Rb. Midden-Nederland - UTR 19 /1761 and UTR 19/1627

Rb. Midden-Nederland - UTR 19 /1761 and UTR 19/1627

Court:	Rb. Midden-Nederland (Netherlands)
Jurisdiction:	Netherlands
Relevant Law:	Article 55(3) GDPR
Decided:	29.05.2020
Published:	08.06.2020
Parties:	Autoriteit Persoonsgegevens
National Case Number/Name:	UTR 19 /1761 and UTR 19/1627
European Case Law Identifier:	ECLI:NL:RBMNE:2020:2028
Appeal from:
Appeal to:	Not appealed
Original Language(s):	Dutch
Original Source:	de Rechtspraak (in Dutch)
Initial Contributor:	n/a

The Court of First Instance of the Central Netherlands submitted preliminary questions to the CJEU on the interpretation of Article 55(3) GDPR. The questions arose in a case where a Court Division provided journalists with access to physical copies of procedural documents on the day of the hearing.

English Summary

Facts

In two similar cases, complainants requested Dutch Data Protection Authority to take enforcement action against the Administrative Jurisdiction Division of the Council of State. According to the complainants, the Division violates GDPR by providing journalists with access to physical copies of procedural documents on the day of hearing. Complainants point to the violation of Articles 5, 6, 9, 12, 13, 14, 15, 32, 33 and 34.

The Dutch DPA is of the opinion that, pursuant to Article 55(3) GDPR, it is not authorized to supervise this processing. There is an inextricable link between the public nature of justice and the judicial task; transparency and openness in individual cases is an important part of judicial task.

On 29 May 2020 the Court of First Instance of the Central Netherlands decided to submit the following questions to the Court of Justice of the European Union:

1. Should Article 55(3) of the GDPR be interpreted as meaning that “processing operations of courts acting in their judicial capacity” includes the provision by a judicial authority of access to the procedural documents containing personal data to a journalist, as described in this order for reference?

1a. In answering this question, is it important whether, in specific cases, the exercise of the supervision powers by the national supervisory authority over this form of data processing affects the independence of judgement?

1b. In answering this question, is it important that the nature and the purpose of data processing, according to the judicial authority, is to inform a journalist to allow for better reporting on public hearings and legal proceedings, which supports the openness and transparency of justice?

1c. In answering this question, is it important that data processing is explicitly provided for by national legislation?

Dispute

Holding

The Council finds that a preliminary ruling from the Court of Justice as referred to in Article 267 of the TFEU is needed, since the concept of “judicial task” is an EU law concept and the validity of its national interpretations is reserved for the CJEU.

The Council notes that that: 1. The concept of “judicial task” is not defined in the GDPR; 2. There is no indication in the existing case law of the CJEU of how “judicial tasks” should be interpreted under the EU law; 3. An assessment by the DPA of the compatibility of the access policy for journalists with the GDPR does not affect the independence of judges in specific cases, which could be an indication that personal data processing in the context of such policy is not an exercise of the judicial task; 4. The procedural documents are not read in their entirety at hearings, so it is possible that journalists access more personal data that they hear during the hearing. On the other hand, having a chance to read full documents before the proceeding can help journalists improve the quality of reporting on those cases; 5. There is no legal basis for this policy in Dutch law.

Comment

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English Machine Translation of the Decision

The decision below is a machine translation of the Dutch original. Please refer to the Dutch original for more details.

Institution
Court of the Central Netherlands
Date of pronunciation
29-05-2020
Date of publication
08-06-2020
Case number
UTR 19 /1761 and UTR 19/1627
Jurisdictions
Administrative law
Special features
First instance - multiple
Reference for a preliminary ruling
Content indication

AVG, exercise of judicial functions, questions referred for a preliminary ruling

Plaintiffs have submitted a request for enforcement to the Personal Data Authority. They requested enforcement action against the Administrative Jurisdiction Division of the Council of State. According to plaintiffs, the inspection policy for journalists of the Division is contrary to the AVG.

