Judgment;Summary — ECLI:EU:C:2020:535
Date: 2020-07-09
Language of the case: German
Court formation: Third Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Fundamental rights;Data protection;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary C-272/19 - 1 
Case C-272/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
1 April 2019 
Referring court: 
Verwaltungsgericht Wiesbaden (Germany) 
Date of the decision to refer: 
27 March 2019 
Applicant: 
VQ 
Defendant: 
Land Hesse 
      
Subject matter of the main proceedings 
Data protection law; Information and access to files in relation to the applicant’s 
personal data stored with the Petitions Committee of the Hesse Land Parliament; 
Refusal to provide information 
Subject-matter and legal basis of the reference 
Substantive scope of Regulation 2016/679, the term ‘public authority, agency or 
other body’ within the meaning of Article 4(7) of Regulation 2016/679; Right of 
access by the data subject pursuant to Article 15 of Regulation 2016/679; 
Independence and impartiality of the referring court or tribunal pursuant to 
Article 267 TFEU and Article 47(2) of the Charter of Fundamental Rights of the 
European Union 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING - CASE C-272/19 
 
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Questions referred for a preliminary ruling 
1. Is 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) – in particular 
Article 15 on ‘Right of access by the data subject’ thereof, – applicable to the 
committee of a parliament of a constituent state of a Member State that is 
responsible for processing the petitions of citizens – namely the Petitions 
Committee of the Hesse Land Parliament – and is that committee to be regarded in 
that connection as a public authority within the meaning of Article 4(7) of the 
Regulation No 2016/679? 
2. Is the referring court an independent and impartial tribunal within the 
meaning of Article 267 TFEU read in conjunction with Article 47(2) of the 
Charter of Fundamental Rights of the European Union? 
Provisions of EU law cited 
Charter of Fundamental Rights of the European Union (‘the Charter’), 
Article 47(2)  
Article 267 TFEU 
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), Article 2, Article 3(1), 
Article 4(7), Article 15 
National provisions cited 
Grundgesetz (Basic Law, ‘the GG’), Article 17, Article 92, Article 97 
Deutsches Richtergesetz (German Law on Judges, ‘the DRiG’), Paragraph 26 
‘Administrative supervision’ 
Verwaltungsgerichtsordnung (Administrative Procedures Code, ‘the VwGO’), 
Paragraphs 1 ‘Independence of the administrative courts’, 18 ‘Acting judges’, 38 
‘Administrative supervision; higher administrative supervision authority’, 39 
‘Administrative activities’ 
Verfassung des Landes Hessen (Constitution of the Land of Hesse, ‘the HV’), 
Article 17 ‘Right to petition’, Article 126, 127 
Hessisches Datenschutz- und Informationsfreiheitsgesetz (Hesse Law on data 
protection and freedom of information, ‘the HDSIG’), Paragraph 30(1) 
LAND HESSE 
 
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‘Processing of personal data by the Land Parliament and municipal representative 
bodies’ 
Geschäftsordnung des Hessischen Landtags (Rules of procedure of the Hesse 
Land Parliament), Paragraph 112(6) 
Datenschutzordnung des Hessischen Landtags (Data Protection Regulation of the 
Hesse Land Parliament) Annex 4 to the Rules of procedure of the Hesse Land 
Parliament, Paragraph 10 ‘Storage of data in the case of petitions’ 
Richtlinien für den Umgang mit Verschlusssachen im Bereich des Hessischen 
Landtags (Guidelines for processing classified information within the Hesse Land 
Parliament) Annex 2 to the Rules of procedure of the Hesse Land Parliament 
(‘Land Parliament CI Guidelines’), Paragraph 13, ‘Protection of private secrets’ 
Hessisches Richtergesetz (Hesse Law on Judges, ‘the HRiG’), Paragraphs 2 
‘Analogous applicability of public service law’, 2b ‘Staff evaluation’, 3 
‘Appointment of judges’ 
Brief summary of the facts and procedure 
1 The applicant seeks information or access to files in relation to his personal data 
that is stored with the Petitions Committee of the Hesse Land Parliament and 
relates to Petition 1728/18, which was submitted by the applicant and on which a 
decision has been taken. 
2 The defendant President of the Hesse Land Parliament has refused the request for 
information. 
