VGH München - 6 ZB 23.530
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| VGH München - 6 ZB 23.530 | |
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| Court: | VGH München (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 5(1) GDPR Article 16 GDPR § 124 Abs. 2 Nr. 1 VwGO § 1004 BGB § 112 Abs. 1 S. 1 BBG, § 113 Abs. 1, Abs. 2 BBG § 16 Abs. 3 BDG |
| Decided: | 29.06.2023 |
| Published: | 13.03.2024 |
| Parties: | A Bundespolizei |
| National Case Number/Name: | 6 ZB 23.530 |
| European Case Law Identifier: | |
| Appeal from: | VG Regensburg (Germany) RO 1 K 21.716 |
| Appeal to: | Not appealed |
| Original Language(s): | German |
| Original Source: | Bayern.Recht (in German) |
| Initial Contributor: | Ludwig Ederle |
The Administrative Court dismissed the lawsuit regarding the requests to compel the defendant to remove the entire file regarding the disciplinary proceedings of the plaintiff, as well as all documents from the plaintiff's personnel file
English Summary
Facts
A plaintiff servant who worked for the defendant sued to get his ability to work reinstated, as allowed by German law (Section 46 BBG). The lawsuit was most likely against the German government, but the court decision (which hasn't been made public yet) didn't clarify this.
The dispute centered on whether certain documents should be removed from the man's personnel file and other police records. These documents included disciplinary files, a statement about a "reactivation review," and related information. Both the plaintiff and the defendant disagreed with the initial court ruling issued by the Administrative Court of Regensburg (judgment of January 25, 2023) and appealed.
The plaintiff wanted more documents deleted, while the defendant appealed to keep the "reactivation review" statement.
Holding
The court ruled in favor of the defendant. The court found that the documents were relevant to the plaintiff's employment history and should be kept. The court also found that the plaintiff did not have a legitimate interest in having the documents removed. First there is a moot point: Even if the court ruled in the plaintiff's favor, it wouldn't change anything. The defendant already agreed to remove the documents. Also there is no legal basis: the laws cited by the plaintiff (§§ 112 & 113 BBG and GDPR) don't guarantee removal of documents unless proven false or irrelevant. Personnel files aim to present a complete picture of the employee's history, including disciplinary actions. Removing documents generally goes against this goal. There is only an exception for serious misconduct: only serious misconduct accusations might warrant removal to allow for future career advancement without the burden of past issues. In simpler terms, the court ruled that since the documents were already being removed, there was no need for a formal decision.
Comment
German law prioritizes a complete record in personnel files, and only serious accusations might qualify for removal. Also, the decision also shows the importance of a comprehensive statement of grounds for permission to appeal. What the plaintiff and defendant don't submit doesn't get considered by the Court.
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English Machine Translation of the Decision
The decision below is a machine translation of the German original. Please refer to the German original for more details.
Title: Claim for removal and destruction of documents from the personnel file - unsuccessful mutual applications for permission to appeal Norm chains: BBG § 112 Paragraph 1 Sentence 1, § 113 Paragraph 1, Paragraph 2 GDPR Art. 5 Para. 1, Art. 16 VwGO Section 124 Paragraph 2 No. 1 BDG § 16 paragraph 3 BGB § 1004 Guiding principles: 1. Information about health impairments does not contain any accusation and cannot be considered as the subject of the resocialization idea underlying the repayment provision in Section 112 Paragraph 1 Sentence 1 No. 2 BBG. (Rn. 9) (editorial principle) 2. The data collected in the personnel file during the existence of a civil servant relationship generally remains appropriate, relevant and limited to the necessary extent within the meaning of Article 5 Paragraph 1 Letter c GDPR even if the civil servant concerned leaves the civil service relationship. (Rn. 12) (editorial principle) 3. As a substantive legal protective measure in favor of the civil servant, the prohibition of exploitation (§ 16 para. 1 BDG) and the repayment requirement are intended to prevent him from being accused of a punished official offense without a time limit and from having a detrimental effect on him. (Rn. 17) (editorial principle) Tags: Federal police, reciprocal applications for admission of appeal, right to removal of documents, personnel files, factual files, principle of value-free, as complete as possible documentation of the civil service relationship, idea of rehabilitation, public law defense claim in the form of a right to disposal, ban on use and the requirement of repayment, violation of the principle of objectivity, reciprocal Applications for admission of appeal, removal of documents from the personnel file, reactivation, statement, disciplinary proceedings, interest in legal protection, right to removal and destruction, requirement for repayment Lower court: VG Regensburg, judgment of January 25, 2023 – RO 1 K 21,716 Location: BeckRS 2023, 17253 tenor I. The applications of the plaintiff and the defendant for admission to appeal against the ruling of the Regensburg Administrative Court of January 25, 2023 - RO 1 K 21.716 - are rejected. II. The appellants must each bear the costs of their admission procedure. III. The amount in dispute is set at €5,000 for both approval procedures. reasons 1 The mutual applications for admission of appeal, with which the plaintiff and the defendant challenge the administrative court judgment in the part that complains about them, are admissible. However, they are unsuccessful in this matter. 