The Authority for Personal Data took the position that, pursuant to Section 55(3) of the AVG, it is not competent to supervise the processing of personal data by courts in the performance of their judicial duties. According to the Authority, this is the case here.

Since this concerns the interpretation of the Union law concept of 'judicial function' and since the judgment on the compatibility of the national interpretation of this concept is reserved to the Court of Justice of the European Union, the Court submits the following questions to the Court for a preliminary ruling.

1. Must Article 55(3) of the AVG be interpreted as meaning that 'processing operations carried out by courts in the exercise of their judicial functions' may be understood to mean the provision by a court or tribunal of access to procedural documents containing personal data, such access being granted by making available to a journalist copies of those procedural documents, as described in this order for reference?

1a. Is it relevant to the answer to that question whether the supervision by the national supervisory authority of that form of data processing affects the independent formation of judicial decisions in specific cases?

1b. Is it relevant to the answer to this question that, according to the court, the nature and purpose of the data processing is to inform a journalist in order to enable him to better report on the public hearing in court proceedings and to serve the interest of openness and transparency of justice?

1c. Is it relevant to the answer to this question whether the data processing is based on an explicit basis under national law?
Sites
Rechtspraak.nl
Enriched pronunciation

Ruling
CENTRAL COURT

Sitting place Utrecht

Administrative law

Case numbers: UTR 19/1627 and UTR 19/1761

Reference for a preliminary ruling to the Court of Justice of the European Union pursuant to Article 267 of the Treaty on the Functioning of the European Union of 29 May 2020 in the cases between
mr. [plaintiff 1] , plaintiff 1, and

[plaintiff 2] , at [residence] , plaintiff 2

(Agent: Mr [plaintiff 1] )

and
the Authority Personal data, defendant

(Agents: Mr W. van Steenbergen and Mr Y. Witteman).
Proceedings

Claimant 1

By decision of 9 January 2019 (the primary decision 1), defendant informed plaintiff 1 that he is not authorized to take enforcement action against the Administrative Jurisdiction Division of the Council of State.

By decision of 14 January 2019 (the contested decision 1), the defendant declared plaintiff 1's objection to this unfounded.

Plaintiff 1 lodged an appeal against this decision (registered under number UTR 19/1627).

The chairman of the Administrative Jurisdiction Division of the Council of State has indicated that he does not participate as a party in these proceedings.

The defendant filed a statement of defence.

Plaintiff 2

By decision of 23 April 2019 (the primary decision 2), defendant informed plaintiff 2 that he is not authorized to take enforcement action against the Administrative Jurisdiction Division of the Council of State.

On 30 April 2019, plaintiff 2 lodged an appeal against the failure to take a decision on his enforcement request in time.

On 4 June 2019, plaintiff 2 lodged an objection with the defendant against the primary decision. The defendant sent this to the court as a direct appeal pursuant to Section 7:1a of the General Administrative Law Act (Awb).
The court ruled that the defendant did not wrongly agree to a direct appeal to the administrative court.

The chairman of the Administrative Jurisdiction Division of the Council of State has indicated that he does not take part in these proceedings as a party.

The defendant filed a statement of defence.

In both appeals

The hearing took place on 10 December 2019. Claimant 1 did not appear. Claimant 2 was represented by his agent. The defendant was represented by his agents.

In connection with the court's intention to make a reference to the Court of Justice of the European Union for a preliminary ruling pursuant to Article 267 TFEU, the court joined the actions and reopened the preliminary investigation.

By letter dated 28 April 2020, a draft question was sent to the parties and they were given the opportunity to comment on it.

