Court case 4 BV 21.2328 – Court Ruling (Germany, 2022)

The plaintiff was the owner of a plot of land in the association area of the defendant, which operated a public water supply facility for the area. The building located on this property was used by the plaintiff and their employees exclusively as an architectural office. After the defendant had announced that the existing water meters would be replaced and converted to electronic water meters with the option of radio reading, the plaintiff objected by letter. The defendant rejected this objection and argued that the right of objection pursuant to [https://www.gesetze-bayern.de/Content/Document/BayGO-24 Article 24(4) sentence 5 of the Bavarian Law on Municipalities] did not apply to the plaintiff's property because a commercial enterprise was located there. Therefore, no personal data could be read out. Eventually, the water meter was installed using coercive measures and the plaintiff initiated court proceedings. In its judgement of 29 July 2021, the Administrative Court of Munich ordered the defendant, upon complaint by the plaintiff, to switch off the radio module of the electronic water meter in the plaintiff's property. The court ruled that the right to object was exercised properly and should have been granted. However, the defendant appealed this position by referring to of [https://dejure.org/gesetze/GG/13.html Article 13(1) of the German Basic Law] on protection of personal data. Accordingly, the right to object only existed if the data concerned the occupants of houses. In the case of rooms used for commercial or professional purposes, it was not possible to draw conclusions about personal data because of the associated contacts with business partners and visits by customers. The court in appeal had to consider, among others, whether information from the electronic water meter could be considered as personal data pursuant to Article 4(1) GDPR. The court first noted that the the primary reason for the right to object to the installation of a water meter with radio reading was the protection of personal data. Such data would be collected if a unit equipped with its own radio water meter was occupied or otherwise used by one person and thus only the water consumption data of this individual person was recorded and read. Also, in the case of flats or other premises that are jointly used by several persons, the recording of consumption data may under certain circumstances constitute an interference with the right to informational self-determination. The court recalled that Article 4(1) GDPR defines "personal data" as any information relating to an "identified or identifiable natural person". In the present case, the premise was used as an architectural office by several persons at the same time. However, taking into account whether several persons are registered in a flat at the time of the objection or whether more than one person is working in a unit used for business purposes would lead to arbitrary results in many cases. In contrast, the sole link to the (usage) "unit" existing in the property supplied is appropriate, as structural conditions usually exist more permanently than personal usage relationships and are also easier to determine. The court concluded that even in the case of joint use by several persons, if water consumption is continuously recorded by an electronic meter, it may be possible to draw conclusions about the consumption habits of individuals with only a little additional knowledge. Therefore, the court held that the collection of water usage data in the office constituted processing of personal data pursuant to Article 4(1) GDPR and dismissed the appeal.