VG Regensburg - RN 9 K 19.1061

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VG Regensburg - RN 9 K 19.1061
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Court: VG Regensburg (Germany)
Jurisdiction: Germany
Relevant Law: Article 2 GDPR
Article 12 GDPR
Article 21 GDPR
Article 77(1) GDPR
Article 78(1) GDPR
Article 2, 20, 24 Bavarian Data protection Act (Bayrisches Datenschutzgesetz - BayDSG)
§ 823 (2) German Civil Code (Bürgerliches Gesetzbuch - BGB)
§ 1004 (1) German Civil Code (Bürgerliches Gesetzbuch - BGB)
Decided: 06.08.2020
Published:
Parties:
National Case Number/Name: RN 9 K 19.1061
European Case Law Identifier:
Appeal from:
Appeal to: Unknown
Original Language(s): German
Original Source: Bayern.Recht - bayerische Staatskanzlei (in German)
Initial Contributor: n/a

The VG Regensburg holds that Article 79 GDPR excludes further judicial remedies against controllers and processors. Therefore, actions for injunctive relief under §§ 1004 (1), 823 (2) German Civil Code (BGB) in the area of data protection should in principle no longer be possible.

English Summary[edit | edit source]

Facts[edit | edit source]

The applicant seeks an order that the City of P. refrain from video surveillance of the "P.er K.-garten" and from recording it.

In a letter dated 23 November 2017, the Police Inspectorate P. provided the defendant with information on the "P.er K.-garten" as a basis for possible political initiatives for municipal video surveillance. In this letter it is stated that the K.-garten has been a police focus for years, especially during the warm months (April to October). On 14 May 2018, the defendant's city council decided to install video surveillance.

Signs were missing at other entrances to the K.-garten and in some places they were installed in an area that was already covered by the cameras. Because of its open design, the K.-garten could be entered without being able to see the signs. A detailed note on the modalities of the video surveillance was only attached to the surveillance house. The operating hours of the video surveillance were between 6:00 and 1:00 am.

Dispute[edit | edit source]

The claimant argued that the installed video surveillance in a park is not necessary to prevent a.o. drug-related crimes. Moreover, the surveillance should not only be turned off entirely on market days, but also during other events which he would like to initiate.

Holding[edit | edit source]

1. Article 79 GDPR precludes further judicial remedies against controllers and processors, so that a general action for performance in the form of an action for an injunction pursuant to §§ 1004 (1) and 823 (2) of the German Civil Code is not permissible within the scope of the GDPR.

2. A distinction must be made between data processing that is (merely) contrary to the Regulation and a possible infringement of a person's rights with regard to the personal data relating exclusively to that person.

3. In the case of a mere unlawful data processing without any infringement of rights, the data subject has the right of appeal under Article 77(1) GDPR and subsequently the right of judicial remedy against the supervisory authority under Article 78(1) GDPR. Article 79 (1) GDPR provides for an individual right of injunction with regard to the violation of data subjects' rights (Article 13 to 20 GDPR).

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English Machine Translation of the Decision[edit | edit source]

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

VG Regensburg, court order of 06.08.2020 - RN 9 K 19.1061
Titles:
Video surveillance of a garden
Standard chains:
GDPR Art. 2, Art. 12, Art. 21, Art. 77 para. 1, Art. 78 para. 1
Bavarian Data Protection Act (Bayerisches Datenschutzgestz – BayDSG) Art. 2, 20, 24
German Civil Code (Bürgerliches Gesetzbuch – BGB) § 823 para. 2, § 1004 para. 1
Guiding principles:
1) Article 79 GDPR excludes further judicial remedies against persons responsible and processors, so that a general action for performance in the form of an action for an injunction pursuant to §§ 1004 (1), 823 (2) of the German Civil Code is not permitted within the scope of the basic data protection regulation.
2. a distinction must be made between data processing that is (merely) contrary to the Regulation and a possible infringement of a person's rights with regard to personal data relating exclusively to that person.
3. in the case of a mere unlawful data processing operation without any breach of law, the data subject shall have the right of appeal under Article 77(1) GDPR and subsequently the right to judicial remedy against the supervisory authority under Article 78(1) GDPR Art. 79 Para. 1 GDPR provides for an individual's right to injunctive relief with regard to the violation of the rights of the person concerned (Art. 13 to 20 GDPR).
Buzzwords:
On the question of the admissibility of a general action for damages based on the omission of a public video surveillance based on a public law claim for the elimination of consequences (§§ 1004 para. 1, 823 para. 2 BGB) after the entry into force of the Basic Data Protection Regulation, On the question of the legality of a public video surveillance based on Art. 24 BayDSG, right to injunction, general action for damages, complaint, data processing, infringement of rights, informational self-determination, video surveillance
Place where it was found:
BeckRS 2020, 19361
 
