# OVG Sachsen - 7 C 35/24

- Type: Case Law
- Source: Higher Administrative Court of Saxony
- Date: 2026-06-15
- Original: https://gdprhub.eu/index.php?title=OVG_Sachsen_-_7_C_35/24
- Canonical: https://overview.legal/posts/353750
- Topics: International Transfer

## Summary

Facts — The Plaintiffs challenged an amendment planning approval decision concerning the southern runway and apron at Leipzig/Halle Airport. During the proceedings, they sought permission for their technical adviser, a permanently resident in the United States, to participate in the oral hearing by video and audio transmission. They submitted that personal attendance of the adviser would involve considerable time and expense and that avoiding a burdensome long-distance journey would support the quality of his participation. They further argued that remote participation would reduce the costs of the environmental proceedings and avoid air travel in furtherance of their noise and climate protection objectives. They suggested scheduling the adviser’s participation on a designated hearing day and at an appropriate time. The oral hearing had been scheduled over three days, with two substitute dates, in proceedings involving extensive subject matter and numerous participants. Holding — The court rejected the application. First, exercising its discretion under § 102a VwGO, it considered the case unsuitable for a video hearing because accommodating the six-hour time difference would impede the structured conduct of the complex, multi-day hearing. The adviser’s questioning from the United States would also constitute sovereign judicial activity extending into another State and therefore require US authorization through judicial assistance. Concerning data protection, the court held that Article 6(1)(e) GDPR read with § 102a VwGO did not by itself make the transfer lawful. Article 44 GDPR additionally required compliance with Chapter V. The court found that the Commission’s adequacy decision under Article 45 applied only to transfers to US organizations listed under the EU-US Data Privacy Framework. The Plaintiffs had neither claimed nor established that the transmission would be confined to such organizations, and no appropriate safeguards under Article 46 GDPR had been put in place. The court also held that Article 49(1)(e) GDPR did not apply because the transfer was not necessary for the pursuit of legal claims, as the adviser could attend in person. Compliance with Article 49(1)(a) GDPR also could not be guaranteed in advance because express consent would be required from all Data Subjects, including the parties, judges and possibly spectators. Accordingly, the court concluded that the costs, time and environmental considerations did not outweigh the legal and planning risks.

## Full text

Ref. No.: 7 C 35/24 SAXON HIGH ADMINISTRATIVE COURT Order In the administrative case 1. of the e. V. represented by the Executive Board which is represented by Mr. 2. the e. V. represented by the Executive Board which is represented by the Regional Director Mr. 3. Mr. 4. Mr. 5. Ms. – Plaintiffs – Represented by: for 1–5: against the Free State of Saxony represented by the State Directorate of Saxony Altchemnitzer Straße 41, 09120 Chemnitz – Defendant – Legal representative: 2 Joined as a third party: Leipzig/Halle Airport GmbH represented by the Managing Director Terminalring 11, 04435 Schkeuditz Legal representative: Regarding the decision approving the amended plan for Leipzig/Halle Airport (South Runway with apron, 15th plan amendment) in this case: lawsuit The 7th Chamber of the Saxon Higher Administrative Court, composed of Presiding Judge Dr. Mittag of the Higher Administrative Court, Judge Dr. Helmert of the Higher Administrative Court, and Judge Wiesbaum of the Higher Administrative Court, on June 15, 2026, decided: The plaintiffs’ motion to allow their legal representative, Mr. ................, to participate in the oral hearing via video and audio transmission is denied. Reasons 1 I. The plaintiffs request that their legal representative, Mr. ................, who has his permanent residence in P........................., USA, to participate in the oral hearing via video and audio transmission. They point out that his in-person participation in the hearing would entail a considerable time and financial burden . Avoiding a burdensome long-distance trip serves to ensure the quality of a hearing. Pursuant to Art. 9(4) and (5) of the Aarhus Convention (AC) and Art. 11(4) of the Directive 2011/92/EU, it must be ensured that proceedings brought by environmental organizations are conducted effectively and are not excessively costly. Furthermore, avoiding air travel is a concern for them for noise and climate protection reasons and is a statutory objective of the Plaintiffs 1 and 2. From an organizational standpoint, it would be appropriate to schedule “the examination” of Mr. ................ so that it is concentrated on a specific hearing day and at a suitable time of day . 