OVG Mecklenburg-Vorpommern - 1 R 461/24 OVG
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| OVG Mecklenburg-Vorpommern - 1 R 461/24 OVG | |
|---|---|
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| Court: | OVG Mecklenburg-Vorpommern (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 57(3) GDPR Article 154(2) VwGO Article 161(1) VwGO Section 188 sentence 2 VwGO Section 66(1) GKG |
| Decided: | 15.01.2025 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 1 R 461/24 OVG |
| European Case Law Identifier: | ECLI:DE:OVGMV:2025:0115.1R461.24OVG.00 |
| Appeal from: | VG Schwerin (Germany) 3 A 2559/24 SN |
| Appeal to: | Not appealed |
| Original Language(s): | German |
| Original Source: | Landesrecht M-V (in German) |
| Initial Contributor: | Sofia Papadopoulou |
A court held that Article 57(3) GDPR which ensures cost-free procedures before the DPA does not apply to administrative judicial proceedings.
English Summary
Facts
The data subject filed a complaint with a DPA regarding a GDPR violation.
When the DPA did not decide to the data subject's satisfaction the data subject initiated administrative court proceedings to order the DPA to take effective supervisory action.
Regarding this proceeding the data subject was issued an administrative court cost statement, to which it filed an objection at the Administrative Court of Schwerin (Verwaltungsgericht Schwerin - VG Schwerin).
The data subject argued that Article 57(3) GDPR, which ensures cost-free procedures before the DPA, should also apply to judicial proceedings.
The VG Schwerin dismissed the objection. The data subject then appealed the court’s decision to the Higher Administrative Court.
Holding
The Higher Administrative Court clarified that Article 57(3) GDPR only applies to tasks performed by the DPA, such as handling complaints and taking action based on data protection law. The court emphasized the difference between administrative proceedings before DPAs and judicial proceedings. It relied on Section 188 of the German Code of Administrative Court Procedure (Verwaltungsgerichtsordnung - VwGO) to determine the rules regarding court costs, finding that this provision is conclusive on exemptions for court costs and does not include exemptions for GDPR related claims. Thus, it reached the conclusion that Article 57(3) GDPR does not cover judicial proceedings, which are a separate legal process governed by national law.
In its ruling, the Higher Administrative Court rejected the appeal, affirming that Article 57(3) GDPR, which guarantees cost-free procedures before DPAs, does not extend to judicial proceedings.
The court stated, that it did not find it necessary to refer the question of judicial costs for GDPR claims to the CJEU.
Comment
The Higher Administrative Court referred to previous judgments, including BSG, LSG Niedersachsen-Bremen, BVerwG, and OVG Lüneburg, where it was consistently held that court costs are not automatically waived, even if the underlying case involves a data protection claim, court fees must be assessed according to the national framework for judicial proceedings, not under the GDPR.
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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.
Court: Higher Administrative Court for the State of Mecklenburg-Western Pomerania 1st Senate Decision date: January 15, 2025 File number: 1 R 461/24 OVG ECLI: ECLI:DE:OVGMV:2025:0115.1R461.24OVG.00 Document type: Resolution Source: juris Logo Standards: Art. 267 para. 3 TFEU, Art. 57 para. 3 EUV 2016/679, Section 1 para. 5 GKG 2004, Section 66 para. 5 GKG 2004, EUV 2018/1725 ... more Document tab Short textLong text Reminder procedure against the court's cost estimate; requirement for representation; exemption from court costs; Submission to the ECJ Principle 1. The guaranteed freedom from costs of the appeal procedure (Art. 57 para. 3 GDPR (juris: EUV 2016/679)) does not apply to the court proceedings according to the principles of the GDPR (juris: EUV 2016/679).(Rn.5) 2. The appeal against the cost estimate pursuant to Section 66 para. 1 GKG (juris: GKG 2004) before the Higher Administrative Court is not subject to the obligation to be represented pursuant to Section 67 para. 4 VwGO.