VGH München – 5 CS 19.2087
From GDPRhub
| VGH München - 5 CS 19.2087 | |
|---|---|
 | |
| Court: | VGH München (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 4(1) GDPR Article 6(1)(c) GDPR Article 86 GDPR Article 6(3) GDPR Article 8 and 11 REGULATION (EU) 2017/625 §§ 47, 52. 53, 63, 66 and 68 GKG § 40(1a) LFGB Article 5(1) GG Article 19(4) GG §§ 1 - 6 VIG §§ 80, 80a, 86, 99, 108, 146, 152, 154, 162 VwGO |
| Decided: | 15.04.2020 |
| Published: | |
| Parties: | Butcher shop chain Public authority responsible for food quality control |
| National Case Number/Name: | 5 CS 19.2087 |
| European Case Law Identifier: | |
| Appeal from: | VG München (Germany) M 32 SN 19.2574 |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | BAYERN.RECHT (in German) |
| Initial Contributor: | n/a |
The Bavarian Administrative Court in Munich (VGH München) held that the German Consumer Information Act (VIG) complies with Article 86 GDPR regarding the disclosure of personal data in connection with quality checks of consumer goods.
Further, it held that the minimum requirements regarding such disclosure under Article 8(5) of the Regulation (EU) 2017/625 do not apply, if the Union or Member State Law (as e.g. the VIG) stipulate an obligation to publish the results of checks
English Summary
Facts
An internet platform ("Frag den Staat") requested the respondent (a public authority responsible for food quality control) to disclose the results of food regulatory audits regarding one of the complainant's butcher shops. This information would also contain personal data. After hearing the complainant, the respondent issued a decision, that it would disclose this information to the internet platform within ten days.
The complainant filed a lawsuit against that decision with the Administrative Court München, requesting i.a. a temporary injunction to prevent the disclosure of the audit results. The Administrative Court München waived this lawsuit. Subsequently the complainant appealed with the VG München, requesting to prohibit the respondent from publishing the information.
Dispute
Does the German Consumer Information Act (Verbraucherinformationsgesetz - VIG), which grants consumers access to certain information in connection with quality checks of consumer goods comply with the opening clause in Article 86 GDPR if the disclosure involves personal data?
Holding
The court held that the VIG complies with Article 86 GDPR: The provisions of this opening clause are taken into account by the Consumer Information Act with its graduated regulatory model which considers mutual interests of both the consumer requesting access and the data subject concerned.
Insofar as the complainant fears that the internet platform will breach data protection laws in the event of subsequent further use of the information disclosed, such a breach would not be attributable to the respondent.
In addition, the court held that Article 8(5) of the Regulation (EU) 2017/625 (Official Controls Regulation) only constitutes minimum requirements for allowing the disclosure of the results of official controls. It does not apply where there is a legal obligation to publish or disclose such information ("without prejudice to situations where disclosure is required by Union or national legislation"). Hence, the court held, that the Article 8 (1) to (4) of the Regulation (EU) 2017/625, which contain confidentiality obligations of the competent authorities did not apply, as the German Consumer Information Act specifically entitles consumers to access such information.
Lastly, the court also assessed the case under German Constitution (Grundgesetz - GG) but did not find any violations.
As a result, the disclosure of the audit results by the respondent would be lawful.
Comment
Share your comment here!
Further Resources
Share blogs or news articles here!
English Machine Translation of the Decision
The decision below is a machine translation of the original. Please refer to the German original for more details.
