DSB · 2021-0.643.804
The data subject divorced her husband in a proceeding before the district court (the controller), acting in its capacity as the competent land registry court.
As part of the divorce, the data subject and her ex-husband concluded a court settlement on the consequences of divorce, dated 19 November 2020, covering the division of real property, spousal maintenance (waived), mutual balancing payments, division of movable assets, documents, insurance policies and provisions on further proceedings. On 21 January 2021, the data subject's legal representative applied electronically to the controller to register the property division agreed in the settlement, submitting the settlement in full without redaction. The controller granted the application and incorporated the settlement in its entirety into the land register's document collection (Urkundensammlung), which is publicly accessible for inspection by anyone under national land registry law. The data subject lodged a complaint with the Austrian DPA, arguing that the public disclosure of the settlement's full content, going beyond what was necessary to record the property rights, infringed her right to secrecy and had no legal basis under Article 6(1) GDPR. She pointed to probate proceedings, where only certain outcomes rather than full records are made public, as a contrasting example and suggested that the DPA refer the relevant provision of the land registry law to the Constitutional Court for review. The controller responded that it was legally obliged to include submitted documents in the land register in full, without discretion to redact them for data protection reasons. Holding — First, the DPA addressed its own jurisdiction. It held that although the controller was a court, its activity in maintaining the land register was not "judicial activity" within the meaning of Article 55(3) GDPR, which excludes courts' judicial functions from DPA oversight. Drawing on CJEU case-law under Article 267 TFEU, which denies preliminary-reference status to national courts acting as commercial-register authorities rather than adjudicating a genuine dispute, the DPA reasoned that a land registry court, in maintaining a public register of rights in rem, performs an analogous administrative rather than adjudicative function. The DPA therefore held that it had jurisdiction to examine the complaint. Second, on the merits, the DPA held that the disclosure was lawful because it was legally mandated. It found that the land register, including its document collection, is public under national land registry law and that documents submitted as the basis for a registration, including a court settlement, must be attached and included in full. The controller had no legal discretion to review submissions for data protection concerns or to abridge them. The DPA noted that partial submission of a divorce settlement is legally permitted only in narrowly defined statutory exceptions, none of which had been invoked here and that the data subject had in any event submitted the settlement in its entirety herself. The DPA cited Austrian Supreme Court case-law confirming that a divorce settlement must be reproduced in full for land registry purposes, other than through simple redaction/striking-out in specific circumstances. Finally, the DPA held that it lacked competence to assess whether the underlying land registry provisions were themselves compatible with the fundamental right to data protection or with EU law, such review was reserved to the Constitutional Court under Article 140 B-VG or the CJEU under Article 267 TFEU and the DPA had no legal basis to refer the matter to either body itself. Since the disclosure was legally mandated, the DPA rejected the complaint as unfounded.
How it connects
Related across sources
Full text 20 findings
Text Ref. , as well as their initials and abbreviations, may have been abbreviated and/or altered for pseudonymization purposes. ] DECISION RULING The Data Protection Authority makes a decision on the data protection complaint filed by Veronika A*** (complainant), with representation provided by Dr. Johanna S***, attorney at law in **** G***stadt, B***gasse *3, dated May 5, May 2021, supplemented on May 28, 2021, against the District Court of N*** (Respondent) regarding an alleged violation of the right to confidentiality, as follows: - The complaint is dismissed as unfounded. Legal basis: Art. 51(1), Art. 55, Art. 57(1)(f), and Art. 77(1) of Regulation (EU) 2016/679 (General Data Protection Regulation, hereinafter: GDPR), OJ No. L 119 of May 4, 2016, p. 1; Sections 1(1) and (2), 18(1), and 24(1) and (5) of the Data Protection Act (DSG), Federal Law Gazette I No. 165/1999, as amended; Sections 1, 7, 33(1)(b), 87, and 94(1) of the General Land Register Act of 1955 (GBG), Federal Law Gazette No.