Tenor
I. The action is dismissed.
II. orders the applicant to pay the costs.
III. the court order is provisionally enforceable as regards costs.
IV. The appeal is allowed.
Facts
1
The plaintiff seeks an order that the City of P. refrain from video surveillance of the "P.er K.-garten" and from recording it.
2
The plaintiff resides and works in P. Among other things, he uses the municipal facility "P.er K.-garten" (hereinafter referred to as: K.-garten) in connection with professional and political activities. He is also frequently in the K.-garten for private activities.
3
By letter dated 23 November 2017, the Police Inspectorate P. provided the defendant with information on the K.-garten as a basis for possible political initiatives for municipal video surveillance. In this letter it is stated that the K.-garten has been a police focus for years, especially during the warm months (April to October). The adjacent central bus station is naturally the starting and finishing point of the entire public transport system in P. Due to its attractive location and design, the K.-garten is used by many citizens as a place of rest and relaxation. Both locations are also popular meeting points and places where young people and socially marginalised groups such as alcoholics, BtM consumers and, since 2015, increasingly migrants, can stay. Due to numerous disturbances of order and security, both locations have been the subject of a comprehensive police security concept for years, which was last modified in March 2016 and has been implemented intensively since then. In the sense of a holistic approach consisting of informal social controls, intensive police checks and social work on the part of the defendant, a decrease in offences of bodily injury and insulting behaviour has recently been recorded. A significant fight or suppression of the drug trade (ant trade), which could be observed at the K.-garten, has not yet been successful. The number of seizures is in the single-digit or low double-digit range. With regard to known darkfield investigations, these figures point to a lively drug turnover, whereby this assessment is supported by information from the population as well as by the regular finding of drug paraphernalia in the nearby public toilets. While the offences took place mainly in the summer months, the other types of offences, especially drug-related crime, were spread over the whole year. The time window between 10:00 and 22:00 hours had emerged as the relevant time of day (90% of all cases). Due to the objective security situation in the city area, there is no legal basis for the establishment of police video surveillance in accordance with Article 32 PAG, but Article 21a BayDSG opens up this possibility in public institutions in the context of the fulfilment of public duties, and this is somewhat lower-threshold. From the point of view of the police inspectorate, a video recording in the area of the K.-garten would therefore be conceivable.
4
On May 14, 2018, the defendant's city council decided to install video surveillance and an extension to the existing toilet facilities in the K.-garten, which is temporarily manned by supervisory personnel from 8:00 to 22:00 hours. Together with the installation of street lighting on the Innpromenade, over- or unbudgeted budget funds in the amount of 385,000 euros were provided for this purpose. The installation of video surveillance and the construction of the extension accounted for 200,000 euros. The K.-garten is a centrally located public square in the immediate vicinity of the central bus station and the university. It is accessible from four sides and is bordered by the ...-Straße in the northwest, the Straße ... in the southwest and southeast and the ...-platz in the northeast. On Tuesdays and Fridays, the square is the venue for a weekly market, the annual "Oide Dult" festival and, with some regularity, political and cultural events. Furthermore, the K.-garten is mainly crossed by passers-by. In the summer months it also serves as a recreational area. There are seats and lawns as well as two large seesaws as a playground for children. The K.-garten is almost flat, mostly finely gravelled, visible from all sides and manageable for those present. The view is not impaired by vegetation. There are very low beds and at the edges of the site there are trees with treetops arranged in rows only from a height of about three metres. In the dark, the K.-garten is mainly illuminated by spotlights embedded in the ground. The area monitored in the K.-garten is rectangular in size of 60 m x 80 m. A total of ten cameras are installed there. Eight of them are permanently installed and adjusted. There are two in each of the four corners on masts. Two more so-called "dome cameras" are installed on poles on the long sides opposite each other. The latter allow the camera operator to zoom and pan. According to the defendant, they are also fixed to certain areas where a particularly high crime rate is expected.
5
On 13 June 2019, the plaintiff filed a complaint with the Administrative Court Regensburg against the city of P. In support of the complaint, it is essentially stated that according to the police inspection P., the previous police incident documentation was not sufficient to make a reliable statement on the main areas of crime within the K.-Garten. In times of the weekly market the video surveillance system is automatically switched off. Passers-by could not see whether the cameras were switched on. The defendant had issued instructions for video surveillance. At the four central entrances to the K.-garten, signs had been put up which pointed to the video surveillance. These were hung at a height of approximately 2 m and were covered with a honeycomb patterned reflector foil. Signs were missing at other entrances to the K.-garten and in some places they were attached in an area that was already covered by the cameras. Because of its open design, the K.-garten could also be entered without being able to see the signs. A detailed note on the modalities of the video surveillance was only attached to the surveillance house. The operating hours of the video surveillance were between 6:00 and 1:00 o'clock. During other events, they should also be exhibited and, if the event is registered, they should also be hung up. The deactivation of the video surveillance was not consistently observed during the weekly market. On 7 and 11 June 2019 at any rate, the signs provided for this purpose were not hung up (K12 and K13). It was not comprehensible how the amount of 25,000 euros for the removal of vandalism would be collected. The crime rate in P. was low and had been declining in recent years (grounds K14 and K15). The development of crime in the K.-garten corresponds to the city-wide trend. Neither in absolute terms nor in comparison with the rest of the city is the K.-garten a crime focus. According to the police security report for the city of P. from 2017, the total crime rate - excluding violations of the law on foreigners - was roughly the same between 2008 and 2017. For 2017, a slight decrease could be observed. For 2017, the fewest cases since 2008 had been registered. A similar picture emerges if one considers the violent, street and theft crime that is listed separately (Security Report, pp. 7 et seq.). In contrast, the development of drug-related crime has been fluctuating since 2008, and after a significant decline in 2013 it has recently been on the rise again. The majority of the offences recorded are related to cannabis and its forms of preparation. The current safety report shows that the total crime figures for the city were below average in 2018 as well, and that they continue to decline (Safety Report 2018, p. 58, Anl. K17). In 2017, according to police statistics on criminal and administrative offences, three simple bodily injuries and one serious bodily injury were recorded in K.-garten. In addition, four insults and 15 incidents of drug-related crime were recorded in 2017, the only category in which an increase was recorded. It was obvious that this was due to the increased implementation of police measures, as reported by P.er Neue Presse on 8 April 2016 and 22 March 2017 (annex K18) in its online edition. Thus, the K.-garten does not show any particular deviations from the development of crime in the city. It was not known how many of the suspicious cases recorded by the police had actually become criminally relevant. The police criminal and administrative offence statistics for 2017 show that 34 administrative offences under the LStVG (in particular violations of the green area statutes, especially alcohol consumption, waste disposal, emergency services and noise) have been recorded. In 2015 and 2016, 73 cases were registered in the same category. The plaintiff was entitled to injunctive relief against the defendant because the video surveillance in the K.-garten, which was carried out on the basis of Article 24 para. 1 BayDSG, was unjustifiably encroached upon his fundamental right to informational self-determination under Article 2 para. 1 in conjunction with Article 2 para. 1 BayDSG. Art. 1 para. 1 German Basic Law (Grundgestz – GG). On the one hand, the video recording as part of the precautionary measures under criminal law was removed from the legislative competence of the Land, and on the other hand the requirements of the legal basis were not fulfilled because video surveillance was not necessary and there were indications that the interests of the persons concerned that were worthy of protection outweighed those of the persons concerned. Finally, video surveillance was also unlawful because obligations of identification and transparency under data protection law were not fulfilled. Article 24(1) BayDSG was the only legal basis in question. § Article 4(1) Federal Data protection Act (bundesdatenschutzgestz – BDSG) was manifestly not applicable under Article 1(1)(2) BDSG. Nor could a legal basis be inferred from EU law. The Basic Data Protection Regulation was demonstrably not applicable under Article 2.2(d) of the GDPR in connection with averting danger and criminal prosecution. The more specific Data Protection Directive for Police and Justice (Directive 2016/680/EU) did not contain a directly applicable legal basis. If Article 24.1 BayDSG was interpreted restrictively in view of constitutional considerations, video surveillance was only permissible for the avoidance of criminal offences, but not already for the avoidance of administrative offences. In the present case, the suitability and necessity of video surveillance to combat crime must already be doubted. Video surveillance and subsequent recording encroached upon the plaintiff's informational self-determination. This interference was not only to be seen in the information obtained by video surveillance, but also in its effect on the behaviour of the persons concerned. In the present case, the video surveillance was intended to prevent persons in the K.-garten from engaging in undesirable conduct, in particular conduct that is relevant under criminal or administrative law, and to prepare or enable any possible prosecution measures. In fact, however, the cameras would also influence the behaviour of the plaintiff, who would then avoid the K.-garten or feel uncomfortable and observed there. The mere video observation alone constitutes an intervention. The intensity of the video surveillance in the K.-garten is extraordinarily high. The standards of the Federal Constitutional Court in its case law on dragnet searches and automatic number plate recognition are to be applied in the present case. According to this, the significance of the intervention results from the fact that it is a measure without suspicion and with a wide range of consequences. In particular, the lack of cause caused the considerable weight of the intervention by such surveillance. Moreover, the secrecy of the dragnet search contributes to the significance of the intervention. The duties to provide information were also insufficiently fulfilled in the present case. On the other hand, the physical absence of the person carrying out the surveillance also required a certain degree of secrecy. Even the mere video surveillance constituted an encroachment on fundamental rights. Since the behaviour of citizens is and should be controlled by this, an encroachment on fundamental rights was also to be assumed in the case of camera dummies. This was particularly problematic during the weekly market and events; even if the cameras were switched off as planned, they would encroach on fundamental rights in a manner comparable to a dummy. In the context of secrecy, the requirement for transparency was also considerable. Knowledge of data processing is a sine qua non condition for the possibility to exercise informational self-determination. In the present case, it is possible to enter the square without taking notice of the video surveillance because the signs are missing at the appropriate place. If available, it is obvious that the information is not perceived when entering the square because the signs are too small, difficult to read and too high. The freedom of decision to cross the K.