VGH München - 7 ZB 24.651
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| VGH München - 7 ZB 24.651 | |
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| Court: | VGH München (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 28 GDPR Article 51 GDPR § 11(8) RBStV |
| Decided: | 21.02.2025 |
| Published: | |
| Parties: | Data Subject versus Bavarian public broadcasting authority |
| National Case Number/Name: | 7 ZB 24.651 |
| European Case Law Identifier: | |
| Appeal from: | VG München (Germany) M 6 K 23.1562 |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | Bayern Recht (in German) |
| Initial Contributor: | Shravan |
A German Higher Administrative Court dismissed a data subject’s appeal seeking access to a controller–processor agreement under Article 28 GDPR for lack of legal basis.
English Summary
Facts
The data subject owed broadcasting fees to the Bavarian public broadcasting authority for services since 2013. In 2021, the public broadcasting authority engaged P. GmbH, a debt-collection agency, to recover outstanding payments. In response to an information request by the data subject under § 11(8) RBStV, the broadcaster confirmed that such agencies could receive personal data as processors within the meaning of Article 28 GDPR.
After learning this, the data subject requested access to the controller–processor agreement concluded between the broadcasting authority and P. GmbH, arguing that he was entitled to verify whether it met the formal and substantive requirements of Article 28(3) GDPR. This request was rejected by the broadcasting authority.
The data subject then brought an action before the Administrative Court of Munich (VG München), which dismissed the claim, holding that neither § 11(8) RBStV nor the GDPR provided any legal basis for such an inspection right. The data subject subsequently filed an application for leave to appeal with the Higher Administrative Court (VGH München).
Holding
The Court dismissed the data subject's application for leave to appeal and upheld the decision of the lower court. The Court held that neither the GDPR nor the national broadcasting law (§ 11(8) RBStV) conferred any right for individuals to inspect a controller–processor agreement concluded under Article 28 GDPR.
The Court held that the authority to verify compliance with Article 28 GDPR lies exclusively with the competent supervisory authority under Article 51 GDPR, not with private individuals. For data subjects, Article 15 GDPR provides a right of access only to their own personal data, not to contractual documents between a controller and its processor.
Accordingly, the Court found that the plaintiff lacked a legitimate legal basis for inspecting the contract, and that the broadcasting authority had lawfully refused the request.
Comment
The decision indicates that under the GDPR, only supervisory authorities can inspect and verify compliance of controller–processor contracts under Article 28, but not individual data subjects.
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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: Access to a Data Processing Agreement in Broadcasting Fee Law Legal References: Section 11 Paragraph 8 Sentence 1 of the Interstate Broadcasting Fee Treaty (RBStV) Article 21 Paragraph 1 Sentence 2 of the Bavarian Broadcasting Fee Act (BayRG) Articles 28 and 51 of the GDPR Article 29 of the Bavarian Administrative Procedure Act (BayVwVfG) Key Principles: 1. Section 11 Paragraph 8 Sentence 1 of the Interstate Broadcasting Fee Treaty (RBStV) does not establish a right to access a data processing agreement concluded between a broadcasting corporation and a company. A corresponding right cannot be derived from the GDPR either. (Paragraph 8) (Editorial Note) 2. An unwritten right to inspect files outside the scope of Article 29 of the Bavarian Administrative Procedure Act (BayVwVfG) exists at the discretion of the issuing authority only if a legitimate interest in inspecting the files can be demonstrated. A mere personal interest in the requested access is insufficient in this respect. (Paragraphs 9-10) (Editorial Note) 3. A legitimate interest does not arise, in particular, from the fact that a broadcasting participant must be able to verify whether a "valid data processing agreement" with the "content prescribed" by Article 28(3) GDPR has actually been concluded. This is because, pursuant to Article 51(1) GDPR, the supervisory authority, not a private individual, is responsible for monitoring compliance with the General Data Protection Regulation. (Paragraph 10) (Editorial Note) Keywords: Broadcasting fee, debt collection agency, broadcasting data protection officer, right to inspect data processing agreement (rejected), right to inspect data processing agreement, access to files, data protection, broadcasting corporation Lower court: Administrative Court of Munich, Judgment of December 6, 2023 – M 6 K 23.1562 References: RDV 2025, 158 K & R 2025, 277 ZGI 2025, 66 BeckRS 2025, 2857 LSK 2025, 2857 ZD 2025, 480 ZGI 2025, 103 Judgment I. The application for leave to appeal is rejected. II. The plaintiff shall bear the costs of the leave to appeal