2 With the application for admission to appeal, the plaintiff is pursuing his lawsuit aimed at deleting documents from his personnel file or from the factual files kept at the Federal Police Directorate in M. that were before the administrative court - except for the requested removal of the statement of the plaintiff's then service group leader , EPHK S. of July 4, 2018 to reactivate the plaintiff - was unsuccessful. In contrast, with its application for permission to appeal, the defendant objects to the obligation to delete the aforementioned statement contained in the “reactivation review” procedural file. 3 1. The plaintiff's admissible application for leave to appeal is unfounded. 4 a) The administrative court has heard the lawsuit regarding the applications to oblige the defendant to review the entire process relating to the plaintiff's disciplinary proceedings specified in Annex K 3 to the lawsuit as well as all documents from the personnel file specified in Annexes K 2.1 to K 2.20 The plaintiff's request was dismissed on the following grounds: With regard to the request to remove the documents relating to the disciplinary proceedings from the personnel file, the necessary interest in a substantive decision worthy of legal protection was missing; Such an approach obviously could not bring any actual or legal advantages to the plaintiff since the documents at issue are no longer in the personnel file. In any case, as can be seen from the letters submitted by the plaintiff, the defendant was prepared to remove the documents from the personnel file, so that there was no need to file a lawsuit in this regard in order to enforce the claim. A claim to the removal of the documents contained in Annexes K 2.1 to K 2.20 arises neither from Section 112 Paragraph 1 Sentence 1 No. 1 or 2 BBG nor from Section 113 Paragraph 1 No. 1 or Paragraph 2 BBG nor from the General Data Protection Regulation or other legal bases. The provision of Section 112 BBG only grants a right to removal if the employer's assessment contained in the document in question has previously proven to be unfounded or incorrect in a procedure available for this purpose. According to the principles of completeness and truth, the personnel file must provide the most accurate, objective picture possible of the civil servant's personality and convey an accurate picture of the origins and development of the employment relationship as a historical course of events. In principle, the removal of personnel file data from the personnel file contradicts this. §§ 112,113 BBG only stipulate exceptions to the principles of completeness and/or truth. In addition, for a claim to be removed to exist, it is necessary that the complaint, allegation or assessment must contain the accusation of conduct that is at least objectively contrary to duty. Only then is it necessary to give the civil servant the opportunity for further professional development through the distance without being burdened by outdated allegations. 5 b) The – timely – admission submission, which is subject solely to legal review by the Senate, does not justify the sought-after admission of the appeal. The serious doubts raised as to the correctness of the contested judgment within the meaning of Section 124 Paragraph 2 No. 1 VwGO do not exist. 6 Such doubts would be justified if the appellant questioned a single key legal principle or a significant factual finding of the administrative court with conclusive arguments (cf. BVerfG, B.v. 23.6.2000 - 1 BvR 830/00 - NVwZ 2000, 1163/1164; B.v. 23.3 .2007 – 1 BvR 2228/02 – BayVBl 2007, 624). That's not the case. 7 aa) The administrative court correctly decided that the claim asserted by the plaintiff to have the entire process removed regarding the disciplinary procedure specified in Appendix K 3 lacks the necessary legal protection interest. The plaintiff's objection that, in the absence of a clear statement from the defendant, it cannot be assumed that the documents mentioned have actually already been removed from the personnel file is wrong. The defendant has already stated in its defense of May 20, 2021 that there are no disciplinary files in the plaintiff's personnel file. This is tantamount to declaring that the removal actually took place. The defendant also commented on this in its application for leave to appeal dated April 28, 2023 and expressly stated that it had observed the repayment requirement of Section 16 (3) BDG and destroyed the disciplinary file. The corresponding subfolder in the plaintiff's personal file is therefore empty. The plaintiff has not provided any evidence to suggest that this statement is incorrect and is not available. 8th bb) The plaintiff also does not challenge the administrative court's finding that there is no basis for the claim to have appendices K 2.1 to K 2.20 removed from the personnel file with any conclusive arguments. 9 (1) The requirements of Section 112 Paragraph 1 Sentence 1 No. 2 BBG required for the removal and destruction claim are not met because the documents - as the clarification following sentence 3 shows - must contain allegations in which there are clearly missing here. What would essentially come into consideration would be allegations or assessments that contain the accusation that the official was, at least objectively, in breach of duty, including e.g. B. in the disapproving statement of a superior (cf. OVG NW, B.v. May 11, 2023 - 1 A 2432/20 - juris Rn. 11 m.w.N.). The documents in dispute mainly consist of events from the years 2004 to 2006 and 2010 to 2014, which arose as part of the assessment of the plaintiff's suitability for use in the police service and his general fitness for duty, such as medical notes, examination orders for social-medical assessments and documents for the extension of the probationary period dated November 4, 2010. The resocialization idea