The parties responded.
Recitals

Preliminary remark

Plaintiff 1] is acting in these cases both as plaintiff and as agent of plaintiff 2. In the remainder of this judgment the court will always designate him as plaintiff 1.
Introduction

This referral decision addresses the question whether the Personal Data Authority, the national supervisory authority1 , is competent to decide whether the granting of access to procedural documents by the Administrative Jurisdiction Division of the Council of State (ABRvS) to journalists is in accordance with the General Data Protection Regulation (AVG). In order to answer this question, it is important whether the granting of access to procedural documents to journalists falls within the judicial task of the ABRvS. After all, the Personal Data Authority has no power to supervise the processing of personal data by courts in the performance of their judicial duties. As this concerns the interpretation of the concept of 'judicial task' under EU law and the judgment on the compatibility of the national interpretation of the concept of 'judicial task' with EU law is reserved to the Court of Justice of the European Union (the Court of Justice), the Court submits this question to the Court of Justice.

3. In the following, the reasons for these cases are first described. Next, the legal framework and the positions of the parties are presented. This is followed by the reasons for putting preliminary questions, and finally the preliminary questions themselves.
Reason for these cases and what followed

4. On 30 October 2018, the ABRvS heard the appeal of plaintiff 2 in an administrative law dispute with the mayor of Utrecht. Plaintiff 1 also acted as his agent in that case. After the hearing, plaintiff 2 was addressed in the presence of plaintiff 1 by a person who claimed to be a journalist. Plaintiff 1 noted during this interview that this person had documents from the case file at his disposal, including documents from his hand. If asked, this person stated that he had been given access to these documents because he had exercised the right to inspect the case file given to journalists by the ABRvS.

5. Plaintiff 1 wrote to the chairman of the ABRvS the same day asking whether it is correct that access to the case file was granted, if so to whom, and whether copies were made with the knowledge or consent of employees of the ABRvS.

6. By letter dated 21 November 2018, the chairman of the ABRvS informed plaintiff 1 as follows:
"The Communications Department will provide the media with information about the hearings. It does this by publishing the press agenda on the website and by making session information available to the journalists who are in the building at that time to 'cover' the sessions. This session information consists of a copy of the (higher) notice of appeal and defence and, if it is an appeal case, the decision of the court. The journalists do not happen to be in the building of the Council of State at that time. They are there with the purpose of following hearings in specific cases in which they have a concrete interest. The documents that are available for inspection contain information that journalists also have when following the hearing. These copies are only available for inspection on the day of the hearing itself. This means that this information can only be viewed by journalists who are actually physically present at the Council of State building on the day in question. This information is not sent or shared with the media in advance and the paper information on the day of the hearing itself is available for inspection and may therefore not leave the premises and be taken home. The documents made available for inspection help the journalists to follow the hearing and draw up a report, and thus contribute to its factual accuracy. This benefits all parties. At the end of the hearing, employees of the Communications Department destroy the copies.

7. As a result, claimants addressed enforcement requests to the defendant, the national supervisory authority.

8. The defendant took the primary decisions and forwarded the enforcement requests to the AVG Committee on Administrative Law Societies2 (hereafter: the AVG Committee). The AVG Committee then forwarded the request to the chairman of the ABRvS, who interpreted it as a complaint against his letter of 21 November 2018. The chairman asked the AVG committee to advise him on the decision to be taken on the complaint. On 9 April 2019, the AVG committee gave its advice to the chairman.

9. Following the AVG committee's advice, the chairman of the ABRvS tightened up the inspection policy and published it on the ABRvS' website. On the website3 the following can now be read:
"Information for the press on hearings of the Administrative Jurisdiction Division
The Council of State offers journalists a number of opportunities to be well informed about cases that the Administrative Jurisdiction Division deals with at court hearings.

