Press release no. 52/2019 of 4 July 2019

Referral to the CJEU regarding the insolvency administrator's access to information about tax data of revenue authorities

The Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) in Leipzig, in a decision of today's date, has submitted to the Court of Justice of the European Union (CJEU) a request for a preliminary ruling on questions relating to the interpretation of article 23 (1) (j) and (e) of the General Data Protection Regulation (GDPR).


In the underlying legal dispute, an insolvency administrator requests access to the insolvency debtor's tax-related data from the competent tax office, based on the Freedom of Information Act of the Federal State of North Rhine-Westphalia (IFG NRW, Informationsfreiheitsgesetz des Landes Nordrhein-Westfalen). The tax office rejected the application; the claimant was successful before the Administrative Court (Verwaltungsgericht) and the Higher Administrative Court (Oberverwaltungsgericht). The defendant federal state is contesting these decisions by way of an appeal on points of law, which was admitted by the Higher Administrative Court.


Whilst the appeal proceedings on points of law were ongoing, the Fiscal Code (AO, Abgabenordnung) was amended in connection with the entry into force of the General Data Protection Regulation and the associated adaptation of national legislation; the new provisions are to be taken into consideration in this case. One of the provisions that have come into focus now is, inter alia, section 32e AO which regulates the relationship with the rights of access to information under the federal and federal state acts on freedom of information, and the exclusion rule in section 32c (1) no. 2 AO, which is based on article 23 (1) (j) GDPR. Under EU law, an adaptation of the AO is only required for the data protection rights (of access) of natural persons. However, in view of the objective pursued with this provision by the national legislature, which is to create a uniform tax procedure law for all tax debtors and all types of taxes, and to subject the rights of access to information to this law as well, a "split" interpretation of these provisions for cases governed by EU law, on the one hand, and cases not governed by this law, on the other hand, has to be ruled out. In order to ensure a uniform interpretation of EU law, the proceedings must be stayed and a preliminary ruling must be obtained from the CJEU on the questions whether article 23 (1) (j) GDPR also serves to protect the interests of financial authorities, whether the term "enforcement of civil law claims" within the meaning of this provision also covers the defence by the tax authority against claims arising from the right to contest the debtor's transactions by virtue of insolvency (Insolvenzanfechtungsansprüche) under civil law or the assertion of such claims respectively, or whether a restriction of the right of access under article 15 GDPR for this purpose can be based on article 23 (1) (e) GDPR.


BVerwG 7 C 31.17 - decision of 4 July 2019


Decision of 4 July 2019 -
BVerwG 7 C 31.17ECLI:DE:BVerwG:2019:040719B7C31.17.0


Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its rulings, is German. This translation is based on an edited version of the original ruling. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text. Numbers of paragraphs that have completely been omitted in the edited version will not be shown.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, decision of 4 July 2019 - 7 C 31.17 - para. 16.

Request to the CJEU for a preliminary ruling regarding the insolvency administrator's access to information about tax data of revenue authorities

Headnotes

Request to the CJEU for a preliminary ruling regarding the insolvency administrator's access to information about tax data of revenue authorities.

The Court of Justice of the European Union is requested to clarify the following questions concerning the interpretation of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation, OJ L 119 of 4 May 2016, p. 1) by way of a preliminary ruling in accordance with article 267 TFEU:

1. Does article 23 (1) (j) of Regulation (EU) 2016/679 also serve to protect the interests of revenue authorities?

2. If so, does the wording "the enforcement of civil law claims" also cover the defence of the revenue authority against civil law claims and must such claims already have been submitted?

3. Does the provision of article 23 (1) (e) of Regulation (EU) 2016/679 relating to the protection of an important financial interest of a Member State in taxation matters allow a restriction of the right of access under article 15 of Regulation (EU) 2016/679 in relation to the defence of civil law insolvency avoidance claims against the revenue authority?

  • Sources of law
    Regulation (EU) 2016/679 (GDPR)articles 1 (1), 4 no. 1, articles 15, 23 (1) (e), (i) and (j)
    Fiscal CodeAO, Abgabenordnungsections 2a (3) and (5), 32b (1), 32c (1) no. 1 and 2, section 32e

Reasons

I

1 The claimant is an insolvency administrator. He is requesting tax information in relation to the insolvency debtor, an entrepreneurial company, in order to examine claims arising from the right to contest the debtor's transactions by virtue of insolvency (hereinafter insolvency avoidance claims, Insolvenzanfechtungsansprüche) from the competent tax office.

2 He made a request, citing the Freedom of Information Act of the Federal State of North Rhine-Westphalia (IFG NRW, Informationsfreiheitsgesetz des Landes Nordrhein-Westfalen), for information concerning the threat of enforcement measures and the granting of enforcement orders, payments received, the date of notification of the debtor's insolvency and sending of stored account extracts of all tax types managed there for the tax periods from March 2014 to June 2015. This request was rejected by the tax office.

3 The Administrative Court (Verwaltungsgericht) essentially upheld the action filed against this rejection. The appeal on points of fact and law of the defendant federal state was dismissed by the Higher Administrative Court (Oberverwaltungsgericht): The right to information, it held, was neither ruled out by area-specific provisions under tax procedure law nor precluded by grounds for exclusion. Although the requested information was objectively subject to the scope of protection of tax secrecy, it did not have to be kept confidential vis-à-vis the insolvency administrator, just as it did not have to be kept confidential vis-à-vis the party whose tax circumstances were concerned. The right of disposal in relation to tax data transferred to the insolvency administrator with the opening of the insolvency proceedings. This transfer also extended to business secrets and tax data, where this was necessary for proper administration of the insolvency estate and handling of the insolvency proceedings. The insolvency administrator was able to request information in relation to all circumstances concerning the proceedings from the insolvency debtor. The insolvency debtor's obligation to cooperate also encompassed the obligation to release the tax office from maintaining tax secrecy; his interests in confidentiality had to be of secondary importance in this respect.

4 The defendant continues to pursue his request for dismissal of the action by way of the appeal on points of law, which he was granted leave to bring by the Court of Appeal, due to the fundamental importance of the case.