proceedings. III. The value in dispute for the appeal proceedings is set at €5,000. Reasons 1. The defendant has been demanding payment of broadcasting fees for an apartment from the plaintiff since January 1, 2013, under account number ... . For the period from April 2014 to June 2015, the defendant, in July 2021, commissioned P. GmbH, a debt collection agency, to collect a total amount of €264.32 from the plaintiff. By letter dated August 16, 2021, the plaintiff requested information from the defendant pursuant to Section 11 Paragraph 8 of the Interstate Broadcasting Treaty (RBStV), which was provided to him on September 1, 2021. On page 3 of this information, debt collection agencies were also mentioned as possible recipients of the data. By letter dated September 29, 2021, P. GmbH informed the plaintiff that it was acting as a data processor for the defendant within the meaning of Article 28 GDPR and explained this function. By letter dated October 7, 2021, the plaintiff requested access to the data processing agreement concluded between the defendant and P. GmbH pursuant to Article 28 GDPR. The defendant refused. The Administrative Court dismissed the plaintiff's subsequent action by judgment dated December 6, 2023, essentially on the grounds that no legal basis existed for the asserted right of access. 2. With his application for leave to appeal, the plaintiff continues to pursue his legal objective. The defendant opposes this. 3. For further details, reference is made to the submitted administrative files and the court files of both instances. 4. The plaintiff's application for leave to appeal is unsuccessful. The grounds for appeal under Section 124(2) of the Code of Administrative Court Procedure (VwGO) have not been presented in a manner that meets the requirements of Section 124a(4), sentence 4, of the VwGO, or are not present. 5 1. There are no serious doubts as to the correctness of the contested judgment (Section 124(2), no. 1, of the VwGO). 6 Serious doubts within the meaning of Section 124 Paragraph 2 No. 1 of the Administrative Court Procedure Act (VwGO) are to be assumed if, in the statement of grounds for the application, a single supporting legal principle or a significant finding of fact is called into question with cogent counterarguments (cf., for example, Federal Constitutional Court, Decision of 10 September 2009 – 1 BvR 814/09 – NJW 2009, 3642) and the doubts as to the correctness of individual elements of the reasoning affect the outcome (Federal Administrative Court, Decision of 10 March 2004 – 7 AV 4.03 – DVBl 2004, 838/839). Convincing counterarguments in this sense exist when the appellant substantiates legal or factual circumstances that establish a well-founded possibility that the lower court's decision is ultimately incorrect (see Federal Constitutional Court, Decision of December 20, 2010 – 1 BvR 2011/10 – NVwZ 2011, 546/548). The required scope and detail of the arguments depend significantly on the depth of reasoning with which the decision was based (Happ in Eyermann, VwGO, 16th ed. 2022, § 124a para. 64 with further references). 7. The plaintiff's submissions do not seriously challenge the correctness of the Administrative Court's decision and do not raise any issues that would require further clarification in an appeal proceeding. The plaintiff, as he expressly clarifies in his statement of grounds for appeal, seeks access to the document of the data processing agreement concluded between the defendant and P. GmbH, while simultaneously questioning its existence. 8. The Administrative Court correctly held that the plaintiff cannot rely, in particular, on Section 11 Paragraph 8 Sentence 1 of the Interstate Broadcasting Treaty (RBStV). The asserted right of access is not covered by this provision. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation; hereinafter: GDPR) also does not grant the plaintiff such a right of access. The plaintiff himself states in his statement of grounds for appeal that, as is well known, there is no substantive law providing a corresponding legal basis for such a claim. 8. The Administrative Court correctly held that the plaintiff cannot rely on Section 11 Paragraph 8 Sentence 1 of the Interstate Broadcasting Treaty (RBStV). The asserted right of access is not covered by this provision. 9 Contrary to his assertion, he cannot rely on the case law of the Federal Administrative Court (judgment of September 16, 1980 – 7 C 10.81 – juris; judgment of June 5, 1984 – 5 C 73.82 – juris) he cites to support his claim for access to the data processing agreement. The plaintiff's reliance on the so-called unwritten right to inspect files outside the scope of Article 29 of the Bavarian Administrative Procedure Act (BayVwVfG) is unsuccessful. Insofar as the right of parties to inspect files stipulated in Article 29 of the BayVwVfG does not apply and no positive legal provisions exist, the affected party is not left without protection if and to the extent that he can assert a legitimate interest in inspecting the files. In these cases, granting access to files is generally at the discretion of the competent authority (see Ramsauer in Kopp/Ramsauer, VwVfG, 25th ed. 2024, § 29 para. 10 with further references). 