Search in ‘Judgments and decisions’


Judgment of 25 July 2013 - BVerwG 2 C 12.11 (uploaded on 17 November 2017)

Headnotes

1. The employer has no margin of appreciation when it comes to determining the health-related fitness to work of civil servant applicants.

2. A civil servant applicant is unfit in terms of physical and/or mental health if factual indications justify the assumption that there is a greater probability of incapacity to work before legal retirement age (change in jurisprudence).

Decision of 25 February 2016 - BVerwG 1 C 28.14 (uploaded on 17 November 2017)

Responsibility for selection under data protection law in multi-tiered provider relationships (request for a preliminary ruling)

Headnotes

A preliminary ruling of the Court of Justice of the European Union (hereinafter: ECJ) is requested on the following questions in accordance with article 267 TFEU.

1. Is article 2 (d) of Directive 95/46/EC […] to be interpreted as definitively and exhaustively defining the liability and responsibility for data protection violations, or does scope remain, under the “suitable measures” pursuant to article 24 of Directive 95/46/EC and the “effective powers of intervention” pursuant to the second indent of article 28 (3) of Directive 95/46/EC, in multi-tiered information provider relationships for responsibility of a body that does not control the data processing within the meaning of article 2 (d) of Directive 95/46/EC when it chooses the operator of its information offering?

2. Does it follow a contrario from the obligation of Member States under article 17 (2) of Directive 95/46/EC to stipulate, in cases where data processing is carried out on the controller’s behalf, that the controller “must … choose a processor providing sufficient guarantees in respect of the technical security measures and organizational measures governing the processing to be carried out”, that, where there are other user relationships not linked to data processing on the controller’s behalf within the meaning of article 2 (e) of Directive 95/46/EC, there is no obligation to make a careful choice and no such obligation can be derived from national law?

3. In cases in which a parent company based outside the European Union has legally independent establishments (subsidiaries) in various Member States, is the supervisory authority of a Member State (in this case, Germany) entitled under article 4 and article 28 (6) of Directive 95/46/EC to exercise the powers conferred under article 28 (3) of Directive 95/46/EC against the establishment located in its territory even when this establishment is solely responsible for promoting the sale of advertising and other marketing measures aimed at the inhabitants of this Member State, whereas the independent establishment (subsidiary) located in another Member State (in this case, Ireland) is exclusively responsible under the group’s internal division of tasks for collecting and processing personal data throughout the entire territory of the European Union and hence in the other Member State as well (in this case, Germany), if decisions about data processing are in fact taken by the parent company?

4. Are article 4 (1) (a) and article 28 (3) of Directive 95/46/EC to be interpreted as meaning that, in cases in which the controller has an establishment in the territory of one Member State (in this case, Ireland) and there is another, legally independent establishment in the territory of another Member State (in this case, Germany), whose responsibilities include the sale of advertising space and whose activity is aimed at the inhabitants of that State, the competent supervisory authority in this other Member State (in this case, Germany) may direct measures and orders implementing data protection legislation also against the other establishment (in this case, in Germany) not responsible for data processing under the group’s internal division of tasks and responsibilities, or are measures and orders only possible by the supervisory body of the Member State (in this case, Ireland) in whose territory the entity with internal responsibility within the group has its registered office?

5. Are article 4 (1) (a) and article 28 (3) and (6) of Directive 95/46/EC to be interpreted as meaning that, in cases in which the supervisory authority in one Member State (in this case, Germany) takes action against a person or entity in its territory pursuant to article 28 (3) of Directive 95/46/EC on the grounds of failing to exercise due care in choosing a third party involved in the data processing process (in this case, Facebook), because this third party is in violation of data protection legislation, the active supervisory authority (in this case, Germany) is bound by the appraisal of data protection legislation by the supervisory authority of the Member State in which the third party responsible for the data processing has its establishment (in this case, Ireland) meaning that it may not arrive at a different legal appraisal, or may the active supervisory authority (in this case, Germany) conduct its own examination of the lawfulness of the data processing by the third party established in another Member State (in this case, Ireland) as a preliminary issue prior to its own action?

6. Where the possibility of conducting an independent examination is available to the active supervisory authority (in this case, Germany): Is the second sentence of article 28 (6) of Directive 95/46/EC to be interpreted as meaning that this supervisory authority may exercise the effective powers of intervention conferred on it under article 28 (3) of Directive 95/46/EC against a person or entity established in its territory on the grounds of their joint responsibility for data protection violations by a third party established in another Member State only and not until it has first requested the supervisory authority in this other Member State (in this case, Ireland) to exercise its powers?

Judgment of 26 June 2014 - BVerwG 3 CN 1.13 (uploaded on 17 November 2017)

Headnote

The regulation of administrative fees to cover the costs, which the participating authorities of the federal states incur in executing federal laws as their own responsibility (Landeseigenverwaltung) is a regulation of an administrative procedure within the meaning of article 84 (1) first and second sentences of the Basic Law (GG, Grundgesetz). Thus, the federal state of Lower Saxony was authorised to deviate in the Schedule of Administrative Fees for Permits and Exceptional Authorisations for Excessive Road Use for the Federal State of Lower Saxony of 14 February 2012 (Nds. StrGebO, Niedersächsische Gebührenordnung für Erlaubnisse und Ausnahmegenemigungen für übermäßige Straßenbenutzung; Lower Saxony Act and Regulation Gazette (Nds. GVBl., Niedersächsisches Gesetz- und Verordnungsblatt) p. 22) from the Federal Schedule of Administrative Fees for Measures in Road Traffic of 25 January 2011 (Gebührenordnung für Maßnahmen im Straßenverkehr) (Federal Law Gazette (BGBl., Bundesgesetzblatt) p. 98) pursuant to article 84 (1) second sentence GG.

