BVerwG · 6 C 9.25

BVerwG 6 C 9.25, Order of September 29, 2026 Order of September 29, 2026 - BVerwG 6 C 9.25ECLI:DE:BVerwG:2026:290926B6C9.25.0 Synchronization of court decisions on data protection law Headnotes: 1. The admissibility of an appeal by an intervenor—regardless of whether the intervenor was joined as a simple or necessary party—requires that the contested judicial decision cause a substantive grievance (affirmation of previous case law). 2. If a final judgment has been rendered inter partes in a civil court proceeding between the plaintiff—who is challenging a data protection warning— and the affected intervenor, a final and binding inter partes determination has been made in a civil court judgement that no data protection violation occurred; in such a case, the intervenor is not materially affected by an administrative court decision overturning the warning. 3. The requirement under administrative procedural law of a substantive interest for an intervenor to file an appeal is, in light of the EU principle of effectiveness, an appropriate means of avoiding conflicting civil and administrative court decisions on the same data protection matter. Legal Sources Suggested Citation Decision BVerwG 6 C 9.25 Berlin Administrative Court (VG Berlin) – Oct. 12, 2023 – Case No.: 1 K 561/21 Berlin-Brandenburg Higher Administrative Court (OVG Berlin-Brandenburg) – May 13, 2025 – Case No.: 12 B 14/23 In this administrative dispute, the 6th Senate of the Federal Administrative Court, on September 29, 2026, through Presiding Judge Prof. Dr. Kraft and Judges Steiner and Dr. Gamp of the Federal Administrative Court, decided as follows: The motion to join the third party is denied. The third party’s appeal against the judgement of the Higher Administrative Court of Berlin-Brandenburg dated May 13, 2025, is dismissed. The third party shall bear the costs of the appeal proceedings. The value in dispute is set at €20,000 for the appeal proceedings. Reasons I 1 The plaintiff, the operator of the S-Bahn network in Berlin, challenges a warning issued by the Berlin Commissioner for Data Protection and Freedom of Information. 2 After taking an S-Bahn trip, the intervenor submitted a request to the plaintiff on October 6, 2020, providing a description of his appearance and the train number, asking that the video recordings of that trip be sent to him and that the data not be deleted for the time being. The plaintiff had refused this request, stating that the data was stored only temporarily and as a precautionary measure for 48 hours, and that analyzing the data solely for the purpose of identifying the intervenor was out of the question. 3 After the intervenor contacted the defendant, the defendant accused the plaintiff of violating Article 15 of the GDPR due to its handling of the intervenor’s request and issued a warning to the plaintiff by decision dated December 23, 2021. The Administrative Court joined the appellant in the proceedings pursuant to para 65(1) VwGO and set aside the contested warning. 4 In the meantime, the intervenor had filed a lawsuit against the plaintiff before the Pankow Local Court for a data protection violation, seeking compensation for pain and suffering under Article 82 of the GDPR. The Local Court dismissed the lawsuit in its judgement of March 28, 2022 (Case No.: 4 C 199/21) (RDV 2023, 192). The Regional Court dismissed the intervenor’s appeal in a final judgement dated December 13, 2023 (Case No.: 66 S 107/22). The claim asserted fails simply because no violation of the General Data Protection Regulation could be established. Furthermore, no damage was demonstrated that could serve as the basis for a claim for compensation for pain and suffering. 5 In its judgement of May 13, 2025, the Higher Administrative Court dismissed the defendant’s appeal against the Administrative Court’s judgement, amended the first-instance decision on costs, and discontinued the proceedings to the extent that the plaintiff had withdrawn her cross-appeal. In its reasoning, the court stated that the warning violated substantive law. The plaintiff had satisfied the intervenor’s right to access information under Article 15(1) of the GDPR, so that the warning could only relate to the refusal to provide a copy of the video footage from the trip in October 2020. An obligation to provide the footage is precluded by Article 11(2) in conjunction with Article 12(2), second sentence, of the GDPR. This is because the plaintiff had demonstrated that, due to its data protection policy, it could not identify the intervenor in the video footage. Furthermore, identifying the data subjects was not necessary for her purposes. Linking the collected data to the respective data subjects solely for the purpose of providing information would run counter to the objectives of the General Data Protection Regulation. Furthermore, Article 15(4) of the GDPR also justifies refusing to disclose the data, as doing so would infringe upon the rights and freedoms of the other passengers, even if their faces were pixelated. In the context of balancing the interests involved, no substantial interest in information on the part of the intervenor is apparent. 