Court case 2R149/21a – Court Ruling (Austria, 2021)

A district authority had issued a decision allowing for hawks to be shot in a certain rural area. This decision contained certain personal data of the claimant. The respondent(a natural person) published this decision on their private website. The claimant asked the respondent to redact/anonymise the claimant's personal data on their website but the respondent refused. Consequently, the claimant filded a complaint with the Austrian Data Protection Authority (Datenschutzbehörde - DSB), represented by an attorney. The DSB upheld the complaint, held that the respondent had violated the claimant's data protection rights (remark: the exact GDPR violations are not specified in the judgment) and ordered the respondent to remove the claimant's personal data from their website. The respondent filed an appeal to the Federal Administrative Court (Bundesverwaltungsgericht - BVwG) which dismissed the appeal. The claimant filed a lawsuit, claiming the costs of their attorney under Article 82 GDPR. The claimant argued that the respondent had acted unlawfully and culpably, as they refused to redact/remove the personal data despite the claimant's explicit request. The first instance court upheld the claim and the respondent filed an appeal with the Higher Regional Court Linz (Oberlandesgericht Linz - OLG Linz). The OLG Linz dismissed the appeal. It noted that Article 57(3) GDPR only states that the performance of the tasks of each supervisory authority shall be free of charge for the data subject and, where applicable, for the data protection officer. Hence Article 57(3) GDPR does not forbid that a controller can be put under the obligation to pay/refund legal costs in connection with a complaint procedure under Article 77 GDPR. Furthermore, the EFTA Court in E-11/19 and E-12/19 only held that a data subject cannot incur costs in a proceeding where they have become a party to the case by virtue of a controller appealing against a supervisory authority’s decision. However it did no