Judgment;Summary — ECLI:EU:C:2024:607
Date: 2024-07-11
Language of the case: German
Court formation: Ninth Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Approximation of laws;Data protection
Procedure: Reference for a preliminary ruling
Origin: Germany

Anonymised version 
Translation C-461/22 – 1 
Case C-461/22 
Request for a preliminary ruling 
Date lodged: 
12 July 2022 
Referring court: 
Landgericht Hannover (Germany) 
Date of the decision to refer: 
28 June 2022 
Appellant: 
MK 
Respondent: 
WB 
  
Landgericht 
Hannover 
(Regional Court, 
Hanover, Germany) 
Order 
17 T 19/22 
511 C 8608/21 
Amtsgericht Hannover (Local Court, Hanover, Germany) 
In the appeal 
MK, […] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 28. 6. 2022 – CASE C-461/22 
 
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– Appellant – 
[…] 
v 
WB, lawyer, […] 
– Respondent – 
the Regional Court, Hanover – 17th Civil Chamber – […] ordered as follows on 
28 June 2022: 
1. The following question is referred to the Court of Justice of the European 
Union for a preliminary ruling pursuant to the first and second paragraphs of 
Article 267 TFEU: 
Is a legally appointed curator who performs that activity in a professional capacity 
a controller within the meaning of Article 4(7) 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 – ‘the GDPR’)? 
Is he or she required to provide information in accordance with Article 15 of the 
GDPR? 
2. The proceedings are stayed pending a ruling from the Court of Justice of the 
European Union on the question referred, set out in point 1 above. 
3. This order is not open to appeal. 
Grounds 
1. The request for a preliminary ruling from the Court of Justice of the 
European Union is made in accordance with the first and second paragraphs of 
Article 267 TFEU. 
(a) The case referred rests on the following facts: 
The applicant, who was born in 1966, has been placed under curatorship. He was 
not able to manage his property independently, as a result of which the defendant 
was appointed as his curator by the Amtsgericht (Local Court) in curatorship 
proceedings. The reason for this was that the applicant had fallen ill. His dwelling 
was strewn with litter, he no longer attended to incoming mail and he was also no 
longer able to run his business. No documents or anything of value could be found 
in the dwelling, with the result that the applicant does not possess any assets. He 
lives in a residential care home and receives pocket money from the home. 
MK 
 
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The defendant has since been released from his obligations and another 
professional curator has been appointed. The applicant requests access to the data 
stored in relation to him in accordance with Article 15 of the GDPR and a final 
statement of account within the meaning of Paragraph 1890 of the Bürgerliches 
Gesetzbuch (German Civil Code; ‘the BGB’). The Local Court granted the request 
for legal aid solely to the extent that it considered only the rendering of the final 
statement of account to have a chance of succeeding. The defendant practises as a 
lawyer. 
He stated the following with regard to the claim under Article 15 of the GDPR: 
With regard to the claim for access to information under the General Data 
Protection Regulation asserted in point 1 of the draft application of 1 November 
2021 initiating proceedings, the application for legal aid had to be refused because 
the applicant does not have a claim under Article 15 of the GDPR against the 
respondent as his former curator. 
A professional curator is not a controller within the meaning of Article 4(7) of the 
GDPR […]. In addition, the General Data Protection Regulation regulates the 
relationship between a data subject and a controller where personal data are 
processed in accordance with Article 4(1) of the GDPR. Under Paragraph 1902 of 
the BGB, a legal curator is the legal representative of the person concerned, both 
in and out of court. Consequently, the curator may process the personal data in the 
name of the person concerned and not within the framework of a ‘mutual 
relationship between the curator and the person concerned’, see Amtsgericht 
Altötting (Local Court, Altötting, Germany), order of 4 June 2018, case ref. 
XVII 0266/05, XVII 266/05, citation taken from juris. In addition, it must be 
assumed that an applicant already possesses the material information himself or 
herself, since he or she is aware of the appointment of the curator and, 
accordingly, also of the curator’s areas of responsibility and associated activities 
[…]. 
The applicant lodged an appeal against the order of the Local Court, with the 
result that the Regional Court is called upon to give a ruling. 
(b) The wording of the national provision applicable to the case (aa.) and the 
relevant national case-law (bb.) are communicated as follows: 
(aa) 
Bürgerliches Gesetzbuch (German Civil Code; ‘the BGB’) 
Paragraph 1896 Requirements 
(1) Where a person of full age is unable to manage his or her affairs in whole or 
in part by reason of a mental illness or a physical, intellectual or sensory 
disability, the curatorship court shall appoint a curator for him or her on 
application by him or her or of its own motion. Persons who lack legal capacity 
REQUEST FOR A PRELIMINARY RULING OF 28. 6. 2022 – CASE C-461/22 
 