II

5 The proceedings must be stayed and a preliminary ruling by the Court of Justice of the European Union (hereinafter Court of Justice) is to be obtained on the questions raised in the operative part of the decision (article 267 of the Treaty on the Functioning of the European Union (TFEU)).

6 1. The relevant provisions of EU law are articles 1 (1), 4 no. 1, articles 15 and 23 (1) (e), (i) and (j) of Regulation (EU) 2016/679.

7 2. The relevant provisions of national law were incorporated by Act of 17 July 2017 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 2541) into the Fiscal Code (AO, Abgabenordnung) during the proceedings relating to the appeal on points of law and entered into force with effect as from 25 May 2018. Those provisions read as follows:

8 Section 2a: Scope of the provisions on the processing of personal data
"(3) The provisions of this Code and of other tax legislation that pertain to the processing of personal data shall not apply to the extent that European Union law, in particular the applicable version of Regulation (EU) 2016/679 … applies directly or in accordance with subsection 5."
"(5) Unless otherwise required by law, the provisions of Regulation (EU) 2016/679, of this Code and of other tax legislation that pertain to the processing of natural persons' personal data shall apply accordingly to information relating to identified or identifiable
1. deceased natural persons or
2. corporations, associations of persons with or without legal capacity, and pools of assets."

9 Section 32e: Relation to other access and information rights
"Insofar as a data subject or third party has a right of access to information from a revenue authority pursuant to the Freedom of Information Act of 5 September 2005 (BGBl. I p. 2722), as amended, or pursuant to relevant federal states' legislation, articles 12 to 15 of Regulation (EU) 2016/679 in conjunction with sections 32a to 32d shall apply accordingly. More extensive rights to information on tax data are thus ruled out. Section 30 (4) no. 2 shall not apply in this case."

10 Section 32b: Obligation of the revenue authority to provide information where personal data have not been obtained from the data subject
"(1) In addition to the exceptions specified in article 14 (5) of Regulation (EU) 2016/679 and section 31c (2), the obligation of the revenue authority to provide information relating to the data subject in accordance with article 14 (1), (2) and (4) of Regulation (EU) 2016/679 shall not apply
1. insofar as the provision of information
a) would jeopardise the proper performance of the tasks, as described in article 23 (1)(d) to (h) of Regulation (EU) 2016/679, that lie within the competence of the revenue authorities or other public bodies or
b) ...
and therefore the interest of the data subject with respect to the provision of information is overridden. Section 32a (2) shall apply correspondingly."

11 Section 32c: Right of access by the data subject
"(1) The right of access by the data subject vis-à-vis a revenue authority in accordance with article 15 of Regulation (EU) 2016/679 does not exist insofar as
1. information is not to be provided to the data subject pursuant to section 32b (1) or (2),
2. the granting of access would adversely affect the legal entity of the revenue authority in the establishment, exercise or defence of civil law claims or in the defence of civil law claims established against it within the meaning of article 23 (1) (j) of Regulation (EU) 2016/679; obligations on the part of the revenue authority to provide information under civil law shall remain unaffected,
..."

III

12 The questions referred for a preliminary ruling are relevant for the decision. The success of the defendant's appeal on points of law depends on the answers to these questions. They require clarification by the Court of Justice because they have neither been clarified in its case-law nor are they obvious. With regard to the referral and the individual questions referred for a preliminary ruling, the following considerations are of relevance:

13 Regulation (EU) 2016/679 does not directly apply to the underlying facts of this case; the facts do not involve either personal (tax) data of a natural person within the meaning of articles 1 (1) and 4 no. 1 of Regulation (EU) 2016/679 or a right of access by the data subject under data protection law in accordance with article 15 of Regulation (EU) 2016/679. Data subject status under data protection law is a highly personal right that is not part of the insolvency estate and therefore is not covered by the transfer of the administrative power and right of disposal to the insolvency administrator in accordance with section 80 (1) of the Insolvency Statute (InsO, Insolvenzordnung). However, the Court of Justice has repeatedly held that, in order to ensure uniform interpretation of EU law, it also has jurisdiction to allow requests for preliminary rulings on questions concerning EU law provisions in situations where the facts of the cases being considered by the national courts were outside the scope of EU law but where those provisions of EU law had been rendered applicable by national law in a direct and unconditional way due to a reference made by that law to the content of those provisions (see CJEU, judgments of 16 March 2006 - C-3/04 [ECLI:EU:C:2006:176], Poseidon Chartering BV - para. 14 et seqq. and of 18 October 2012 - C-583/10 [ECLI:EU:C:2012:638], Nolan - para. 45 et seqq.).

14 Those conditions are satisfied in the present case. By means of the additions to the Fiscal Code, the legislature is pursuing - as is clear in particular from section 2a (3) and (5) AO - the objective, beyond the direct scope of application of Regulation (EU) 2016/679, of providing, in compliance with the general principle of the Fiscal Code, uniform procedural rules - which usually at the same time constitute rules relating to the processing of personal data - for all persons affected by tax law and tax procedure law, regardless of their legal form (see Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 18/12611 p. 76). There are no apparent indications that this legislative objective is limited to taxes determined under EU law. Processing of data in a manner differentiated by taxable persons and tax types would moreover - as the representatives of the competent Federal Ministry of Finance leading the amendment to the Fiscal Code have explained in the oral hearing - be impossible to implement from a technical perspective.

15 At the same time, the national legislature intended to include rights of access to information existing in principle in accordance with the federal and federal state acts on freedom of information under this uniform tax procedure law and thus to supersede the acts on freedom of information in respect of tax data in an area-specific manner (BT-Drs. 12611 p. 89). Section 32e AO serves this purpose. An interpretation of this provision as a reference to a legal basis is unsuccessful. It would lead to the corresponding application as ordered therein of articles 12 to 15 of Regulation (EU) 2016/679, in conjunction with sections 32a to 32d AO, to rights to information by third parties always resulting in the exclusion of a claim and therefore coming to nothing due to the absence of data subject status. Such an understanding of the rule is not intended in light of the wording of section 32e first sentence AO. According to the explanations of the representatives of the Federal Ministry of Finance in the oral hearing, it is also not the intention of the provision set forth in section 32e second and third sentence AO to limit rights to information - where these have been established in the federal and federal state acts on freedom of information - in the sense of an upper limit to the extent that emerges from the Fiscal Code.