Digital session agenda
Journalists can, upon request, receive a weekly digital overview by e-mail of all court cases handled by the Administrative Jurisdiction Division at a hearing in the coming week. Interested journalists can contact our press officers for this purpose.
Press agenda
On a daily basis, the press officers make a selection of cases that are dealt with at court hearings and that may be of interest to the media. This selection contains information about the content and background of the dispute and the course of the proceedings. A calendar on the website clearly shows which cases are on the press agenda on a particular day.
Substantive session information on concrete cases
Public access
Proceedings of the Administrative Jurisdiction Division are public. Openness promotes fair and impartial justice and is therefore a fundamental pillar of the democratic constitutional state. The fact that the press has access to the courtroom is not always sufficient to guarantee openness. For that reason, journalists must have easy access to information about the content of court cases handled by the Administrative Jurisdiction Division at a hearing.

Hearing information
The Communication Department of the Council of State only offers journalists the opportunity to view substantive session information on the day of the court hearing. This session information consists of a copy of the notice of appeal or appeal, of the statement of defence and, if it is a court case on appeal, a copy of the decision of the court. These documents often contain information that journalists also hear when they attend the court hearing. This information is not sent or shared with the media beforehand or afterwards. It can only be viewed by journalists who are present in the building of the Council of State on the day of the hearing. The documents may not leave the building of the Council of State. Journalists are also not allowed to copy them in any way for their own use. At the end of the session day, the session information is destroyed by the Communications Department.

Not in all cases
Not all court cases handled by the Administrative Jurisdiction Division can be heard in this way. For example, there is no information available for journalists in cases involving aliens and cases in preliminary relief proceedings. In such cases, journalists can go to the press officers of the Council of State for an oral explanation of the content of the lawsuit".
Fact finding

10. For the sake of clarity, the District Court first of all notes that what it refers to in the remainder of this judgment about procedural documents or session information is understood to mean the notice of appeal, the defence and possibly the judgment of the District Court.

10. The ABRvS' policy for journalists means that third parties, not parties to legal proceedings, will have access to the personal data of at least the parties to legal proceedings and their authorised representative(s), if any. Pursuant to Article 6:5 of the General Administrative Law Act, a notice of appeal or appeal must contain the name and address of the party submitting the appeal. The letterhead of a (business) representative usually also contains several (identifying) personal data. Furthermore, it is plausible that the contents of the procedural documents may contain one or more (special) personal data of the plaintiff and/or others, such as information about criminal antecedents, company information or medical information. In the relevant procedural documents, the parties express their point of view on the content of the case: the grounds for the appeal and the defence against it.

10. In this case, by providing procedural documents in the case of plaintiff 2 personal data of plaintiffs have been processed, including the name and address of plaintiff 2 and the citizen service number (BSN number) of plaintiff 1. The BSN number has been processed in his registration number with the Chamber of Commerce and the latter number is mentioned on his letterhead.

10. It has been established in court that plaintiffs had not given their consent to the provision of the procedural documents, that the procedural documents available to the journalist had not been anonymised and that they contained substantive information about plaintiff 2's case, including several personal data.

10. According to the AVG Opinion of 9 April 2019, 'for inspection' at the time of the incident on 30 October 2018 meant that journalists were given a copy of the documents if they so wished, which they had to return when they left the Council of State building.
Position of plaintiffs

10. Plaintiffs based their enforcement requests on the fact that the ABRvS infringes a large number of provisions of the AVG (Articles 5, 6, 9, 12, 13, 14, 15, 32, 33 and 34) by giving journalists access to procedural documents. Plaintiffs take the position that the defendant, as national supervisor, is competent to supervise data processing and is competent to take enforcement action against the (chairman of the) ABRvS.
Position of the defendant

10. The defendant takes the position that, pursuant to Article 55(3) of the AVG, it is not authorised to monitor the processing of personal data by the judiciary. In order to guarantee the independence of the judiciary, recital (20) of the preamble refers to the supervision of the processing of personal data by courts in the performance of their judicial tasks in a body within the judicial organisation. Public access to justice is inextricably linked to the judicial function. Openness of the judiciary ensures that there is more transparency in the administration of justice. This transparency contributes to the trust in and therefore the independence of judicial bodies. According to the defendant, the inspection policy that is aimed at transparency and openness in individual cases is an important part of the judicial task and therefore of the independence of the judiciary.
Legal framework