3 2 II. Pursuant to § 102a(1), para 1, VwGO, the oral hearing may, in appropriate cases and provided sufficient capacity is available, take place as a video hearing. Under these conditions, pursuant to § 102a(2), para 1, VwGO, the Court may, upon application by a party to the proceedings or on its own motion, permit participation via video and audio transmission, including for parties to the proceedings, which also includes the parties’ legal representatives (Section 102a(1), para 3, VwGO). The Senate exercises its discretion to deny the plaintiffs’ lawsuit. In doing so, the Senate relies on the following considerations: 3 1. The Senate does not consider the oral hearing in the present proceedings, at least under the circumstances involving a time difference between Germany and P..........., which must be taken into account for the representative, Mr. ................, the U.S., which Mr. ................ must observe. The Senate has scheduled dates for the oral hearing spanning three days and alternate dates for two additional days. The extremely comprehensive subject matter of the case and the very large number of parties involved necessitate a particularly structured conduct of the proceedings. In this regard, based on the plaintiffs’ pleadings, it is to be expected that the discussion of the aircraft noise issue—for which Mr. ................ was appointed as expert advisor to the plaintiffs, will take up a significant portion of the oral proceedings. The plaintiffs themselves acknowledge the need, in the event of a video hearing, to organizationally adjust the timing of “the examination” of Mr. ................ to the requirements of the 6-hour time difference and point out that a hearing in the late morning or afternoon (Central European Time) would fall during the “early to mid- morning hours” in P........... In this regard, the Court takes into account that the role of legal counsel entails participation in the discussion of the complex issues regarding noise impact extensively raised by the plaintiffs in their lawsuits; as the plaintiffs have also made clear, this role is not limited merely to a procedurally defined “examination” or “hearing.” The necessity of tailoring the trial schedule—given the anticipated extensive scope of the trial material concerning the effects of noise—to the time window specified by the plaintiffs would significantly reduce the Senate’s ability to properly and rigorously structure the proceedings. This seems necessary in light of the large overall scope of the case and the large number of parties projected to —despite the undoubtedly significant advantages of a video hearing in reducing the financial burden on the plaintiffs and the time required of their legal representative in connection with the lawsuit—does not appear appropriate (at the Court’s discretion: Schild, in: BeckOK VwGO, as of April 2026, VwGO § 102a, para. 36). 4 2. Furthermore, Mr. ................’s participation as legal counsel in the oral hearing via video and audio transmission to and from the United States would only be possible following authorization by the United States through the channels of mutual legal assistance. 4 5 According to the prevailing view, a cross-border video hearing extends into the target state and, given the potential conflicts of jurisdiction it entails, can already be understood as a violation of the principle of non-interference (VGH BW, Decision of Dec. 17, 2024 – 13 S 1456/24 –, juris para. 10; Ulrich, in: Schoch/Schneider, VwGO, as of July 2025, § 102a, para. 63; Dolderer/Botta, in: NK-VwGO, VwGO, 6th ed. 2025, § 102a, para. 29; Fehling/Ha- macher/Wilbert, HK-VerwR, VwGO, 5th ed. 2021, § 102a, para. 7; cf. Jenssen/Schiebel, NVwZ 2022, 1416 [1417 ff.]). Accordingly, any judicial activity is, in principle, limited to one’s own jurisdiction, and the mere participation of a party in such a proceeding from abroad generally constitutes an (impermissible) encroachment on the sovereignty of the other state. 6 Admittedly, some case law and legal scholarship in this regard consider it justifiable to make a distinction based on whether the participant is voluntarily joining the proceedings, whether personal appearance was not ordered pursuant to § 95 VwGO, and an authorized representative eligible to appear in court is present and conducts the hearing on the party’s behalf (Freiburg Court, Decision of March 11, 2022 – 10 K 4411/19 –, juris para. 2; Dolderer/Botta, in: NK-VwGO, VwGO 6th ed. 2025, § 102a, para. 29; tending toward a broader interpretation: OVG NRW, Decision July 30, 2025 – 10 D 40/15.NE –, juris para. 3 et seq.; Hamburg Regional Labor Court, Decision of June 14, 2023 – 7 TaBV 1/23 –, juris, para. 67). In this regard, it is noted that in this case, the legally were made in Germany, and the court’s decisions were received by the authorized representative in Germany, so that the state of the court would not need to exercise any (virtual) sovereign power over the parties (see Jenssen/Schiebel, NVwZ 2022, 1416 [1418]). 