16 Against this background, a "split" interpretation of the new provisions in the Fiscal Code for situations that are subject to EU law, on the one hand, and situations that are not subject thereto, on the other, does not come into consideration.

17 Question 1:
The answer to this question depends on whether a revenue authority is permitted at all to refuse access to tax data of the taxable person by reference to article 23 (1) (j) of Regulation (EU) 2016/679. This is obviously assumed by the national legislature according to the unambiguous wording of section 32c (1) no. 2 AO, which is, according to the explanatory memorandum (BT-Drs. 18/12611 p. 88), based on article 23 (1) (j) of Regulation (EU) 2016/679 and, moreover, expressly refers to that provision. By contrast, among the relevant experts, the view has in some cases been taken that the opening clauses in article 23 (1) (i) and (j) of Regulation (EU) 2016/679 were relevant only to subjects under private law; in this respect, letter j therefore had only a clarifying function with regard to letter i, which is broadly worded in relation to protection of the rights and freedoms of other private individuals (...). This view is supported by the fact that the protection of important public interests is the subject matter of the opening clauses in article 23 (1) (a) to (h) of Regulation (EU) 2016/679. Important financial interests of the state in budgetary and taxation matters may be protected for example on the basis of article 23 (1) (e) of Regulation (EU) 2016/679.

18 Question 2:
If revenue authorities are in principle able to invoke article 23 (1) (j) of Regulation (EU) 2016/679, it is necessary to clarify whether the wording "enforcement of civil law claims" also covers the defence against civil law claims. This is - as can again be clearly inferred from the wording and the justification relating to section 32c (1) no. 2 AO (BT-Drs. 18/12611 p. 88) - the case in the estimation of the national legislature. In this case, the express mention of article 23 (1) (j) of Regulation (EU) 2016/679 in section 32c (1) no. 2 AO, in accordance with the statements made by the representatives of the Federal Ministry of Finance in the oral hearing with regard to the desired conformity with EU law, serves to make it clear that this provision relates only to the defence against civil law claims.

19 Section 32c (1) no. 2 AO is intended to ensure that, in the context of uniform and lawful taxation and safeguarding of tax revenue, the revenue authorities in the case of civil law claims are not placed in a better, but also not worse, position than other debtors or creditors; the obligations to provide information are therefore to be guided solely by civil law (see BT-Drs. 18/12611 p. 88). The provision is aimed at correcting the "insolvency administrator-friendly" jurisprudence of the administrative courts in relation to requests for access to information under the federal and federal state acts on freedom of information (...). According to that jurisprudence, the administrative power and right of disposal of the insolvency administrator under section 80 (1) InsO also extend to information covered by tax secrecy, which is intended to be used for the examination of insolvency avoidance claims in accordance with section 129 et seqq. InsO against the revenue authority (see Federal Administrative Court (BVerwG, Bundesverwaltungsgericht), judgment of 26 April 2018 - 7 C 3.16 - (...) para. 24). As a consequence of this jurisprudence, insolvency administrators were able to demand access to tax data relating to the insolvency debtor from the revenue authorities; only as a result, they were generally able to examine insolvency avoidance claims against the revenue authority. With respect to other creditors of the insolvency debtor, the insolvency administrator is restricted to rights of access under civil law, which section 32c (1) no. 2 AO expressly leaves unaffected. However, the rights of access under civil law depend, in accordance with the established jurisprudence of the Federal Court of Justice (BGH, Bundesgerichtshof), on the fact that an insolvency avoidance claim is established on its merits and that the case only involves the further determination of the nature and extent of the claim. Until an obligation for restitution (Rückgewährschuldverhältnis) is established, the insolvency administrator is therefore limited to requesting all of the information required from the insolvency debtor (see BGH, judgments of 13 August 2009 - IX ZR 58/06 - (...) para. 7 with further references and of 14 February 2019 - IX ZR 149/16 - (...) para. 29). The insolvency administrator can thus request information from other creditors only at a much later stage of the procedure; section 32c (1) no. 2 AO is intended to prevent the revenue authorities being in a weaker position as a result of this in future.

20 The question of whether this legislative objective is covered by article 23 (1) (j) of Regulation (EU) 2016/679 requires clarification. The provision authorises the national legislature - subject to certain conditions - to enact restrictive rules in order to safeguard the enforcement of civil law claims. According to conventional understanding, the German term "Durchsetzung" refers to the sphere of the claimant (creditor) and is chiefly used as a synonym for the enforcement or execution of a claim which has already been established on the merits; the same would apply, for example, to the term "the enforcement" in the English version or "l'exécution" in the French version of Regulation (EU) 2016/679. The defence against civil law claims therefore cannot simply be subsumed under the term "enforcement". This is especially true since the EU legislature distinguishes between the terms "establishment", "exercise" and "defence" (of legal claims) in article 9 (2) (f), article 17 (3) (e), article 18 (1) (c) and (2), article 21 (1) second sentence, and article 49 (1) (e) of Regulation (EU) 2016/679. In this case, it is unclear whether the defence of legal claims also covers the defence against such claims (...).

21 If the wording "enforcement of civil law claims" includes the defence of the revenue authority against such claims, this raises the further question of whether the claims (in this case the insolvency avoidance claims) must already have been established vis-à-vis the opposing party or whether it is sufficient for the information to be requested in order to examine such claims. The unfortunate wording of section 32c (1) no. 2 AO refers to the defence of the legal entity of the revenue authority "against civil law claims established against it …". If "to establish" is understood as a synonym for "to demand", "to assert", "to apply for", "to claim" or "to enforce", the wording "established" implies that the claimant (creditor) has already raised a claim vis-à-vis the opposing party (debtor), and that the merits of that claim have in any case therefore already been substantiated. By contrast, the mere possibility - which needs to be examined in more detail on the basis of the requested tax data - that insolvency avoidance claims exist vis-à-vis the revenue authority should not be sufficient. If, however, the right of access were to be excluded only after establishment of the insolvency avoidance claim, the rule would to a great extent be ineffective, as the insolvency administrator would have already acquired the necessary data. The Senate therefore understands section 32c (1) no. 2 AO in line with its unambiguous spirit and purpose, to the effect that the wording "established" also encompasses "yet to be established" or "possible" claims. It is debatable and must be clarified whether this understanding is also covered by article 23 (1) (j) of Regulation (EU) 2016/679.