10. On 25 May 2018, 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 and on the free movement of such data and repealing Directive 95/46/EC (AVG) entered into force.
Recital (20) of the preamble to the AVG reads as follows:
While this Regulation applies, inter alia, to the activities of courts and other judicial authorities, Union or Member State law could specify the processing operations and procedures relating to the processing of personal data by courts and other judicial authorities. The competence of the supervisory authorities should not extend to the processing of personal data by courts in the course of their judicial tasks, in order to ensure the independence of the judiciary in the performance of its judicial tasks, including decision-making. It should be possible to entrust the supervision of such data processing operations to specific bodies within the judicial organisation of the Member State which should, in particular, ensure compliance with the rules laid down in this Regulation, raise the awareness of members of the judiciary of their obligations under this Regulation and handle complaints relating to such data processing operations.
Article 55 Competence
1. Each supervisory authority shall be competent to carry out on the territory of its Member State the duties assigned to it in accordance with this Regulation and to exercise the powers granted to it in accordance with this Regulation.
2. In the case of processing by public authorities or by private bodies acting on the basis of Article 6(1)(c) or (e), the supervisory authority of the Member State concerned shall be competent. In such cases, Article 56 shall not apply.
3. Supervisory authorities shall not be competent to monitor processing operations carried out by courts in the exercise of their judicial functions.

Data processing

18. The Court considers the provision of access to the procedural documents and the (temporary) handing over of copies of those procedural documents as a processing of personal data as referred to in Article 4, paragraph 2 of the AVG.

Exercise of judicial tasks is not defined in the AVG.

19. The Court finds that the AVG does not further define the 'performance of their judicial duties'. According to the defendant, this concept should be interpreted broadly. To this end, the defendant referred to the establishment history of the AVG. In the English version of the original Commission proposal, recital 99 contained a passage that, according to the defendant, pointed in the direction of a more limited interpretation: "this exemption should be stricly limited to genuine judicial activities in court cases and not apply to other activities where judges might be involved in, in accordance with national law "4 .

20. This reasoning does not convince the court. First of all because this is an a-contrario reasoning, which must be treated with caution. Secondly, the defendant did not explain why this passage was ultimately not included in the final text. In the development history of the AVG, the court also did not find any explanation showing what the reason was for changing the text of this passage. The reason for this change can therefore not be traced. Because the establishment of a European Regulation is a lengthy process of negotiation and compromise, the mere fact that this passage has been omitted in the course of the process cannot, in the District Court's opinion, be linked to any conclusions for the time being.

20. The District Court acknowledges that a similar passage has been included in the final text in recital 80 of Directive 2016/6805. Although this difference raises the question of why recital (20) of the preamble to the AVG is different from recital 80 of Directive 2016/680, the District Court sees no reason in this difference for a different judgment than that given under 20 above.

22. The wording 'judicial tasks' used in the Dutch language version does not differ from the wording used in various other language versions. For example, the French version contains 'l'exercice de leur fonction juridictionnelle', the German version 'im Rahmen ihrer justiziellen Tätigkeit vorgenommenen Verarbeitungen', and the English version 'courts acting in their judicial capacity'. Therefore, the court does not find any leads in these cases to further define the scope of the concept of 'judicial capacity'.
The District Court further established that in recital (20) of the preamble and Section 55(3) of the AVG the terms 'courts', 'judicial duties', 'judiciary capacity' and 'judicial duties' are used interchangeably. This is also the case in other language versions. This raises the question of whether the Union legislator wanted to give different meanings to these terms, or whether the terms express the same thing. However, the District Court did not find any indications in this respect, so that the differences in the chosen wording do not provide any guidance for a correct interpretation of the terms 'judicial tasks' and 'judicial tasks' either.