10. In the present case, the requirement of a legitimate interest is lacking. The plaintiff himself points out that the legitimate interest is determined by "legal aspects." A mere personal interest in the requested access to the files is insufficient in this respect. The plaintiff does not have a legitimate interest in inspecting the data processing agreement concluded between the defendant and P. GmbH pursuant to Art. 28 GDPR. In particular, such an interest does not arise—as the plaintiff argues—from the fact that he himself must be able to verify whether a "valid data processing agreement" with the "content prescribed" by Art. 28 para. 3 GDPR was actually concluded. According to Article 51(1) GDPR, the supervisory authority, not private entities, is responsible for monitoring compliance with the General Data Protection Regulation (GDPR). The Broadcasting Data Protection Officer has been appointed as the external data protection supervisory authority for the defendant pursuant to Article 21(1), sentence 2 of the Bavarian Broadcasting Act (BayRG). According to Article 57(1)(a) GDPR, the officer's duties include monitoring and enforcing compliance with the GDPR. In this capacity, the supervisory authority must, if necessary, review the lawfulness of commissioned data processing within the framework of a complaint pursuant to Article 77 GDPR and exercise the powers granted to it under Article 58 GDPR for this purpose (see Article 21(6) BayRG). Data subjects, on the other hand, are only granted a right of access to their own personal data pursuant to Article 15 GDPR (see also Recital 63 GDPR). They do not have a right to independently review the lawfulness of the processing. Against this background, the plaintiff has no legitimate interest in examining the conclusion and legality of a data processing agreement himself. 11 2. Leave to appeal on the grounds of particular legal difficulties, Section 124 Paragraph 2 No. 2 of the Code of Administrative Court Procedure (VwGO), is not warranted. 12 The grounds for appeal fail to meet the requirements for substantiating this ground (Section 124a Paragraph 4 Sentence 4 VwGO). Demonstrating particular legal difficulties requires the appellant to substantively address the challenged administrative court judgment and clearly identify the specific legal or factual point on which the judgment is questionable. Only in this way can it be established that the matter is complex (Happ in Eyermann, VwGO, Section 124a, marginal note 68). This is lacking in the present case. The mere reference to the serious doubts raised regarding the initial decision, as set out in the ground for appeal under Section 124a Paragraph 2 No. 1 of the Code of Administrative Court Procedure (VwGO), is insufficient to establish the existence of particular legal difficulties. 13 3. The case is not of fundamental importance (Section 124 Paragraph 2 No. 3 VwGO). 14 The ground for granting leave to appeal based on the fundamental importance of the case (§ 124 para. 2 no. 3 VwGO) requires that the legal or factual question set out in the application for leave to appeal was significant for the decision of the lower court, would also be significant for the decision in the appeal proceedings, has not yet been clarified by the highest court or – in the case of factual questions or non-appealable legal questions – by the case law of the appellate court, but is in need of clarification and is significant beyond the case to be decided (established case law, see e.g. BayVGH, decision of 21 November 2019 – 4 ZB 19.1671 – juris para. 10 with further references). In order to substantiate an application for leave to appeal based on the fundamental importance of the legal matter, the appellant must, within the time limit of Section 124a Paragraph 4 Sentence 4 of the German Code of Administrative Procedure (VwGO), (1.) formulate a specific legal or factual question and substantiate its (2.) eligibility for clarification, (3.) need for clarification and (4.) general importance (Bavarian Administrative Court, Decision of 7 February 2017 – 14 ZB 16.1867 – juris para. 15 with further references). 15. The grounds for appeal do not meet these requirements. Even if the plaintiff's statements, formulated as assertions, were to be interpreted as questions, they do not necessitate an appeal procedure. The question can easily be answered within the framework of the appeal procedure, with reference to the General Data Protection Regulation (GDPR). 16. 4. Finally, the appeal is also not admissible on the grounds of divergence (Section 124, Paragraph 2, No. 4 of the Code of Administrative Court Procedure). 