22 Question 3:
Lastly, it must be clarified whether a national provision, under which the right of access pursuant to article 15 of Regulation (EU) 2016/679 is restricted to the defence of possible insolvency avoidance claims against the revenue authority, can be based on article 23 (1) (e) of Regulation (EU) 2016/679.

23 The national legislature envisaged the legislative objective of section 32c (1) no. 2 AO as being to place the revenue authority in neither a better nor worse position than other creditors and debtors in the case of civil law claims, also in the interest of uniform and lawful taxation and safeguarding of tax revenue; these two objectives constitute important objectives of general public interest in budgetary and taxation matters within the meaning of article 23 (1) (e) of Regulation (EU) 2016/679 (see BT-Drs. 18/12611 p. 88). In light of the wording of section 32c (1) no. 2 AO and the explanatory memorandum, the Senate proceeds on the assumption that the legislature primarily intended to make use of the opening clause in article 23 (1) (j) of Regulation (EU) 2016/679. From a systematic perspective, this is supported by the fact that it has referred to the opening clauses in article 23 (1) (d) to (h) of Regulation (EU) 2016/679 (only) in other provisions, for example in section 32b (1) no. 1 (a) AO, to which section 32c (1) no. 1 AO refers. Nonetheless, in any case it cannot be ruled out with certainty that section 32c (1) no. 2 AO can alternatively also be based on article 23 (1) (e) of Regulation (EU) 2016/679.

24 However, this assumption gives cause for concerns on the merits. The requested tax information is not of interest for the tax claims under substantive law, but rather mainly for the payment flows that are relevant under insolvency law as potentially contestable transactions within the meaning of section 129 (1) InsO. The insolvency administrator's claim directed against the revenue authority for restitution of payments contested under insolvency law is therefore not included among the claims arising from the tax relationship. Insolvency avoidance merely results in the ineffectiveness of the transaction disadvantaging the creditor, but not in the ineffectiveness of the underlying obligation. Instead, the legal ground of a contested payment - in this case the tax claims - remains unaffected by the insolvency avoidance. The opponent of the declaration of avoidance must return the performance made to it by the insolvency debtor, but retains its initially satisfied, now reopened claim (section 144 (1) InsO), which it can include in the insolvency table (see BVerwG, judgment of 26 April 2018 - 7 C 3.16 - (...) para. 12 with further references). Admittedly, the objective, pursued by section 32c (1) no. 2 AO, of equal treatment of revenue authorities and other creditors does concern financial interests of the State, because the revenue authority has to return any tax revenue collected and include its claims in the insolvency table. It is, however, at the very least debatable whether the interest in affording protection against this "reverse transaction" constitutes a laudable "important objective" within the meaning of article 23 (1) (e) of Regulation (EU) 2016/679, especially as there is no suggestion of a direct connection to ensuring uniform and lawful taxation and safeguarding tax revenue. The national legislature also - as shown by the provision of section 32a (2) AO referred to in section 32b (1) second sentence AO - primarily had other situations in mind in this regard.

Judgment of 25 February 2022 -
BVerwG 10 C 4.20ECLI:DE:BVerwG:2022:250222U10C4.20.0


Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its rulings, is German. This translation is based on an edited version of the original ruling. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text. Numbers of paragraphs that have completely been omitted in the edited version will not be shown.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, judgment of 25 February 2022 - 10 C 4.20 - para. 16.

Insolvency administrator's access to information about tax data held by the revenue authorities

Headnotes

1. The federal legislature's legislative power to enact section 32e, section 32c (1) no. 2 AO follows from article 108 (5) second sentence GG.

2. By way of a reference to legal consequences of another legal provision, section 32e AO extends the restrictions provided for in sections 32a to 32d AO of the right of access under article 15 GDPR to the rights of access to information resulting from the federal and federal state acts on freedom of information.

3. Article 23 (1) (j) GDPR does not preclude a national rule that provides for restrictions of the rights of data subjects and of obligations to provide information in the interest of the enforcement of civil law claims of public authorities.

4. Defence against civil law claims is covered by the opening clause in article 23 (1) (j) GDPR.

5. Section 32c (1) no. 2 AO is to be understood in line with its spirit and purpose, to the effect that the wording "established" also encompasses "yet to be established" or "possible" claims.

6. Section 32c (1) no. 2 AO can also be based on article 23 (1) (e) GDPR.

  • Sources of law
    Freedom of Information Act of the Federal State of North Rhine-WestphaliaIFG NRW, Informationsfreiheitsgesetz Nordrhein-Westfalensection 4
    Fiscal CodeAO, Abgabenordnungsections 30, 32e, 32c (1) no. 2
    Insolvency CodeInsO, Insolvenzordnungsection 80 (1)
    General Data Protection Regulation (GDPR)articles 15, 23 (1) (e) and (j)

Summary of the facts

The claimant, an insolvency administrator appointed to manage the assets of J. UG, requests tax-related information on the insolvency debtor in order to examine claims arising from the right to contest the debtor's transactions by virtue of insolvency (hereinafter insolvency avoidance claims, Insolvenzanfechtungsansprüche) from the competent tax office.

In June 2015, the claimant, invoking the Freedom of Information Act of the Federal State of North Rhine-Westphalia (IFG NRW, Informationsfreiheitsgesetz Nordrhein-Westfalen) requested access to information concerning the threat of enforcement measures by the tax office regarding the establishment of tax arrears, and the payments made as a consequence by the insolvency debtor. The tax office rejected the request, stating that the insolvency debtor had not released the tax office from its obligation to preserve tax secrecy.