-garten also had to be doubted. The prevention of mere administrative offences was not a legitimate purpose for video surveillance, and it was also not a suitable means of preventing administrative offences. Most offences in this area are not committed after careful consideration, but typically spontaneously and affectively. Particularly in the case of offences caused by noise, it could therefore not be assumed that video surveillance would have an effect. The same applies to the use of video surveillance to relieve oneself, noise and the leaving of rubbish behind; the costs incurred by vandalism cannot therefore be prevented by video surveillance. According to studies, the same applies to offences of bodily injury and insult. In the case of drug-related crime, an increase in video-monitored areas outside operating hours was more likely to be expected than a shift to non-monitored areas. In general, video surveillance was not suitable for combating planned crime. Planned crimes would at best be postponed, but not prevented. It could be assumed that potential perpetrators would adapt to video surveillance. In addition, many offences would not be noticed by the supervisors and thus not be prevented preventively. The attention of the supervisors to what is happening on the monitors is already decreasing rapidly after a short time. Observation without cause promotes discrimination against certain social groups, because the monitors are guided by their ideas and prejudices, especially when taking measures without suspicion. In the case of the violations observed, selection by the monitors can be established, so that selective criminalisation is possible. Video surveillance was also not necessary because of the good manageability of the K.-garten, and the presence of a municipal employee was equally suitable for achieving the purpose. The employment of social workers/street workers as well as the establishment of a contact shop as a contact point for addicted people would be more suitable. Video surveillance was disproportionate in the narrower sense in view of the associated encroachment upon fundamental rights. The defendant encroaches daily to a considerable extent on the right to informational self-determination of several hundred people, who would not have given any reason for video surveillance by their own behaviour. In addition, the K.-garten was not a crime hotspot. On the whole, the video surveillance in its chosen form was inappropriate. Most of the registered offences occurred in the summer months, so that video surveillance could not be justified across seasons. It was also hardly conceivable that surveillance would be necessary in the period from 6 to 1:00 a.m., i.e. 19 hours. Rather, it is more likely that alcohol-related crimes or violations of the Narcotics Law are more likely to occur in the evening, at weekends or before public holidays. Under no circumstances could the storage without cause for 72 hours be justified. It would be possible to simply observe the video by setting up a short-term memory. This could compensate for the human reaction time. If a supervisor noticed a criminal offence or an administrative offence of considerable importance, he had to become active in order to arrange for the permanent recording for later exploitation. This procedure would do more justice to data protection law requirements in the form of data protection-friendly presettings and data minimisation (§ 25.2 sentence 1, Article 5.1 letter. c GDPR in conjunction with Article 2 sentence 1 BayDSG). Video surveillance violates transparency obligations under Article 24.2 BayDSG in conjunction with Articles 12, 13 JHA Directive and Article 2 sentence 1 BayDSG and is therefore partly unlawful. The applicability of Article 13.1 letter d in conjunction with Article 2(1) and Article 1(1) of the JHA Directive is to be accepted without compulsion (ECJ, U.v. 26.2.2013 - C-617/10 -, NJW 2013, 1415). The defendant does not sufficiently comply with the resulting information obligations. The signs at the entrances to the square are decisive for the completeness of the information, not the detailed appendix at the monitoring centre, as this can only be taken note of after entering the square. Due to the lack of easy access, the presentation on the various signs at the entrances did not meet the requirements of Article 12 para. 1 sentence 1 of the JHA Directive in conjunction with Art. 2 sentence 1 BayDSG, whereby accessibility also concerns the external form in which the information is presented. The honeycomb pattern of the signs partially overlaps with the writing. Here, letters and words are difficult to recognise, and the lighting conditions can also have a massive effect. The height of the signs also means that the information is not easily accessible. This already leads to the signs being easily overlooked. Moreover, reference is made to the content of the pleading of 13 June 2019.
6
The applicant claims that the Court should
order the defendant to refrain from observing the P.er K.-garten by means of image transmission and recording of the images
7
The defendant claims that the Court should
dismiss the action.
8
The defendant carried out a preliminary examination of data protection law for the meeting of the city council on 14 May 2018 on the basis of critical voices regarding video surveillance. According to the assessment of the data protection department of the defendant, this had revealed the possibility of implementing the security concept in compliance with data protection law while complying with various conditions. During the examination for the introduction of video surveillance, the Defendant had adhered to the specifications of the Bavarian State Data Protection Commissioner, in particular had used the documents and templates issued there to ensure video surveillance in conformity with data protection law. Following the decision of May 14, 2018, P.er Neue Presse conducted surveys at K.-garten and several passers-by expressed the opinion that they would welcome video surveillance and that it would contribute to increasing the feeling of security. This survey had also been repeated recently and had led to the same opinion. The City Councilor Karl S. had raised doubts as to the legality of the measure with the Bavarian State Data Protection Commissioner and the Government of Lower Bavaria, but neither of the supervisory authorities had intervened. The mounted signs were located outside the monitored area. The detailed data protection notices in accordance with Art. 12, 13 GDPR were only attached to the monitoring house, however, the pictograms were used to indicate this. Moreover, the data protection notices could also be found on the defendant's website. The surveillance room with the attached data protection notices and the camera plan was located outside the monitored area. The plaintiff did not have to expose himself to video surveillance because he could easily and safely walk around the video-monitored area without any major detours. At weekly market hours, the video surveillance is inactive. This is indicated by the pictograms. As the weekly market is a regularly recurring event, the cameras could have been programmed in advance so that they would always switch off automatically at these times. The reference to the pictograms makes it unnecessary to attach additional signs or cover the cameras. Employees of the defendant are required to check the inactivity at times of the weekly market on a random basis. On 7 and 11 June 2019, the video surveillance system was inactive (protocol sheets of these two days). At registered events, the cameras of employees were visibly covered by hoods and additional signs were attached to the pictograms to illustrate the inactivity. These procedures would also be carried out and recorded conscientiously. Through intensive public relations work and numerous press reports, as well as by making all relevant documents available for inspection on the Internet, the defendant has left no stone unturned in its efforts to create transparency in the public sphere with regard to video surveillance. Video surveillance is very strictly regulated. In addition to the instructions for employees, there are also various protocol sheets which have to be filled in and are checked regularly. This not only serves the purpose of control, but also clarifies the importance of the procedures for the employees. Furthermore, the video surveillance had been developed in close cooperation with the police inspection P. (agreement on the use of the video surveillance system in the K.-garten between the police inspection and the defendant). The exact steps of the surveillance and any evaluation of the data had been regulated in detail (instructions for video surveillance). The technical system was a strictly isolated, closed system which could not be attacked from the outside due to the lack of an Internet connection. Therefore, it could not be said that "excessive storage possibilities" opened up the possibility of merging data and that "various options for using the data pool" were available. It is also a false assertion that "the mass of information that is generated by the surveillance ... a profile of the plaintiff's behaviour in public space ... allows conclusions to be drawn about working hours, social contacts (and) private habits". The plaintiff is aware of the diametrically opposed security concept and should therefore explain how the defendant's employees should be able to do so in view of the defined security features. Precautions were also taken to prevent accidental data breaches. It was hardly comprehensible why the plaintiff saw himself deterred in the future by the video surveillance to hold events in the K.-garten, if he himself at the same time stated that the surveillance system was deactivated at events and this was additionally made clear to the outside world by covers. It was only necessary to register the event with the defendant, since otherwise the employees could not know when they should take the steps required by the instructions. At no time did the defendant claim that the K.-garten was a poorly visible area or dark corner. It goes without saying that crime statistics can only reflect offences that have become known, but according to the police, there are indications that, particularly in the area of drug-related crime, a much larger number of offences must be expected than is statistically recorded. The extensive crime statistics presented by the plaintiffs are not decisive. Whether the total crime in P.er Land is declining is not the decisive criterion for the crime that is localised at K.-garten. Neither is it the case whether the defendant as a whole is not perceived by the police headquarters of Lower Bavaria as a locality of above-average crime. Instead, the decisive factor is that the statistics for the K.-garten show an increased incidence of crimes and administrative offences in comparison to other locations in the city area and are described by the Police Inspectorate as a "focal point". The annual expenditure of the municipal nursery for the removal of damage caused by vandalism is estimated at approximately 25,000 euros. This expenditure includes daily damages in the area of wells and green spaces (broken glass and bottles as well as rubbish in the wells and green spaces, urinating and performing the emergency urge - also during the day, tearing out plants) as well as damages that occur several times a year (damaged and torn out granite slabs at the wells, larger amounts of gravel in the wells, damaged and torn out metal letters of the street signs, graffiti on the metal troughs, damage to the benches and overturned large plant pots). The expenditure of the city nursery could not be put in relation to the procurement costs for the video surveillance system. This does not only serve to prevent the aforementioned damage, but also to prevent other criminal offences and administrative offences in the area of the K.-garten. For example, the costs of the video surveillance system in the case of bodily injury could not be set in relation to the value of the physical integrity. Furthermore, the purpose of the K.