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can also apply for a curator. Where the person of full age is unable to manage his 
or her affairs by reason of a physical disability, the curator may be appointed only 
on application by that person, unless he or she is unable to express his or her will. 
(1a) A curator may not be appointed against the free will of the person of full 
age. 
(2) A curator may be appointed only for areas of responsibility in which 
curatorship is required. Curatorship is not required in so far as the affairs of the 
person of full age can be managed by an authorised representative, who is not one 
of the persons referred to in Paragraph 1897(3), or by other means of assistance, in 
respect of which no legal representative is appointed, just as well as they can by a 
curator. 
(3) The assertion of the rights of the person under curatorship vis-à-vis his or 
her authorised representative may also be designated as an area of responsibility. 
(4) Decisions concerning the telecommunications of the person under 
curatorship and concerning the receipt, opening and interception of his or her mail 
are covered by the curator’s areas of responsibility only where the court has 
expressly ordered this. 
Paragraph 1897 Appointment of a natural person 
(1) The curatorship court shall appoint as a curator a natural person who is 
suitable for legally managing the affairs of the person under curatorship in the 
areas of responsibility defined by the court and for curating him or her personally 
to the extent necessary for such purposes. 
(2) Persons employed exclusively or partly as a curator by a curatorship 
association which is recognised under Paragraph 1908f (association curator) may 
be appointed only with the consent of the association. The same applies to persons 
employed exclusively or partly as a curator by an authority responsible for 
curatorship matters (authority curator). 
(3) A person who is in a relationship of dependence or other close relationship 
with an institution, home or other facility in which the person of full age is 
accommodated or lives may not be appointed as a curator. 
(4) Where the person of full age proposes a person who may be appointed as his 
or her curator, that proposal must be complied with where doing so is not contrary 
to the best interests of the person of full age. If he or she proposes that a certain 
person not be appointed, this should be taken into account. The first and second 
sentences also apply to proposals made by the person of full age prior to the 
curatorship proceedings, unless it is evident that he or she does not wish to adhere 
to those proposals. 
MK 
 