VGH Munich, decision of 15.04.2020 - 5 CS 19.2087
Transmission of the results of a food law audit to an Internet platform operator
Standard chains:
DSGVO Art. 4 No. 1, No. 2, Art. 6 para. 1 sentence 1 lit. c, para. 3 sentence 1, Art. 86
GKG § 47 (1), § 52 (2), § 53 (2) no. 2, § 63 (3) sentence 1 no. 2, § 66 (3) sentence 3, § 68 (1) sentence 5
LFGB § 40 paragraph 1a
Basic Law Article 5(1), first sentence
VIG § 1, § 2, § 3, § 4 para. 4, § 5 para. 1, para. 4 p. 1, § 6 para. 1, para. 3, para. 4
Regulation (EU) 2017/625 Art. 8, Art. 11(2)
VwGO § 80 Paragraph 2 S. 1 No. 3, Paragraph 5, § 80a Paragraph 3 S. 2, § 86 Paragraph 1 S. 1, § 99 Paragraph 2, § 108 Paragraph 1 S. 1, § 146 Paragraph 4 S. 1, S. 6, § 152 Paragraph 1, § 154 Paragraph 2, Paragraph 3, § 162 Paragraph 3
Basic Law Article 19(4)
Guiding principles:
1 The Consumer Information Act, with its graduated regulatory model that takes account of mutual interests, takes into account the requirements of the opening clause of Art. 86 DSGVO with regard to the disclosure of personal data. (para. 25)
2 The minimum requirements for the publication of information set out in Article 8(5) of Regulation (EU) 2017/625 do not apply if there is an obligation under Union law or national law - such as under the Consumer Information Act - to disseminate the results of the checks. (recitals 31 - 32)
Buzzwords:
Access to information in accordance with the Consumer Information Act, transmission of the results of a company audit under food law, application via the Internet platform "Ask the State" within the framework of the "TopfSecret" initiative, applicability of the new EU control regulation, right to access information, personal data, unsuccessful complaint, butchery operator, company audit under food law, control report, Ask the State, Internet platform, TopfSecret
Lower court:
VG Munich, decision of 16.09.2019 - M 32 SN 19.2574
Place where it was found:
BeckRS 2020, 6798
Tenor
I. The appeal against the decision of the Munich Administrative Court of 16 September 2019 is dismissed.
II. order the applicant to pay the costs of the appeal proceedings. The party receiving the appeal shall bear its own extrajudicial costs.
III. the amount in dispute shall be fixed at EUR 5,000 for each of the two instances, with an alteration to the amount fixed at first instance
Reasons
I.
1
The applicant, who runs a butcher's shop with several branches in the defendant's urban area, objects to the transmission of the results of a food law audit ('the audit report') to the person invited ('the VIG applicant').
2
In April 2019, the summonsed party applied to the defendant via the internet platform "Ask the State" within the framework of the initiative "TopfSecret" for information on the last two food law audits at the applicant's branch at M.-Platz. In the event of an objection, he also requested that the corresponding inspection reports be issued, requesting a response in electronic form. In a letter dated 26 April 2019, the respondent heard the applicant on the intended publication. In the letter of hearing it was stated that the branch had been inspected on 8 March 2018 and 7 November 2018, but that there had been no infringements during the follow-up inspection on 7 November 2018; the attached inspection report of 8 March 2018 should therefore be sent. The applicant did not agree to the provision of information.
3
By decision of 14 May 2019, the defendant granted the application of the party summoned and announced the publication of the dates of the last two inspections of establishments under food law and the publication of the corresponding inspection report. The information would be provided in writing ten days after the notification of the notice. The applicant was informed of this by letter of the same day, which was referred to as a "decision" and contained a notice of appeal: "against this decision". The letter to the applicant was accompanied by a copy of the notice sent to the person who had been notified and the control report of 8 March 2018.
4
On 27 May 2019, the applicant brought an action against the decision addressed to the appellant and at the same time applied for interim relief. The Administrative Court of Munich rejected the urgent application by order dated September 16, 2019. The applicant challenges this with her appeal, in which she applies for interim relief,
5
order, amending the order of the Munich Administrative Court of 16 September 2019, the suspensive effect of the action against the defendant's decision of 14 May 2019 addressed to the party summoned, suspend enforcement of the decision and prohibit the defendant from publishing information
6
The defendant claims that the Court should
7
dismiss the appeal.
8
It announced that, if information were to be provided after the court proceedings had been concluded, it would send the results of the checks to the person summoned in the form currently used (Bavaria-wide). In a written statement dated 1 December 2019, the summoned party submitted its comments on the appeal proceedings without submitting a request of its own.
9
For further details, please refer to the court and authority files.
II.