17 Divergence exists if the administrative court, in applying the same provision (cf. Federal Administrative Court, decision of 28 January 2004 – 6 PB 15.03 – NVwZ 2004, 889/890), expressly or implicitly deviates with an abstract legal principle or a generalizable factual principle established in the case law of the superior courts mentioned in Section 124 Paragraph 2 No. 4 of the Code of Administrative Court Procedure, or with a legal provision of identical content, with regard to an abstract legal principle or a generalizable factual principle supporting its decision, and the decision is based thereon (cf. Bavarian Higher Administrative Court, decision of 22 August 2017 – 11 ZB 17.30654 – juris para. 3 with further references). There must be a fundamental difference of opinion between the courts regarding the meaning of a particular legal provision or principle (see BVerwG, decision of 27 October 2014 – 2 B 52.14 – juris para. 5 with further references; BayVGH, decision of 10 January 2018 – 10 ZB 17.30394 – juris para. 2 with further references). It is insufficient if the challenged decision merely overlooks, disregards, or otherwise incorrectly applies a principle established in the case law of higher courts (Federal Administrative Court, Decision of August 19, 1997 – 7 B 261.97 – NJW 1997, 3328 with further references; Decision of July 20, 2016 – 6 B 35.16 – juris para. 12 with further references). Therefore, demonstrating a divergence requires not only the precise identification of the court of divergence and an unambiguous statement of its divergent decision. It is also necessary to demonstrate which fundamental legal or factual principle is contained in the judgment of the court of divergence and which fundamental legal or factual principle established in the challenged judgment, when applying the same legal provision, contradicts it. The divergent rulings must be presented in such a way that the divergence becomes apparent (established case law, cf. Federal Administrative Court, decision of December 20, 1995 – 6 B 35.95 – NVwZ-RR 1996, 712/713; decision of July 17, 2008 – 9 B 15.08 – NVwZ 2008, 1115, para. 22 with further references; Happ in Eyermann, VwGO, § 124a, para. 73 with further references). 18. The statement of grounds for appeal already fails to meet the requirements for substantiation pursuant to § 124a para. 4 sentence 4 of the Code of Administrative Court Procedure (VwGO) and thus does not demonstrate any divergence. While the plaintiff cites several judgments of the Federal Administrative Court in the statement of grounds for appeal, However, he does not identify any legal principle in the contested judgment that deviates from this established case law, but at most criticizes an insufficient application of the Federal Administrative Court's case law. 19 5. The appeal is not admissible due to a procedural defect pursuant to Section 124 Paragraph 2 No. 5 of the Code of Administrative Court Procedure (VwGO). 20 a) The plaintiff's objection that the contested judgment lacks legally valid grounds for its decision, since it referred to the defendant's written submissions pursuant to Section 117 Paragraph 2 No. 5 VwGO, is unsuccessful. Regardless of whether the plaintiff's submissions meet the requirements for substantiation under Section 124a Paragraph 4 Sentence 4 VwGO, the alleged procedural defect does not exist. A decision is deemed not to be reasoned within the meaning of Section 138 No. 6 of the Code of Administrative Court Procedure (VwGO) only if the grounds for the decision no longer fulfill their function of informing the parties about the factual and legal considerations underlying the judgment and enabling the appellate court to review the decision for its substantive correctness in terms of procedural and substantive law. A reference can also suffice for this purpose, provided that the parties are familiar with the referenced document or can easily become aware of it, and provided that, for both the parties and the appellate court, a combined reading of the statements in the referenced decision and the referenced document reveals with sufficient clarity the reasons decisive for the judge's conviction. Contrary to the plaintiff's view, Section 117 Paragraph 5 of the Code of Administrative Court Procedure (VwGO) does not lead to a different conclusion. The fact that this provision expressly permits references to the grounds for judgment in certain circumstances does not justify the conclusion that references are inadmissible in all other cases. The aforementioned regulations are merely specific manifestations of previously recognized general principles (see Federal Administrative Court, Judgment of December 3, 2008 – 4 BN 25.08 – juris para. 9 with further references; Kraft in Eyermann, VwGO, § 117 para. 20). 21 b) Should the plaintiff, with his arguments regarding § 86 para. 1 sentence 1 VwGO, intend to assert – again, at most in substance – a procedural defect in the form of a complaint regarding insufficient investigation, this will not grant him leave to appeal. The subjunctive formulation of the Administrative Court, which the plaintiff objects to, is not decisive for the outcome. 22 6. The decision on costs is based on § 154 para. 2 VwGO. The determination of the value in dispute is based on Section 47 Paragraph 3 and Section 52 Paragraph 2 of the Court Costs Act (GKG) and corresponds to the determination of the value in dispute in the proceedings at first instance. 23 This decision is final and not subject to appeal (Section 152 Paragraph 1 of the Administrative Court Procedure Act (VwGO)).
