Upravni sud u Zagrebu - Usl-4017/23-6: Difference between revisions

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Administrative Court of Zagreb (Croatia) - Usl-4017/23-6

Court:	Administrative Court of Zagreb (Croatia)
Jurisdiction:	Croatia
Relevant Law:	Article 57(1)(a) GDPR Zakon o općem upravnom postupku (Croatian Act on General Administrative Procedure) Art. 35, Zakon o provedbi Opće uredbe o zaštiti podataka (National Law Implementing the GDPR)
Decided:	05.02.2024
Published:
Parties:
National Case Number/Name:	Usl-4017/23-6
European Case Law Identifier:
Appeal from:
Appeal to:	Not appealed
Original Language(s):	Croatian
Original Source:	Administrative Court of Zagreb (Croatia) (in Croatian)
Initial Contributor:	nz, lm

The Administrative Court found that, although the DPA failed to enforce its previous decision, the statute of limitations for enforcing an order under national law had expired and the DPA could not be ordered to enforce its decision.

English Summary

Facts

The data subject lodged a complaint with the Croatian DPA (“AZOP”) after their yard was filmed by a controller. The AZOP considered that this processing operation had no valid legal basis. On 3 October 2018, it ordered the deletion of every recording of the yard or public road and prohibited the controller from recording the yard in question. The decision indicated that “No appeal is allowed against this decision”. In accordance with Article 133(2) of the Croatian Act on General Administrative Procedure, the decision became enforceable by delivery of the decision to the party.

The controller did not act on the decision. The data subjects thus submitted a request to the AZOP to adopt an enforcement decision. Meanwhile, the controller initiated an administrative dispute against the initial decision taken by the AZOP. The AZOP responded to the data subjects that the conditions for execution of the decision were not met because that decision faced an ongoing procedure before an Administrative Court.

Following the conclusion of the administrative dispute, the data subjects asked the AZOP to adopt a decision on the enforcement of the decision. The AZOP did not take any action.

The data subjects submitted a complaint with the Administrative Court of Zaghreb against the AZOP. The AZOP stated that it did not take any action because the controller indicated that the recordings were deleted and the data subjects did not prove the contrary. It made two arguments pursuant to the Croatian Act on General Administrative Procedure. First, it noted that Article 139(1) of this Act establishes an obligation to issue a decision when the executed party does not act according the enforcement decision. Second, the AZOP argued that the decision cannot be enforced because the statute of limitations period granting 5 years to bring an enforcement action under Article 135(3) of the Croatian Act on General Administrative Procedure had expired. According to this provision, after five years from the date that an order became enforceable, its enforcement may no longer be requested.

Holding

The Upravni Sud u Zagrebu (Administrative Court of Zaghreb) noted that pursuant to Article 52 of its national law implementing the GDPR, a supervisory authority’s task is not simply to establish a violation of legal provisions, but also to ensure the removal of such violation. Thus, the AZOP is obliged to issue an enforcement decision under Articles 138 and 139 of the Croatian Act on General Administrative Procedure.

Nonetheless, the Administrative Court agreed with the AZOP that the statute of limitations period under Article 135(3) of the Croatian Act on General Administrative Procedure applied and had expired in this case. As a result, the administrative court could not order the AZOP to issue an enforcement decision.

The Administrative Court ordered the AZOP to compensate the data subject € 684.10 within 15 days for the costs of the administrative dispute.

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English Machine Translation of the Decision

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

REPUBLIC OF CROATIA
ADMINISTRATIVE COURT IN ZAGREB
Avenija Dubrovnik 6 and 8

Business number: UsI-4017/23-6

IN I M E R E P U B L I K E H R V A T S K E

P R E S U D A

The Administrative Court in Zagreb, according to the judge of that court, Anti Drezga and Slobodanka

Gorsensky, recorder, in the administrative dispute plaintiff 1. M. N. from Z., OIB:... and 2. T. I.-
P. from Z., OIB: ..., represented by attorney N. O., attorney at O., H. and partners,
law firm d.o.o. from Z., against the defendant Agency for the Protection of Personal Data,
Z., OIB: ..., due to the management's silence, February 5, 2024,

he decided

The claim that reads:
"I The claim of plaintiff I-M is approved. N. and II-T. I. P. and is ordered to the defendant
to the Personal Data Protection Agency within 30 days from the date of delivery
judgment to issue a decision on the execution of the decision of the Agency for the Protection of Personal Data
CLASS: UP/I-041-02/17-08/20, URBROJ: 567-02/03-18-01 from 03.10.2018.
II The defendant is ordered to compensate the plaintiffs for the costs of this administrative dispute in

in the amount of EUR 684.10, all within 15 days."