(Rn.3) 3. The appeal procedure against the court's cost estimate and the subsequent appeal procedure are only ancillary proceedings to the main proceedings or action concerning a data protection claim asserted by the plaintiff. As part of the cost decision to be made pursuant to Section 161 para. 1 VwGO at the end of the proceedings, the court of first instance has to make the final decision on the exemption from court costs claimed by the plaintiff. In doing so, it is not bound by the legal opinion of the Senate in the present ancillary proceedings; similar to the interim legal protection proceedings, there is therefore no obligation to submit a ruling under Article 267 (3) TFEU. (Rn.8) Guideline 1. See for lead 1: BSG, judgment of February 29, 2024 - B 8 SO 2/23 R -; LSG Niedersachsen-Bremen, judgment of February 14, 2023 - L 16 SF 5/21 DS (KR) -; BVerwG, judgment of January 27, 2022 - 3 C 14.20 -.(Rn.5) 2. See for lead. 2: BVerwG, decision of February 12, 2019 - 1 KSt 1.19 -.(Rn.3) 3. See for guideline 3: OVG Lüneburg, decision of May 26, 2021 - 11 ME 117/21 -.(Rn.8) Hide course of proceedingsProcedures previous VG Schwerin, November 28, 2024, 3 A 2559/24 SN, decision Tenor The plaintiff's appeal against the decision of the Schwerin Administrative Court of November 28, 2024 - 3 A 2559/24 SN -, with which his objection to the cost calculation of the cost officer of September 30, 2024 was rejected, is rejected. The plaintiff shall bear the costs of the court-fee-free procedure; costs of the appeal procedure will not be reimbursed. Reasons Margin number 1 The Senate decides on the complaint in accordance with Section 66 Paragraph 6 Sentence 1 GKG by the rapporteur as a single judge because the contested decision of the administrative court was made by the rapporteur (cf. OVG Greifswald, decision of June 19, 2023 - 1 R 282/23 OVG -; decision of May 5, 2022 - 1 R 258/22 OVG -; decision of July 18, 2016 - 1 O 231/16 -; OVG Münster, decision of August 27, 2008 - 16 E 1126/08 -, juris; VGH Munich, decision of December 27, 2011 - 7 C 11.2933 -, juris). Marginal number 2 The plaintiff's appeal against the decision of the Schwerin Administrative Court of November 28, 2024 -3 A 2559/24 SN -, which rejected his objection to the cost calculation of the cost officer of September 30, 2024, is unsuccessful. Marginal number 3 The appeal is - in line with the plaintiff's conclusion - initially admissible, particularly in view of the requirement for representation pursuant to Section 67 Paragraph 4 Sentence 1 of the Administrative Court Act. Its admissibility is not precluded by the fact that the plaintiff lodged it personally. The appeal against the cost estimate pursuant to Section 66 Paragraph 1 of the GKG before the Higher Administrative Court is not subject to the obligation to be represented pursuant to Section 67 Paragraph 4 of the Administrative Court Act. According to the priority (Section 1 Paragraph 5 GKG) regulation of Section 66 Paragraph 5 Sentence 1 GKG, applications and declarations in the cost reminder and complaint procedure can be submitted in writing or submitted to the office for the record "without the involvement of an authorized representative". By inserting the words "without the involvement of an authorized representative" in Article 7, Paragraph 1, No. 2 of the Act on the Modernization of Procedures in the Professional Law of Lawyers and Notaries, on the Establishment of an Arbitration Board for the Legal Profession and on the Amendment of Other Provisions of July 30, 2009 (Federal Law Gazette I p. 2449), the legislator has clarified that, contrary to the statements in the explanatory memorandum to Section 67 of the Code of Administrative Court Procedure, which was also amended by the Act on the New Regulation of Legal Advice Law, which indicate a requirement for representation for complaints about the value in dispute and costs (BT-Drs. 16/3655 p. 97), there is no obligation to have a lawyer in cost-related proceedings (as before) (see the entire BVerwG, decision of February 12, 2019 - 1 KSt 1.19 -, juris para. 3). Paragraph 4 In substance, however, the complaint is unfounded with regard to the exclusive issue of exemption from court costs for the correct reasons given in the contested decision (Section 122, Paragraph 2, Sentence 3 of the Administrative Court Act), which are not fundamentally called into question by the complaint. Paragraph 5 In the present case, this is not a free procedure pursuant to Section 188, Sentence 