3 According to him, the petition process constitutes a parliamentary task of the 
Hesse Land Parliament, meaning that the Hesse Land Parliament does not fall 
within the scope of Regulation No 2016/679. He contends that this is clear from 
the provisions applicable in that regard, namely Paragraph 30(1) of the HDSIG, 
which relates to the processing of personal data by the Land Parliament and 
municipal representative bodies, and Paragraph 112 of the Rules of procedure of 
the Hesse Land Parliament, which refers to the Data Protection Regulation of the 
Hesse Land Parliament contained in Annex 4 to those rules of procedure and in 
the Guidelines for processing classified information within the Hesse Land 
Parliament contained in Annex 2 to those rules of procedure. 
4 In the view of the President of the Hesse Land Parliament, according to those 
provisions, the confidentiality of the petition files and the data therein also had to 
be maintained vis-à-vis petitioners. Neither Regulation No 2016/679 nor 
Directive 95/46/EC of the European Parliament and of the Council of 
24 October 1995 on the protection of individuals with regard to the processing of 
personal data and on the free movement of such data, which was in force until 
24 May 2018, make any mention of the processing of parliamentary matters. 
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5 The applicant brought an action against the refusal to provide information before 
Verwaltungsgericht Oldenburg (Oldenburg Administrative Court) on 22 March 
2013. The attempt to obtain information regarding the ministries that participated 
in the petition process and thus to satisfy the applicant’s request was unsuccessful. 
This had the result that the process was resumed on 29 July 2015 and the applicant 
continues to pursue his objective of obtaining information in relation to the Hesse 
Land Parliament, Petitions Committee. 
6 Pursuant to Paragraph 30(1) of the HDSIG read in conjunction with Paragraph 10 
of the Land Parliament CI Guidelines, a refusal to provide information would be 
permissible if the Petitions Committee did not fall within the scope of Regulation 
No 2016/679. On the other hand, the action would be successful if the 
aforementioned provisions did not preclude the request for information. There is 
therefore a need for clarification with regard to the scope of Regulation No 
2016/679, specifically its substantive scope pursuant to Article 2. This is the 
subject of the first question referred. 
7 Due to the way in which the jurisdiction of administrative courts is organised in 
Germany, however, the referring court asks, as a preliminary matter, – formulated 
as the second question referred – of whether it is actually a court or tribunal within 
the meaning of the second subparagraph of Article 267 TFEU. 
Brief summary of the basis for the reference 
The first question  
8 The applicant would have a right of access vis-à-vis the Hesse Land Parliament 
pursuant to Article 15 of Regulation No 2016/679 if the Petitions Committee of 
the Hesse Land Parliament fell within the scope of Article 2(1) of Regulation No 
2016/679 and was a ‘public authority’ pursuant to Article 4(7) of Regulation No 
2016/679. 
9 Pursuant to Article 15 of Regulation No 2016/679, everyone has a right of access 
to personal data stored on him/herself pursuant to that regulation. This right exists 
with respect to the controller and therefore with respect to ‘public authorities’, as 
the data-processing bodies. 
10 Regulation No 2016/679 cites ‘public authority’ or ‘agency’ in the definition for 
‘controller’, but does not contain an express definition of the term ‘public 
authority’. It merely distinguishes between public authorities and judicial 
authorities. However, the regulation also includes the term ‘independent 
administrative authorities’ (recital 31) and uses further authority-related terms 
which, however, are all covered by the general term ‘public authority’: 
supervisory authorities, customs authorities, law-enforcement authorities, health 
authorities, data protection authorities, data protection supervisory authorities, 
regulatory bodies, financial supervisory authorities and administrative authorities. 
LAND HESSE 
 
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11 The term ‘public authority’ under that regulation cannot be inferred from the laws 
of the Member States. On the contrary, concepts in EU legal acts must be 
determined autonomously. 
12 The term ‘public authority’ can be used in either an organisational/institutional 
sense or a functional sense. On the basis of Article 4(7) of Regulation No 
2016/679 read in conjunction with the first sentence of Paragraph 30(1) of the 
HSDIG, it can be assumed that the term ‘public authority’ in the context of these 
provisions is to be understood in a functional sense, as Paragraph 30(1) of the 
HSDIG makes the applicability of the HSDIG and therefore Regulation No 
2016/679 dependent on which task the Hesse Land Parliament is performing in 
each case (legislation or administration). According to this, public authorities are 
all public bodies that perform tasks of public administration. The Hesse Land 
Parliament is therefore a public authority if it performs tasks of public 
administration. 