Explanation

1.1. The plaintiffs in the lawsuit essentially state that it is about the request for protection
the right plaintiff, proceedings were conducted before the defendant, CLASS: UP/I-041-02/17-
08/20, URBROJ: 567-02/03-18-01, in which on October 3, 2018, it was adopted

a decision establishing that the processing of personal data by a third party
filmed yard co-owned by the plaintiffs, without a legal and appropriate purpose
legal basis. The decision in question prohibits a third person from recording
of the yard in question and ordered to delete all records created by recording the yard
that is, public roads, which were collected without a legal basis. As an instruction on legal
the remedy of the decision in question reads "No appeal is allowed against this decision", so,
in accordance with Article 133, Paragraph 2 of the Act on General Administrative Procedure, the decision became

executory but by delivery of the solution to the party, and the third party is not voluntary according to the same
acted, the plaintiffs submitted a request to the defendant on July 12, 2021
of making a decision on enforcement. However, as a third party initiated an administrative dispute
against the aforementioned decision, the defendant responded to the plaintiff's request
by letter CLASS: UP/I-041-02/17-08/20, UR NO: 567-02/03-21-14 dated October 10
2021 as "in relation to the specific case, we state that at this moment they are not
the conditions for the execution of the aforementioned decision of this Agency have been met. In this sense, we state how 2 Business number: UsI-4017/23-6

this Agency will carry out the execution of the decision after the completion of the procedure conducted before
by the said competent court", although citing the article of the Law on General

administrative procedure indicating that the conditions for execution have been met, given that
decision against which no appeal is allowed, delivered to the party. Continuing on
termination of the administrative dispute, the plaintiffs filed again on October 18, 2022
to the defendant, a proposal for the adoption of a decision on execution, at a time when it is undoubtedly,
even according to the defendant's illegal interpretation of the legal provision, the solution became
executive. However, the defendant has not taken any action on the occasion to date
of the defendant's proposal, nor did he issue a decision on enforcement.

1.2. The plaintiffs are submitting this administrative complaint to the title court based on the article
Paragraph 3, paragraph 1, point 3 of the Administrative Disputes Act for the purpose of assessing illegality
failure of the defendant to act according to the regulation, in the specific case according to
provisions of the Law on General Administrative Procedure. In the specific case, how is it
on the occasion of the request for the protection of the plaintiff's rights, a procedure was conducted before the Agency for
protection of personal data, CLASS: UP/I-041-02/17-08/20, UR NO: 567-02/03-18-

01, in which the aforementioned decision was adopted, which established that the processing
personal data by L. K. through the video surveillance system recorded yard in
co-owned by the applicant at the address R. 5, without a lawful and appropriate purpose
legal basis, the plaintiffs point out that it is undoubtedly the case in this particular case
on administrative procedure, so the provisions of the Act on
general administrative procedure on the manner and time of issuing enforceability for the first instance
administrative act. According to the decision of L. K., filming of the yard in question is prohibited

and the ordered deletion of all records created by recording the yard or public road, a
which were collected without a legal basis. Since she did not act according to the decision, and the instruction of Fr
the legal remedy of the decision in question reads "No appeal is allowed against this decision",
in accordance with Article 133 paragraph 2 of the Act on General Administrative Procedure, the decision is
became enforceable already by delivery of the decision to the party, the plaintiffs were therefore established on 12
July 2021 submitted a request to the defendant for the adoption of a decision on enforcement.
1.3. Pursuant to Article 52 of the Act on the Implementation of the General Regulation on Data Protection,