10
1. the admissible appeal against the order of the Administrative Court of Munich of 16 September 2019 remains unsuccessful on the merits at the time relevant for the Senate's decision (in addition a). The Administrative Court rightly rejected the application - which, if interpreted correctly, was directed solely at ordering the suspensive effect of the action under § 80a.3 sentence 2, § 80.5 sentence 1 VwGO - on the grounds that the applicant's appeal on the merits of the case cannot succeed (see b) above) and that a weighing of interests would not lead to a different result (see c) above). The grounds of appeal, which the applicant has presented or supplemented in due time and which, pursuant to § 146.4 sentences 1 and 6 of the Rules of the Administrative Courts (VwGO), form the examination framework for the Senate, do not justify a different assessment.
11
a) For the question whether the applicant's application for urgent legal protection against the disclosure of the requested information is successful, the circumstances at the time of the challenged ruling in May 2019 are not relevant, but the factual and legal situation at the time of the court's decision in the appeal proceedings. In this respect, it is not the procedural roles of the parties involved (which are accidental or predetermined by the statutory construction) - in this case in the form of the third-party action for annulment or the urgent application under § 80a.3 VwGO - that are decisive, but the underlying substantive law (stRspr; see only BVerwG, U.v. 29 January 2009 - 4 C 16.07 - BVerwGE 133, 98 marginal no. 11). Since the right of the person summoned to the hearing to have access to information forms the substantive core of the legal dispute, it must therefore be examined whether this right (still) exists at the time of the Senate's decision (see also VGH BW, B.v. 13 December 2019 - 10 S 1891/19 - juris para. 5). There is no "most-favoured nation rule" as in third-party constellations under building law, where a claim of the developer, once created, continues to exist in principle on the basis of Article 14.1 of the Basic Law, for lack of a comparable fundamental right to support the request for information. Thus, any changes in the factual and legal situation after the challenged ruling was issued must be taken into account by the court. Insofar as such new circumstances only occurred during the appeal proceedings, they can also be asserted by the complainant after the expiry of the period for giving reasons under § 146.4 sentence 1 of the Rules of the Administrative Courts (see Happ in Eyermann, VwGO, 15th ed. 2019, § 146 marginal nos. 19, 29; for more details, Guckelberger in Sodan/Ziekow, VwGO, 5th ed. 2018, § 146 marginal nos. 10 et seq.) The applicant has done so here by referring to Regulation (EU) No. 2017/625, which entered into force on 14 December 2019. Pursuant to § 146.4 sentence 6 VwGO, the Senate must also examine the reasons given for this.
12
(b) the administrative court has rightly rejected the application for an order suspending the effect of the action Admittedly, the urgent application - like the action for annulment in the main action - is admissible; in particular, the applicant has correctly directed its appeal against the notice of 14 May 2019 addressed to the summonsed party and not against the defendant's letter of the same date addressed to it, which is misleadingly referred to as a "decision" and is accompanied by a notice of appeal: "against this notice". The action is, however, in all probability unfounded, because the decision based on the Consumer Information Act also proves to be lawful at the present time. The scope of application of the Act is open (aa). The person summoned is entitled to claim; his request is not abusive (bb). The Administrative Court has correctly affirmed the factual requirements for a claim without examining the inspection reports (cc). Reasons for exclusion and limitation do not apply (dd). The provision of information does not violate the applicant's fundamental rights, even if the person invited to the hearing should continue to use the information obtained (ee). The manner in which the information is accessed is not objectionable (ff). Union law requirements cannot be countered by the right to information (gg).
13
aa) The asserted claim for access to information is based on the Act on the Improvement of Health-Related Consumer Information (Consumer Information Act - VIG), which applies in the event of a dispute.
14
(1) The scope of application of the Consumer Information Act is not blocked by the purpose described in Section 1 VIG. The applicant's objection that information of a general nature, such as the inspection reports in dispute, is not covered due to a lack of product reference, has been overtaken by the case-law of the Federal Administrative Court. As the Court of Appeal decided following the Bavarian Administrative Court of Justice (BayVGH, U.v. 16 February 2017 - 20 BV 15.2208 - LRE 74, 122 = juris marginal no. 37), the - broadly interpreted - right to information under Section 2 (1) sentence 1 no. 1 VIG is not limited to product-related information (BVerwG, U.v. 29 August 2019 - 7 C 29.17 - juris marginal no. 24 et seq. The right of access to information covers not only specific products or consumer products from which health risks may arise, but also processes such as the manufacture, production, storage and delivery of products.