underlying the repayment provision in Section 112 Paragraph 1 Sentence 1 No. 2 BBG as an exception to the principle of value-free, as complete as possible documentation of the civil service relationship does not include the deletion of such documents. Information about health impairments does not contain any accusation and cannot be considered as an object of rehabilitation (cf. Guenther, in: Plog/Wiedow, Federal Civil Servants Act, as of May 2023, § 112 BBG, Rn. 11). The fact that the content of these documents could be unfavorable for the plaintiff or have a detrimental effect on him is not enough for a successful removal request. The provision is also not linked to the (alleged) inaccuracy of documents or the question of whether they are still needed, but only concerns cases of correct or at least not resolved allegations, the written record of which is therefore rightly included in the personnel file and there over several been left for years. 10 (2) Insofar as the plaintiff believes that the deletion claim arises from Section 113 Para. 2 Sentence 1 or Sentence 2 BBG for the documents that date from before June 16, 2006, because it cannot be assumed that These would still be needed for the reactivation procedure, he does not deal in the necessary manner with the – convincing – statements of the administrative court in the contested judgment. Accordingly, the personnel files from the time before the plaintiff first left the civil service have not yet been completed within the meaning of Section 113 Paragraph 1 BBG, so that the five-year retention period specified in sentence 1 of this regulation has not yet begun to run. The justification for approval does not contain any conclusive counterarguments to this. 11 (3) Contrary to the plaintiff's opinion, the asserted deletion claim does not arise from Article 5 Paragraph 1 Letters c, d and e GDPR. The plaintiff believes that all entries in the personnel file that date before June 16, 2006 should be deleted because the civil service relationship at that time ended at that point and is no longer related to the current civil service relationship. All documents collected up to his departure on June 16, 2006 were no longer relevant to the proceedings and should therefore be deleted from the personnel file from the perspective of storage limitation, data minimization and the principle of accuracy. This can not be followed. 12 In principle, the data collected in the personnel file during the existence of a civil servant relationship remains appropriate, relevant and limited to the necessary extent within the meaning of Article 5 Paragraph 1 Letter c GDPR even if the civil servant concerned leaves the civil service relationship. As the administrative court rightly stated, documents about incapacity for work due to illness not only serve to determine current absences, but also remain important for possible reactivation or reinstatement tests, where the respective historical context may be important. On the contrary, deletion could violate the principle of data accuracy. The claim for deletion cannot be based on the regulation in Article 5 Paragraph 1 Letter d of the GDPR, according to which personal data must be factually correct and “if necessary, up to date”. The data did not become incorrect as a result of the plaintiff's departure from the service, but rather remains correct in view of the legal reality at the time. A claim for correction under Art. 16 GDPR is therefore excluded. Only if the personnel files are kept up to date that was correct at the respective time can a picture of the origins and development of the employment relationship as a historical sequence of events, which is as complete as possible, be documented, which enables the employer to do justice to his task of personnel administration and management become. This means that Article 5 Paragraph 1 Letter e does not prevent the continued storage of the data collected in his personal file until the plaintiff left his civil service in 2006. 13 2. The defendant's application to allow the appeal also remains unsuccessful, insofar as the administrative court upheld the lawsuit and obliged it to delete the statement of the plaintiff's then service group leader dated July 4, 2018, which was contained in the factual files kept at the M. Federal Police Directorate. The serious doubts raised as to the correctness of the first instance judgment (Section 124 Para. 2 No. 1 VwGO) do not exist. 14 a) The administrative court accepted in its decision that the asserted claim to have the statement obtained in preparation for the examination of the plaintiff's reactivation removed from the accompanying file “Administrative dispute M.S. against the Federal Republic of Germany because of renewed appointment to civil service status” arises from a public law defense claim in the form of a claim for removal analogous to Section 1004 of the German Civil Code (BGB). The statement contains some legally violating factual claims for which there is no evidence; Furthermore, it is associated with a personal insult or disparagement of the plaintiff, which completely pushes the objective purpose of the statement - the provision of an objective assessment of the plaintiff's health suitability with regard to the pending reactivation of the plaintiff according to § 46 BBG - into the background have. 15 b) The notice of admission does not raise any serious doubts about the correctness of this legal opinion that would lead to the appeal being admitted. 