-garten as a public facility and local recreation area was to be emphasized. Administrative offences or even criminal offences that made it difficult to achieve this purpose had to be prevented. The legal basis of video surveillance was Article 6 of the GDPR in conjunction with Art. 24 para. 1 BayDSG. Article 24 BayDSG had been enacted within the legislative competence of the Free State for the area of averting danger under Article 70.1 of the Basic Law. The open observation of public places serves the prevention of criminal offences. Potential offenders should be deterred from committing an offence and in this way it should be prevented. Picture recording was also part of deterrence. The potential perpetrator had to expect that his or her act would be recorded and that the recording would be available not only for identification purposes but also as evidence in criminal proceedings (BVerwG, U.v. 25.1.2012 - 6 C 9.11). It was to be noted that the wording "prosecution of administrative offences or criminal offences" was merely a repressive secondary purpose, which in individual cases was only applicable in the form of video recording, namely if the recording gave rise to the initial suspicion of a criminal offence. It was not suitable to suppress or superimpose the primary purpose of crime prevention pursued by the overall measure (VGH Baden-Württemberg, U.v. 21 July 2003 - 1 S 377/02). However, even this secondary purpose in itself would fall within the legislative competence of the Free State, since this is a case of concurrent legislation pursuant to Article 74.1 No. 1 of the Basic Law. The securing of evidence for future criminal proceedings would then be assigned to "judicial proceedings". However, the Federal Government had not yet made conclusive use of this provision. Consequently, the Free State also has legislative competence in this area under Article 72.1 of the Basic Law. The Federal Government's regulations in the field of precautionary measures for criminal prosecution were not so dense that they had a conclusive effect in the sense of a codifying regulation. This pension scheme was not in fact measures that required an initial suspicion (BVerwG, loc. cit.). The video surveillance of the k.-garden was at least suitable to promote the purpose of preventing criminal offences. Studies and security reports have shown that video surveillance in public spaces has actually led to a reduction in crime. It may be true that video surveillance is not the rule for the prevention of offences outside of road traffic. However, Art. 24 para. 3 BayDSG already makes it clear that video surveillance, at least in the opinion of the legislator, can also be used to prosecute and thus also to prevent administrative offences. A study has been able to establish a connection between the decline of regulatory offences in particular and video surveillance (Gill et al., Assessing the impact of CCTV, the South City Case Study, Home Office Online Report, 2005). Video surveillance is also not unsuitable for the prevention of bodily harm. Art. 24 para. 3 BayDSG assumes that video surveillance is fundamentally suitable for the prevention of crimes. Furthermore, there are - apart from all studies - concrete empirical values, for example from Duisburg. Irrespective of this, there is at least one study which expressly concludes that video surveillance in public spaces is suitable for preventing bodily injury offences (Lucien Müller, Videoüberwachung in öffentlich zugänglichen Räumen - insbesondere zur Verhütung und Strahung von Straftaten, 2011, pp. 241-248). Rational Choice Theory states that all action is conditioned by goals, desires and needs and by the human attempt to realize these goals to the greatest possible extent. Accordingly, the smaller the personal benefit and the greater the personal cost of an action, the less likely it is that an action will be committed. Thus, an attempt is made to increase the costs of illegal action by increasing the severity of the sanction or the risk of sanctions, so that the offence is perceived as less worthwhile. In this way, video surveillance can increase the theoretical probability of the perpetrator being apprehended - i.e. the risk of sanctions - and thus prevent crimes if the perpetrator is already aware of the possibility of observation before the act is committed. The plaintiff's view that most offences are not committed after careful consideration, but typically spontaneously and affectively, appears doubtful, because then all attempts at crime prevention would be fruitless. It may well be true that individual acts of bodily injury are, in retrospect, acts of passion, but these acts are not amenable to a generalisation in the K.-garten. Also, although it is possible that alcohol consumption in individual cases might not be able to deter a perpetrator from committing a crime despite video surveillance, it cannot be concluded from individual cases that video surveillance cannot have a deterrent effect on a majority of potential offenders (even under the influence of alcohol or drugs). The surveillance measure of the K.-garten was not primarily aimed at preventing insults, but it was not true that video surveillance was completely unsuitable for this purpose. According to the police's criminal and administrative offence statistics for the K.-garten, it is clear that from 2012 to 2018 (with the exception of 2017) insults could have been recorded in the K.-garten several times a year. Apart from verbal insults, gesticular insults in particular could be observed by the cameras. One of the main objectives was to prevent drug offences in the K.-garten. A study had shown that the video surveillance systems installed in the northern city centre of Heilbronn as well as at the railway station in Böblingen had significantly contributed to the decrease in narcotics offences. According to this study, the decrease was 60 and 70% respectively (Daniela Brandt, Wirkungen situativer Kriminalprävention - eine Evaluationsstudie zur Videoüberwachung in der Bundesrepublik Deutschland, Diplomarbeit an der Universität Bielefeld, 2003/04, p. 56). The shift of crimes to times outside of video surveillance can be countered by the fact that video surveillance is only one part of the defendant's overall security concept and that this is precisely where the other components come in. According to the above-mentioned study, in many cases no shift had been observed. The plaintiff completely failed to mention that the positive spillover effects were in contrast to the displacement effects. Positive spillover effects often arise in the surrounding areas of the actual target area of video surveillance, in which the crime rate has already been reduced and ensure that such a result is also achieved in the surrounding areas (Gill et al., loc. cit.). The plaintiff also disregards the fact that the defendant and the police would react to any displacement effects that might be observed in the medium term with their concepts and in a manner appropriate to the situation, so that the feared displacement is unlikely to have any major negative effects. Furthermore, video surveillance is also suitable for the prevention of property offences, especially property damage. Florian Glatzner, quoted by the plaintiffs in connection with the suitability of video surveillance, comes to the conclusion in his work "Die staatliche Videoüberwachung des öffentlichen Raumes als Instrument der Kriminalitätsbekämpfung" ("The State Video Surveillance of Public Spaces as an Instrument for Combating Crime") from 2006 (pp. 48, 80), with reference to other studies, that property offences could be prevented by video surveillance. The Criminological Research Institute of Lower Saxony (Kriminologisches Forschungsinstitut Niedersachsen e.V.), which was further quoted by the plaintiffs, also came to the same conclusion (p. 15 f.), which was further quoted by the plaintiffs, also stated in its evaluation of the police video surveillance in North Rhine-Westphalia from 2018 that a reduction in property offences could be ascertained. Therefore, video surveillance also appeared to be suitable with regard to the prevention of vandalism. It was not true that the persons designated for surveillance were not able to simultaneously keep an eye on the images provided by the cameras. They were trained personnel who had been trained to keep a constant overview of the area under surveillance. It was not the case that such personnel were constantly in the surveillance area. Rather, surveillance work is carried out daily, for example to check whether the signage is still undamaged or whether the cameras are covered with hoods. The city employees also have other duties outside of video surveillance. The reference to the labelling approach of the employees was also misplaced. They are specially trained video surveillance personnel, who are informed before they are deployed about typical crime patterns that could help to identify them as quickly as possible. Neither specific persons nor specific target groups were placed under permanent observation. In particular, the training material made available on the defendant's website did not provide any indications that only certain persons or target groups should be observed. Such indications would not be given in the training courses themselves either. Furthermore, the staff was instructed to take action only when an act had actually been observed or when the commission of the act was imminent. Under no circumstances could discrimination or stigmatisation of observed persons be assumed. The attempt of perpetrators to evade prosecution by masking was not known to the K.-garten. Moreover, such masking, regardless of the time of day, would a fortiori lead to unwanted attention being drawn and the competent authorities being called into action. In addition, the municipal employees were required to immediately notify the police in the event of an incident, by which further measures were to be taken. Only the public order office, in cooperation with the official data protection officer, decides on the evaluation of the video material in compliance with strict regulations. Video surveillance was also appropriate. The defendant had made considerable efforts to make it possible to balance the conflicting interests. In the view of the police inspectorate P., which could be regarded as expert in this respect, the K.-garten was a focal point of crime in P. The defendant had neither reason nor corresponding figures to refute this view. In this respect, the plaintiff did not consider the settlement reached within the town to be decisive and it demanded that an absolute crime threshold be exceeded. However, such a demand was neither proven nor indicated. The relative comparison - in this case with the rest of the city - should always be decisive. Where an absolute crime threshold is to be located remains in the dark. The concrete video surveillance measure was also appropriate in its scope. The video surveillance across seasons is based on the police's assessment. The period of video surveillance was also coordinated with the police. From the defendant's point of view, it would not do justice to the prohibition of excessive surveillance to extend the surveillance periods for suspicious cases. In this respect the defendant relied on police expertise. A six-monthly review of the necessity of the reorganisation of the surveillance as well as of the surveillance periods was planned and carried out. Consequences would be derived from any new findings. The storage period of 72 hours was intended to ensure that, in addition to the surveillance personnel, those in charge of the public order office who could order the storage of data for a longer period of time for criminal prosecution were on duty. It would not be in accordance with the prohibition of overkill if the defendant stored data uselessly, the data stocks had long since been overwritten or deleted when the police or the public order office learned of an offence. The defendant had made considerable efforts to achieve a balance between the conflicting interests. This includes switching off the video surveillance system at times when the police experience shows that no significant offences occur, at weekly market times as well as at meetings and other events, the strict limitation of access to the swivel and zoom cameras, monitoring only by trained staff of the defendant and not by a commissioned monitoring service, control of the necessity every six months, a close network of documentation obligations in order to avoid misuse or errors, strict control of the handling of the system by both the public order office and the official data protection officer. Video surveillance will make the K.-garten recreation area fully accessible to the public again. The citizens should again be given a feeling of security. There is no parallel to the principles of dragnet investigation. The prerequisites are already different, in particular there is no secrecy, instead the video surveillance is designed in a particularly transparent way. The entire concept of video surveillance was regulated restrictively and the rights of citizens were taken into account as far as possible. It was incorrect that the data protection information under Articles 12 and 13 GDPR could only be perceived if the person was already in the area under surveillance. The circumvention of the monitored area was apparent from the site plan, which the plaintiff had submitted as Annex K2. The surveillance room, on the outside of which the data protection notices were affixed, was located outside the video-monitored area. Thus, if a person - by means of the pictograms referring to the video surveillance - wishes to take note of the data protection notices before entering the video-monitored area, he or she can do so informally by looking at the notice on the surveillance room and does not have to take a step into the video-monitored area. The assertion that the honeycomb pattern of the signs constituted a breach of the duty of transparency was unfounded because the latter served precisely to ensure that the sign remained self-reflecting and perceptible even at dusk or in other poor lighting conditions. The location of the signs had been agreed with the local data protection officer. The signs were clearly visible and legible. It would not lead to lack of transparency if the head position had to be changed in order to read the signs. For the rest, reference is made to the statement of defence of 1 August 2019.