15
(2) To the extent that the applicant now refers to the fact that the Control Regulation (EC) No 882/2004 cited by the Federal Administrative Court in this connection expired at the end of 13 December 2019, the context under Union law does not require a restrictive normative understanding of the Consumer Information Act. As the Federal Administrative Court has stated, there is nothing in Article 7 of Regulation (EC) No. 882/2004 to suggest that information on company inspections and complaints is subject to the duty of confidentiality and that only information on health hazards may be made available (BVerwG, loc. cit., nos. 26, 55). This purpose is also reflected in the successor Regulation (EU) No. 2017/625 ("new EU Control Regulation"), as is shown, for example, by the comparison of its Recital No. 13 with Recital No. 4 of Regulation 882/2004, which was used by the Federal Administrative Court. Moreover, the content requirements of the new EU Control Regulation do not affect the right of access to information under the Consumer Information Act (see below).
16
(bb) the person invited is entitled to claim, without the ground for refusal of the abuse of rights being able to be invoked against him or her
17
(1) Pursuant to Section 2 (1) sentence 1 of the VIG, "everyone" is entitled to free access to the information specified therein in accordance with this Act. According to the wording and history of its origin, this right is an unconditional right of everyone which does not depend on consumer status (see BVerwG, loc.cit., margin no. 14 et seq.) The invited VIG applicant, a natural person, is entitled to it without further ado. Insofar as the applicant wishes to deny the invited person entitlement to claim because he acts as a straw man without self-interest, this is not to be followed. As the Federal Administrative Court has stated following the case-law of the Bavarian Administrative Court of Justice (loc.cit., marginal no. 26 et seq.), the Consumer Information Act aims precisely at ensuring broad access to information. Individuals should not only be able to make an informed consumer decision, but at the same time to act as guardians of the general interest (BVerwG, loc.cit., marginal no. 15; see already BayVGH, B.v. 6 July 2015 - 20 ZB 14.977 - juris marginal no. 11). It is just as irrelevant whether the "TopfSecret" information campaign in the background enjoys the protection of the freedom of opinion under Article 5.1 sentence 1 of the Basic Law as it is whether it is a "straw man" - which, incidentally, the person summoned to the hearing denied - or whether it enjoys the protection of the freedom of opinion under Article 5.1 sentence 1 of the Basic Law. The claim to access to information is based on § 2.1 sentence 1 no. 1 VIG and not on Article 5.1 sentence 1 of the Basic Law.
18
(2) The ground for refusal of the abuse of rights under Section 4(4) sentence 1 VIG, which applies in particular to superfluous inquiries (cf. Section 4(4) sentence 2 VIG) or querulatory requests, is likewise not relevant in the case of applications made in the context of a third-party campaign (see also VGH BW, loc. cit, marginal 29; NdsOVG, B.v. 16.1.2020 - 2 ME 707/19 - juris marginal 14; OVG NW, B.v. 16.1.2020 - 15 B 814/19 - juris marginal 31 et seq.; left open by OVG RP, B.v. 15.1.2020 - 10 B 11634/19 - juris marginal 6). In this context, it may be left open whether § 4.4 VIG is intended to protect third parties or only serves the general interest in a functioning administration (see BVerwG, loc.cit., marginal no. 21 et seq.) A campaign-like re-use of information is specifically laid down in the Consumer Information Act and corresponds to its objective. This does not constitute a breach of the constitution (cf. ee below), so that the interpretation of the abuse clause in § 4.4 VIG in conformity with the constitution, as called for in the literature (Gärditz, LMuR 2020, 62/67 f.), is not necessary. A search for the "true" motive underlying the exercise of a right to which the applicant is entitled under the law finds no support in the case law on abuse of rights (see BVerwG, B.v. 17.7.2019 - 3 BN 2.18 - NVwZ-RR 2019, 1027 marginal no. 15 et seq. on the question of an application in abuse of rights in the review proceedings).