23. Also in the case law of the Court of Justice, the District Court has found no indications for an answer to the question of how 'judicial duties' should be interpreted in EU law. However, a case is currently pending before the Court of Justice, which has a relevant interface with this case. The Court refers to the High Court (Ireland) preliminary reference of 17 June 2019 (C-470/19). In that case, the question has been raised as to whether the supervision of access to closed court files can be considered as acting in a judicial capacity. The answer to that question therefore requires an interpretation of the term 'judicial capacity' or in English 'bodies or institutions when acting in a judicial capacity'. That reference concerns the interpretation of Article 2(2) of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC.

24. Recital (20) of the preamble contains the concept of 'judiciary'. In the French, German and English language versions it reads 'pouvoir judiciaire', 'Justiz' and 'judiciary'. This concept also appears in Article 10(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and was interpreted as follows by the European Court of Human Rights (ECHR) in its judgment of 26 April 1979, 6538/74 (Sunday Times):
“55. The term "judiciary" ("pouvoir judiciaire") comprises the machinery of justice or the judicial branch of government as well as the judges in their official capacity. The phrase "authority of the judiciary" includes, in particular, the notion that the courts are, and are accepted by the public at large as being, the proper forum for the ascertainment of legal rights and obligations and the settlement of disputes relative thereto; further, that the public at large have respect for and confidence in the courts' capacity to fulfil that function.
This interpretation of the ECtHR does not provide the court with sufficient guidance to explain the term 'judicial duties'. The concept of the judiciary is interpreted broadly in the context of Article 10 of the ECHR, but this judgment does not provide any guidance as to what the judicial functions of the judiciary are.
Independent judging by the judge

24. The court also considers it important to establish that the submission of procedural documents for journalists is not an individual decision of the court hearing the case, but the implementation of policy by the Communication department of the Council of State. This policy was laid down by the chairman of the ABRvS and applies to a large number of cases dealt with by the ABRvS. No consideration is made on a case-by-case basis as to which personal data will be made available to journalists in this way.

24. According to recital (20) of the AVG's preamble, the purpose of the exception in Article 55(3) is to guarantee the independence of the judiciary in the performance of its judicial tasks, including decision-making. The defendant is therefore right to argue that it should refrain from interfering in the substantive assessment of court cases, because decision-making in court cases is clearly part of the judicial task. From this perspective, it could be said that no judicial function is exercised if the exercise of supervision by the national supervisory authority does not affect the independent assessment of the court in a concrete case, whereby the court, incidentally, notes directly that it must be deduced from the text of recital (20) that the concept of 'judicial functions' encompasses more than just 'decision-making', in view of the word 'including'. On this point, the District Court refers to consideration 44 in the judgment in case C-64/166, in which the Court of Justice considered the independence of courts as follows: "The concept of independence presupposes, in particular, that the body exercises its judicial functions in complete autonomy, without any hierarchical link and without being subordinate to any person or receiving orders or instructions from any source, and is thus protected against outside intervention or pressure which might compromise the independence of the judging of its members in disputes brought before them (see to this effect judgments of 19 September 2006, Wilson, C-506/04, EU: C:2006:587, paragraph 51, and 16 February 2017, Margarit Panicello, C-503/15, EU:C:2017:126, paragraph 37 and the case-law cited therein). ” The Court of Justice thus focuses on the protection of the independence of judgment in concrete cases.

27. The Court considers that an assessment by the national supervisory authority of the compatibility of data processing in the context of the policy of access for journalists to the ABRvS with the AVG does not affect the independent formation of the court's opinion in concrete cases. In the District Court's opinion, this could therefore be an indication that data processing in the context of the inspection policy is not a judicial task. The District Court wants to know from the Court of Justice whether the interpretation of the term 'judicial duties' should take into account a direct or indirect influence of the supervision of data processing on the judge's opinion in concrete cases.