9
The parties agreed to a decision without an oral hearing.
10
For the details, reference is made to the court and administrative files and to the minutes of the hearing of 13 July 2020.
Reasons for the decision
11
Under the conditions of § 84, Subsection 1, Sentence 1, Code of Administrative Court Procedure (Verwaltungsgerichtsordnung - VwGO), the court was able to decide by means of a court order without an oral hearing.
12
The general action for performance in the form of an action for an injunction is already inadmissible for lack of admissibility.
13
The court is of the opinion - as will be explained below - that the right under customary public law to have the consequences removed, which is generally aimed at the complete cessation of data processing in the form of video surveillance, which also includes other data subjects, on the basis of present and future individual data subjects, is no longer considered admissible in its scope of application after the change in the legal situation due to the entry into force of the Basic Data Protection Regulation on 25 May 2018 (Art. 99 GDPR), irrespective of whether the plaintiff can assert a violation of rights and thus the right to bring an action.
14
First of all, it should be noted that the material scope of application of the basic data protection regulation is open. In particular, the exceptions to the scope of application of the Basic Data Protection Regulation for the processing of personal data mentioned in Article 2 (2) GDPR are not relevant. Contrary to the plaintiff's view, Article 2(2)(d) GDPR does not apply in the present case. The processing of personal data by the competent authorities for the purpose of the prevention, investigation, detection or prosecution of criminal offences or the execution of sentences, including the protection against and prevention of threats to public security, falls within the scope of the second legal instrument in the data protection reform package, the so-called "Police Directive" (Article 1(2)(d) GDPR). 1 Directive 2016/680/EU of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data by the competent authorities for the purpose of the prevention, investigation, detection or prosecution of criminal offences or the execution of sentences and on the free movement of such data and repealing Council Framework Decision 2008/977/JHA, OJ 2016 L 119, 89). Both legal instruments (the basic data protection regulation and the "Police Directive") are closely coordinated and therefore complement each other. The exception in Article 2(2)(d) GDPR covers data processing for both preventive and repressive purposes. An offence within the meaning of the exception in Article 2(2)(d) GDPR and with regard to the application of the "Police Directive" must be understood as an independent concept of Union law which cannot be defined unilaterally by the Member States. It does not include the prevention, investigation, detection or prosecution of purely administrative offences. It is intended to cover police activities in cases where it is not known in advance whether or not criminal offences are involved, as well as the exercise of official authority by the use of coercive measures, such as police activities during demonstrations, major sporting events and riots. They also include the maintenance of public order as a task assigned to the police or other law enforcement authorities - but not to purely law enforcement authorities - insofar as this is necessary for the purpose of protecting against and averting threats to public security and threats to the fundamental interests of society protected by law which may lead to a criminal offence (see Recital 12 of Directive 2016/680/EU and Recital 19 of the Basic Data Protection Regulation; Ehmann/Selmayr, Datenschutz-Grundverordnung, 2018, 2nd ed, Art. 2 margin no. 12; Schwartmann/Jaspers/Thüsing/Kugelmann, DS-GVO/BDSG, 2018, Art. 2 GDPR margin no. 44 et seq.) However, personal data processed by public authorities under the Basic Data Protection Regulation should be subject to Directive (EU) 2016/680 if they are used for the above purposes (Recital 19 op. cit.). In the present case, the defendant acts primarily as a public order or security authority under Article 6 of the LStVG with the task of maintaining public safety and order by preventing threats and by preventing and remedying disturbances, and thus on the basis of the basic data protection regulation. In addition, the exercise of the domiciliary right for the public institution K.-garten by the defendant as the performance of a task in the public interest or the fulfilment of a legal obligation (Article 6 para. 1 letters c and e GDPR).
15
The legal protection system regarding the processing of personal data therefore also has its starting point in the basic data protection regulation.
16
Art. 79 GDPR excludes further judicial remedies against responsible persons and processors, so that actions for injunctions under Sections 1004 (1), 823 (2) of the German Civil Code (BGB) in the area of data protection are in principle no longer possible. According to the wording of Art. 79 (1) GDPR, only other administrative or extrajudicial remedies remain "unaffected", but not judicial remedies (see Bernhard/Kreße/Sydow, Europäische Datenschutzgrundverordnung, 2nd edition 2018, Art. 79 marginal 30; BeckOK, Datenschutzrecht, Wolff/Brink, 29th edition, Art. 79 marginal 11). The rights of data subjects are laid down in Chapter III of the Basic Data Protection Regulation (Articles 12 to 22 GDPR). These are, on the one hand, rights of information, correction and deletion and the right to restrict the processing of personal data. It also covers the right not to be subject to a decision based solely on automated processing. The obligations mentioned in Art. 13 et seq., 19 GDPR correspond to individual subjective rights of the persons concerned, which can be enforced in court pursuant to Art. 79 GDPR under its further conditions. The same applies to the obligations of the controller for the processing of personal data formulated in Art. 12 GDPR.
17
Beyond the above-mentioned norms, the basic data protection regulation does not grant any rights for the enforcement of which an effective legal remedy must be provided under Art. 79 GDPR. In particular, a claim to cease and desist from processing of personal data contrary to the Regulation could be considered, since according to Art. 8 (1) EU-CRCh, Art. 16 (1) TFEU, every natural person has the right to the protection of personal data concerning him or her, whereby the content of the protection is also the requirement of lawfulness of the processing. In such a case, it should therefore be possible to prevent such processing for the future, otherwise the protection of fundamental rights and the principle of effectiveness under European law under Article 4 (3) TEU would be impaired. However, the right to stop unlawful data processing is not as such enshrined in the Basic Data Protection Regulation. Although the Basic Data Protection Regulation does concretise the right to the protection of personal data guaranteed by primary law, it does so only to the extent that it lays down the characteristics of this right. This argues against the assumption of a right to injunctive relief based on the Basic Data Protection Regulation with regard to the processing of personal data contrary to the Regulation. The right of cancellation under Art. 17 (1) (d) GDPR only helps to a limited extent because Art. 6 GDPR, to which reference is made, only deals with the requirement of a permissible reason for data processing.
18
The assumption of a general right to prohibit the processing of personal data in breach of the Regulation on the basis of the General Data Protection Regulation is also contradicted by its history and its system. Article 76(5) of the Commission proposal for the basic data protection regulation reads as follows: "Member States shall ensure that the legal remedies available under national law are capable of securing rapid action, including provisional measures, to put an end to alleged infringements and to prevent further damage to the data subject. "This provision, formulated in a preventive manner, was deleted without replacement in the general approach adopted by the Council of the European Union on 15 June 2015. However, the wording, which is now contained in Art. 77 (1) GDPR, which links the right of appeal to the fact that the processing of personal data violates the basic data protection regulation, has not changed in any significant way. The difference in the wording of Art. 77 (1) and Art. 79 (1) GDPR Regulation also shows that the mere processing of data contrary to the Regulation does not constitute a violation of the law, but that a distinction must be made between unlawful data processing and violation of the law. In the case of a mere unlawful data processing without a legal violation, the data subject has the right of appeal under Article 77 paragraph 1 GDPR and subsequently the right to judicial remedy against the supervisory authority under Article 78 paragraph 1 GDPR, which removes the primary legal concerns. It should be noted that this violation of the Data Processing Regulation is seen as an independent feature of data processing in addition to the violation of rights in Art. 79 para. 1 GDPR: In the opinion of the data subject, the infringement of rights should only occur as a result of the processing in breach of the Regulation, i.e. it should not be identical to it. The rights of the data subject are infringed if the person or institution against whom they exist does not comply with the obligations corresponding to them. In order to establish this, the more specific provisions of Article 12 (2), (3) and (5) to (7) GDPR must also be observed. For example, in the cases mentioned in Art. 12, para. 3 GDPR, there is no infringement of rights before the expiry of the periods specified in this provision. There is also no infringement of rights in the cases of Art. 12 para. 5 sentence 1 letter b and para. 6 GDPR.
19
