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Decision of 25 February 2016 - BVerwG 1 C 28.14 (uploaded on 24 October 2017)

Responsibility for selection under data protection law in multi-tiered provider relationships (request for a preliminary ruling)

Headnotes

A preliminary ruling of the Court of Justice of the European Union (hereinafter: ECJ) is requested on the following questions in accordance with article 267 TFEU.

1. Is article 2 (d) of Directive 95/46/EC […] to be interpreted as definitively and exhaustively defining the liability and responsibility for data protection violations, or does scope remain, under the “suitable measures” pursuant to article 24 of Directive 95/46/EC and the “effective powers of intervention” pursuant to the second indent of article 28 (3) of Directive 95/46/EC, in multi-tiered information provider relationships for responsibility of a body that does not control the data processing within the meaning of article 2 (d) of Directive 95/46/EC when it chooses the operator of its information offering?

2. Does it follow a contrario from the obligation of Member States under article 17 (2) of Directive 95/46/EC to stipulate, in cases where data processing is carried out on the controller’s behalf, that the controller “must … choose a processor providing sufficient guarantees in respect of the technical security measures and organizational measures governing the processing to be carried out”, that, where there are other user relationships not linked to data processing on the controller’s behalf within the meaning of article 2 (e) of Directive 95/46/EC, there is no obligation to make a careful choice and no such obligation can be derived from national law?

3. In cases in which a parent company based outside the European Union has legally independent establishments (subsidiaries) in various Member States, is the supervisory authority of a Member State (in this case, Germany) entitled under article 4 and article 28 (6) of Directive 95/46/EC to exercise the powers conferred under article 28 (3) of Directive 95/46/EC against the establishment located in its territory even when this establishment is solely responsible for promoting the sale of advertising and other marketing measures aimed at the inhabitants of this Member State, whereas the independent establishment (subsidiary) located in another Member State (in this case, Ireland) is exclusively responsible under the group’s internal division of tasks for collecting and processing personal data throughout the entire territory of the European Union and hence in the other Member State as well (in this case, Germany), if decisions about data processing are in fact taken by the parent company?

4. Are article 4 (1) (a) and article 28 (3) of Directive 95/46/EC to be interpreted as meaning that, in cases in which the controller has an establishment in the territory of one Member State (in this case, Ireland) and there is another, legally independent establishment in the territory of another Member State (in this case, Germany), whose responsibilities include the sale of advertising space and whose activity is aimed at the inhabitants of that State, the competent supervisory authority in this other Member State (in this case, Germany) may direct measures and orders implementing data protection legislation also against the other establishment (in this case, in Germany) not responsible for data processing under the group’s internal division of tasks and responsibilities, or are measures and orders only possible by the supervisory body of the Member State (in this case, Ireland) in whose territory the entity with internal responsibility within the group has its registered office?

5. Are article 4 (1) (a) and article 28 (3) and (6) of Directive 95/46/EC to be interpreted as meaning that, in cases in which the supervisory authority in one Member State (in this case, Germany) takes action against a person or entity in its territory pursuant to article 28 (3) of Directive 95/46/EC on the grounds of failing to exercise due care in choosing a third party involved in the data processing process (in this case, Facebook), because this third party is in violation of data protection legislation, the active supervisory authority (in this case, Germany) is bound by the appraisal of data protection legislation by the supervisory authority of the Member State in which the third party responsible for the data processing has its establishment (in this case, Ireland) meaning that it may not arrive at a different legal appraisal, or may the active supervisory authority (in this case, Germany) conduct its own examination of the lawfulness of the data processing by the third party established in another Member State (in this case, Ireland) as a preliminary issue prior to its own action?

6. Where the possibility of conducting an independent examination is available to the active supervisory authority (in this case, Germany): Is the second sentence of article 28 (6) of Directive 95/46/EC to be interpreted as meaning that this supervisory authority may exercise the effective powers of intervention conferred on it under article 28 (3) of Directive 95/46/EC against a person or entity established in its territory on the grounds of their joint responsibility for data protection violations by a third party established in another Member State only and not until it has first requested the supervisory authority in this other Member State (in this case, Ireland) to exercise its powers?

Decision of 25 August 2015 - BVerwG 1 B 40.15 (uploaded on 28 October 2015)

Headnote

If an asylum applicant claims to be threatened with religious persecution because of a conversion to Christianity, when deciding whether pursuing a religious practice entailing danger is especially important to that person in order to maintain his religious identity, the administrative courts are not bound by the assessment of the officiant of a Christian church that the baptism of the person concerned is founded on a sincere and lasting religious decision.

Decision of 19 August 2014 - BVerwG 1 C 1.14 (uploaded on 14 September 2015)

Headnote

Requests to the Court of Justice of the European Union for a preliminary ruling on whether residency requirements for beneficiaries of subsidiary protection are compatible with article 33 and/or article 29 of Directive 2011/95/EU.

Decision of 06 June 2014 - BVerwG 10 B 35.14 (uploaded on 14 September 2015)

Headnote

An asylum seeker may counter a transfer to the Member State responsible for him or her under the Dublin II Regulation only by pleading systemic deficien-cies of the asylum procedure and of the reception conditions for asylum seek-ers. It is not relevant, however, whether in individual cases below the threshold of systemic deficiencies, there may be inhuman or degrading treatment within the meaning of article 4 of the Charter of Fundamental Rights or article 3 of the European Charter of Human Rights, or whether an applicant has already been exposed to such treatment at one time in the past (following the same reasoning as the decision of 19 March 2014 – BVerwG 10 B 6.14).

Decision of 19 March 2014 - BVerwG 10 B 6.14 (uploaded on 14 September 2015)

Headnote

Transfer of an asylum seeker to the Member State responsible under the Dublin II Regulation is impermissible only if the asylum procedure or reception conditions for reception of asylum seekers in that Member State, because of systemic defects, or in other words, regularly, are so inadequate that it must be expected that there is a considerable probability, including in the specific case to be decided, that the asylum seeker will be at risk of being subjected to inhuman or degrading treatment there.

Decision of 09 Dezember 2010 - BVerwG 10 C 19.09 (uploaded on 14 September 2015)

Headnote

Request to the European Court of Justice for a preliminary ruling to clarify the preconditions required for persecution on account of violation of religious freedom under Directive 2004/83/EC.

Decision of 14 October 2008 - BVerwG 10 C 48.07 (uploaded on 14 September 2015)

Headnote

Requests for preliminary rulings from the European Court of Justice to clarify the prerequisites for and effects of an exclusion under article 12 (2) b and c of Directive 2004/83/EC.

Decision of 07 February 2008 - BVerwG 10 C 33.07 (uploaded on 14 September 2015)

Headnote

Request for a preliminary ruling from the European Court of Justice to clarify the requirements for cessation of refugee status under article 11 (1) e of Directive 2004/83/EC.

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