19
cc) In addition to the personal requirements, the material requirements for entitlement are also fulfilled. The disputed inspection reports on food law audits contain data on "detected unacceptable deviations". The fact that the inspection reports are a suitable subject of the claim for access to information can be established even without knowledge of their contents. The applicant has not raised any objections to the defendant's announcement that it will send the inspection results to the person summoned in the revised text compared to the original version, which now corresponds to the uniform administrative practice throughout Bavaria, at least from the point of view of the amended form. Nor are any such reservations apparent to the court.
20
(1) Pursuant to Section 2 (1) sentence 1 no. 1 VIG, the right of access refers to all data on officially "detected non-permissible deviations" from certain (food) legal requirements. In the case law of the Federal Administrative Court, the interpretation of this constituent element of the offence has now been clarified. The term "non-permissible deviation", which has replaced the former characteristic of "violation", covers any objective failure to comply with legal requirements. Subjective elements such as culpability or reproachfulness are just as irrelevant as whether there has been a violation of provisions of administrative offences or criminal law. In the interest of prompt information, the "not permissible deviation" does not have to have been established by administrative act. It is sufficient, but also necessary, for the competent authority to have conclusively established the deviation on record, taking into account the facts of the case and the relevant legal provisions (see on the whole BVerwG, U.v. 29 August 2019, loc. cit., marginals 30, 32 following BayVGH, U.v. 16 February 2017, loc. cit., marginals 40 et seq.; see also NdsOVG, loc. cit.)
21
(2) The inspection reports drawn up by the defendant meet these requirements both in their previous and current form. According to the defendant's submission, which was illustrated by the submission of corresponding sample forms (cf. the pleading of 19 December 2019 including annexes), the inspection reports were and are structured in such a way that the defects found are first described in factual terms and then legally assessed, i.e. qualified as norm-related objective violations or non-infringements (cf. Annexes 1 and 3). The relevant legal norms were also already mentioned in the originally used control reports (see submissions of 19 December 2019 and 11 March 2020); the applicant has not contested this. The identification of the deficiencies is at the same time connected with the request to remedy the violations, which can be seen from the line "remedy" in the detailed findings, from the overall result, and from the finally documented measure and its status. This procedure makes it clear that, from the defendant's point of view, a final assessment of the factual and legal situation has been made, which justifies a deviation from the norm that has been recorded in the files. The version of the inspection reports intended for issue to the VIG applicants differs from the version used internally in that it is reduced to identified inadmissible deviations and adjusted for personal data, such as the name of the food inspector. These data, which were previously subsequently blacked out (cf. Appendix 2), are now no longer included in the form from the outset (cf. Appendix 4). The applicant does not deny that the contested inspection report follows the abstract scheme presented in its structure and content.
22
(3) Insofar as the applicant nevertheless takes the view that a court decision without knowledge of the specific inspection report would violate the duty of official investigation under Section 86 of the German Rules of the Administrative Courts (VwGO) and the requirement of effective legal protection under Article 19.4 of the Basic Law, this is not to be followed. The judicial conviction required under § 108.1 sentence 1 VwGO, which presupposes a clarification of the facts of the case that meets the requirements of § 86.1 sentence 1 VwGO, can be formed with a sufficient degree of certainty on the basis of the submissions of the parties involved and the other contents of the file. The defendant's explanations of the origin, structure and content of the control report which the applicant received in the official hearing procedure are sufficient for the court's assessment of whether the constituent element of the offence "detected inadmissible deviations" is fulfilled in the case of a dispute. The question as to which specific deviation from the standard has been established is not relevant for the existence of the right to information. The procedural claim to access to information does not depend on the content or the quality of the documented finding of deviation, so that the abstract paraphrases of the respondent are sufficient for the assessment. It is not necessary to carry out in camera proceedings under § 99.2 VwGO in order to convince the court of the nature of the "non-permissible deviation found" (see OVG NW, loc.cit., marginal no. 16 et seq.) This was also assumed by the Bayerische Verwaltungsgerichtshof in the main proceedings underlying the decision of the Federal Administrative Court (see BayVGH, loc.cit., marginal no. 52).
23
dd) The release of the requested information is subject to grounds for exclusion and restriction pursuant to § 2 para. 1 sentence 2 in conjunction with § 3 VIG do not prevent the publication of the requested information.
