Limits of claim for information about an official collection of data

Press Release No. 42/2008 of 28 March 2008

Order of 10 March 2008
1 BvR 2388/03

The information centre for foreign tax relations at the Federal Central Tax Office (Bundeszentralamt für Steuern) collects tax-relevant data on the foreign relations maintained by persons and companies resident within Germany, and vice versa, that are of relevance under tax law – inter alia on the basis of § 88a of the Tax Code (Abgabenordnung). The aim of the collection of data is to establish a central record of the official knowledge, especially to prevent the abuse of legal machinations the purpose of which is to reduce taxes unlawfully. In particular, the Federal Central Tax Office collects references as to whether or not foreign companies are so-called domicile companies which have their seat in a foreign country without performing business or commercial activities there. Such companies can be used in order to reduce taxes unlawfully, for example in that transactions are feigned with such a company in order to be able to deduct payments to the company from taxes as operating expenses, which are in fact returned to the party liable for tax. The data of the Federal Central Tax Office is composed of notifications made by parties liable for tax, notices issued by German and foreign tax authorities, as well as information obtained from publicly accessible sources (e.g. Commercial Registers, reference works). The data is provided to national tax authorities if required.

The complainant requested information from the Federal Central Tax Office about the data concerning him. The Federal Central Tax Office had thirteen large files in which the complainant’s name was mentioned in connection with indirect and direct relations with foreign companies. The complainant based his claim on § 19 of the Federal Data Protection Act (Bundesdatenschutzgesetz), according to which, in principle, information has to be provided to the data subject on the data stored about him or her. The Federal Central Tax Office refused to provide the information, pointing out that the data would thus be divested of any value. The Office argued that the data subject could for instance withdraw from domicile companies on which data had been collected, or could become involved in domicile companies of which the Office was not yet aware. The provision of information jeopardised the proper performance of the responsibilities of the Office, it was argued. The complainant’s action filed against the refusal remained unsuccessful before the tax courts. They took the view that the claim for information is excluded pursuant to § 19.4 no. 1 of the Federal Data Protection Act. According to this provision, information shall not be provided if this would be prejudicial to the proper performance of the duties of the competent office.

The constitutional complaint is also unsuccessful. The First Senate of the Federal Constitutional Court decided accordingly.

In essence, the decision is based on the following considerations:

I. The complainant’s interest in obtaining information about the official measures relating to data concerning him is protected by his constitutional right to protection of his personal rights in the form of a constitutional right to informational self-determination. However, the constitutional right to informational self-determination does not encompass a claim for obtaining information in a certain manner. When regulating details of access to information, the legislature has to take into account the significance of such access for the protection of the data subject’s constitutional right. The nature and intensity of the interference caused by the relevant measure relating to data, about which or the results of which the data subject seeks information, are of significance in this respect.

In relation to a collection of data such as that presently in dispute, a right of the data subject to obtain information on his own initiative constitutes a focal element in a state information system which is consistent with the requirements of constitutional law. Consequently, the legislature is under an obligation to create such a right to information. In such cases, when deciding on the provision of information the authorities have no scope for discretion under constitutional law. Insofar as there are conflicting confidentiality interests of the state or third parties against the provision of information, the legislature has to develop appropriate exclusions which take such conflicting interests into account.
§ 19 of the Federal Data Protection Act takes these requirements into account in a constitutional manner. In principle the provision sets out a broad claim for information accruing to the data subject. The weighing clause in the provision ensures that information may only be withheld if the interest in the proper performance of duties takes precedence over the interest of the data subject in obtaining information.

II. The assumption of the courts that in the present case the complainant’s interest in obtaining information has to take second rank behind the interest of the Federal Central Tax Office in the proper performance of its duties, does not give rise to objections under constitutional law.

1. The collection of data by the Federal Central Tax Office is consistent with the Basic Law (Grundgesetz). Admittedly, the storage of information in the data collection can encroach upon the data subject’s constitutional right of informational self-determination. However, § 88a of the German Tax Code contains a sufficient constitutional basis in law for such interference. In particular, in view of its objective of equal assessment and levying of taxes, the provision is consistent with the principle of proportionality.

2. When applying the exclusion set out in § 19 of the Federal Data Protection Act, the courts weighed the complainant’s constitutionally protected interest in obtaining information against the conflicting public interest in the proper performance of duties by the Federal Central Tax Office, in a manner that is constitutionally unobjectionable. The decisions challenged by the constitutional complaint contain detailed findings as to why the performance of duties by the Federal Central Tax Office could be jeopardised by the provision of information about the data collected. The purpose of the duty to collect data about domicile companies would be thwarted. The provision of information would disclose to the data subject about which of his various functions abroad the Federal Central Tax Office was already informed. The data subject could adjust his conduct according to the status of the knowledge held by the Federal Central Tax Office. The public interest in the performance of duties takes precedence over the interest of the data subject in obtaining information about the data collected since such data would be largely divested of its value after the provision of information. The view taken by the courts that the complainant’s interest in obtaining information is comparatively less important than the aim of the equal assessment and levying of taxes that is pursued through the confidentiality maintained is constitutionally unobjectionable.

3. The fact that the complainant is presently unable to cause the accuracy of the data collected and the lawfulness of their continued storage to be verified effectively, has to be taken into account if the data is used to his detriment in specific proceedings instituted by the tax authorities. It is imperative to ensure in this respect that the complainant does not suffer disadvantages owing to the deferral of legal protection.