Legal basis: Article 51, paragraph 1; Article 55; Article 57, paragraph 1, subparagraph f; and Article 77, paragraph 1, of Regulation (EU) 2016/679 (General Data Protection Regulation, hereinafter: GDPR), Official Journal No. L 119 of May 4, 2016, page 1; Sections 1(1) and (2), 18(1), and 24(1) and (5) of the Data Protection Act (DSG), Federal Law Gazette Part I, No. 165 of 1999, as amended; Sections 1, 7, 33(1)(b), 87, and 94(1) of the General Land Register Act of 1955 (GBG), Federal Law Gazette No. 39 of 1955, as amended. STATEMENT OF REASONS A. Arguments of the Parties and Course of Proceedings 1. In a petition dated May 5, 2021, supplemented on May 28, 2021, the petitioner, through her representation, alleged a violation of her right to confidentiality and, in summary, argued as follows: The complainant was divorced on November 16, 2020, in Case No. 25 C 45/20t. Part of the divorce proceedings involved the conclusion of a “divorce settlement agreement,” in which the division of jointly owned real estate was agreed upon.
The proceedings were conducted before the respondent. The respondent, acting as the competent Court, subsequently entered the agreement on the consequences of divorce (including declarations of assignment) into the land register (collection of deeds) under entry no. 481/2021, thereby conferring third-party effect on the agreement. This entry made the record available for public inspection, since, pursuant to para 7(2) of the Land Register Act (GBG), anyone may inspect the land register and have extracts prepared. In the present case, sensitive data far exceeding what is necessary to disclose rights in rem was published. Specifically, these were agreements concerning other assets not related to the land register, which neither have third-party effect nor may be made available to the public for any other reason. This constitutes an infringement of the family’s privacy. The (material) scope of application of the GDPR is met, since, in particular, both the definition of “processing” and the definition of “personal data” within the meaning of Article 4 of the GDPR are satisfied.
There is no justification for the processing in question within the meaning of Article 6(1) of the GDPR. By way of comparison, reference is made to probate proceedings, in which the entire outcome or the “final decision” of the proceedings is not disclosed to the public. Furthermore, it is suggested that the Data Protection Authority refer the provision of § 7(2) GBG to the Constitutional Court for a constitutional review. The complainant was divorced on November 16, 2020, in case 25 C 45/20t. Part of the divorce proceedings involved the conclusion of a “divorce settlement agreement,” in which the division of jointly owned real estate was agreed upon. The proceedings were conducted before the respondent. Subsequently, as the competent Court, the respondent entered the agreement on the consequences of divorce (including declarations of assignment) under entry no. 481 of 2021 in the land register (collection of deeds), thereby conferring third-party effect.
This entry made the record available for public inspection, since, pursuant to paragraph 7(2) of the Land Registry Act (GBG), anyone may inspect the land register and have extracts prepared. In the present case, sensitive data far exceeding what is necessary to disclose rights in rem was published. Specifically, these were agreements concerning other assets not related to the land register, which neither have third-party effect nor may be made available to the public for any other reason. This constitutes an infringement of the family’s privacy. The (material) scope of application of the GDPR is met, as both the term “processing” and the term “personal data” within the meaning of article 4 of the GDPR are satisfied. There is no justification for the processing in question within the meaning of Article 6(1) of the GDPR. By way of comparison, reference is made to probate proceedings, in which the entire outcome or the “final decision” of the proceedings is not disclosed to the public.
Furthermore, it is suggested that the Data Protection Authority refer the provision of paragraph 7(2) of the GBG to the Constitutional Court for a constitutional review. As evidence, the complainant submitted an extract from the land register’s general ledger dated May 28, 2021, as well as a copy of the settlement agreement dated November 19, 2020. 2. In a notice dated June 2, 2021, the Data Protection Authority requested the respondent to submit a statement. 3. In a submission dated June 14, 2021, the respondent stated the following: Pursuant to the provisions of § 3(1)(b) (apparently referring to § 33(1)(b) of the Land Registry Act (GBG)), entries in the land registry based on settlements concluded in the Court are permissible. The complainant, through her legal representative, had sought the registration of ownership rights by means of an “ERV application,” whereby the divorce settlement (agreement on the consequences of divorce) dated November 19, November 2020 was attached in its entirety.