The action filed against this was essentially successful before the Administrative Court (Verwaltungsgericht). By judgment of 14 September 2017, the Higher Administrative Court (Oberverwaltungsgericht) dismissed the appeal on points of fact and law by the defendant Federal State of North Rhine-Westphalia. 

The defendant's appeal on points of law met with success.

Reasons (abridged)

11 The defendant's admissible appeal on points of law is well-founded. The Higher Administrative Court’s judgment breaches the law that is subject to an appeal on points of law (section 137 (1) no. 1 of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)) and does not prove to be correct for other reasons either (section 144 (4) VwGO), which is why the action is to be dismissed. The Higher Administrative Court's judgment breaches section 32e, section 32c (1) no. 2 of the Fiscal Code (AO, Abgabenordnung) which entered into force during the appeal proceedings on points of law, and which the Court of Appeal would have to take as a basis were it to decide now.

12 1. Access to information of the federal state's revenue authorities is regulated in section 4 (1) of the Act on the Freedom of Access to Information for the Federal State of North Rhine-Westphalia (Gesetz über die Freiheit des Zugangs zu Informationen für das Land Nordrhein-Westfalen) of 27 November 2001 (Law and Ordinance Gazette of North Rhine-Westphalia (GV. NRW, Gesetz- und Verordnungsblatt für das Land Nordrhein-Westfalen), p. 806), which gives every natural person the right of access to official information available at the federal state's authorities and other bodies, subject to the provisions of this Act. The Freedom of Information Act of the Federal State of North Rhine-Westphalia does not provide for any restrictions or exclusion rules for the revenue authorities.

13 The question discussed in the administrative procedure and in the lower instances, whether or not tax secrecy as provided for in section 30 AO stands against the insolvency administrator's right of access, was answered in the negative by the 7th Senate of the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) in its judgments of 26 April 2018 - 7 C 3.16, 7 C 4.16, 7 C 5.16 and 7 C 6.16 - (...). The insolvency administrator's right to manage the insolvency estate and the right of disposal (Verwaltungs- und Verfügungsbefugnis) as provided for in section 80 (1) of the Insolvency Code (InsO, Insolvenzordnung) covers information that serves to examine insolvency claims. The insolvency administrator is entitled to use all secrets of the insolvency debtor that are of relevance for the insolvency avoidance (Insolvenzanfechtung). It does not constitute a violation of the tax secrecy if such information is made available to the insolvency administrator; insofar, the rules applicable to the taxable insolvency debtor itself also apply to the insolvency administrator. Therefore, under the legal situation applicable at the time the decisions by the lower instances were taken, the tax offices in North Rhine-Westphalia were in principle obligated to provide access to information to the insolvency administrator pursuant to section 4 (1) IFG NRW.

14 2. However, section 32e, section 32c (1) no. 2 AO now preclude the right of access to information. Both provisions were inserted through article 17 no. 11 of the Act of 17 July 2017 (Federal Law Gazette (BGBl., Bundesgesetzblatt) I p. 2541), and, pursuant to article 31 (4) of the Act, entered into force on 25 May 2018. Pursuant to section 32e AO, articles 12 to 15 of the General Data Protection Regulation (GDPR) in conjunction with sections 32a to 32d AO are applicable accordingly if the data subject or a third party has a right of access to information against the revenue authority under the federal and federal state acts on freedom of information.

15 a) Insofar as claims - as in the present case - against authorities of the federal states are concerned, the federal legislature's legislative power to enact section 32e, section 32c (1) no. 2 AO follows from article 108 (5) second sentence of the Basic Law (GG, Grundgesetz). According to this provision, the procedure to be followed by the federal states' revenue authorities or, as provided by subsection 4 second sentence of the article, by municipalities (associations of municipalities) may be prescribed by a federal law requiring the consent of the Bundesrat. This includes the decision to regulate or to refrain from regulating the right of access to procedural files, even after the conclusion of the relevant procedure, provided that a transition to court proceedings has not taken place (...). It is true that the rights of access to information under the federal and federal state acts on freedom of information which are independent of specific procedures and are modified by section 32e AO are not to be classified as rules relating to administrative procedure (see BVerwG, decision of 15 October 2007 - 7 B 9.07 - (...) para. 9, (...)). However, the right to enact regulations governing access to procedural files, which is covered by federal legislative power for the administrative procedures of the federal states' revenue authorities, would inappropriately remain incomplete if it did not at the same time cover the right to enact regulations governing claims for access to information from the revenue authorities' procedural files which are based on general rights of access to information under the laws of the federal states. Otherwise, the federal legislature would not be able to enact conclusive regulations that are binding also in relation to the federal states' legislatures regarding a concept of accessibility or confidentiality of procedural information that the federal legislature considers to be reasonable or even necessary. Insofar, the uniformity of the revenue administration intended to be brought about through article 108 (5) second sentence GG would not be achieved.

16 b) Contrary to the defendant's view, section 32e first sentence AO cannot be interpreted as constituting a reference to a legal basis. It would lead to the corresponding application as ordered therein of articles 12 to 15 of GDPR in conjunction with sections 32a to 32d AO to rights to information by third parties always resulting in the exclusion of a claim and therefore coming to nothing due to the absence of data subject status.

17 Section 32e AO does not replace the rights under the federal and federal state acts on freedom of information, but merely modifies them. This already results from the wording of the provision which requires that such a right exists and merely regulates the limitations of the right with regard to its legal consequences. This means that the right of access to information continues to result from section 4 (1) IFG NRW. The acts on freedom of information that apply in the relevant case regulate the conditions of the claim as well as the restrictions, if any, which may go beyond those to which reference is made in section 32e first sentence AO. The provisions of the Fiscal Code regulating the tax procedures are applicable not instead of, but in addition to those of the acts on freedom of information and of the General Data Protection Regulation (BVerwG, decision of 28 October 2019 - 10 B 21.19 - (...) para. 7). By way of a reference to the legal consequences of another legal provision, section 32e AO extends the restrictions provided for in sections 32a to 32d AO of the right of access under article 15 GDPR - both for the data subject and for third parties - to the right of access resulting from the federal and federal state acts on freedom of information (BVerwG, judgment of 16 September 2020 - 6 C 10.19 - (...) para. 31).

