- According to the Administrative Court of Trier, the authority did not have to inform the data subject in accordance with Art. 13 GDPR because the data subject had to be aware of the file process and there was a legal obligation to keep files.
- Court took into account the protective purpose of the GDPR and allowed the exception generously, as the regulation is intended to protect personal data, not to enforce the law in the best possible way.
On Dec. 2, 2019, the Trier Administrative Court, in a decision not available to the public (7 L 4487/19.TR), held that when a public authority attaches a file process was not obliged to inform the data subject in accordance with Art. 13 GDPRbecause the process of the affected had to be known and a legal obligation existed for record keeping. These are the criteria that also apply in Switzerland – at least de lege lata – within the framework of recognizability.
The decision is noteworthy in that Art. 13 (4) GDPR provides for an exception to the information obligation only “if and to the extent that the data subject already has the information”. The “information” could also be interpreted in such a way that all mandatory information of Art. 13 (1) and (2) GDPR is already known, which was presumably not the case here. The court did not explicitly refer to this provision.
At the same time it held that Protective purpose of the GDPR is the right to protection of personal data and not assertion of a pension. In other words, it took into account the protective purpose of the GDPR in applying an exception generously – something that the Federal Supreme Court did not consider in the CS ruling (BGE 138 III 425) with reference to the right to information unfortunately did only (but still!) within the framework of the prohibition of abuse of rights:
Finally, an infringement by the defendant alleged by the applicant against Art. 13 of Regulation (EU) No. 2016/679 of the European Parliament and of the Council of 27 April 2016 – General Data Protection Regulation – by the Attachment of a case file without appropriate information to the applicant does not lead to the formal unlawfulness of the administrative act. For according to Art. 1 para. 2 General Data Protection Regulation the Regulation serves to protect the fundamental rights and freedoms of natural persons, and in particular their right to the protection of personal data (see also recitals 1 and 2 of the Regulation). In contrast, the purpose of the regulation is not to enable a civil servant to assert his or her rights to the best possible extent.. […] Moreover, such information is already unnecessary because – as the applicant as a civil servant must be aware – the issuance of an administrative act is subject to the following conditions is regularly preceded by the creation of a file and the defendant, moreover, according to § Section 50 p. 1 Civil Service Status Act – BeamtStG – is obliged to create and maintain a personnel file. In light of the foregoing, the court is not precluded from considering the administrative record submitted by the defendant in reaching its decision.