13 In addition to the term ‘public authority’, Article 4(7) of Regulation No 2016/679 
uses the terms ‘agency’ and ‘other body’. The distinguishing feature of a body is 
its organisational independence and the fact that it is independent of changes of 
officeholders and the fact that it performs tasks autonomously in its own name. 
The Petitions Committee of the Hesse Land Parliament is an independent body, 
that is to say a public authority within the meaning of the laws governing 
organisational structure. 
14 The decisive factor is whether the tasks of the body fall within the area of public 
administration. It is not possible to provide a positive definition of 
‘administration’; it can be determined only by distinguishing it from the other 
functions of the State. ‘Administration’ is the activity that takes place outside the 
context of lawmaking and the dispensation of justice. The legislative task of a 
parliament is the task of creating legislation, as expressly clarified in recital 41 of 
Regulation No 2016/679 with regard to the creation of legal bases.  
15 Thus, lawmaking is the lawmaking activity of legislative bodies, in this case that 
of the Hesse Land Parliament, and not the Petitions Committee. The examination 
and advisory function of the Petitions Committee of the Hesse Land Parliament 
constitutes neither an activity of dispensation of justice nor a legislative activity. 
However, the Petitions Committee does have the authority to obtain from the 
executive all the information, in relation to the facts and circumstances underlying 
the petition, that it needs to be able to process the petition properly. 
16 The right to petition is governed in Article 16 of the HV (which corresponds to 
Article 17 of the GG). Pursuant to that provision, anyone can contact parliament, 
or any other Hesse administrative authority, with requests or complaints in 
writing; in so doing, the petitioner is entitled to formal confirmation of receipt of 
his petition, a substantive examination of his issue and a reasoned decision within 
a reasonable period of time. Beyond the entitlement to a decision, however, 
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Article 16 of the HV does not guarantee entitlement to a remedy to the issue 
sought by the petition. 
17 The fact that the Petitions Committee is part of the Hesse Land Parliament and 
therefore of a legislative body does not automatically mean that the Petitions 
Committee should be accordingly associated with legislative activity and therefore 
the parliament as the legislature. The Petitions Committee’s field of activity does 
not correspond to the tasks of the Hesse Land Parliament (cf. Article 116 et seq. of 
the HV) that endow it with the characteristics of a legislative body, since, on the 
one hand, its activity is not binding in nature and, on the other hand, the Petitions 
Committee does not have a right of initiative or a right to exercise influence. The 
action it takes is always dependent upon the input of the citizen and the content of 
the request. The same applies to petitions to public authorities. Thus, the right to 
petition does not distinguish between public authorities and the Hesse Land 
Parliament. 
18 As there is no general definition of what the legal concept of a public authority 
and therefore of administration consists, the concept must be defined on a case-
by-case basis. A broad understanding of administration and therefore a wide 
definition of the term ‘public authority’ is to be assumed here. This assumption is 
also supported by the fact that, unlike Directive 2003/4/EC (the environmental 
information directive), Regulation No 2016/679, in Article 2(2), specifically does 
not exclude institutions acting in a judicial or legislative capacity (cf. judgment of 
the Court of Justice of 14 February 2012, Flachglas Torgau, C-204/09, 
EU:C:2012:71, paragraphs 40-44). 
19 The regulatory objective of Regulation No 2016/679 is therefore of decisive 
importance for the interpretation of the term ‘public authority’. Pursuant to 
Article 3(1) of Regulation No 2016/679, the regulation applies to the processing 
of personal data in the context of the activity of the controller. In this respect, the 
Petitions Committee of the Hesse Land Parliament does not differ in any way 
from an ‘administrative’ authority (data protection authorities, data protection 
supervisory authorities, regulatory bodies, financial supervisory authorities) as 
regards the petition of a data subject. 