The application was subsequently approved, and the divorce settlement was stored in the document repository in the (full) scope submitted by the complainant. Pursuant to the provisions of Section 3, paragraph 1, subparagraph b, (apparently referring to Section 33, paragraph 1, subparagraph b, of the Land Registry Act (GBG)), entries in the land registry based on settlements concluded in Court are permissible. The complainant had sought the registration of the property right by means of an “ERV application” through her legal representative, whereby, in this context, the divorce settlement (agreement on the consequences of divorce) dated November 19, November 2020 was attached in its entirety. The application was subsequently approved, and the divorce settlement was stored in the document repository in the (full) scope submitted by the complainant. It is the respondent’s duty to include the submitted documents in their entirety in the document repository; however, it is not the respondent’s duty to review submissions at its own discretion under data protection law and, where applicable, to abridge documents establishing legal rights accordingly.
4. In its decision of August 24, 2021, the Data Protection Authority granted the complainant the right to be heard. 5. In a submission dated September 14, 2021, the complainant argued that the respondent’s position was acceptable to the extent that § 7 GBG does not permit the competent Court to review submitted documents under data protection law. However, it was noted that the party submitting the documents is also not permitted to redact them at its own discretion. The legislature failed in this regard to impose restrictions on the Court or the party or to allow for such restrictions. It is therefore once again suggested that this provision be submitted to the Constitutional Court for review. 5. In a submission dated September 14, 2021, the petitioner argued that the respondent’s position is correct insofar as Section 7 of the GBG does not permit the competent Court to review submitted documents under data protection law.
However, it is noted that the party submitting the documents is also not permitted to make any reductions at its own discretion. The legislature failed in this regard to impose restrictions on the Court or the party or to allow for such restrictions. It is therefore once again suggested that this provision be submitted to the Constitutional Court for review. B. Subject Matter of the Complaint The subject matter of the complaint is the question of whether the respondent violated the complainant’s right to confidentiality by including a (Court) settlement agreement regarding the consequences of divorce in its entirety in the collection of documents in the land register and thereby making the complainant’s data accessible to the public. C. Findings of Fact 1. The petitioner was legally divorced on November 16, 2020, in the proceedings under case no. 25 C 45/20t. Part of these proceedings was the conclusion of a Court-approved divorce settlement agreement, dated November 19, 2020, under which the division of real property between the complainant and her former spouse was agreed upon.
Furthermore, this settlement agreement contains information regarding spousal support (specifically: a waiver), mutual compensation payments, agreements on the division of personal property (artwork, vehicles), documents, and insurance policies, as well as provisions concerning other (Court) proceedings. 2. , which was submitted without any restrictions as to scope or content. 3. —were fully incorporated into the land registry’s collection of records. Assessment of Evidence: The findings made are based on the consistent submissions of the respondent and the complainant, as well as on the uncontroversial documents submitted by the latter. D. From a legal perspective, the following follows: As can be seen from the findings, the respondent in these proceedings is a Court (with jurisdiction over land registry matters). Pursuant to Article 55(3) of the GDPR, supervisory authorities are not responsible for supervising processing carried out by Courts in the course of their judicial activities; Recital 20 of the GDPR explains that this is intended to safeguard the independence of the judiciary in the exercise of its judicial functions, including its decision-making.
Pursuant to article 55, paragraph 3, GDPR, supervisory authorities are not responsible for supervising processing carried out by Courts in the course of their judicial activities; Recital 20 of the GDPR explains that this is intended to safeguard the independence of the judiciary in the exercise of its judicial functions, including its decision-making. ” In this context, however, reference should be made to the case law of the CJEU on Article 267 TFEU, according to which not every judicial activity authorizes the submission of requests for a preliminary ruling. ” In this context, however, reference must be made to the case law of the CJEU regarding article 267 of the TFEU, according to which not every judicial activity authorizes the submission of requests for a preliminary ruling. For example, the CJEU rejected preliminary ruling requests from two Austrian regional courts in their capacity as commercial registry courts on the grounds that these courts were not called upon to make a decision on a legal dispute but were acting as authorities maintaining the commercial register; see, for example, the order of January 22, January 2002, C-447/00, and the judgement of 15 January 2002, C-182/00).