16 (1) The defendant rightly objects that, contrary to the opinion of the administrative court, the reference contained in the superior's statement of July 4, 2018 to disciplinary proceedings initiated before the plaintiff's voluntary resignation from the service in 2006 does not contain an untrue statement of facts. This is no longer apparent from the plaintiff's personal file, since the defendant observed the repayment requirement of Section 16 Paragraph 3 BDG and destroyed the relevant documents. However, the references to the above-mentioned disciplinary proceedings mentioned by the defendant in its grounds for admission and still existing in its factual files/procedural files are sufficient to prove the accuracy of the factual assertion contained in the statement at issue. However, this does not help the defendant's application for leave to appeal to be successful. 17 On the one hand, the mention of the proceedings that took place years ago already constitutes a violation of the prohibition of exploitation regulated in Section 16 Paragraph 1 BDG. Together with the repayment requirement, the purpose is to free the official from the stain of past misconduct and to “remove” the stain. As a substantive legal protective measure in favor of the civil servant, the ban on exploitation and the requirement to repay the civil servant are intended to prevent him from being accused of a punishable official offense without a time limit and from having a detrimental effect on him. Admittedly, this does not mean that an absolute claim to protection arises in favor of the official concerned and that the canceled disciplinary procedure can no longer be mentioned at all. However, the disciplinary measure imposed may not be taken into account for further disciplinary measures or personnel measures after the specific period has expired (cf. BVerwG, U.v. October 13, 2020 - 2 C 41/18 - juris Rn. 24 f. m.w.N.). 18 Based on these principles, the mere mention of the disciplinary procedure that has already been deleted from the personnel file in the statement from the plaintiff's former service group leader obtained as part of the reactivation examination constitutes a violation of the prohibition of exploitation (Section 16 Paragraph 1 BDG). This is because it obviously has the purpose of: to awaken the memory of the past misconduct in order to exploit it again to the detriment of the plaintiff. 19 On the other hand, the plaintiff rightly points out that the service group leader not only mentioned the earlier disciplinary procedure, but also linked it to the assumption - which has not yet been proven - that this procedure was intended to lead to the plaintiff's voluntary resignation from the police service in 2006 have led. The files provide no evidence for this assumption. It is obviously a matter of passing on a mere rumor, which affects the plaintiff's personal rights and thus justifies the claim for removal under Section 1004 of the German Civil Code (BGB). 20 (2) In addition, the administrative court correctly determined that the statement also contains other - unsubstantiated - factual allegations in which there is no legally recognized interest on the part of the defendant in remaining in the factual files, such as the statement that the plaintiff has "several in the private sector Projects were thrown into the sand”, he “returned to the Federal Police to have himself rehabilitated”. The defendant's application for admission does not address this. 21 (3) There are also no serious concerns about the view taken by the administrative court that the disputed statement also contains, at least in part, defamatory statements that are likely to violate the plaintiff's rights and also justify the asserted removal claim under Section 1004 of the German Civil Code (BGB). . In this statement, EPHK S., as the plaintiff's former service group leader, should make statements about the possibility of reactivating the plaintiff, who had been retired early for health reasons. First, he objectively described the plaintiff's career and professional achievements during his period of service. However, the following statements, which clearly exceed the objective framework, should be judged differently. There can no longer be any question of a purely technical statement - which in principle does not represent an insult to honor (cf. BayVGH, B.v. July 15, 2003 - 25 ZB 03.1349 - juris Rn. 3) - if the plaintiff is assumed to have consciously joined the federal police returned “to be rehabilitated” after he had “scuttled several projects” during his freelance work. The advice to carry out a police check on the plaintiff in order to “not lay an egg in the nest” is obviously associated with a personal insult or degradation, which completely pushes the objective concern of the official statement into the background and the plaintiff in his personal rights injured. 22 The Senate therefore follows the opinion of the administrative court that the claim for removal is also justified due to the fact that the statement mentioned partially violates the principle of objectivity and is defamatory. 23 The defendant's objection that the administrative court failed to recognize that the statement was a purely internal and not a public statement. In any case, the statement, as part of the factual file, is intended to be disclosed initially to a limited group of people and, in the – always to be expected – event that a lawsuit is filed, also to a broader public. The employer's obligation to ensure the well-being of the civil servant and his family within the framework of the service and loyalty relationship also results in a right to safeguard the civil servant's honor, on the basis of which the employer is obliged to refrain from making defamatory statements or to do so to ensure that they do not remain in the files kept on the officials concerned and could therefore become known to third parties (cf. OVG Saarl, B.v. July 3, 1995 - 1 W 75/94 - juris Rn. 3). 24 3. The cost decision is based on Section 154 Paragraph 2 VwGO. The determination of the amount in dispute follows from Section 47 and Section 52 Paragraph 2 GKG. 25 This decision is incontestable (Section 152 Paragraph 1 VwGO). With this, the judgment of the administrative court becomes legally binding (Section 124a Paragraph 5 Sentence 4 VwGO).