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(5) If the person of full age does not propose anyone who may be appointed as 
his or her curator, the selection of the curator must take into account the family 
ties and other personal ties of the person of full age, in particular the ties with his 
or her parents, children, spouse and civil partner, as well as the risk of conflicts of 
interest. 
(6) Persons who perform curatorship in a professional capacity shall be 
appointed as a curator only if no other suitable person willing to perform 
curatorship on a voluntary basis is available. If the curator becomes aware of 
circumstances indicating that the person of full age can be curated by one or more 
other suitable persons in a non-professional capacity, he or she shall inform the 
court to that effect. 
(7) Where a person is appointed as a curator for the first time in the district of 
the curatorship court under the conditions of the first sentence of 
subparagraph (6), the court shall first hear the competent authority with regard to 
the suitability of the curator selected and with regard to the findings to be made in 
accordance with the second alternative of the first sentence of Paragraph 1(1) of 
the Vormünder- und Betreuervergütungsgesetz (Law on the remuneration of 
guardians and curators). The competent authority shall request the person to 
submit a certificate of good conduct and information from the debtors’ list. 
(8) If a person is appointed under the conditions of the first sentence of 
subparagraph (6), he or she shall declare the number and extent of the curatorships 
that he or she has performed in a professional capacity. 
Paragraph 1901 Scope of the curatorship, obligations of the curator 
(1) Curatorship encompasses all activities that are necessary to ensure that the 
affairs of the person under curatorship are legally managed in accordance with the 
following provisions. 
(2) The curator must manage the affairs of the person under curatorship in a 
manner consistent with that person’s best interests. The best interests of the person 
under curatorship also include the possibility for him or her to shape his or her life 
according to his or her own wishes and ideas, within the scope of his or her 
abilities. 
(3) The curator must comply with the wishes of the person under curatorship in 
so far as doing so is not contrary to his or her best interests and is reasonable for 
the curator. This also applies to wishes expressed by the person under curatorship 
prior to the appointment of the curator, unless it is evident that he or she does not 
want to adhere to those wishes. Before the curator deals with important matters, 
he or she shall discuss them with the person under curatorship, provided that 
doing so is not contrary to his or her best interests. 
(4) As part of the duties within his or her areas of responsibility, the curator 
shall contribute to ensuring that opportunities are taken to eliminate or ameliorate 
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the person’s illness or disability and to prevent it from being aggravated or to 
mitigate the effects of it. Where curatorship is performed in a professional 
capacity, the curator must, in appropriate cases, on the order of the court, draw up 
a curatorship plan at the beginning of the curatorship. The curatorship plan shall 
set out the objectives of the curatorship and the measures to be taken to achieve 
them. 
(5) If the curator becomes aware of circumstances indicating that the curatorship 
can be revoked, he or she must inform the curatorship court of this. The same 
applies to circumstances indicating that the scope of duties can be reduced or must 
be extended, or indicating that another curator must be appointed or that an 
obligation to obtain consent must be ordered (Paragraph 1903). 
Paragraph 1902 Representation of the person under curatorship 
As part of the duties within his or her areas of responsibility, the curator shall 
represent the person under curatorship both in and out of court. 
(bb) 
The referring court is not aware of any court decisions on this matter. The Local 
Court, Altötting, has ruled as follows with regard to the question as to whether a 
curator can give consent: 
‘The General Data Protection Regulation fundamentally regulates the relationship 
between a natural person (“data subject”) and a “controller” where personal data 
are processed (Article 4 of the GDPR). However, under German law, a legal 
curator is the representative of the person concerned himself or herself and acts on 
his or her behalf – Paragraph 1902 of the BGB. Therefore, on the basis of a 
construction of curatorship law, the curator processes personal data on behalf of 
the person under curatorship and not, however, within the framework of a mutual 
relationship between the curator and the person concerned. Nevertheless, in 
accordance with Article 6 of the GDPR, processing is lawful not only where 
consent has been given (first sentence of Article 6(1)(a)), but also where 
processing is necessary for compliance with a legal obligation to which the 
controller is subject (Article 6(1)(c)). If the curator acts as the legal curator of the 
person concerned, he or she is thereby complying with his or her legal obligations 
to which he or she is subject on the basis of his or her appointment as a curator 
under curatorship law. Moreover, the curatorship and the associated data 
processing will to a certain extent be necessary “in order to protect the vital 
interests of the data subject or of another natural person” (Article 6(1)(d)). There 
is no need to resort to the “legitimate interests” aspect (Article 6(1)(f)), which is 
frequently cited in the media nowadays.’ 
In so far as the curator is appointed from the personal sphere of the person 
concerned, that activity is likely to come within the scope of Article 2[(2)](c) of 
the GDPR, in the context of household activity, notwithstanding the fact that a 
legal relationship is established by the appointment of the curator. It appears to be 
MK 
 
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questionable whether this also applies to a professional curator who is also a 
lawyer. 
The Local Court, Hanover, considers, in line with the view taken by the Local 
Court, Altötting, that a mutual relationship does not exist in the context of 
representation. However, since, by virtue of the appointment of the curator by the 
court, a statutory obligation is established and the person represented also has 
corresponding rights and obligations vis-à-vis his or her representative under the 
law of mandate, which are given further concrete expression in connection with 
curatorship in Paragraph 1897 et seq. of the BGB, it hardly seems justifiable that a 
professional curator should not be an obligated party under the GDPR. However, 
that could be justified on the basis of a broad understanding of purely personal or 
household activity. 
[…] [national procedural law concerning the stay of proceedings and the finality 
of the present order] 
[…] 
Hanover, 28 June 2022 
[…] [note regarding official copies]