Data Protection Report - Norton Rose Fulbright

There has been a big bang in the data protection world in Berlin as the first and most spectacular GDPR fine in Germany has just been declared invalid.

The Berlin Commissioner for Data Protection for Freedom of Information (Berliner Beauftragte für den Datenschutz und Informationsfreiheit, “Berlin DPA”) issued a EUR 14.5 million fine against a German real estate company, die Deutsche Wohnen SE (“Deutsche Wohnen”). The Regional Court (Landgericht) of Berlin has now declared this fine invalid and closed the proceedings. The Berlin DPA will ask the public prosecutor’s office to appeal the Court’s decision and escalate the case to the next instance.

The facts

In September 2019, Deutsche Wohnen SE was fined by the Berlin DPA for failing to implement measures to enable regular deletion of tenant data that was no longer required. The Berlin DPA calculated the fine taking into account the company’s worldwide turnover in the previous year, considering all aggravating and mitigating factors.

The decision

The Regional Court of Berlin closed the proceedings on the basis that the decision was invalid as it was not sufficiently substantiated.

The Regional Court held that the Berlin DPA did not specify the specific acts those in management at the company that supposedly led to a violation of the GDPR.

The Berlin DPA has already expressed the desire to continue enforcing the fine. However, since only the public prosecutor’s office is entitled to appeal the Court’s decision, the Berlin   DPA announced on Wednesday, 24 February 2021 that she would ask the public prosecutor’s office to file an appeal against the decision to the Higher Regional Court. It is now up to the public prosecutor’s office to decide whether to proceed. For now, Deutsche Wohnen SE is not required to pay the fine.

Our take

This is the second fine decision in Germany that has not held up in court.  In November 2020, the Bonn Regional Court reduced the fine against 1&1 by 90% due to errors in the assessment when setting the fine.  However, unlike the Regional Court of Berlin, the Bonn Regional Court did not did not seem to require proof of the action or omission of a management person. The decisive legal question is whether in Germany fining decision needs to make reference to and substantiate specific acts taken by those in management.