Judgment of 26 March 2015 - BVerwG 5 C 9.14 (uploaded on 17 November 2017)

Headnote

The eligibility of medical devices is effectively restricted by section 22 second sentence of the Ordinance on the Health Allowance Scheme for Civil Servants of the Federal State of Berlin (Landesbeihilfeverordnung Berlin, LBhVO BE). The two-stage reference to section 31 (1) second sentence of the Social Code Book V (Sozialgesetzbuch V, SGB V) and the provisions provided in the German Medicinal Products Directive (Arzneimittel-Richtlinie) issued by the Joint Federal Committee (Gemeinsamer Bundesausschuss) regarding medical devices does not violate constitutional law. It is in particular compatible with the principle of the requirement of the specific enactment of a statute (Vorbehalt des Gesetzes).

Judgment of 23 March 2016 - BVerwG 10 C 4.15 (uploaded on 17 November 2017)

Headnotes

1. Chambers of industry and commerce are entitled to unite in a private-law umbrella association in order to jointly pursue the overall interests of their member businesses on a supra-regional level. However they are not entitled to delegate the task of pursuing the overall interests of member businesses to the umbrella association. Even if the umbrella association fulfils joint tasks, each chamber remains responsible for making sure that the competence framework pursuant to section 1 (1) of the Law on the Provisional Legislative Regulation of Chambers of Industry and Commerce (IHKG, Gesetz zur vorläufigen Regelung des Rechts der Industrie- und Handelskammern) is not exceeded.

2. Pursuant to article 2 (1) of the Basic Law (GG, Grundgesetz) a compulsory member of a chamber is entitled to demand its chamber’s withdrawal from the umbrella association if the latter fulfils tasks outside of the chamber’s legal competences. It is sufficient that the association exceeds the chambers’ competence framework with factual activities unless such a transgression is an isolated case atypical for the activities of the association. There has to be a concrete danger that the association will again become active outside of chamber competences.

Judgment of 21 November 2013 - BVerwG 7 C 40.11 (uploaded on 17 November 2017)

Headnote

In taking its decision on whether or not to approve a facility under immission control law, the authority responsible for issuing the corresponding permit is, when reviewing whether the elements constituting a prohibited act under species-protection laws are given, entitled to an assessment prerogative from the technical point of view of nature conservation regarding the determination of existing populations of protected species and the performance of a risk assessment. This applies in those cases in which no findings concerning ecological issues have as yet achieved the status of generally accepted scientific evidence.

Judgment of 20 January 2016 - BVerwG 10 C 24.14 (uploaded on 17 November 2017)

Headnotes

1. The prohibition against performing commercial activities in addition to the activity as a public accountant is compatible with the law of the European Union and German constitutional law.

2. Activity in a management body of a corporation falls under the prohibition against commercial activity within the meaning of sec. 43a (3) no. 1 of the German Public Accountant Act (Wirtschaftsprüferordnung).

Judgment of 25 June 2015 - BVerwG 7 C 1.14 (uploaded on 16 November 2017)

Headnotes

1. When providing mandate-related support to its Members by assisting work of its Research Services, the Bundestag (Federal Parliament) is under an obligation to furnish information pursuant to section 1 (1) of the Freedom of Information Act (Informationsfreiheitsgesetz).

2. An employee of an authority who, in fulfilling his official duties, created a work protected by copyright, does, as a rule, grant his employer such right to use as the employer needs in order to be able to grant access under the Freedom of Information Act.

3. The authority under an obligation to furnish information, when taking a decision on exercising the copyrights granted to it, must take into account the opposing legal objectives and the legal obligations resulting thereof; a general priority of the copyright granted to the authority does not ensue from section 6 (1) first sentence of the Freedom of Information Act.

Judgment of 28 April 2016 - BVerwG 4 A 2.15 (uploaded on 16 November 2017)

Headnotes

1. Section 49 of the Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz) also applies to planning approval decisions under aviation law (luftverkehrsrechtliche Planfeststellungsbeschlüsse). Third parties may demand that such an act be revoked, or that a discretionary decision be taken in its regard, only if the obligations as to protection stipulated by section 75 (2) second sentence of the Administrative Procedure Act do not suffice to remedy the situation.

2. A modified assessment of the given facts and circumstances may constitute a change in the factual situation in the sense of section 49 (2) first sentence no. 3 of the Administrative Procedure Act. Individual opinions that thus far have not found general acceptance in the scientific community are not a sufficient basis for doing so.

Judgment of 05 September 2013 - BVerwG 7 C 21.12 (uploaded on 16 November 2017)

Headnote

As understood in line with EU law, section 47 (1) of the Federal Immission Control Act (BImSchG, Bundesimmissionsschutzgesetz) grants to a recognised environmental protection organisation rights of its own within the meaning of section 42 (2) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung) (in connection with the Court of Justice of the European Union, judgments of 25 July 2008 - C-237/07 [ECLI:EU:C:2008:447], Janecek - and of 8 March 2011 – C-240/09 [ECLI:EU:C:2011:125], Lesoochranárske zoskupenie VLK <“Slovak Brown Bear”>).

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