2 of the Court Court Act, since the plaintiff is not pursuing claims under youth welfare law in connection with family court proceedings and the expert appointed by the district court to examine his ability to stand trial, but as the person concerned is requesting the defendant, as the data protection supervisory authority, to issue effective supervisory measures. According to the principles of the GDPR, the guaranteed freedom from costs of the complaint procedure (Article 57(3) GDPR) does not apply to court proceedings (see BSG, judgment of February 29, 2024 – B 8 SO 2/23 R –, juris para. 38 with further references; LSG Niedersachsen-Bremen, judgment of February 14, 2023 – L 16 SF 5/21 DS (KR) –, juris para. 35). Paragraph 6 The provisions of Regulation (EU) 2018/1725 (OJ L 295 of November 21, 2018, p. 39) offer no basis for the exemption from court costs claimed by the plaintiff – as the administrative court correctly stated (see Recital No. 34, Article 14(5), Article 78(4). The plaintiff simply claims the existence of regulations on exemption from court costs in other states, without, however, naming them specifically. Paragraph 7 In view of this clear finding, the existing case law of the highest courts and the – as far as can be seen – lack of contrary court decisions, there is no reason for the Senate to refer the question of the interpretation of EU Regulation 1725/2018 from the perspective of exemption from court costs to the Court of Justice of the European Union for a preliminary ruling under Article 267(3) TFEU. A court making a final decision is only obliged to refer the matter if a question of Union law arises in the proceedings that is relevant to the decision and which is not already answered by the Court of Justice’s case law or the answer to which is not so obvious that there is no room for reasonable doubt. The Court of Justice has not yet commented on this issue – as far as can be seen – so this is not a question that has been clarified in its case law. However, as the above statements show, there is no room for reasonable doubt as to the answer to the question in the sense mentioned. (cf. BVerwG, judgment of January 27, 2022 - 3 C 14.20 -, juris para. 31). Paragraph 8 Moreover, the present decision does not constitute a final decision within the meaning of Article 267 (3) TFEU. The Senate would therefore only be obliged to refer the matter to the Court of Justice if the question of exemption from court costs under the provisions of Regulation (EU) 2018/1725 were raised in the present case before a national court whose decisions themselves can no longer be challenged by means of legal remedies under domestic law. Even if the Senate's decision is final under Section 152 (1) VwGO and Section 66 (3) sentence 3 GKG, these conditions are nevertheless not met. The underlying objection proceedings against the court's cost estimate and the subsequent appeal proceedings are in fact only ancillary proceedings to the main proceedings or lawsuit concerning a data protection claim asserted by the plaintiff. In these main proceedings, which are still pending in the first instance, the court must decide on the costs in the judgment or, if the proceedings have been terminated in another way, by order in accordance with Section 161 Paragraph 1 of the Code of Administrative Court Procedure. As part of this cost decision at the end of the proceedings, the court of first instance must also make the final decision on the exemption from court costs claimed by the plaintiff; in doing so, it is not bound by the legal opinion of the Senate made in the present ancillary proceedings; Similar to interim legal protection proceedings, there is therefore no obligation to submit a complaint (cf. BVerfG, decision of May 14, 2018 - 2 BvR 883/18 -, juris para. 4; decision of November 29, 1991 - 2 BvR 1642/91 -, juris para. 2; OVG Lüneburg, decision of May 26, 2021 - 11 ME 117/21 -, juris para. 25 with further references). Marginal number 9 According to Section 154 (2) VwGO, the plaintiff bears the costs of the procedure, which is free of charge under Section 66 (8) Sentence 1 GKG; costs of the appeal procedure are not reimbursed (Section 66 (8) Sentence 2 GKG). Marginal number 10 Note: Marginal number 11 The decision is final according to Section 152 Paragraph 1 VwGO and Section 66 Paragraph 3 Sentence 3 GKG.