20 Regulation No 2016/679 is intended to strengthen the rights of data subjects and 
thus the personal rights and self-determination of citizens. Substantive 
considerations of the right to petition do not explain why the processing of the 
personal data of a petitioner who contacts a public authority by means of a petition 
pursuant to Article 16 of the HV is subject to the General Data Protection 
Regulation and therefore a full right of access pursuant to Article 15 of Regulation 
No 2016/679, but a petition to the Petitions Committee of the Hesse Land 
Parliament is not. The referring court therefore assumes that the Petitions 
Committee of the Hesse Land Parliament is a public authority (body) within the 
meaning of Article 4(7) of Regulation No 2016/679. There are therefore no 
grounds for refusing access pursuant to Article 15 of Regulation No 2016/679. In 
particular, the referring court is also unable to see any restriction pursuant to 
LAND HESSE 
 
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Article 23 of Regulation No 2016/679. It takes the view that the Land legislature 
did not intend to restrict the rights of the data subject in the reasoning for the 
HDSIG. 
The second question 
21 However, the court is able to refer this question only if it is a ‘court or tribunal’ 
within the meaning of Article 267 TFEU. Regarding the characteristics of a ‘court 
or tribunal’ cited in the case-law of the Court of Justice, the referring court makes 
reference to the judgments of 17 July 2014, Torresi (C-58/13 and C-59/13, 
EU:C:2014:2088, Paragraph 17) and 6 October 2015, Consorci Sanitari del 
Maresme (C-203/14, EU:C:2015:664, paragraph 17). 
22 It has doubts in relation to the characteristic of independence. It refers to the 
interpretation of the requirement of independence in the case-law of the Court of 
Justice. According to this, the requirement of independence is comprised of two 
aspects. 
23 The first, external, aspect presumes that the court exercises its functions wholly 
autonomously, without being subject to any hierarchical constraint or 
subordinated to any other body and without taking orders or instructions from any 
source whatsoever, and is thus protected against external interventions or pressure 
liable to jeopardise the independent judgment of its members as regards 
proceedings before them (judgment of 16 February 2017, Ramón Margarit 
Panicello, C-503/15, EU:C:2017:126, paragraph 37). 
24 The second aspect, which is internal, is linked to impartiality and seeks to ensure a 
level playing field for the parties to the proceedings and their respective interests 
with regard to the subject-matter of those proceedings. That aspect requires 
objectivity and the absence of any interest in the outcome of the proceedings apart 
from the strict application of the rule of law (judgment of 16 February 2017, 
Ramón Margarit Panicello, C-503/15, EU:C:2017:126, paragraph 38). 
The first aspect 
25 The referring court has doubts in relation to the first aspect because the courts are 
hierarchically subject to the Ministry of Justice and are therefore subordinated to 
it, even if the courts do not take orders or instructions from any source. 
26 The referring court refers to the case-law of the Court of Justice regarding the 
independence of supervisory authorities in the area of data protection, according 
to which there must not be any direct or indirect external influence (from the State 
or the Länder) (cf. judgment of 9 March 2010, Commission v Germany, C-518/07, 
EU:C:2010:125, paragraphs 19 in addition to paragraphs 28, 30, 34 and 36). The 
referring court takes the view that this must also apply to the courts. The courts 
must also not be subject to any influence or instructions in the performance of 
their duties. This applies not only to their own case-law (decision-making), but 
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also to the path towards decision-making, that is to say to the organisation of the 
courts, the procedures, and the techniques used, etc. 
27 This is not the case for any of those aspects: the external and internal organisation 
is prescribed by the Ministry via the procedures for the courts and public 
prosecutor’s offices and by other legal acts. The Ministry determines, via a central 
service provider, the Hessische Zentrale für Datenverarbeitung (Hesse Central 
Office for Data Processing, HZD), the communication methods (telephone, fax 
and internet, amongst others) and the IT set-up via the so-called ‘HessenPC’, 
which is designed for administration. The referring court takes the view that this 
has the result that the administration can ultimately access all the data of the 
courts, even if it probably does not do so in practice. The courts therefore do not 
enjoy the independence that would enable them to perform their duties free from 
external influence. 