6 The intervenor has filed the appeal authorized by the Higher Administrative Court and requests to be joined as a party to the appeal proceedings pursuant to para 65(2) VwGO. He claims to be directly and prejudicially affected by the Court’s annulment of the warning. By contrast, the civil proceeding concerned a different subject matter of the dispute and has no res judicata effect on the present proceedings. The fact that he could bring a fictitious lawsuit for performance seeking the issuance of a warning demonstrates his right to appeal. This right is, in the alternative, derived from an analogous application of Article 78 of the GDPR. 7 The plaintiff contends that the appeal is inadmissible in light of the final civil court judgement due to the lack of a substantive legal interest on the part of the intervenor. 8 In the opinion of the representative of the federal interest before the Federal Administrative Court, the intervenor is materially affected by the appellate judgment. The Regional Court should have awaited the outcome of the administrative court proceedings or limited itself to the question of the absence of damage. It would be inconsistent with the guarantee of the highest possible level of data protection if a civil court, to which a parallel action has been brought, were de facto able to curtail a data subject’s complaint to the data protection supervisory authority and to limit the administrative court’s review of a decision by that authority. II 9 The motion to compel the optional intervenor to join the appeal proceedings pursuant to § 65(2) VwGO must be denied (1.). His appeal, which is inadmissible due to lack of substantive grounds, must be dismissed by order pursuant to § 144(1) VwGO (2.). 10 1. In the present case, there is no apparent need for the intervener’s motion to be joined as a necessary party to the appeal proceedings. 11 The Administrative Court joined the appellant by order dated April 11, 2022. Consequently, he is and remains—until the joinder is formally revoked—a party to the proceedings in the appellate courts as well (Section 63(3) of the Administrative Court Rules of Procedure (VwGO)). The procedural purpose of the joinder is to extend the res judicata effect of the judgement to the joined party in order to prevent that party from again submitting for judicial review the issues on which a final decision has already been rendered between the previous parties to the dispute and potentially obtaining a different decision (Federal Administrative Court, judgement of February 7, 1986—4 C 30.84—BVerwGE 74, 19 , as well as orders of April 22, 2003—8 B 144.02 – HFR 2004, 923, and of September 16, 2009 – 8 B 75.09 – NVwZ-RR 2010, 37), is thus fully achieved. Likewise, the principle of the right to be heard is safeguarded for all parties affected by the Court’s decision, a purpose also served by the joinder (BVerwG, judgement of March 25, 2009—6 C 3.08 - Buchholz 442.066 § 35 TKG No. 2, para. 31). The intervenor was and is able to present his position and participate in the proceedings. 12 For the appeal to be admissible, the intervenor must—regardless of whether the intervention was discretionary or mandatory—be materially affected by the contested court decision (established case law; see Federal Administrative Court, Order of August 21, 2000—8 B 146.00—VIZ 2000, 659). Since the requirement of substantive prejudice is assessed regardless of whether the third party was joined pursuant to § 65(1) or (2) VwGO, there is, in principle, no legal interest in seeking a ruling on the necessity of joining the third party with a view to filing an appeal. Nor does the authority—available only when joinder is necessary—to file substantive motions that differ from those of the principal parties (§ 66, sentence 2, VwGO), does not justify the requested ruling in this case, since the intervenor’s appeal—as explained below—is inadmissible. 