7 However, these considerations also do not apply to parties to the proceedings who—as is the case with witnesses for the parties to the proceedings—are to be questioned by the Court for the purpose of gathering information and thus communicate directly with the Court of the state of jurisdiction for the purpose of ascertaining the facts ex officio. Even if it is carried out through informational questioning, the Court’s ex officio investigation constitutes an act of state authority; in such a case, it also extends into the territory of the other state (OLG Karlsruhe, Decision Dec. 9, 2025—18 UF 68/25—, juris para. 3; Sieweke, NVwZ 2025, 1217 [1221]). 8 There are no relevant international agreements that could justify cross-border video hearings in the context of international relations with the United States for administrative court proceedings. Nor, according to the prevailing view, can it be assumed that, outside of existing agreements, there is an obligation under international (customary) law to grant legal assistance in this regard (see in detail 5 Jenssen/Schiebel, NVwZ 2022, 1416 [1419] with further references). The informational hearing requested by the plaintiffs involving Mr. ................ as an expert witness in the oral hearing via video and audio transmission from and to the United States would, in light of the foregoing, be permissible only upon authorization by the United States through the channels of mutual legal assistance. 9 3. Furthermore, it cannot be guaranteed in advance—at the time the decision on the request for a video hearing is made—that the transfer of personal data to the United States via video and audio transmission of the oral hearing would be in accordance with The requirements of the General Data Protection Regulation, which is incompatible with the forward-looking trial planning required in this particular case . 10 The transfer of personal data to third countries is specifically regulated in Chapter V of the General Data Protection Regulation. According to Article 44, sentence 1, of the GDPR, any transfer of personal data that is already being processed or is to be processed after its transfer to a third country or an international organisation is permitted only if the controller and the processor comply with the conditions set forth in this Chapter and the other provisions of this Regulation are also complied with. It follows from this that even the transfer of personal data to a third country in the context of a video hearing—contrary to the plaintiffs’ view—is not already lawful under Article 6(1)(e) of the GDPR in conjunction with Section 102a of the VwGO, because it is based a legal basis under Member State law by a Court in the context of the administration of justice , but is subject not only to the conditions set forth in the aforementioned provisions but also to the additional requirements of Chapter V of the GDPR (Zerdick, in: Ehmann/Sel- mayr, GDPR, 3rd ed. 2024, Art. 44, para. 17; Schantz, in: Simitis/Hornung/ Spiecker gen. Döh- mann, GDPR, 2nd ed. 2025, Art. 44, para. 26; Klug, in: Gola/Heckmann, GDPR, 3rd ed. 2022, Art. 44, para. 2). Even the national provision of § 102a VwGO may not deviate from these requirements under EU law; the interpretation of the provision advocated by the plaintiffs is not consistent with the requirement that provisions be interpreted in accordance with EU law. 11 Pursuant to Art. 45(1) of the GDPR, a transfer of personal data to a third country —first—may be carried out if the Commission has decided that the relevant third country, a territory within that third country, or one or more specific sectors within that third country offers an adequate level of protection. Such a data transfer does not require any specific authorization. With respect to the United States, Implementing Decision (EU) 2023/1795 of the Commission Commission of July 10, 2023, applies to the United States; pursuant to Article 1 thereof, the United States ensures an adequate level of protection for personal data, for the purposes of Article 45 of the GDPR, transferred from the Union to organizations in the United States that are listed in the 6 “Data Privacy Framework List” maintained by the U.S. Department of Commerce and publicly accessible as set forth in Annex I, Section I.3 (certified organizations). The plaintiffs do not assert—nor is it otherwise apparent—that, in the course of the requested video hearing, personal data would be transferred only to such certified organizations in the United States that are listed on the Data Privacy Framework List, nor is this otherwise apparent. 12 If—as is the case here—no decision has been adopted pursuant to Art. 45(3) of the GDPR, a controller or processor may transfer personal data to a third country pursuant to Article 46(1) of the GDPR only—secondly—if the controller or the processor has provided appropriate safeguards and if the data subjects have enforceable rights and effective legal remedies at their disposal. Nor do such appropriate safeguards exist in this case. 13 Rather, the plaintiffs rely on the existence of the exceptions set forth in Article 49 (1), para 1, letters a and e of the GDPR. However, the exception under Article 49(1), para 1, para (e) of the GDPR is not met here; the existence of the exception under Article 49(1), para 1, (a) of the GDPR, on the other hand, cannot be conclusively assessed and guaranteed by the Court in advance at the time of the decision on the motion for a video hearing. 