24
(1) According to § 3 sentence 1 no. 2 letter c VIG, the right to information does not exist on account of conflicting private interests if the information requested would reveal business and trade secrets. However, by virtue of the statutory evaluation of § 3 sentence 5 no. 1 VIG, any impermissible deviations identified are not to be classified from the outset as business and trade secrets in which the companies could have an interest worthy of protection (cf. BVerwG, loc.cit., margin no. 34 with further references). In § 3 sentence 5 no. 1 VIG, the legislature itself weighed the conflicting interests and gave priority to the public interest in information. Irrespective of whether the deviations from the standards established in inspection reports under food law can be regarded conceptually as trade and business secrets at all, the reason for exclusion in § 3 sentence 1 no. 2 letter thus applies. c VIG does not apply in favour of the applicant.
25
(2) Nor can the protection of personal data under Section 3 sentence 1 no. 2 letter a VIG be invoked against the right to information. Insofar as the release of information by the defendant should be regarded as processing of personal data within the meaning of Article 4 Nos. 1 and 2 DPA, the transaction would be subject to the right of access under Article 6(1), first sentence, letter (a) DPA. c, para. 3 sentence 1 DPA (see VGH BW, loc. cit., marginal no. 25). The party invited to the hearing is aware of any personal data of the applicant anyway, provided that it uses them in its company name. Nor are the data protection concerns expressed by the applicant with reference to Article 86 DPA (see Wolff, LMuR 2020, 1 et seq.) justified. Under Art. 86 DSGVO, personal data in official documents may be disclosed by the authority in order to reconcile public access to official documents with the right to protection of personal data. The provisions of this opening clause, which contains a regulatory power of the national legislature for the right of access to information (cf. BayVGH, U.v. 13 May 2019 - 4 B 18.1515 - NJW 2020, 85 para. 28), are taken into account by the Consumer Information Act with its graduated regulatory model which takes account of mutual interests. Insofar as the applicant fears violations of data protection law by the person invited or the TopfSecret platform in the event of a subsequent further use of the information (see Becker, LMuR 2020, 57/60 f.), such a violation would not be attributable to the respondent (see also below).
26
ee) The applicant's complaint that the official granting or possible private dissemination of the information violates her fundamental rights does not help the complaint to succeed either.
27
(1) The provision of information in accordance with Section 2 (1) sentence 1 no. 1 of the VIG, which is subject to an application, does not violate the freedom of occupation under Article 12 (1) of the Basic Law. Admittedly, access to information under the Consumer Information Act must be measured against Article 12.1 of the Basic Law because it is directly aimed at the market conditions of individualised companies, can influence consumer behaviour and in this way can indirectly and de facto change the market and competitive situation to the economic disadvantage of the companies concerned (BVerwG, loc.cit., marginal no. 42 et seq.) In this respect, the provision of information that is dependent on an application pursuant to § 4.1 sentence 1 VIG is no different from active state information activities pursuant to § 40.1a LFGB, which in its targeting and effect is equivalent to an encroachment on the freedom of occupation (BVerfG, B.v. 21.3.2018 - 1 BvF 1/13 - BVerfGE 148, 40 marginal no. 26 et seq.) There are, however, major differences between the two types of information, which preclude the possibility of automatically applying the Federal Constitutional Court's case-law on active state information behaviour, in particular the time limit on the dissemination of information that is called for there, to the granting of information subject to an application (BVerwG, loc. cit., marginal no. 47). The active information behaviour of the sovereign provides the information transmitted with broad attention and increased effectiveness on the competitive behaviour of market participants. The effects of an application-bound provision of information fall far short of this in terms of quality and quantity. The Federal Administrative Court has considered the encroachment on freedom of occupation and profession, which is nevertheless associated with Section 2 (1) sentence 1 no. 1 VIG, to be justified (BVerwG, loc.cit., margin no. 48 et seq.; kritisch Gärditz, LMuR 2020, 62/64 et seq. The legislature has taken sufficient protective measures to avoid unacceptable consequences with the duty to inform the body required to provide information under Section 6 (3) sentence 2 VIG, the duty to rectify the situation (Section 6 (4) VIG) and the procedural involvement of the third parties concerned (Section 5 (1) sentence 1 VIG).