18 The defendant and the Representative of the Interests of the Federation at the Federal Administrative Court (Vertreter des Bundesinteresses beim Bundesverwaltungsgericht) therefore cannot successfully argue that the claimant's request for access to information does not even meet the personal requirements of article 15 GDPR, and that the right is therefore excluded. It is correct that the claimant is not the data subject within the meaning of article 15 GDPR, and can therefore not in his own name as the insolvency administrator assert the directly affected insolvency debtor's right of access under data protection law pursuant to article 15 (1) GDPR. This is because data subject status under data protection law is a highly personal right of the debtor that is not part of the insolvency estate and therefore is not covered by the transfer of the right to manage the insolvency estate and the right of disposal to the insolvency administrator in accordance with section 80 (1) InsO (BVerwG, judgment of 16 September 2020 - 6 C 10.19 - (...) para. 16 et seqq. and decision of 4 July 2019 - 7 C 31.17 - (...) para. 13). However, the right of access to information under section 4 (1) IFG NRW as modified by section 32e AO does not require data subject status. The claimant is entitled under section 4 (1) IFG NRW without having data subject status within the meaning of article 15 (1) GDPR. This is because section 32e AO is linked merely to an existing right of access to information, but not to the constituent elements of the right of access under data protection law pursuant to article 15 GDPR.

19 c) Pursuant to section 32c (1) no. 2 AO, which is applicable mutatis mutandis via section 32e AO, a data subject does not have a right of access under article 15 GDPR in relation to a revenue authority if the granting of access to information would impair the legal entity of the revenue authority in the establishment, exercise or defence of civil law claims or in the defence against such civil law claims brought against it within the meaning of article 23 (1) (j) GDPR; the revenue authorities' obligations to provide access to information under civil law remain unaffected.

20 Article 23 GDPR includes a catalogue of opening clauses which give the federal and federal state legislatures the power, for the reasons listed there, to restrict, inter alia, the rights of data subjects and the obligations of data controllers under article 12 to 22 GDPR. Section 32c AO comprises, based on article 23 (1) GDPR, area-specific restrictions of the data subject's right of access under article 15 GDPR. Section 32c (1) no. 2 AO makes reference to the opening clause in article 23 (1) (j) GDPR. According to this provision, the rights of data subjects under the General Data Protection Regulation may be restricted in order to safeguard the enforcement of civil law claims. The explanatory memorandum (Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 18/12611 p. 88) additionally makes reference to article 23 (1) (e) GDPR which allows restrictions to protect other important objectives of general public interest of the Union or of a Member State, in particular an important economic or financial interest of the Union or of a Member State, including monetary, budgetary and taxation matters.

21 Section 32c (1) no. 2 AO aims to correct the "insolvency-administrator-friendly" jurisprudence of the administrative courts regarding requests for access to information under the federal and federal state acts on freedom of information, as seen also in the decisions given by the lower instances in the present proceedings. According to that jurisprudence, the administrative power and right of disposal of the insolvency administrator under section 80 (1) InsO also extend to information covered by tax secrecy, which is intended to be used for the examination of insolvency avoidance claims in accordance with section 129 et seqq. InsO against the revenue authority. As a consequence of this jurisprudence, insolvency administrators were able to demand access to tax data relating to the insolvency debtor from the revenue authorities; only as a result, they were generally able to examine insolvency avoidance claims against the revenue authority. With respect to other creditors of the insolvency debtor, the insolvency administrator is restricted to rights of access under civil law instead, which section 32c (1) no. 2 AO expressly leaves unaffected. However, the rights of access under civil law depend, in accordance with the established jurisprudence of the Federal Court of Justice (BGH, Bundesgerichtshof), on the fact that an insolvency avoidance claim is established on its merits and that the case only involves the further determination of the nature and extent of the claim (see BGH, judgments of 13 August 2009 - IX ZR 58/06 (...) para. 7 with further references and of 14 February 2019 - IX ZR 149/16 - Rulings of the Federal Court of Justice in Civil Matters (BGHZ, Entscheidungen des Bundesgerichtshofs in Zivilsachen) 221, 100 para. 29). As long as an obligation for restitution has not been established, the insolvency administrator therefore has to rely on the insolvency debtor to provide any required information. The insolvency administrator can thus request access to information from other creditors only at a much later stage of the procedure; section 32c (1) no. 2 AO is intended to prevent the revenue authorities being in a weaker position as a result of this (BVerwG, decision of 4 July 2019 - 7 C 31.17 - (...) para. 19 with further references).

22 d) The restriction of rights pursuant to section 32e in conjunction with section 32c (1) no. 2 AO has a sufficient basis in EU law in article 23 GDPR. It is correct that EU law does not result in an obligation to interpret national norms in conformity with EU law even outside its scope of application. However, in the present case this obligation follows from national law. The legislature's intention to ensure application of uniform regulations in tax proceedings, irrespective of the data subject's legal form (see section 2a (3) and (5) AO; BT-Drs. 18/12611 p. 76), results in an obligation to apply a uniform interpretation in conformity with EU law. There are no indications that the objective of the regulation, which was the creation of uniform procedural rules for all data subjects, was to be limited to taxes determined by EU law. A split interpretation of the new provisions in the Fiscal Code for situations that are subject to EU law, on the one hand, and situations that are not subject thereto, on the other, does not come into consideration (BVerwG, decision of 4 July 2019 - 7 C 31.17 - (...) para. 14 et seqq. with reference to BT-Drs. 18/12611 p. 76). In cases where the Fiscal Code provides for a mutatis mutandis application of the General Data Protection Regulation with regard to the extension of the provision to legal persons pursuant to section 2a (5) no. 2 AO and with regard to the rights of access to information pursuant to section 32e first sentence AO, the legal consequence intended by the legislature is the equal treatment of the relevant cases with those where the General Data Protection Regulation is directly applicable. Being aware that this resulted in an extension of the General Data Protection Regulation's scope of application to purely domestic cases, the legislature did not make any corresponding differentiations.