This can be applied mutatis mutandis to the present case, since a land registry court likewise has no legal dispute to make a decision on, but rather (merely) maintains a public register—for the registration and disclosure of rights in rem. Consequently, in such cases, within the meaning of the CJEU’s case law, this does not constitute a “judicial function” (see also Kodek in Kodek, Land Registry Law 2, § 75 GBG, margin note 4, with reference to the CJEU’s case law). This can be applied mutatis mutandis to the present case, since a land registry court is likewise not required to make a decision on a legal dispute, but rather (merely) maintains a public register—for the registration and disclosure of rights in rem. Consequently, in such cases, within the meaning of the case law of the CJEU, this does not constitute a “judicial function” (see also Kodek in Kodek, Land Registry Law 2, § 75, GBG, margin note 4, with reference to the case law of the CJEU).
Furthermore, it should be noted that even the recent judgement of the CJEU dated March 24, 2022, Case C‑245/20, in which the Court addressed the concept of “judicial activity”—due to the (still existing) lack of connection to a “judicial activity” and thus a completely different factual context—has no impact on the prevailing practice of the Data Protection Authority (see, for example, the Data Protection Authority’s decision of January 22, 2019, Ref. Furthermore, it should be noted that even the recent judgement of the CJEU of March 24, 2022, Case C‑245/20, in which the Court addressed the concept of “judicial activity”—due to the (still existing) lack of connection to a “judicial activity” and thus a completely different factual context—has no impact on the prevailing decision-making practice of the Data Protection Authority; compare, for example, the decision of the Data Protection Authority dated January 22, 2019, Ref.
848/0001-DSB/2019). As a first step, it must therefore be noted that, in the present case, the Data Protection Authority has jurisdiction to handle the complaint. Pursuant to Section 1(1) of the Data Protection Act (DSG), every person has the right to the confidentiality of personal data concerning them, particularly with regard to the respect for their private and family life, provided there is a legitimate interest in such confidentiality. Pursuant to Section 1, paragraph 1, of the Data Protection Act (DSG), everyone has the right to the confidentiality of personal data concerning them—particularly with regard to respect for their private and family life—to the extent that there is a legitimate interest in such confidentiality. Interference by a government authority is permissible only on the basis of laws (para 1(2) of the DSG). This obligation applies not only to the executive branch but also to the judicial and legislative branches (Bresich/Dopplinger/Dörnhöfer/Kunnert/Riedl, DSG (2018) § 1, margin note 11).
Interference by a state authority is permissible only on the basis of laws (Section 1, paragraph 2, DSG). This obligation applies not only to the administration but also to the judicial and legislative branches (Bresich/Dopplinger/Dörnhöfer/Kunnert/Riedl, DSG (2018), Section 1, margin note 11). The complainant is correct in this respect that, pursuant to § 7 GBG, the land register is public and therefore—in principle—anyone may inspect it. According to § 1 GBG, this also includes the collection of deeds (see also Höller in Kodek, Land Registry Law 2, § 7 GBG, margin note 5). The complainant is correct in this respect that, pursuant to Paragraph 7 of the Land Register Act (GBG), the land register is public and therefore—in principle—anyone may inspect it. According to Section 1 of the Land Register Act (GBG), this also includes the collection of documents (see also Höller in Kodek, Land Register Law 2, Section 7 of the Land Register Act (GBG), margin note 5).
In this respect, the scope of protection under § 1 of the Data Protection Act (DSG), as well as—due to automated processing—the material scope of application of the GDPR, is triggered. In this respect, the scope of protection under § 1 of the Data Protection Act (DSG), as well as—due to automated processing—the material scope of application of the GDPR, is triggered. According to § 33(1)(b) GBG, entries may be made, among other things—as in the present case—on the basis of Court-approved (enforceable) settlements. According to Section 33(1)(b) of the GBG, registrations may be made, among other things—as in the present case—on the basis of (enforceable) settlements recorded by Courts. The original documents on the basis of which an entry is to be made must be submitted in accordance with para 87(1) GBG. In the case of court-approved settlements, this requirement is met by submitting a copy of the settlement agreement (Kodek in Kodek, Land Registry Law 2, Section 87 GBG, Marginal Note 10).