13 2. The intervenor’s appeal, which is inadmissible due to lack of substantive grievance, must also be dismissed by order in light of the requirements of EU law under the General Data Protection Regulation (§ 144(1) VwGO). Under the system of subjective legal protection—which permeates administrative procedural law and is expressed in § 42(2) and § 113(1), first sentence, VwGO—an intervenor can only succeed with an appeal if it also corresponds to his or her subjective legal position under substantive law. At the stage of determining the admissibility of an appeal, this necessarily requires that the intervenor be materially affected by the contested judicial decision (Federal Administrative Court, judgements of January 31, 1969 ​- 4 C 83.66 - BVerwGE 31, 233 , of May 30, 1984 - 4 C 58.81 - BVerwGE 69, 256 , and of May 19, 2005 - 6 C 14.04 - BVerwGE 123, 362 ; Order of March 6, 2019 – 6 B 135.18 – NVwZ-RR 2019, 610, para. 17). A substantive grievance exists if the binding effect of a final judgement associated with the party’s status as an interested party, pursuant to § 63 No. 3 in conjunction with § 121 No. 1 VwGO, is of substantive importance to the intervenor, and the intervenor can thus assert that, due to the binding effect of the contested judgement, his or her own rights or legally protected interests may be prejudiced and directly affected (Federal Administrative Court, judgments of September 16, 1981—8 C 1.81 - BVerwGE 64, 67 and of March 14, 2018—10 C 3.17 - LKV 2018, 315, para. 12, as well as the order of November 23, 2022—6 B 22.22—NVwZ-RR 2023, 342, para. 9). That is not the case here. 15 b) With regard to the legal relationship between the intervenor and the plaintiff in the present lawsuit, the Berlin Regional Court, in its judgement of December 13, 2023 (Case No.: 66 S 107/22), the Berlin Regional Court made a final and binding decision that the intervenor has no claim for damages. The Regional Court based its appellate ruling on two cumulative grounds: first, it summarized the Administrative Court’s decision to the effect that any claim for compensation for pain and suffering would fail simply because “… that a violation of the provisions of the GDPR by the defendant [in the present proceedings: the plaintiff] cannot be established.” Second, it stated that the foregoing considerations were not decisive for a claim for damages because the plaintiff [in the present proceedings: the intervenor] had not demonstrated any damage he had suffered that could serve as the basis for a claim for compensation for pain and suffering. According to the ratio decidendi of the appellate judgment, both lines of reasoning stand on equal footing and support the Regional Court’s decision independently of one another. 16 In a decision dismissing a claim, the decisive ground for dismissal—as evident from the reasoning and determining the legal consequence—is part of the operative part of the decision that becomes final and binding, and not merely an element of the reasoning for the judgement (Federal Court of Justice [BGH], judgments of June 9, 2022 - III ZR 24/21 - BGHZ 234, 102, para. 22, of December 9, 2022 - V ZR 72/21 - NJW-RR 2023, 632, para. 12, and of August 7, 2024 - VIa ZR 929/23 - MDR 2024, 1309, para. 15 et seq.; see also Federal Administrative Court (BVerwG), judgement of November 20, 2018 – 1 C 23.17 – BVerwGE 163, 370, para. 21). Consequently, due to the res judicata effect of the civil court’s appellate judgment—which extends across all legal avenues—it is established inter partes in the legal relationship between the plaintiff and the intervenor that the plaintiff was justified in refusing to produce the video recording. Contrary to the intervenor’s arguments, this factual basis lies at the core of both the civil and administrative court proceedings. Consequently, due to the res judicata effect of the civil court’s judgement, which encompasses the assessment under data protection law, it is not apparent to what extent the intervenor could now still be prejudiced in his own rights or legally protected interests due to the binding effect of the appellate judgment he challenged. 17 c) The dismissal of the intervenor’s appeal is, in the present triangular constellation, fully consistent with the requirements of Union law under the General Data Protection Regulation. 