This legal situation described above is also not modified by the Bavarian Data Protection Act. According to Art. 1 BayDSG, the Bavarian Data Protection Act initially applies to data processing by all Bavarian authorities, i.e. also by judicial and police authorities, unless special regulations exist in the respective specialist law (e.g. the right to register or the police task law) (Art. 1 para. 5 BayDSG). Because of this very comprehensive scope of application, Art. 2 BayDSG is also valid for all Bavarian authorities. The Bavarian legislator has thus decided that the Basic Data Protection Regulation should also apply in those areas which - due to a lack of EU competence - are not (or should not be) covered by the Basic Data Protection Regulation and where there is (actually) room for an independent national data protection law. However, the Bavarian legislator had recognised that it is not possible to solve all implementation tasks formulated by Directive 2016/680/EU in a proper manner by a blanket reference to the Basic Data Protection Regulation. For this reason, Art. 28 para. 2 and 3 BayDSG was created, which create isolated special provisions for the "Directive Authorities" mentioned in Art. 28 para. 1 BayDSG. By means of an exhaustive list, Art. 28 para. 2 BayDSG orders that only certain provisions of the Basic Data Protection Regulation apply to data processing which is subject to Directive 2016/680/EU. Other provisions of the Basic Data Protection Regulation do apply in principle, but they are replaced by Art. 29 et seq. BayDSG. Furthermore, not all provisions of the Bavarian Data Protection Act are to apply to data processing pursuant to Directive 2016/680/EU. Therefore, Art. 28 para. 3 BayDSG stipulates that certain provisions of the Bavarian Data Protection Act shall not apply to data processing operations which are subject to the Directive. In addition to the specific purpose (processing of personal data by the competent authorities for the purpose of preventing, investigating, detecting, prosecuting or punishing criminal offences or administrative offences, including the protection against and prevention of threats to public security), a basic allocation of tasks and powers of the processing authority is also (always) necessary for the prevention, investigation, detection or prosecution of criminal offences or criminal proceedings as well as for police security. Art. 28 para. 1 sentence 1 BayDSG contains a non-exhaustive list ("unless otherwise specified") of those authorities which may be assigned such tasks and powers within the meaning of the Directive. These competent authorities are subject to the provisions of the eighth chapter only insofar as the specific data processing serves the purposes mentioned in Art. 28 para. 1 sentence 1 BayDSG. According to this, the area of security will, in view of the constellations relevant to practice, be assigned to the scope of application of Directive 2016/680/EU and thus to Chapter 8 of the Bavarian Data Protection Act. Even if the prevention of criminal offences is not clearly established as the purpose or result of police action to avert danger, there is almost always at least the possibility that the danger situation may lead to a criminal offence or that this is not excluded. However, in contrast to this, according to the self-understanding of Directive 2016/680/EU, data processing for averting danger by non-police security authorities (e.g. district offices as security authorities according to Art. 6 LStVG) is to be assessed in principle in accordance with the provisions of the Basic Data Protection Regulation. The eighth chapter of the Bavarian Data Protection Act is only applicable to them insofar as these non-police security authorities "prosecute or punish criminal offences or administrative offences". The provisions of the eighth chapter therefore apply as soon as data are processed within the scope of a concrete, documented administrative offence procedure that has been initiated (cf. Wilde/Ehmann/Niese/Knoblauch, Datenschutz im Bayern, 29 AL June 2018, Art. 28 BayDSG nr. 20).
20
For legal protection, Art. 20 BayDSG provides exclusively for the invocation of the supervisory authorities by affected parties. This is to be seen as a concretisation of the right of appeal guaranteed directly in the Basic Data Protection Regulation in accordance with Art. 77 GDPR. The provision thus contains a Member State's procedural regulation on the basis of Art. 58 para. 4 GDPR. Supervisory authorities within the meaning of Art. 20 BayDSG include the Bavarian State Commissioner for Data Protection (Art. 15 BayDSG) and the Bavarian State Office for Data Protection Supervision (Art. 18 BayDSG). Art. 77 para. 1 GDPR in conjunction with Art. 20 para. 1 sentence 1 BayDSG determines the right of the data subject to contact the data protection supervisory authorities with the argument that his rights have been violated in the processing of his personal data. This appeal to the supervisory authority is an informal legal remedy similar to the general right of petition (Art. 115 BV, Art. 17 GG). It gives the person concerned - irrespective of other legal remedies - the independent right to appeal to a supervisory authority with the argument that his rights have been violated in the processing of his personal data. The right of appeal guaranteed by the EU Charter of Fundamental Rights (Article 8 (1) in conjunction with Article 8 (3) CFR) is protected by Article 77 (1) GDPR in conjunction with Article 77 (1) CFR. Art. 20.1 sentence 1 BayDSG, whereby Art. 20.1 sentence 1 BayDSG - unlike the right of appeal in Art. 77.1 GDPR - requires not only the assertion of a violation of the Basic Data Protection Regulation, but also an assertion that the complainant has committed a violation of his or her own rights (Data Protection in Bavaria, 29 AL June 2018, Art. 20 BayDSG nos. 4 and 5). This gives rise to a legal claim on the part of the data subject that the supervisory authority receives the submission, examines it from a factual and legal point of view and informs the submitting party in writing of how the submission was dealt with. In this respect, Article 57 (1) (f) GDPR provides that the "subject matter of the complaint shall be investigated to an appropriate extent". If a supervisory authority has not dealt with a complaint or has not informed the person concerned within three months of the status or outcome of the complaint lodged, the person concerned may, under Article 78(2) and (3) GDPR, bring a general action for performance before the administrative courts for information on the status or outcome of the complaint. The period of three months is derived from Art. 78, para. 2 GDPR. The individual powers of the supervisory authorities derive from Art. 58 GDPR, including remedial powers which, among other things, allow them to impose temporary or permanent restrictions on processing, including a ban (paragraph 2(f)), or to order the rectification or deletion of personal data or the restriction of processing in accordance with Art. 16, 17 and 18 DGSVO and the notification of the recipients to whom such personal data have been disclosed in accordance with Art. 17(2) GDPR and Art. 19 GDPR. This right of appeal or complaint under Art. 20 BayDSG does not require a prior application to the responsible authority. If, however, a data subject wishes to take direct action against a controller or to assert the data subject rights of the Basic Data Protection Regulation (Art. 16 et seq. GDPR), these rights of rectification, deletion and notification in connection with the rectification or deletion of personal data or the restriction of processing, as well as the prior right of access under Art. 15 GDPR, require a "request" by the data subject to the controller. In the event of refusal, the data subject is entitled to all the legal remedies provided by the Basic Data Protection Regulation (Art. 77, 78 GDPR). In addition, the data subject has the right to an effective judicial remedy directly against the data controller (Art. 79 GDPR). If the person responsible is a public authority and the latter rejects an application for restriction, the rejection is an administrative act which is subject to the relevant administrative remedies and is regularly subject to an action for an obligation pursuant to Articles 42, 68 et seq. VwGO (Ehmann/Selmayr, General Data Protection Regulation, 2018, 2nd ed., Art. 18 marginal 30). Thus, even within the scope of application of the Bavarian Data Protection Act, the exclusive right of a data subject to bring an action against the responsible party pursuant to Article 79 GDPR.
21
The aforementioned data subject rights of the basic data protection regulation (with Art. 20 BayDSG) have replaced - as already explained above - any data subject rights under national law since 25 May 2018 (loc.cit., Art. 18 marginal 38; OVG Lüneburg, U.v. 20.6.2019 - 11 LC 121/17 - para 43; VG Stade, B.v. 9.10.2018 - 1 B 1918/18 - para 30). A common feature of these data subject rights is that a data subject can only object to the personal data concerning him/her (Becker in Plath, GDPR/BDSG, 3rd ed. 2018, Art. 79 marginal no. 2). Art. 79 GDPR only conveys a right of injunction under individual law. In addition, the rights of information, correction and deletion (Art. 15 to 17 GDPR) can also be pursued against the person responsible and the processor through the channels provided in Art. 79 para. 1 GDPR. In terms of substantive law, the claim and its enforcement are governed by the general provisions, whereby different legal channels are used vis-à-vis public and non-public bodies. As a rule, the data subject will have to seek legal protection before the administrative courts against faulty data processing by public bodies within the scope of their sovereign acts (Section 44 (2) BDSG). Since the corresponding procedural legal instruments were available in German law, there would not necessarily have been a need for certain implementation measures by the German legislator. Nevertheless, the legislator has included provisions on jurisdiction in Section 44 BDSG, but this does not result in any change to the existing legal situation in Germany (Becker in Plath, loc. cit.). In addition, a right of objection pursuant to Art. 21 para. 1 GDPR may be considered for the processing of personal data which is carried out on the basis of Art. 6 para. 1 letter e or f GDPR. This right of objection is systematically regulated in Section 4 of Chapter III ("Rights of Data Subjects"). This shows that it stands independently alongside the other rights of data subjects (Art. 13 to 20 GDPR), although these rights are not mutually exclusive but complementary. The systematic nature of Art. 21 GDPR shows that the right of objection has both procedural and substantive law character. In addition to the procedural right to raise an objection, Art. 21(1) sentence 2 GDPR grants a substantive right to injunctive relief, i.e. a right that the data controller will no longer process the data in future. The provision thus enables the data subject to prevent data processing with ex-nunc effect. This right to injunctive relief is granted in accordance with Art. 17 (1) Letter c Alt. 1 GDPR, supplemented by a right to the elimination of consequences in the form of a right to deletion and, pursuant to Art. 18 para. 1 letter d GDPR, by a temporary right to security in the form of a right to limitation, as long as it is not yet clear whether the legitimate reasons of the controller outweigh the special reasons of the data subject, and, pursuant to Art. 19 GDPR, by an obligation to provide subsequent notification and information in connection with the deletion. Some of these rights are directly limited by Union law (e.g. Article 13(4), Article 14(5), Article 21(1) GDPR). In addition, the rights and obligations under Articles 12 to 22, 34 and, where applicable, Article 5 GDPR may be limited by Union or national legislation under the conditions laid down in Article 23 GDPR. However, a general restriction of the rights of data subjects in court proceedings was not included in Union law, in the Judicature Act, in the codes of procedure, nor in the Federal Data Protection Act and Book X of the Tenth Book of the Social Code (SGB X), since the numerous exceptions already resulting from the Basic Data Protection Regulation did not make this necessary. Moreover, the relevant procedural rules can be considered by courts as a restriction of the rights of data subjects within the meaning of Article 23 GDPR and special federal law preceding the Federal Data Protection Act (Article 1 (2) sentence 1 BDSG) (Bieresborn, Die Auswirkungen der GDPR auf das gerichtliches Verfahren, DRiZ 2019, 18 et seq. The Basic Data Protection Regulation establishes a number of new rights of action, which, according to national design, are to be brought before the courts of administrative jurisdiction (Section 20 BDSG), the social courts (Sections 81a, 81b SGB X) or the fiscal courts (Section 32i AO). § Without prejudice to other legal remedies, Section 78 (1) GDPR establishes the right of every natural or legal person to an effective judicial remedy against legally binding decisions of the supervisory authority under data protection law. This includes all decisions and thus also administrative acts issued on the basis of Art. 58 GDPR that are capable of having legal force. Any natural or legal person is entitled to bring an action, provided that its own protected rights are affected. It is not absolutely necessary that the decision is also legally binding on this person; it is sufficient that the person's interests are in fact directly affected. Art. 78, para. 2 GDPR grants affected persons and, without prejudice to other legal remedies, an action for failure to act against the supervisory authorities under data protection law. A precondition for this legal remedy is that a complaint pursuant to Art. 77 GDPR has been lodged beforehand. Art. 79 para. 1 GDPR grants data subjects an additional judicial remedy against what they consider to be a breach of the Basic Data Protection Regulation in the handling of their personal data. The standard of review is the Basic Data Protection Regulation. The infringed standards must not only have an objective-legal character - such as the obligation to appoint a data protection officer (Art. 37 GDPR) or to carry out a data protection impact assessment (Art. 35 GDPR) - but must also have concrete effects on the plaintiff's subjective rights. Defendants are data controllers and processors. Parallel proceedings for injunctive relief or claims for damages against the responsible party do not preclude admissibility, nor does a parallel complaint to the supervisory authority (Art. 77 and 78 GDPR).