The original documents on the basis of which an entry is to be made must be submitted in accordance with Section 87, paragraph 1, of the Land Registry Act (GBG). In the case of court-approved settlements, this requirement is satisfied by submitting a copy of the settlement agreement (Kodek in Kodek, Land Registry Law 2, Section 87 GBG, margin note 10). The scope of review by the competent Court (specifically: the respondent) in this regard is set forth in § 94 GBG, whereby neither the general legitimate interests of third parties nor data protection considerations form part of the standard of review. The scope of review by the competent Court (specifically, the respondent) in this regard is set forth in Section 94 of the Land Registry Act (GBG), whereby neither the general legitimate interests of third parties nor data protection considerations form part of the standard of review. In this respect, the mere partial inclusion of the divorce settlement agreement, as argued by the complainant, was not provided for by law and would therefore not have been possible for the respondent.
Furthermore, it should be noted that the complainant—as established—submitted the divorce settlement agreement in its entirety in any case. Apart from that, the submission of an abridged version would be possible only in the exceptional cases expressly provided for by law (Section 146(1) GeO, § 79(5) GOG, or § 417 ZPO)—though the appellant did not assert this at any time. Apart from that, the submission of an abridged version would be possible only in the exceptional cases expressly provided for by law (Section 146(1), GeO, § 79(5) GOG, or § 417 ZPO), although the appellant never asserted this at any time. In this context, the Supreme Court has ruled that—apart from the cases mentioned above—the content of the divorce settlement must be reproduced in its entirety, and that the submission of an excerpt from a divorce settlement contradicts § 87(1) GBG (Supreme Court, January 25, 2016, 5 Ob 250/15y).
The situation would be different in the case of “mere striking through” (Supreme Court 5 Ob 250/15y, NZ 2016/117 (342), citing Supreme Court 5 Ob 182/98w). In this context, the Supreme Court has ruled that—apart from the cases mentioned above—the content of the divorce settlement must be reproduced in its entirety, and the submission of a partial copy of a divorce settlement contradicts Section 87, paragraph 1, of the GBG (Supreme Court, Jan. 25, 2016, 5 Ob 250/15y). The situation would be different in the case of “mere striking through” (Supreme Court 5 Ob 250/15y, NZ 2016/117 (342), with reference to Supreme Court 5 Ob 182/98w). Whether, and if so to what extent, the provisions in question are consistent with the fundamental right to data protection or with EU law, however, does not fall within the scope of the Data Protection Authority’s review powers. Whether, and if so to what extent, the aforementioned provisions are consistent with the fundamental right to data protection or with EU law, however, falls outside the scope of the Data Protection Authority’s review authority.
Such review authority rests solely with the Constitutional Court pursuant to article 140 of the Federal Constitutional Law (B-VG) or with the CJEU pursuant to article 267 of the Treaty on the Functioning of the European Union (TFEU); however, contrary to the complainant’s view, the Data Protection Authority cannot refer the matter to these courts due to the lack of a corresponding legal basis. Since the publication of the complainant’s personal data by the respondent, which is the subject of these proceedings, is thus legally justified, the complaint had to be dismissed. The decision was therefore rendered accordingly. [Note from the editor: For the current legal situation regarding the possibility of issuing a (data protection-compliant) partial copy of a divorce settlement agreement as the basis for land registry applications, see: - ECHR April 6, 2021, Appl 5434/17 - Supreme Court March 30, 2022, 8 Ob 3/22g, Zak 2022/308 p. 174 – Zak 2022,174 = jusIT 2022/65 p. 159 (Thiele) – jusIT 2022,159 (Thiele) = ÖJZ 2023/135 p. 823 - ÖJZ 2023, 823 = ZöR 2023, 729]