28
(2) Insofar as the applicant now focuses on the fundamental responsibility of state bodies to protect the fundamental rights of the public sector for any private further dissemination of the information, this does not lead to a different assessment. It is already not evident that in the past, the summoned party or the organization behind it would have committed legal violations in connection with the publication of control reports. Incidentally, the mere fact that the control report in dispute could be published on the TopfSecret Internet platform does not change the fact that in this case constellation, too, the granting of information is subject to an application and thus primarily a state benefit (see OVG NW, loc.cit., para. 59 et seq.) How the party receiving the invitation handles the business and personal information received is basically left up to him or her and is thus fundamentally outside the official sphere of responsibility and influence. This also applies to the expected posting of the control report on the privately operated platform TopfSecret, because such a publication obviously cannot claim any state authority. The merely abstract possibility of an unlawful private further use of the information is not sufficient, without the occurrence of special circumstances, to see in it an equivalent of intervention attributable to the respondent which would require separate justification. Insofar as the applicant is concerned about possible (future) additions or time limits to the use of the information in relation to the person summoned, in particular about the "right to forget" which also exists in business transactions (generally BVerfG, B.v. 6.11.2019 - 1 BvR 16/13 - NJW 2020, 300 marginal no. 75 et seq.), it must pursue the corresponding claims through civil law.
29
ff) As already explained, there are no objections to the way in which information is accessed against the background of Section 6 (1) VIG. The respondent and the person invited do not have to be referred to the oral or telephone access to information which the applicant considers to be preferable. There are no indications that the applicant is claiming that the authority is overloaded pursuant to Section 4 (3) no. 4 VIG. In particular, the respondent herself does not see any danger that the application of the person summoned could jeopardise the proper fulfilment of her duties. She expressly emphasised this in her statement of objection. It can therefore also be left open in this respect whether an undertaking concerned can rely on this ground for exclusion.
30
gg) Finally, contrary to the applicant's view, the requested provision of information does not violate Regulation (EU) No. 2017/625, which, according to Article 167 thereof, entered into force on 14 December 2019 and must therefore be taken into account by the Senate. Admittedly, in the absence of a corresponding transitional provision, the temporal scope of application of the new EU Control Regulation is likely to be opened up, because in this respect the date of the decision on the publication of the official control results is decisive (see BayVGH, B.v. 28 November 2019 - 20 CE 19.1995 - juris para. 59). However, the right of the person summoned to the hearing to have access to information remains unaffected by the new provisions of Union law.
31
(1) Pursuant to Art. 8(5) of Regulation 2017/625 , the Member State control authorities - which are in principle bound to secrecy - are not prevented from publishing or otherwise making available information on the outcome of official controls if certain conditions are met. The restrictive conditions, which include the possibility of the entrepreneur concerned to make comments (letter a) and the consideration of his comments (letter b), expressly apply "without prejudice, sans préjudice, to cases where disclosure is required under Union or national law" (cf. also recital 31 of Regulation 2017/625). Thus, only a minimum standard under Union law is formulated for those cases in which public authorities may act despite their confidentiality obligations; cases in which publication must take place under Union or national law remain unaffected by this.
32
According to national law ("required by national legislation", "exigée par la législation nationale"), the dissemination of information is required if it is not at the discretion of the authorities but is mandatory if the conditions are met (see VG Würzburg, B.v. 28.1.2020 - W 8 E 19.1669 - juris marginal no. 48; Rathke in Zipfel/Rathke, Lebensmittelrecht, Art. 8 VO (EU) 2017/625 marginal no. 9, 21 ff.) This is the case with the claim provision in § 2 VIG which establishes a subjective right (see Rossi in Gersdorf/Paal, BeckOK Informations- und Medienrecht, § 2 VIG nos. 1, 4). The restrictive provisions of Union law therefore do not apply to the application-based access to information under the Consumer Information Act (see also the official publication under § 40.1a LFBG VG Würzburg, loc.cit., marginal no. 48; loc.cit. in an obiter dictum BayVGH, B.v. 28.11.2019 - 20 CE 19.1995 - juris marginal no. 59). Even if one wanted to assess this differently, disclosure of control reports on the basis of § 2.1 sentence 1 no. 1 VIG should still be possible in principle if - as here - the entrepreneur concerned was previously heard and his comments were taken into account (see OVG NW, loc.cit., marginal no. 77).