The Personal Data Protection Agency is defined as a state body, and as such,
has the right and duty to monitor the implementation of the General Data Protection Regulation. After
established gross violation of the plaintiff's legal rights, by his passive behavior
the defendant himself participates in the repeated violation of the very provisions that he is obliged to protect.
Agency - which should play a key role in protecting privacy and personal data
citizens, which is the fundamental right of individuals in the territory of the European Union. Her
the task is not and should not be a simple determination of a violation of the legal provisions on processing

of personal data, must also ensure the elimination of such violation, as determined violation
the rights of individuals whose personal information is threatened would not just remain "dead
letter on paper". However, to this day, almost a year after
of the submitted request for the adoption of a decision on enforceability, the plaintiffs still have not
received the decision on execution, which the defendant in accordance with Articles 138 and 139 of the Act on
general administrative procedure is obliged to pass, thus denying them protection from abuse

personal data, guaranteed by international and national regulations. Such as
stated in the basic treaties of the EU, public authorities and courts of the member states in
to the greatest extent, they are responsible for the application of Union law. Therefore, without entering into
autonomy and independence of the defendant's scope, national authorities are obliged to enable
to the individual the full protection of his rights guaranteed at the EU level, and they are on the same
obliged by the General Data Protection Regulation, which is directly applicable in the Republic
To Croatia and all member states of the European Union from May 25, 2018. The largest

the threat to the protection of personal data and the plaintiff's rights is reflected in the preclusion of protection 3 Business number: UsI-4017/23-6

of their rights, which is defined by Article 135, Paragraph 3 of the General Administrative Law
procedure: Therefore, the situation regarding the defendant's guilt is completely absurd

interpretation of the Law on General Administrative Procedure, that is, provisions on enforceability
decision, as a result of which, due to such an interpretation, the plaintiffs in this October, 2023.
year, the 5-year limitation period for execution from Article 135, paragraph 3 of the Act has passed,
because of which L. K. will have a well-founded right to file an appeal against the execution decision
(if the same is ever passed, even if it is out of date). So, it is undoubtedly
the defendant, as a public law body within the meaning of the Law on General Administrative Procedure, despite
fulfillment of the assumptions provided by law, failed to act in accordance with his own

legal obligations and to decide on the plaintiff's request for a ruling on
execution.
1.4. They propose to adopt the claim and order the defendant within 30 days from
on the date of delivery of this verdict, to issue a decision on the execution of the decision of the Protection Agency
personal data CLASS: UP/I-041-02/17-08/20, UR NO: 567-02/03-18-01 of 3.
October 2018 and order the defendant to compensate the plaintiffs for the costs of the administrative dispute in

in the amount of 684.10 euros, all within 15 days.
2. In the response to the complaint, the defendant essentially states that the resolution in question
cannot perform since it is based on Article 135, paragraph 3 of the General Law
administrative procedure, the period of five years has expired from the day when the decision became
executory since L. K. received the decision on October 19, 2018. It points out that the plaintiffs in both
of the proposal for execution that they submitted to the defendant, they did not submit the evidence by which
confirm or prove that L. K. did not act according to the relevant decision or

to act contrary to the obligation. He believes that the allegations that the defendant did not spend any time are incorrect
one action regarding the proposal of the plaintiff, the future defendant, on August 2, 2023.
carried out control supervision, about which the Minutes of conducted supervision were drawn up
CLASS: 042-02/23-01/25, ID number: 567-12/13-23-05 from August 2, 2023.
was notified by email on August 24, 2023 to the plaintiffs' law office
and at the same time they were provided with the Minutes of the conducted supervision. Subject supervision
according to the statement of N. K., mother of L. K., the two cameras placed under the window are not working

because the recording storage device was destroyed, by direct inspection the authorized officer
it was determined that the cameras were not connected to any storage device or to the Internet and
N. K. stated that the recordings were deleted/removed. Therefore, the defendant does not see grounds for
issuing a decision on enforcement since the supervisory activities did not establish that L.
K. did not comply with the obligation imposed by the decision, and neither did the plaintiffs to the contrary
proved. He points out that the obligation to pass a decision on execution by which the proposal for
execution refused is not prescribed by the Law on General Administrative Procedure since

according to what was presented, it was not established that the obligation from the decision in question was not fulfilled.
He states that the Law on General Administrative Procedure prescribes in Article 139 paragraph 1.
only the obligation to issue a decision when the executor fails to comply with the enforcement decision
that is, in Article 140, paragraph 4, the obligation to issue a decision is prescribed when
postpones its execution, therefore the adoption of a decision on rejection is not prescribed
proposals. He proposes to reject the claim as unfounded.

