Court case 6 C 3.23 – Court Ruling (Germany, 2025)

The controller purchases dental gold from dental practices. To do so, it collects the practice owner's first and last name, as well as the practice address and telephone number, from publicly accessible directories, such as the Yellow Pages. The controller uses the contact details stored in a database to contact the dental practices by telephone with the aim of determining whether the parties contacted are interested in selling precious metals to the controller. Following a dentist's report, the DPA ordered the controller to cease the collection, processing, and use of personal data of dental practice owners for the purpose of telephone advertising unless the data subject has given their consent or a business relationship with the data subject already exists. Furthermore, the DPA ordered the deletion of the data collected and stored for this purpose and instructed the controller to implement the ordered measures within two weeks of the order becoming final and to notify the DPA thereof. The controller applied to the DPA for annulment of the decision. As grounds, it essentially argued that her conduct was lawful under the GDPR, which had since entered into force, so that a new issuance of the order would not be possible. The DPA rejected the application, essentially stating that the legal situation had not changed in the controller's favor. The Administrative Court dismissed the controller's action seeking an order requiring the DPA to annul its decision. The Higher Administrative Court held that in the absence of consent under Article 6(1)(a) GDPR, the admissibility of the controller's data processing for direct marketing purposes now depends on the applicability of Article 6(1)(f) GDPR, which requires a comprehensive proportionality assessment and a balancing of the conflicting interests of the advertiser, on the one hand, and the recipient of the advertising, on the other. However, the requirements of Article 6(1)(f) GDPR are not met because the telephone adver