18 It is true that the Court of Justice of the European Union (CJEU) has made a decision with regard to the legal remedies provided for in the General Data Protection Regulation (Articles 77–79 GDPR), stating that these may be pursued concurrently and independently of one another. Furthermore, Article 78(1) of the GDPR is to be understood to mean that judicial review of a supervisory authority’s decision on a complaint is not—as in the case of a petition—limited to whether the authority has addressed the complaint, examined it to a reasonable extent, and informed the complainant of the outcome of the examination. Rather, for a judicial remedy to be “effective,” such a decision must be subject to a full substantive review by a Court (CJEU, Judgement of December 7, 2023—C-26/22 and C-64/22 [ECLI:​EU:​C:​2023:​958]—para. 50 et seq.). 19 However, in the absence of a Union regulation, the coordination of administrative and civil court decisions on the same data protection matter is a matter for national law, in accordance with the principle of procedural autonomy of the Member States. It is for the Member States to lay down the procedures for administrative and judicial proceedings designed to ensure a high level of protection of the rights of individuals arising under Union law. However, these provisions must not undermine the practical effectiveness and the effective protection of the rights guaranteed by the General Data Protection Regulation. In this regard, in accordance with the principle of equivalence, they must not be less favorable than the rules governing corresponding domestic legal remedies, and, in accordance with the principle of effectiveness, they must not render the exercise of the rights conferred by the Union legal order practically impossible or unduly difficult (CJEU, judgments of January 12, 2023—C-132/21 [ECLI:​EU:​C:​2023:​2] — para. 45 et seq., of December 7, 2023 — C-26/22 and C-64/22 — para. 67, and of June 18, 2026 — C-414/24 [ECLI:​EU:​C:​2026:​493] - para. 41 et seq.). 20 With regard to the principle of effectiveness, the Court has emphasized that divergent judicial decisions on the same data protection matter call into question the objective set forth in Recital 10 of the General Data Protection Regulation, to ensure the uniform and consistent application throughout the Union of the rules protecting the fundamental rights and freedoms of natural persons with regard to the processing of personal data. Furthermore, conflicting decisions by civil and administrative courts on the same matter would give rise to legal uncertainty (CJEU, Judgement of January 12, 2023—C-132/21—para. 54 et seq.). Therefore, to avoid conflicting decisions, it is appropriate to stay one of several proceedings pending before different Courts concerning the same set of facts (CJEU, Judgement of June 18, 2026—C-414/24—para. 54 et seq.). 21 In the present case, however—unlike in the case that formed the basis of the Court of Justice’s judgement of June 18, 2026—the civil court proceedings between the intervenor and the plaintiff have already been conclusively resolved. Furthermore, the res judicata effect of the civil court judgement also extends to the data protection assessment of the subject matter of the defendant’s contested warning. Consequently, a stay of proceedings to avoid conflicting judicial decisions is no longer an option. In this situation, the administrative procedural requirement of a substantive grievance for the intervenor’s appeal proves to be an appropriate means—in light of the EU principle of effectiveness—to avoid divergent civil and administrative court decisions on the same data protection matter. In light of the Court of Justice’s case law cited above, there is no reason to seek a preliminary ruling on this issue pursuant to Art. 267(3) TFEU. 22 With regard to the arguments raised by the representative of the federal interest, the following must be clarified: the mere fact that, due to the absence of the substantive grievance required under procedural law, no judicial decision on the merits is rendered on the intervener’s appeal does not curtail the decision-making authority of the data protection supervisory authority, nor does it restrict the administrative judicial review of a decision made by it, which is generally available. The present case is characterized by the fact that the intervenor, in particular, can no longer demand a decision on the merits from the court of appeal due to the final and binding civil court decision it obtained against the plaintiff in the present lawsuit. 23 The decision on costs is based on § 154(2) in conjunction with § 3, first half-sentence, of the Administrative Court Act (VwGO). The determination of the value in dispute is based on § 47(1), first sentence, and § 52(1) of the GKG; the amount is justified because, in substance, the assessment of the plaintiff’s data protection concept was at issue.