Court case 10 C 4.20 – Court Ruling (Germany, 2022)

In June 2015, an insolvency administrator requested tax information of an insolvency debtor from a tax office. They did so in order to examine insolvency claims, invoking the Freedom of Information Act of the State of North Rhine-Westphalia. The tax office rejected the application with reference to the obligation of tax secrecy. The insolvency administrator successfully challenged the rejection before the lower administrative courts, which was in turn challenged by the tax office. In the meantime, the General Tax Code (Abgabenordnung - AO) was amended due to the entry into force of the GDPR. In particular, the AO now contains various grounds for exclusion of existing claims for access to information under the Freedom of Information Acts and the GDPR. Due to the questions of EU law raised by the case with regard to Article 23(1)(e) GDPR and Article 23(1)(j) GDPR, the BVerwG had suspended the proceedings and made a reference for a preliminary ruling to the CJEU. The CJEU (Case C-620/19) declared that it had no jurisdiction in view of the fact that the present case concerns legal entities to which the GDPR does not apply. After the proceedings resumed, the tax office claimed that § 32e and § 32c (1) AO would constitute a restriction on the requirement to provide access to information to the insolvency administrator. § 32e AO would amount to a Rechtsgrundverweisung. This means that since the insolvency administrator is not the data subject, the conditions for the right to access under Article 15 GDPR are not met, and § 32c (1) AO would constitute a permissible restriction on the right to information within the scope of the GDPR, as provided for by Article 23 GDPR. The BVerwG held that the insolvency administrator had no right to access of information of data from tax authorities. The court came to the conclusion with a Rechtsfolgenverweisung: § 32e AO extends the restrictions on the right to information provided for in Sections § 32a to § 32d AO under Article 15 GDPR to claims for access to information arising from the freedom of information laws of the Federal Republic of Germany or the Länder by means of a reference to the legal consequences. Also a data subject's right to information under Article 15 GDPR does not exist vis-à-vis a tax authority, insofar as the provision would interfere with the tax authority's assertion, exercise or defense of civil law claims within the meaning of Article 23(1)(j) GDPR. The BVerwG decided that Article 23(1)(j) GDPR, which enables national provisions that restrict rights of data subjects or information obligations if these provisions help to enforce civil claims, also covers the enforcement of civil claims by public authorities. This is also confirmed by the objective of Article 23(1)(j) GDPR to guarantee the enforcement of civil law claims, which suggests that the provision is an opening clause also in favor of public authorities. The special provisions that may exist in national law on information and disclosure obligations for the purpose of determining evidence should remain unaffected by the provisions of data protection law.