23 aa) In view of the decision on it's lack of jurisdiction by the Court of Justice of the European Union (CJEU, hereinafter Court of Justice) in its judgment of 10 December 2020 - C-620/19 [ECLI:EU:C:2020:1011], the opening clause in article 23 (1) (j) GDPR must be interpreted by the Senate itself.

24 (1) article 23 (1) (j) GDPR does not preclude a national rule that provides for restrictions of the rights of data subjects and of obligations to provide information in the interests of the enforcement of civil law claims of public authorities. The wording as well as the spirit and purpose of article 23 (1) (j) GDPR indicate that restrictions in the interests of authorities are possible on the basis of this provision. The genesis and the general scheme do not preclude this.

25 The wording of article 23 (1) (j) GDPR is aimed at the "enforcement of civil law claims", and thus at the protection of the parties in civil proceedings, without distinguishing between private legal entities and legal persons under public law. A legal person under public law can also be a party in civil law proceedings. Nothing in the wording of article 23 (1) GDPR or in recital 73, which is relevant here, excludes from the scope of application of that provision civil law actions in which public authorities take part, as either the claimant or as the defendant. Even if civil law claims are mostly brought between private persons, in pursuit of a private interest, no reasonable ground on the basis of which the EU legislature would have wished to treat differently civil law proceedings in which the public authorities are parties is apparent (see also, opinion of Advocate General Bobek of 3 September 2020 - C-620/19 [ECLI:EU:C:2020:649], Nordrhein-Westfalen - para. 103 et seq.).

26 The objective of article 23 (1) (j) GDPR also indicates that it is an opening clause also for the benefit of authorities. The opening clause safeguards the enforcement of civil law claims under national law, thus taking into account the special significance of the principles of national contract and procedural law (...). It is not apparent why these procedural principles should not be worthy of protection if authorities are involved. According to the statements of the Advocate General, the aim of the rule laid down in letter (j) is to permit the legislature to decide that, in civil proceedings, the specific regulations on obligations to provide access to information and to disclose information (Auskunfts- und Offenlegungspflichten) should prevail, in case of conflict, over the general rules stemming from data protection. Any special regulations on obligations to provide access to information and to disclose information that may exist under national law should remain unaffected by the rules under data protection law. This must apply irrespective of whether the parties are subjects of private or public law, and regardless of the private or public interest on which the action is based (opinion of Advocate General Bobek of 3 September 2020 - C-620/19, Nordrhein-Westfalen - para. 105). The Senate follows this view.

27 The genesis of the provision does not lead to a different interpretation. The opening clause corresponds for the most part to the catalogue in article 13 (1) of the Data Protection Directive 95/46/EC which was replaced by the General Data Protection Regulation. However, the option of restricting the rights of data subjects and the obligations to provide information for the enforcement of civil law claims within the meaning of article 23 (1) (j) GDPR was not included in the catalogue in article 13 (1) of Directive 95/46/EC, nor in the initial Commission draft for the General Data Protection Regulation. Rather, the introduction of the opening clause is based on a proposal by the Council which, however, does not include any indications that the EU legislature intended to limit the scope of application of this amendment to enforcement claims brought by private parties (see opinion of Advocate General Bobek of 3 September 2020 - C-620/19, Nordrhein-Westfalen - para. 109). Even if the introduction of letter (j) may have been prompted by the judgment in Promusicae, which concerned the disclosure of traffic data by an internet access provider to private parties for the purpose of the civil law pursuit of copyright infringements (CJEU, judgment of 29 January 2008 - C-275/06 [ECLI:EU:C:2008:54], Promusicae -), it is not apparent why the EU legislature should have intended to limit the amendment to the specific facts of that dispute (see opinion of Advocate General Bobek of 3 September 2020 - C-620/19, Nordrhein-Westfalen - para. 111).

28 (2) Any defence against civil law claims is covered by the opening clause in article 23 (1) (j) GDPR. Unlike article 23 (1) (j) GDPR, which only provides for restrictions for the enforcement of civil law claims, section 32c (1) no. 2 AO mentions the defence against civil law claims in addition to the "establishment, exercise or defence of civil law claims". According to conventional understanding, the term "enforcement" as used in the opening clause in article 23 (1) (j) GDPR refers to the sphere of the holder of a claim and is primarily used as a synonym for the execution or enforcement of a claim which has already been established on the merits. The defence against civil law claims therefore cannot simply be subsumed under the term "enforcement". However, a wider interpretation of this element is required. A narrow interpretation would upset the procedural balance between the parties to the judicial proceedings by favouring only the claimant. In order to avoid interference with the parties' status in civil law proceedings, this must apply to the establishment of, as well as to the defence against civil law claims. Reasons why the establishment of claims in civil law proceedings should benefit from special protection, whilst this protection should not be afforded to the defence against civil law claims, are not apparent. The special national regulations on obligations to provide access to information and to disclose information serving to take evidence in civil law proceedings can - depending on the distribution of the burden of proof - inure to the benefit of the claimant or of the defendant. The safeguarding of the parties' status in civil law proceedings under national law intended by article 23 (1) (j) GDPR suggests that the "enforcement" of civil law claims as a generic term is to cover any exercising of rights which is intended to safeguard a claim in an active (establishment) as well as in a passive (defence) context. Section 32c (1) no. 2 AO therefore is covered by article 23 (1) (j) GDPR insofar as it excludes the right of access for the purpose of defending against civil law claims. The term "enforcement" comprises the term "defence" against the claim brought by the claimant. This conclusion is not called into question by the fact that other provisions of the General Data Protection Regulation, such as article 18 (1) and (2) and article 21 (1), use the phrase "establishment, exercise or defence" of a right before the courts. Said provisions do not at the same time use the term "enforcement"; thus, they do not lend themselves to drawing a meaningful comparison (see opinion of Advocate General Bobek of 3 September 2020 - C-620/19, Nordrhein-Westfalen - para. 118 et seq.).