14 Under the exception provided for in Article 49(1), para 1, subparagraphs (a) and (e) of the GDPR, a transfer or a series of transfers of personal data to a third country is permitted on the condition that the transfer is necessary for the establishment, exercise, or defense of legal claims. In this context, there is no need for an in-depth examination of whether, as the defendant contends, this exception requires that the data transfer be necessary for the assertion of or defense against legal claims by the transferring entity located in the United States. Data transfers for the enforcement legal claims must in any case be limited to the extent necessary to exercise one’s own rights (Schröder, in: Kühling/Buchner, GDPR, 4th ed. 2024, Art. 49 margin note 26; Lange/Filip, in: BeckOK DatenschutzR, as of November 2021, GDPR Art. 49 n. 33). However, a requirement for a data transfer to the United States does not exist here , as the plaintiffs’ legal representative has the option of personally attending the court hearing in Germany. 15 Finally, the exception under Article 49(1), para 1, letter a of the GDPR requires that the data subject has expressly given consent to the proposed data transfer, after having been informed of the potential risks to them associated with such data transfers in the absence of an adequacy decision and without appropriate safeguards 7 . In this case, involving a video and audio transmission of the oral proceedings to the United States, the data subjects included not only the plaintiffs’ legal representative, Mr. ................, for whom the plaintiffs had announced their consent. Rather, this included all parties to the proceedings and judges, as well as, where applicable, spectators whose personal data would be transferred to the United States. It is unclear whether, given the large number of these data subjects, all of them will give their consent to the transfer of their personal data to the United States, and the Senate cannot determine this prior to the oral hearing, as the list of participants will not be finalized until then. If the Senate were to initially authorize the video hearing in this situation, which remains unresolved under data protection law, this would expose the organization and planning of the hearing to the risk that, in the event that consent is not granted by all data subjects—which would would render the video hearing inadmissible, the plaintiffs would first have to be given the opportunity to arrange for their legal counsel to travel to the hearing. In this case, therefore, the discussion of the core issue of the aircraft noise problem could not take place—or could take place only in a fragmented manner—on the hearing dates of November 3, 4, and 5, 2026, which were agreed upon well in advance with the parties to the proceedings, and the hearing would have to be continued at a later date. Again, it does not seem appropriate to burden the scheduling of a hearing in a extensive and complex proceeding involving a large number of parties, such as the present case, with such uncertainty. 16 4. The Senate—having weighed these considerations—has taken into account that it seems plausible that, should the guardian ad litem travel to Germany, the plaintiffs would incur significantly higher costs in connection with their lawsuits. Although the plaintiffs have neither substantiated the total amount of costs they claim—17,000 EUR for the in-person participation of the guardian ad litem Mr. ................ in their specific composition and calculation— nor have they quantified and clearly explained the additional expenses compared to the estimated costs that would be incurred in any case in the event of a video hearing. Even so, it is evident that the personal attendance of the expert at the hearing would result in significant additional costs, which is also relevant to the requirement under Union law and international law under para 11(4) of Directive 2011/92/EU and para 9(4) of the AK, that proceedings under the Environmental Appeals Act must not be excessively expensive. The Senate also took into account that a video hearing—especially in light of the additional agreed-upon alternative and backup dates—would result in —and would also prevent his participation in the hearing from being impaired by the effects of jet lag. However, these considerations must be set aside in light of the overriding interest in conducting the hearing as scheduled conduct of the proceedings in the present case and the demonstrated significant 8 factual and legal risks that, in the event of a planned cross-border video hearing to the United States, would preclude the necessary timely and properly structured conduct of the proceedings, do not carry decisive weight. Finally, no such conclusion follows from the environmental protection interests advocated by the plaintiffs regarding the avoidance of air travel. 17 The decision is final and not subject to appeal (Para 102a(5) VwGO). Dr. Mittag Dr. Helmert Wiesbaum

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