BVGer, A‑5225/2015 – Lucen­cy: dis­clo­sure of address data

The Fede­ral Admi­ni­stra­ti­ve Court, in con­nec­tion with a recom­men­da­ti­on by the FDPIC to Lucen­cy Inc., a Swiss mar­ke­ting agen­cy, made a judgment (Judgment A‑5225/2015 of 12 April 2017; PDF). The FDPIC’s recom­men­da­ti­on was trig­ge­red by infor­ma­ti­on from indi­vi­du­als who had recei­ved unso­li­ci­ted adver­ti­sing let­ters to addres­ses obtai­ned from Lucen­cy. After fur­ther infor­ma­ti­on was recei­ved after the recom­men­da­ti­on, the FDPIC filed a com­plaint with the Fede­ral Admi­ni­stra­ti­ve Court.

In mate­ri­al terms, the fol­lo­wing point is interesting:

• Evi­dence show­ed that in seve­ral cases Lucen­cy had dis­c­lo­sed per­so­nal data to inte­re­sted par­ties, which were sub­se­quent­ly used for adver­ti­sing pur­po­ses. Sin­ce this dis­clo­sure was made for Busi­ness acti­vi­ty Accor­ding to the Fede­ral Admi­ni­stra­ti­ve Court, it can be assu­med wit­hout fur­ther ado that such a dis­clo­sure was regu­lar­ly fol­lo­wed and also inclu­ded addres­ses of other persons.

with regard to pro­ce­du­ral law, the Fede­ral Admi­ni­stra­ti­ve Court then makes the fol­lo­wing points:

• Based on the refe­rence in Art. 44 para. 1 VGG to Art. 3 para. 2 BZP, the Dis­po­si­ti­on Maxim also in legal pro­ce­e­dings con­cer­ning recom­men­da­ti­ons of the FDPIC.
• The Amend­ment of legal requests is the­r­e­fo­re sub­ject to the requi­re­ments of Art. 26 para. 1 of the Fede­ral Admi­ni­stra­ti­ve Pro­ce­du­re Act (amend­ment of the com­plaint), i.e. it requi­res a con­nec­tion with the ori­gi­nal legal request. Fur­ther­mo­re, in the action befo­re the Fede­ral Admi­ni­stra­ti­ve Court, the FDPIC may only demand mea­su­res that do not go bey­ond the mea­su­res recom­men­ded by him. The request of the FDPIC that the tech­ni­cal and orga­nizatio­nal mea­su­res neces­sa­ry to imple­ment the ori­gi­nal request be sub­mit­ted to him is not com­pa­ti­ble with this, so that this request must not be accepted.