Court case 6Nc19/21b – Court Ruling (Austria, 2021)

An Austrian based data subject intended to file a lawsuit under Article 79 GDPR due an (alleged) violation of Article 15(3) GDPR. The Austrian law contains no general provision determining which civil court in Austria would be competent to handle such lawsuit - § 29(2) of the Austrian Data Protection Act (Datenschutzgesetz - DSG) only establishes which court is locally competent to handle claims for damages following a violation of the GDPR (see Article 82 GDPR) or the DSG. Hence, the data subject filed a request under § 28 of the Austrian Judicial Jurisdiction Act (Jurisdiktionsnorm - JN) with the Austrian Supreme Court (OGH), asking the OGH to assign the case to the regional court of Feldkich (LG Feldkirch). § 28 JN allows for the OGH to assign a case to an Austrian civil court of its choice when it is unclear under the law, which court is locally competent to handle a case. The OGH rejected the data subject's request and held that § 29(2) DSG does not only apply to claims for damages but for any kind of civil claim under the GDPR or the DSG. In its reasoning the OGH referred to its decision 9Ob91/19d of 23.05.2019. The OGH held, that even if that decision (only) dealt with the question of subject matter competence of Austrian courts regarding claims under the GDPR, its findings can be applied on the question of local jurisdiction as well. Hence, the request under § 28 JN needed to be rejected, as the question of local competence can be answered by applying § 29(2) DSG per analogiam.