22
In the present case, video surveillance is to be assumed to involve data processing in accordance with Art. 6 Para. 1 letter e GDPR, so that for the plaintiff, in addition to the rights of the persons concerned in accordance with Art. 16 et seq. GDPR, the plaintiff would also have had the possibility to object under Art. 21 Para. 1 GDPR. As already explained above, the obligations to cease and desist and to remedy the consequences only cover the data relating to the data subject. If (automated) processing also includes third-party data, this does not have to be omitted altogether (Ehmann/Selmayr, Basic Data Protection Regulation, 2018, 2nd ed., Art. 18 marginals 40, 41). If an objection is rejected, the data subject is also entitled to all legal remedies provided by the Regulation. This refers to primary legal protection based on the aforementioned right to appeal to the competent supervisory authority (Art. 77 GDPR) and an appeal against a decision of the supervisory authority (which does not remedy the situation), also in the form of an action for failure to act (Art. 78 GDPR). In addition, the person concerned has the right to an effective judicial remedy directly against the person responsible (Art. 79 GDPR). If the person responsible is an authority and the authority rejects a request or an objection by the person concerned, the rejection - as already stated above - is an administrative act which can be challenged by the relevant administrative remedies (loc. cit. para. 69). According to the wording of the provision, the right under Art. 79 (1) GDPR to an effective remedy against violations of rights caused by data processing in breach of the Regulation exists "without prejudice to any other administrative or extrajudicial remedy". Even if, contrary to obvious legal considerations, the judicial remedy under Article 79(1) GDPR is not in a tiered relationship with the above-mentioned remedies, but rather in addition to them, the judicial remedy is, however, subject to the same limitation as the other above-mentioned rights of the data subject, namely that the subject of the proceedings can only be the personal data concerning the data subject. This legal restriction also speaks against the general right of injunction pursued by the plaintiff in the present action. In addition, according to general principles of procedural law, a prior application or objection in the above sense must be filed with the responsible party in order to protect the right to legal redress (loc. cit. Art. 79 marginals 2, 5; Schwartmann/Jaspers/Thüsing/Kugelmann, DS-GVO/BDSG, 2018, Art. 79 marginals 18).
23
Accordingly, a general action for an injunction in its present form must - as already stated above - be assumed to be inadmissible in view of the specific rights of data subjects under the basic data protection regulation since its entry into force on 25 May 2018. It is undisputed between the parties to the proceedings that the plaintiff did not make any "request" under Art. 13 et seq. GDPR or an objection pursuant to Art. 21 para. 1 GDPR directly to the defendant or pursuant to Art. 77 GDPR in conjunction with Art. 20 BayDSG to a supervisory authority. Even if a direct judicial assertion of the rights of the persons affected were to be considered permissible in circumvention of the above-mentioned procedural rights or without any referral to the responsible authority, the nature and scope of this judicial assertion cannot go any further in substantive law than the above-mentioned procedural rights, so that there is no need for legal redress for the claim in its present form.
24
Furthermore, the applicant bases his alleged infringement of rights in the final analysis only on the fact that he, as the beneficiary of the public institution K.-garten, is affected by the video surveillance system, firstly, because his person may actually be visually recorded when he enters the monitored site, and secondly, because the video surveillance system is only present even without surveillance activity and this surveillance system is installed and operated contrary to the provisions of the Basic Data Protection Regulation. Such a statement cannot suffice to prove an independent violation of the law. The "view" of a violation of rights within the meaning of Art. 79 (1) GDPR in the above sense would mean in effect that this would coincide with the presentation of data processing by video surveillance that does not comply with the Regulation. However, the Basic Data Protection Regulation makes a distinction - as already explained above - between the mere unlawfulness of the data processing, on which a right of objection under Article 21 GDPR and a right of appeal under Article 77 GDPR can be based, and the additional infringement of rights that is alleged to have been committed by the data subject. Against this background, it cannot be assumed in the present case that the plaintiff has asserted a violation of rights, so that taking legal action under Art. 79 GDPR would also be ruled out in the present case.
25
Moreover, the action would also be unfounded only on the basis of the unlawfulness of the processing of personal data by video surveillance.
26
Video surveillance using the camera-monitor system constitutes processing of personal data within the meaning of Art. 4 nos. 1 and 2 GDPR if the video recordings allow the identification of the person concerned (Ehmann/Selmayr, loc.cit., Art. 4 marginal 7). Their legality is governed by Art. 6 GDPR. Among other things, the lawfulness of the processing is mentioned as a condition that the processing is necessary for the fulfilment of a legal obligation to which the controller is subject (Art. 6 para. 1 letter c GDPR) or that it is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller (Art. 6 para. 1 letter c GDPR). e GDPR) or that the processing is necessary to safeguard the legitimate interests of the controller or of a third party, except where such interests are overridden by the fundamental rights and freedoms of the data subject which require the protection of personal data, in particular where the data subject is a child, with the exception of processing carried out by public authorities in the performance of their duties (Art. 6 para. 1 letter f, second sentence GDPR). The legal basis for the processing operations pursuant to Article 6(1)(f), second sentence, GDPR c and e GDPR is determined by Union law or the law of the Member States to which the controller is subject (Article 6(3), first sentence, GDPR).
27
The Federal Data Protection Act (BDSG) came into force at the same time as the Basic Data Protection Regulation. There the video surveillance is regulated in § 4 BDSG. According to § 1 paragraph 1 No. 2 BDSG, the Federal Data Protection Act applies to the processing of personal data by public bodies of the federal states, unless data protection is regulated by state law. In the Free State of Bavaria, the new version of the Bavarian Data Protection Act (BayDSG) also came into force on 25 May 2018. Art. 24 of the BayDSG specifies the conditions for the processing of personal data with the aid of optical-electronic devices (video surveillance). According to this, video surveillance is permissible if this is necessary in the context of the fulfilment of public tasks or in the exercise of domestic authority to protect the life, health, freedom or property of persons who are in the area of public facilities, public transport, service buildings or other structural facilities of public bodies or in their immediate vicinity (para. 1 No. 1), or to protect cultural assets, public facilities, public transport, official buildings or other structural installations of public bodies as well as the objects located there or in their immediate vicinity and there are no indications that predominant interests of the persons concerned worthy of protection are impaired (para. 1 No. 2).
28
The defendant's city council decided in public session on 14 May 2018 to improve public safety in the inner city area by extending the toilet facilities at the K.-garten by an annex, which is temporarily manned by supervisory staff from 8:00 a.m. to 10:00 p.m., and to install video surveillance for the K.-garten area. In the draft resolution of April 10, 2018, first of all to the city council meeting of April 23, 2018, and then on May 14, 2018, it was stated that, despite the generally good security situation, the K.-garten had developed into a focal point with regard to crimes and administrative offences. On the legal basis of Article 21a of the BayDSG (old version, note of the G.), municipal video surveillance was admissible if a public institution was present and the police had documented the incident and concluded that the K.-garten was a focal point. According to the police, especially the drug offences that had been established pointed to a brisk turnover of drugs, the so-called "ant trade", with regard to known dark field investigations. This assessment was further supported by indications from the population as well as by the regular finding of drug paraphernalia in the nearby public toilets. It is expected that the installation of video surveillance in the K.-garten area will lead to a noticeable decrease in crimes and administrative offences. Moreover, crimes and administrative offences committed could be better prosecuted or clarified by evaluating the video material. Video surveillance would strengthen the sense of security of the population, who would like to use the K.-garten as a place of recreation and relaxation. Potential offenders would be deterred by video surveillance alone. In an internal data protection assessment of 14 May 2018 on the same day of the city council meeting, it was stated that the K.-garten was a public facility of the defendant; it served as a local recreation area. This purpose was undermined by the commission of criminal offences and administrative offences in this area. In addition, the facilities in the K.-garten were regularly damaged by vandalism. There would be additional costs of at least 25,000 euros for repairing the damage at the municipal nursery alone. The K.-garten is also a local focal point in the drug trade. The legal interests mentioned in Art. 21a BayDSG (old version, note of the G.) would probably also be violated in the future after an appropriate risk analysis by the administration and police, and the planned video surveillance would serve to counteract the predicted danger. The criminal and administrative offence statistics show that numerous offences were committed in the K.-garten, in particular drug trafficking, and that there were also constant violations of the city's green space statutes. The police documentation of the incidents also shows that, in addition to bodily injury offences and excessive alcohol abuse, vandalism and drug trafficking have not been brought under control in recent years. In some areas, especially in drug trafficking, there had even been a marked deterioration in the number of cases. Although various measures taken by the defendant in cooperation with the police had brought about certain improvements in recent years, the situation in the K.-garten was still unacceptable and the citizens' feeling of security in this area "virtually" non-existent. Measures already implemented, such as the occupation of a second streetworker position, expanded police presence, increased controls and punishment of offences had not yet resulted in any significant improvement, so that another measure, namely video surveillance, seemed appropriate as a means of averting danger. The administration was certain that the comprehensive surveillance of the K.-garten would reduce the number of offences and administrative offences and that the public grounds would be used again in accordance with their purpose. In addition, criminal prosecution was also to be facilitated as a secondary purpose. The encroachment by video surveillance on the interests of those affected that were worthy of protection was to be classified as not insignificant, and in particular the privacy of each individual was also affected. Every stay of a person in the K.-garten would be recorded by the planned measure. The K.-garten will be heavily frequented by students on their way to and from the university, especially at daytime. There is therefore a high number of people affected. The intervention by means of video surveillance could be regarded as justified, taking into account the overall legal interests. The legal interests to be protected would outweigh the rights of the persons concerned. The surveillance was not planned at market times and at events where surveillance would in any event be disproportionate. Video observation and recording would not be necessary at events at which, for example, security was ensured by security forces specifically assigned for this purpose. The fact that the K.-garten is an open park and not a place of fear is not convincing. In spite of the open design, there are in fact constantly various offences. The perpetrators were not bothered by the openness of the park. Even without hidden corners, the K.-garten currently represents a place that citizens avoid to linger. Even the argument that the planned measure only shifts the problem locally does not lead to a different assessment, especially since there are no tangible clues. If such a shift were to actually take place, video observation and recording would have to be discontinued.