Nature and purpose of the processing

28. In the opinion of the defendant, an interpretation of the term 'judicial duties' that only takes into account the question whether or not the processing of personal data has a direct or indirect influence on the judge's opinion in a concrete case shows too limited a view of the law. According to the defendant, whether or not a processing can be regarded as judicial activities in the context of legal proceedings also depends on the nature and purpose of the processing. The defendant takes the position that making procedural documents available for journalists to inspect serves the openness and transparency of the judiciary and promotes public trust in the judiciary. Openness can therefore be regarded as a fundamental pillar of the democratic constitutional state and is inextricably linked to the judicial task.

28. In the District Court's opinion, journalism plays an undeniably important role in guaranteeing the openness and transparency of the judiciary and is also a pillar of everyone's fundamental right to an effective remedy and to an impartial tribunal. The purpose of the ABRvS giving journalists access to procedural documents is to facilitate public reporting of court cases, thus serving the interests of openness and transparency of the judiciary. In this context, the court notes that the procedural documents are not read out in their entirety at a hearing, nor are they read out in their entirety with the parties. It is therefore possible that the journalist reads personal data in the procedural documents, which are not discussed at the hearing, which in any case applies to the BSN number of an authorised representative, as in this case. On the other hand, by inspecting the procedural documents prior to the hearing, a journalist is better able to follow what is discussed at a hearing and, as a result, can report better to the media. The District Court therefore wants to know from the Court of Justice whether the purpose that the ABRvS pursues with the data processing also determines the answer to the question whether this is a judicial task.
No legal basis

28. Finally, the court finds that there is no national legal basis for making copies of procedural documents available for inspection and (temporarily) making them available to journalists. The Awb provides that a hearing is held in public (Section 8:62(1) of the Awb) and that the court's decision is pronounced in public (Section 8:78 of the Awb). Furthermore, Section 8:79(2) of the General Administrative Law Act provides that parties other than the parties may obtain copies or extracts of the decision or of the minutes of the oral decision. However, neither the Awb nor any other statutory regulation contains a provision on making procedural documents available to parties other than the parties to the proceedings. The Court does not rule out the possibility that this is relevant to the answer to the present question in the sense that the Court wonders whether it is possible to qualify the data processing as a judicial task if there is no explicit legal basis for this, but is based on the ABRvS' view of its role as a judicial body in a democratic society. Therefore, the court wants to know from the Court of Justice whether the fact that there is no legal basis for making procedural documents available to journalists for inspection is meaningful, even if this serves the purpose of openness and transparency of jurisprudence.
Request

28. The foregoing paragraphs 18 to 30 lead to the request to the Court of Justice to answer the questions set out below.
Decision

The court:

- requests the Court of Justice to answer the following questions by way of preliminary ruling pursuant to Article 267 TFEU:
1. Must Article 55(3) of the AVG be interpreted as meaning that 'processing operations carried out by courts in the performance of their judicial functions' may be understood to mean the provision by a court or tribunal of access to procedural documents containing personal data, such access being granted by making available to a journalist copies of those procedural documents, as described in this order for reference?
1a. Is it relevant to the answer to that question whether the supervision by the national supervisory authority of that form of data processing affects the independent formation of judicial decisions in specific cases?
1b. Is it relevant to the answer to this question that, according to the court, the nature and purpose of the data processing is to inform a journalist in order to enable him to better report on the public hearing in court proceedings and to serve the interest of openness and transparency of justice?
1c. Is it relevant to the answer to this question whether the data processing is based on an explicit basis under national law?
- will continue to deal with the cases until the Court of Justice has given its judgment.

This ruling was given by J.J. Catsburg, chairman, and M.C. Stoové and V.E. van der Does, members, in the presence of M.L. Bressers, registrar. This judgment was rendered on 29 May 2020. As a result of measures concerning the coronavirus, this judgment was not pronounced at a public verdict hearing. As soon as public pronouncement is possible again, this decision will, insofar as necessary, still be pronounced in public.

Registrar The chairman is prevented from signing this decision.

Copy sent to the parties on:
Legal remedy

There is no right of appeal against this judgment.