3. Assessing the legality of the contested decision, the Court reviewed the court file and
file of the defendant. The court decided on the plaintiff's claim without holding a hearing
(Article 36, Paragraph 4 of the Administrative Disputes Act, Official Gazette, No. 20/10,
143/12., 152/14., 94/16., 29/17. and 110/21.; hereinafter ZUS).
4. The claim is unfounded.
5. According to the provisions of Article 135 of the Law on General Administrative Procedure (National
newspaper, number 47/09. and 110/21, hereinafter ZUP) execution is carried out ex officio

when the public interest dictates it. Enforcement that is in the interest of the party is carried out on 4 Business number: UsI-4017/23-6

proposal of the party (proposer of execution). Execution can also be carried out on the basis of
settlements of the parties. After the expiry of the period of five years from the day when the decision became

executory, the decision cannot be enforced, unless otherwise prescribed by law.
6. If it is an administrative matter passed ex officio, it shall be executed
as a rule, it is carried out ex officio. However, the decision was made according to the request
as a rule, it is carried out on the proposal of the party in whose interest it was adopted
decision that is the subject of execution (proposer of execution). It cannot be denied
identification for the initiation of the enforcement procedure for the person whose request is being processed
the procedure in which the executive title was passed. If it is not adopted according to the party's proposal

decision on execution, it is about the silence of the administration in the execution procedure.
7. An administrative dispute due to the silence of the administration can be initiated only by the party to whom
the competent authority did not make a decision on the request or appeal. If the competent authority does not
a decision on execution has been made, the party in whose interest the execution is carried out may,
under the assumptions of Article 23, paragraph 5 of the ZUS and Article 24, paragraph 2.
ZUS, file a lawsuit for failure to issue a decision.

8. In the specific case, the defendant, in the administrative matter regarding the request
plaintiff, issued a decision CLASS: UP/I-041-02/17-08/20, UR NO: 567-02/03-18-
01 of October 3, 2018, by which a third person is prohibited from filming the yard in
co-ownership of the plaintiffs and ordered to delete all records created by recording the yard,
and which were collected without a legal basis. The solution in question was submitted to the third party
to a person on October 19, 2018, when it became enforceable.
9. The plaintiffs proposed the adoption of a decision in a motion dated July 12, 2021

on execution with the claim that the said decision was not followed, after which
the defendant in the form of a letter, CLASS: UP/I-041-02/17-08/20, ID number: 567-02/03-21-14 from
October 10, 2021, stated that the conditions for execution were not met, referring to
the circumstance that the proceedings before the competent court (High Administrative Court of the Republic
Croatian).
10. The plaintiffs proposed again with the proposal of October 18, 2022
issuing a decision on execution stating that it is a judgment of the High Administrative Court

of the Republic of Croatia, business number Usž-2892/20 of September 15, 2022, rejected appeal by L.
K. and confirmed judgment of the Administrative Court in Zagreb, business number UsI-3777/18-14 dated
January 21, 2020
11. From the Minutes of the conducted supervision, CLASS: 042-02/23-01/25, CODE:
567-12/13-23-05 of August 2, 2023, it follows that the defendant carried out the control supervision
proceeding according to the aforementioned decision of October 3, 2018. The defendant on August 24
2023 informed the plaintiff's proxies about the results via electronic mail

control supervision, and the Minutes in question were delivered to them.
12. Without going into the question of whether on the occasion of the mentioned proposal of October 18
In 2022, the defendant should have made a decision on the rejection of the proposal for execution, after he
established that the executor acted according to the executive decision, it is obvious that it is in the sense of the article
135, paragraph 3 of the ZUP expired five years from the day the decision became
enforceable and that the defendant cannot issue a decision on execution, and therefore neither can the administrative court

cannot order the adoption of a decision on enforcement.
13. Considering all the above, it was decided as in the sentence of this judgment
applying the provisions of Article 57, paragraph 1 of the ZUS.

In Zagreb, February 5, 2024.

Referee:

Ante Drezga, Acting Director 5 Business number: UsI-4017/23-6

Legal remedy:
An appeal to the High Administrative Court of the Republic of Croatia is allowed against this verdict.
The appeal is filed through this court in a sufficient number of copies for the court and all parties
in the dispute, within 15 days from the date of delivery of the judgment.

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