33
(2) Nor can the applicant derive anything for itself from Article 11(2) of Regulation 2017/625 which it has further brought into play. This provision obliges the competent authorities to establish certain correction procedures and provides for similar safeguards as those contained in the Consumer Information Act in Section 6(3) second sentence and Section 6(4). In contrast to the structure of the Consumer Information Act, however, the transparency formulated in Art. 11 of Regulation 2017/625 as a guiding principle and relating to the official control activities is not subject to a subjective claim (see Heinicke in Zipfel/Rathke, loc. cit.) Thus, Art. 11 para. 1 is limited to the communication of a general picture (para. 1) or to the communication of aggregated information (para. 2), but does not provide for publications relating to individual cases (see Rathke in Zipfel/Rathke, loc.cit., Art. 11 of the Regulation 2017/625 marginal no. 9 f.). Art. 11 para. 2 is also addressed to the member state authorities and cannot establish any subjective rights of individuals. The provision does not contain a direct obligation to correct erroneous information in concrete individual cases (see Rathke in Zipfel/Rathke, loc. cit., Art. 11 of the Regulation 2017/625, para. 21). Moreover, no indications that the control report in dispute contains "any inaccuracies" ("toute inexactitude") within the meaning of this provision which require correction have been presented or are otherwise apparent.
34
c) Since, according to all of the above, the ruling proves to be lawful when considered in a way that goes beyond a mere summary review, the weighing of conflicting interests is no longer relevant to the decision; the impact assessment must rather be based on the legal assessment of § 5.4 VIG (see VGH BW, loc. cit., marginal no. 42 et seq.; OVG NW, loc. cit.) The anticipation of the main proceedings criticised by the applicant (see OVG Hamburg, B.v. 14.10.2019 - 5 Bs 149/19 - ZLR 2019, 866 = juris para. 19 et seq.) is based on the normative structure of the Consumer Information Act. In § 2.1 sentence 1 no. 1 VIG, the legislature has decided, without infringing higher-ranking law, to give the interest of citizens in information a generally higher priority than the interest of the business concerned in keeping information on food law complaints confidential (see BVerwG, loc.cit., marginal no. 13). In the absence of recognisable special features, the basic legal decision for immediate enforcement pursuant to § 80.2 sentence 1 no. 3 VwGO in conjunction with § 80.2 sentence 1 no. 3 VwGO remains valid. § Section 5(4) sentence 1 VIG, which can only be breached in the event of successful recourse to summary proceedings pursuant to Section 5(4) sentences 2 and 3 VIG. In future, the defendant should expressly draw the companies concerned's attention to this legal protection possibility in the information on legal remedies.
35
2. the decision on costs is based on Paragraph 154(2) of the VwGO. Since the summoned person not represented by a lawyer has not filed an application and has therefore not exposed himself to any cost risk, it is equitable that he should bear any extrajudicial costs himself (cf. § 154.3, § 162.3 VwGO).
36
3 The determination of the amount in dispute is based on § 47.1, § 53.2 no. 2, § 52.2 of the Basic Law. In contrast to the Administrative Court, the Senate refrains from reducing the amount in dispute in line with no. 1.5 of the Catalogue of Amounts in Litigation for Administrative Jurisdiction 2013. As explained above, the reciprocal requests are associated with an anticipation of the principal matter. Information once provided cannot be retrieved; conversely, the information requested by the party summoned would largely lose its relevance if the urgent application or appeal were successful due to the time required for proceedings on the merits (see NdsOVG, loc. cit., marginal no. 19). The Senate therefore makes use of its power under § 63.3 sentence 1 no. 2 of the Basic Law to change the first-instance determination of the amount in dispute ex officio.
37
This decision is unappealable (§ 152, Subsection 1, VwGO; § 68, Subsection 1, Sentence 5, § 66, Subsection 3, Sentence 3, GKG).
