necessity of being able to verify compliance with the corresponding distribution key in view of his claim to payment of the share of the income from the hunting lease to which he was entitled. For example, there would be overhead costs of the hunting cooperative, so that income from the lease could not be fully paid out. Furthermore, he stated that he could only meaningfully exercise his membership rights in knowledge of the other members of the Hunting Cooperative. Finally, the plaintiff referred to the Freedom of Information Act of Mecklenburg-Vorpommern.

3

    The defendant refused the requested access and referred to the need to ensure the protection of personal data contained in the cadastre. Numerous members of the hunting cooperative would refuse to have their addresses published. Nor could it be seen why the plaintiff needed the data in order to be able to assert its claim for a pro rata payment of the defendant's earnings. The question as to which parcels of land belonged in detail to which members of the hunting cooperative was in any case irrelevant for the exercise of membership rights.

4

    The Administrative Court dismissed the claim. The question of whether there is a right to information depends on the relevant substantive law. If and to the extent that information for the assertion of a claim by a member of a hunting cooperative is at least not obviously and unambiguously excluded, the hunting cooperative owes the hunting companion disclosure of its books and other documents (BVerwG, decision of 27 June 2013, 3 C 20.12, para. 5). Measured against this standard, the Administrative Court considered the preconditions for the right of inspection to be non-existent. The amount of the share of the earnings to which the plaintiff is entitled would be readily apparent from the size of the base area multiplied by the agreed rent amount known to him. Nor did the plaintiff require the information for the review of majority decisions of the cooperative assembly. Nor did he have any claim from the membership relationship. The interest in reaching agreements with other members of the Hunting Cooperative with a view to voting at general meetings did not justify the claim.

5

    Finally, such a right to information does not arise from the Freedom of Information Act M-V (IFG). In this respect, an action would already be inadmissible for lack of preliminary proceedings. In addition, the IFG was not applicable to the legal relationship between the plaintiff and the defendant. The defendant would not act as an authority vis-à-vis the plaintiff, but would ultimately take over a private matter with the administration of the hunt. The information requested by the plaintiff served this purpose alone, which therefore did not constitute records serving official purposes within the meaning of § 2.1 no. 1 IFG.

6

    The Senate allowed the appeal by decision of 20.03.2019.

7

    In the appeal, the applicant bases his arguments essentially on the same arguments as those he put forward at first instance.

8

    He requests,

9

    the defendant is ordered to grant the plaintiff access to the respective current hunting cadastre with the details of the names, addresses and the respective area size of all hunting companions, overriding the judgement of the Greifswald Administrative Court of 6 July 2017.

10

    The defendant claims that the Court should

11

    dismiss the appeal.

12

    It puts forward the same arguments as it did before the Administrative Court.

13

    For further details of the state of affairs and the dispute, reference is made to the content of the judicial and administrative acts consulted.

Reasons for decisions

14

    The applicant's admissible appeal is well founded. The decision of the Administrative Court must be amended. The defendant is to be ordered to allow the plaintiff to inspect the current hunting cadastre as far as the names and addresses of hunting companions and the sizes of their areas are concerned. The plaintiff is entitled to a corresponding claim.

15

    The hunting law does not contain any explicit regulations regarding the right to inspection. For such claims, the Federal Administrative Court (BVerwG) stated in its decision of 27.06.2013 - 3 C 20/13, juris, that these

16

    " according to general principles of law as a prerequisite for effective protection of rights under the substantive law in dispute (follow), to which they constitute annexes or ancillary claims (on civil law, see for example the Federal Court of Justice (BGH), judgments of 7 May 2013 - X ZR 69/11 - juris nos. 27 et seq. and of 29 May 2013 - IV ZR 165/12 - juris no. 10). In this respect, neither an explicit regulation nor an analogy is required. This also applies to the Hunting Cooperative if a hunting companion - as here - asserts material legal claims against it arising from the membership relationship. If these claims cannot be excluded obviously and unambiguously, the Hunting Cooperative owes the hunting companion disclosure of its books and other documents. The type and scope of the documents to which this disclosure extends in detail depends largely on the data required for the effective verification of the respective claim prerequisite.".

17

    The recognizing senate agrees with this. Incidentally, the Higher Administrative Court of North Rhine-Westphalia has also recognised a right of a hunting companion to inspect a hunting register to be maintained by the hunting association, in which "the owners of the properties belonging to the hunting district and the size of these properties are shown" (judgement of 17 September 1985 - 20 A 918/84 - juris, only guiding principles, here guiding principle 6).

18

    According to these standards, the plaintiff is entitled to the right of inspection which he permissibly concretized during the hearing before the recognizing senate. He is therefore entitled to inspect the hunting cadastre of the defendant, as far as the names of the other hunting companions contained therein, their addresses as well as the information on the size of the respective property areas of the individual owners are concerned. Only on the basis of this information can he effectively exercise his rights as a member of the Hunting Cooperative and thus as part of the General Meeting. The Articles of Association of the Hunting Cooperative provide for it to be its central organ. In certain cases, this body decides by qualified majority. However, even in cases where only a simple majority decision is required, it must be possible for the plaintiff to make arrangements with other members in advance of such an event and therefore to contact them. In particular, the statutes also provide for the possibility that a certain quorum of members may call an extraordinary general meeting.

19

    All these rights can only be exercised if the claimant has the possibility to contact other hunting companions. This requires that not only the names but also the addresses are accessible to him. In view of the fact that in the Hunting Cooperative, the size of the huntable property area available to each hunting companion is decisive for the voting weight in the General Meeting, the plaintiff must also have access to the information available in this respect at the Hunting Cooperative. On the other hand, the plaintiff has not asserted that he also requires information on the location of the respective parcels of land. The questions associated with this are therefore not part of the subject matter of the dispute. Accordingly, it is not to be decided whether a claim also exists in this respect.

20

    This right to information is also not opposed by data protection aspects. The defendant rightly points out that the inspection of the hunting cadastre is also connected with the possibility for the plaintiff to gain access to personal data. Under Article 6 of the General Data Protection Regulation (GDPR), access to such data may only be granted under special conditions. However, according to the provision of Art. 6 (1) lit. c) GDPR, which in this respect is the sole standard, such access is permissible insofar as it is necessary to fulfil a legal obligation of the controller for data processing. According to the above, the controller, the hunting cooperative, is obliged to grant the plaintiff access to the relevant information; only then can he or she claim the rights as a member, which, as mentioned above, are essentially determined by the ownership and size of the areas that can be hunted. Such information is also proportionate. Anyone who is a member of an organisation has the right to determine the fate of that organisation together with other members. However, he must then at the same time accept that these other members contact him in order to be able to make effective use of this right.

21

    The question of whether other aspects also support the claim asserted by the applicant is not relevant in this respect.

22

    The decision on costs follows from Paragraph 154(2) of the General Administrative Law Code (VwGO).

23

    The decision on provisional enforceability is based on §§ 167 VwGO, 708 ff. German Code of Civil Procedure Rules (Zivilprozessordnung - ZPO).

24

    The appeal is not to be admitted, as none of the grounds provided for in § 132 (2) VwGO are present.