29 (3) Furthermore, section 32c (1) no. 2 AO is to be understood in line with its spirit and purpose, to the effect that the wording "established" also encompasses "yet to be established" or "possible" claims. This interpretation is covered by the opening clause in article 23 (1) (j) GDPR. If letter (j) is aimed at the protection of the parties' status in civil law proceedings under the national legal regimes, it is unreasonable to assume that this applies only after the point in time when one of the parties has already obtained sufficient information, and is thus in a position where it is able to establish its claim. If, however, the right of access were to be excluded only after establishment of the insolvency avoidance claim, the rule would to a great extent be ineffective, as the insolvency administrator would have already acquired the necessary data (BVerwG, decision of 4 July 2019 - 7 C 31.17 - (...) para. 21). It is quite conceivable that special national legal provisions on the status in civil law proceedings may exist for the early stages of the proceedings, where the objective initially is to determine the requirements that constitute the basis for a claim. Also, it would be incomprehensible why the EU legislature would permit Member States to maintain specific regulations on obligations to provide access to information and to disclose information only in certain types or stages of civil law proceedings and not in others. If reasons relating to the protection of the integrity and fairness of civil law proceedings allow Member States to introduce restrictions to the rights of data subjects and obligations of data controllers, those rules should apply, in principle, at any stage of the proceedings. A restriction of the right of access only during the last stage of the proceedings would be meaningless, as the claimant would have been able to acquire the information sought by then (opinion of Advocate General Bobek of 3 September 2020 - C-620/19, Nordrhein-Westfalen - para. 121 to 123).

30 bb) Furthermore, section 32c (1) no. 2 AO can also be based on article 23 (1) (e) GDPR. The Senate now deciding on the matter no longer maintains the concerns expressed in the decision to request a preliminary ruling that the requested tax information was of interest not for the tax claims under substantive law, but rather mainly for the payment flows that are relevant under insolvency law as potentially contestable transactions within the meaning of section 129 (1) InsO, leading to the conclusion that the insolvency administrator's claim directed against the revenue authority was not to be classified as a claim "arising from the tax relationship" (BVerwG, decision of 4 July 2019 - 7 C 31.17 - (...) para. 24 with further references). The term "taxation matters" within the meaning of article 23 (1) (e) GDPR does not require a limiting interpretation to the effect that only the tax-law relationship was covered. Letter (e) is not a restriction of the right of access to be interpreted narrowly, but merely an explanation of a legitimate objective which, by its nature alone, is open in its wording.

31 Article 23 (1) (e) GDPR governs the protection of other important objectives of general public interest of the Union or of a Member State, in particular an important economic or financial interest of the Union or of a Member State, including monetary, budgetary and taxation matters, public health and social security. Provided the interest pursued benefits the generality and is not at odds with any principle of EU law, that interest falls within the scope of letter (e) (see opinion of Advocate General Bobek of 3 September 2020 - C-620/19, Nordrhein-Westfalen - para. 130 et seqq.)

32 Section 32c (1) no. 2 AO aims to ensure uniform and lawful taxation and to safeguard tax revenue. In order to achieve these objectives, the revenue authorities are intended to be placed in neither a better nor worse position than other debtors or creditors (BT-Drs. 18/12611 p. 88). There can be no doubt that the objectives of ensuring uniform, lawful taxation and the safeguarding of tax revenue constitute important objectives of general public interest. They are also recognised as legitimate objectives in the EU legal system (see opinion of Advocate General Bobek of 3 September 2020 - C-620/19, Nordrhein-Westfalen - para. 133). It is correct that the legal basis of the tax claims is not affected by the insolvency avoidance, and the claim for restitution of payments that are subject to avoidance under insolvency law does not directly result from the tax relationship. However, important objectives of general public interest relating to budgetary and taxation matters may be impaired if the revenue authorities are disadvantaged in the context of insolvency avoidance. Article 23 (1) (e) GDPR cannot be interpreted to mean that financial interests relating to budgetary or taxation matters are impaired only if the tax claim is affected with regard to its legal basis or its legal existence. Rather, the provision is aimed in a wider sense at the protection of "other important objectives of general public interest of the Union or of a Member State", stating as examples important economic or financial interests, such as budgetary and taxation matters. Financial interests to be classified as taxation matters may also be affected in the area of insolvency law, for example within the framework of insolvency avoidance.

33 A successful insolvency avoidance and the more difficult enforcement of tax claims in insolvency proceedings that necessarily follows from it has a direct effect on the safeguarding of uniform and lawful taxation and of tax revenue. A successful insolvency avoidance has the consequence that the creditor has to include the - initially satisfied, now reopened - claim, with the insolvency table. The creditor is then satisfied in accordance with the insolvency dividend, which usually covers only a fraction of the included claims, and may even be zero. If the insolvency administrator, based on a right of access to information, obtained information from the tax offices which he or she could not obtain from other creditors, insolvency avoidance against the revenue authorities would be made easier for him or her. Insofar, the revenue authorities would be in a worse position than private creditors. Due to the facilitated insolvency avoidance because of corresponding rights of access to information, the revenue authorities would be at risk to have to reimburse higher amounts to the insolvency estate than other creditors. Here, it is not the insolvency avoidance as such that is problematic, but rather the facilitation of the procedural enforcement of the restitution claim against public bodies (...).

34 3. The judgments are therefore based on a violation of sections 32e and 32c (1) no. 2 AO. The Senate may decide on the matter itself (see section 144 (3) first sentence no. 1 VwGO). The right of access to information under section 4 (1) IFG NRW is excluded pursuant to section 32e, section 32c (1) no. 2 AO. The conditions of section 32c (1) no. 2 AO are met in the present case. The claimant requests the information for the purpose of establishing insolvency avoidance claims, i.e. civil law claims within the meaning of section 32c (1) no. 2 AO. The information sought is aimed at those elements of the insolvency avoidance that form the basis of the claim, and would enable the claimant to establish insolvency avoidance claims against the revenue authority. Therefore, the granting of access to information may impair the legal entity of the revenue authority with regard to the defence against future insolvency avoidance claims.