28 The possibility remains that the courts, which, with the exception of the 
‘independent judges’, are part of the general public administration and therefore 
under the control of the government of their respective Land, are not able to act 
objectively when they interpret and apply national and European provisions. This 
is demonstrated simply by the fact that, contrary to Regulation No 2016/679, the 
courts do not have independent control over data protection, as the bulk of data 
processing is prescribed by the Ministry, namely the information technology 
office of the Hesse judicial authorities (an IT office that is an intermediate 
authority within the Ministry of Justice) or by the HZD, without a court having 
any effective influence on this (cf. recital 20 of Regulation No 2016/679). The 
reason for this is that not only is judicial activity carried out by means of the 
judgment to be delivered, it also concerns the entire process of court proceedings, 
from the receipt of an action/application through to completion via the service of 
the judgment/order. 
29 Even the mere risk of courts being politically influenced (via equipment, staff 
allocation etc. by the Ministry of Justice) can give rise to the risk of decisions of 
the courts being influenced. For example, statistics on the burden on the courts 
produced by the Ministry may create pressure to bring cases to a conclusion. In 
this respect, the referring court takes the view that such statistics on the actual 
burden on the courts do not say very much, as the required time frames for the 
average completion of court decisions are determined by the Ministry itself, and 
some proceedings that must also be processed are not even included in the 
statistics. 
The second aspect 
30 Regarding the second aspect, it should be stated that the national constitutional 
situation guarantees only the functional independence of the judges, but not the 
institutional independence of the courts. This is evidenced by the fact that the 
judges – and therefore also the judge of the referring court – are appointed and 
promoted by the Minister of the Hesse Ministry of Justice (Paragraph 3 HRiG), 
LAND HESSE 
 
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their evaluation is governed by the Hesse Ministry of Justice (Paragraph 2b HRiG) 
and, moreover, the provisions of the law on public servants are applicable to 
judges. 
31 Pursuant to Paragraph 18 (‘Acting judges’), for the purpose of covering staff 
requirements of a merely temporary nature, an established public servant qualified 
for judicial office can be appointed as an acting judge for a period of at least two 
years, but for no longer than the duration of his main office. Such a public servant 
then returns to administration. This is intended to cover a temporary increase in 
staffing needs in the first instance of the administrative courts in exceptional 
situations and should be compatible with the Basic Constitutional Law. In such a 
case, it is also possible for the acting judge to come from a public authority that is 
frequently represented before the court as a defendant. 
32 Regarding independence, however, the manner of appointment of the members of 
a court must also be taken into account (in this respect, see in particular ECtHR, 
18 July 2013, Maktouf and Damjanović v. Bosnia and Herzegovina, 
ECLI:CE:ECHR:2013:0718JUD000231208). This may well be questionable in 
the case of acting judges. 
33 The question therefore arises as to whether, at least in proceedings to which the 
Hesse Ministry of Justice is party, judges that are appointed and promoted by the 
Minister of Justice, who also makes decisions on the processing of their personal 
data in the context of the publication of their contact details (even if only within 
the Land of Hesse), have complete independence and can rule without being 
subject to any influence, and even if only because they have submitted an 
application for a post involving a promotion, on which, once again, the Ministry 
of Justice ultimately decides. The referring court takes the view that what was 
decided in relation to Directive 95/46/EC regarding data protection supervisory 
authorities has to apply here too – in fact, the standards established for public 
authorities in the decision must apply a fortiori to jurisdiction and therefore to the 
courts (see, in that regard, Opinion of Advocate General Bobek, C-530/16, 
EU:C:2018:29, points 32 and 33). 
34 The courts are functionally independent only to the extent that their judges are 
independent and subject only to the law (Article 126 of the HV). Otherwise, the 
judges, and in particular the court, are subject to external influence. This is 
because the Ministry of Justice decides on the number of judges and posts of each 
court, as well as on the non-judicial staff of the court. It also decides on the 
equipping of a court with, inter alia, IT and applications. 
35 However, functional independence on the part of judges is not by itself sufficient 
to protect a court from all external influence. The independence is not only 
intended to preclude direct influence, in the form of instructions, but is also 
intended to ensure that they are put beyond the reach of external influence, 
whether direct or indirect, which is liable to have an effect on the court’s decisions 
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(see, in that regard, judgment of the Court of Justice of 16 October 2012, 
Commission v Austria, C-614/10, EU:C:2012:631, paragraphs 41 to 43).