29
The starting point for an admissibility review of video surveillance is - as already reflected in the content above - Art. 6 para. 2, para. 3 sentence 3 GDPR in conjunction with Art. 24 para. 1 BayDSG. The defendant's activity as a security authority within the meaning of Article 6 of the LStVG with the primary purpose of preventing crimes and administrative offences was repeatedly emphasised in the run-up to the resolution of 14 May 2018 on the establishment of video surveillance and was the subject of legal review by the defendant's administration. The general preventive aspects outweighed the inevitable side effect of successful punishment of committed crimes or administrative offences by the police and law enforcement agencies. In addition, the defendant's domiciliary right stands for the public institution K. -garten. The K.-garten was created as a public green space with a special purpose in the course of the implementation of the development and green space plan "Neue Mitte P. - Teilgebiet 1" (notice of 13 July 2006 in the Official Gazette No. 23 of the City of P.*) as a public green space with a special purpose Stadtpark "K.-garten" as a partially unsealed area (clause 3.6 of the textual stipulations of the development plan) and was thus also impliedly dedicated as a public institution. As a public green space, the K.-garten is covered by the Statute on the Use of Public Green Spaces, Municipal Playgrounds, Football Pitches and Leisure Facilities of the City of P. dated 29 May 2006 (entered into force upon publication in the Official Gazette of the City P. No. 19 dated 1 June 2006). Public green areas within the meaning of these statutes are the green areas and parks owned by the defendant, which are accessible to the public and maintained by the defendant, whereby the paths and squares, natural and artificial water surfaces and water facilities as well as the marked playgrounds and sunbathing areas and facilities are also part of the green areas (Article 1 para. 2 of the statutes). Sections 2 et seq. of the statutes regulate behaviour in public green areas, among other things, and stipulate obligations for removal, enforcement orders in individual cases, bans on entering the area and offences are included. This purpose of the K.-garten as a local recreation area in the city area may require the exercise of the householder's rights through the installation of video surveillance in order to avert disturbances, as described above.
30
The court is of the opinion that the appropriateness and necessity in terms of the principle of proportionality (Art. 8 LStVG) of the installation of video surveillance in accordance with Art. 24 para. 1 BayDSG was given at the time of commissioning on 18 December 2018 and that this decision is still given at the time of this decision. The incident documentation of the police for the year 2019 and the first half of 2020 prove that the legal interests mentioned in Art. 24 para. 1 BayDSG and the public institution K.-garten still require protection. This does not require the identification of a "centre of crime", i.e. a place where a significant accumulation of crimes can be observed in comparison to other parts of the urban area (cf. VG Gelsenkirchen, B.v. 7.5.2020 - 17 L 88/20 - juris on video surveillance by the police pursuant to Article 15a para. 1 sentence 1 no. 1 PolG NRW).
31
Video surveillance does not affect the plaintiff's right to informational self-determination in its core area of intimacy and privacy, which would require a legal basis for authorisation, the application of which in the individual case would be in accordance with the principle of proportionality, but at most the public sphere, thus describing an area which at most affects the right of personality and which in any case cannot be shielded from the environment. Measures affecting this area have - if at all - only a low intensity of burden. From the point of view of proportionality, this is where the lowest justification requirements exist. Depending on the circumstances of the individual case, even the scope of protection of the right of personality is not affected because of the social reference in this area (Maunz/Dürig, Grundgesetzkommentar, Art. 2 marginal no. 160 with further references). In this context, it should also be mentioned for further understanding that an image recording made in the course of video surveillance initially only represents the recording of information, and that the personal reference (through assignment to an identifier such as the name) can often only be established later through additional knowledge (often obtained from third parties), so that the processing of personal data as a result of identification does not regularly begin with the image recording, but only when the identification of the person concerned is possible (see ECJ, U.v. 11 December 2014 - C-212/13 - juris). On this basis, a purely isolated recording, which is also not merged with other recordings, does indeed provide information, but as long as no personal date within the meaning of Art. 4 No. 1 GDPR, as long as the information cannot be assigned to any natural person who is identified or identifiable (e.g. by surname or identification number). However, it is not necessary for identifiability that all the information required to identify the person concerned is in the hands of the person responsible. In this respect, a personal date exists if the person responsible has legal means that enable him to have the person concerned identified on the basis of additional information provided by a third party (cf. ECJ, U.v. 19.10.2016 - C-582/14 - juris). The possibility of using police assistance for the identification of offenders in the case of the commission of criminal offences can be regarded as such legal means. In this mixed situation, it must be assumed - even if only for the sake of security - that in principle every video surveillance encroaches on the general right of personality in its manifestation as a right to informational self-determination, because the processing (collection) of personal data, i.e. of information of an identifiable natural person, at least in individual cases (i.e. (i.e. in relation to individual conspicuous persons) cannot be ruled out and - for example in the case of criminal offences - such identifiability is hoped for, should take place and will often be legally possible through recourse to third parties (police) (cf. Data Protection in Bavaria, 29th AL June 2018, Art. 24 BayDSG marginal no. 11 ff.) Such identifiability and recourse to the police can also be assumed in the present case and has already been successfully practised in the past in terms of criminal prosecution. However, it is also clear from this that even the scope of protection of the right of personality with the above-mentioned social reference is even less affected if the plaintiff's person is not exceptionally recorded and subsequently becomes identifiable after storage for the identification of a third party. The plaintiff did not substantiate whether the scope of protection of his or her personal right - apart from the above-described limitation of identifiability - is to be regarded as affected at all on account of the social reference, because it was only stated that the plaintiff could enter and cross the K.-garten for private, political or professional purposes or even stay there. In the comparison, it can be assumed that high-ranking legal interests such as life and health predominate, which are the main focus of attention in the case of BtMG violations (Art. 24 Para. 1 No. 1 BayDSG), but also with regard to the protection of the public institution K.-garten against vandalism (Art. 24 Para. 1 No. 2 BayDSG). The defendant acts with video surveillance in the context of the fulfilment of public duties (Art. 6 LStVG) as well as in the exercise of the right of the house. The fact that the K.-garten is not a public traffic area, but a municipal public facility (Article 21 of the German Rules of Procedure), where it must also be clear to the plaintiff that the whether and how of use can be subject to certain restrictions that take into account the principle of equality (see the defendant's statutes on the use of public green spaces, municipal playgrounds and football pitches and leisure facilities of 29 May 2006), certainly contributes to the clarification.
32
The transparency requirement (Art. 24 para. 2 BayDSG) is to be regarded as fulfilled. Information on video surveillance is provided by appropriate signs. Since the labelling is only of a typifying character, information on the times of video surveillance is dispensable. An indication that a certain building or area is under video surveillance is sufficient. It is also not necessary to draw attention to video surveillance - so that the person concerned could still avoid it - before entering the video-surveillance area, since video surveillance is based on a legal authorisation and not on (implied) consent. The duty to inform simply refers to the fact that use has been made of this legal basis for authorisation. The law does not provide for a kind of "implied consent" of the person concerned in such a way that he or she can make a conscious decision to enter the area under video surveillance on the basis of early notification. Signs would also be dispensable if video cameras were clearly visible to everyone, as this would also make the fact of surveillance recognisable. In this respect, in individual cases the clearly visible installation of cameras can also constitute a "suitable measure" in the sense of Art. 24 para. 2 sentence 1 BayDSG, whereby a strict standard must be applied here (cf. Data Protection in Bavaria, 29 AL June 2018, Art. 24 BayDSG margin no. 33 et seq.) According to this, the references to video surveillance of the K.-garten which the defendant has made so far satisfy the legal requirements of the transparency requirement, also with regard to the identification of the person responsible (Art. 24 para. 2 sentence 2 BayDSG). In a written statement dated August 4, 2020, the defendant announced that, following the court hearing following an inspection of the K.-garten, the information signs would be enlarged and the site relocated in individual places after consultation between the public order office and the official data protection officer. In addition, two further entrances, which have hardened over time, are to be additionally signposted. The earmarking and breaking of the earmarking (Art. 24 para. 3 BayDSG) has been taken into account in accordance with the law; the planned recording period of three days is within the scope of Art. 24 para. 4 BayDSG.
33
Accordingly, the action had to be dismissed with the costs under Paragraph 154(1) of the VwGO.
34
Provisional enforceability: Sections 167 (2), 84 (1) sentence 3 VwGO in conjunction with §§ Sections 708 et seq. ZPO.
35
Appeals are permitted on grounds of fundamental importance (§§ 124a para. 1 sentence 1, 124 para. 2 no. 3 VwGO).