Court case 5 BV 20.2104 – Court Ruling (Germany, 2023)

Following several episodes of vandalism, the city council of Regensburg installed surveillance cameras in a communal garden where migrants and marginalised groups of people usually spent their time. The data subject, who usually passed through that area, asked the Administrative Court of Regensburg to order the police to stop recording and remove the cameras. The court of first instance held that the case at issue did not fall within the scope of Directive (EU) 2016/680 (Law Enforcement Directive), but rather of the GDPR. Indeed, the exception under Article 2(2)(d) GDPR did not apply, since the controller was not a law enforcement agency acting with the aim to protect public security. The court also found that the data subject could not rely on injunctive relief against the unlawful processing pursuant to the German Civil Code. According to the judges, Article 79(1) GDPR provides data subject with a legal remedy that is only applicable to violations of Articles 13-23 GDPR individually affecting the data subject. Finally, the court found that the monitoring was in any case lawful, as it was based on a public interest pursuant to Article 6(1)(e) GDPR, namely the protection of public property from vandalism. The data subject appealed the judgement before the Superior Administrative Court of Munich (Verwaltungsgerichtshof München). At the outset, the court clarified that the protection of public property by a municipality does not trigger Article 2(2)(d) GDPR, as it cannot be considered an activity carried out in the context of the fight against crime. Therefore, the GDPR – and not the Law Enforcement Directive – was applicable. The fact that such a purpose could partially overlap with the prevention of crime was not deemed sufficient by the court to rule out the applicability of the GDPR. However, the court of appeal stressed that Article 79 GDPR does not explicitly limit judicial remedies to the rights enshrined in Chapter III of the regulation. Therefore, an inj