Dolabar A violation of the duty to protect the freedom of the press, i. A journalist from a daily newspaper had contacted the Bundesministerium des Innern and, as a member of the press, asserted a claim to receive information under Article 4 1 of the Berliner Pressegesetz Berlin Press Act — BerlPrG berlinre, which obliges the authorities to disclose to journalists any information they need to fulfil their public remit. A journalist would therefore need to ask specific questions, which the authority would then have to answer. However, the right to information derived from Article 10 ECHR by the European Court of Human Rights in individual cases berlliner not applicable to the circumstances of the current case.
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The Federal Administrative Court BVerwG, Bundesverwaltungsgericht in Leipzig ruled today in two appeal proceedings on points of law on the requirements pursuant to which members of the press, based on the right of the press to receive information, can obtain information from the Administration of the German Bundestag about which acquisitions were invoiced by which Members of the Bundestag according to the fixed rate entitling them to acquire office and business supplies.
The Members of the German Bundestag are granted allowances under the Members of the Bundestag Act AbgG, Abgeordnetengesetz for acquiring office and business supplies, currently in the amount of EUR 12, per year fixed rate of benefits in kind. To this end, the Administration of the German Bundestag set up an account for benefits in kind for all Members. The claimant is an editor of a daily newspaper. After being refused the requested information, the claimant brought an action, which was unsuccessful in the lower courts also to the extent that it was based on a right of the press to receive information.
The Federal Administrative Court dismissed the claimant's appeals on points of law. Members of the Bundestag have a legitimate interest in the confidentiality of the information regarding their use of the fixed rate of benefits in kind because it concerns personal data protected by the freedom of the parliamentary mandate.
However, the degree of protection afforded to such interest in confidentiality will be reduced if - based on information provided or summarised initially without the mentioning of names - there are concrete indications of abusive use, especially unrelated to the parliamentary mandate, of the fixed rate of benefits in kind by Members of the Bundestag.
In such a case, the constitutionally protected interest of the press in receiving information about the acquisitions of Members of the Bundestag, including the mentioning of names, takes precedence. According to the findings of the Court of Appeal, this was not the case here. 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. 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. Article 5 1 second sentence GG grants a direct constitutional right to receive information from federal authorities in the absence of non-constitutional federal legislation in so far as federal state press laws do not apply to it due to the overriding legislative competence of the Federation.
The direct constitutional right of the press to receive information may not, in terms of substantive law, fall short of those provisions of federal state law on the rights of the press to receive information that are of essentially the same content and entail a weighing of interests.
On the basis of this right, members of the press may, in an appropriate form, demand information from public authorities in so far as this is not incompatible with the legitimate interests of private or public entities worthy of being protected. The independence of the parliamentary mandate guaranteed by article 38 1 second sentence GG also extends to the protection of the personal data of the Members of the Bundestag, which in the weighing of interests in the individual case can impair the right of the press to receive information from the Administration of the German Bundestag.
The claimant, a journalist, is requesting the handing over of photocopies of all documents concerning the use of benefits in kind by the Members of the 16th German Bundestag in with respect to Montblanc writing utensils and digital cameras. The Members of the German Bundestag may, as part of their Members' allowances, purchase office and business supplies in an amount of up to EUR 12, per year.
To this end, the Administration of the German Bundestag has set up an account for benefits in kind for all Members. The provision of office supplies is carried out on the basis of a framework contract between the Administration of the German Bundestag and the third party company summoned to attend the proceedings as a party whose rights may be affected hereinafter summoned third party company , whereas information and communication devices may be purchased by the Members of the Bundestag from providers of their choice.
The German Bundestag dismissed the claimant's application, claiming a disproportionate amount of administrative expenditure and trade and business secrecy on the part of the summoned third party company. The claimant's objection to this was unsuccessful. On the action brought by the claimant, the Administrative Court Verwaltungsgericht set aside the contradictory notices and ordered the Federal Republic of Germany, represented by the President of the German Bundestag, to decide the application again by taking into consideration the court's legal opinion and dismissed the action otherwise.
On the defendant's appeal on points of fact and law, the Higher Administrative Court Oberverwaltungsgericht modified the first-instance judgment and dismissed the action. It also dismissed the claimant's appeal on points of fact and law. The Court held that the right to receive information pursuant to the Freedom of Information Act IFG, Informationsfreiheitsgesetz is precluded on account of the protection afforded to personal data in connection with the exercise of the parliamentary mandate.
The Court was of the opinion that the claimant had no direct constitutional right to receive information on the basis of article 5 1 of the Basic Law GG, Grundgesetz because the freedom of the press does not create new ways of procuring information. It is against this judgment that the claimant brings his appeal on points of law Although the judgment of the Higher Administrative Court violates federal law section 1 no. The basic right of the freedom of the press is a direct constitutional right to receive information from federal authorities in the absence of non-constitutional federal legislation in so far as federal state press laws do not apply to it due to the overriding legislative competence of the Federation see Federal Administrative Court BVerwG, Bundesverwaltungsgericht , judgments of 20 February - 6 A 2.
These conditions are satisfied in the case of the rights to receive information from the Administration of the German Bundestag about the legal position of the Members of the German Bundestag. Although the legislative competence relating to the public authorities' duties to provide information to the press can essentially be classified as part of press law see BVerwG, judgment of 25 March - 6 C However, the contested judgment is correct in the result for other reasons, namely because a right to receive information arises neither from article 5 1 second sentence GG a nor from article 10 ECHR b.
The direct constitutional right to receive information requires a weighing of the interest of the press to receive information against the opposing interests worthy of being protected in the individual case on this aa below. When weighing such interests, in principle, no evaluation of the interest of the press to receive information shall be made bb. Instead, the decisive issue is whether interests worthy of being protected that oppose the interest of the press to receive information are of such weight that they preclude a right of the press to receive information cc.
An effective and functional working of the press presupposes that its members are being provided with sufficient information from the state bodies about matters deemed by the press to be of public interest see BVerwG, judgment of 25 March - 6 C The direct constitutional right of the press to receive information must do justice to such functions.
Accordingly, the right to receive information based on article 5 1 second sentence GG requires here a weighing of interests in the individual case. This is because within the weighing of interests in the individual case principally no evaluation and weighting of the interests of the press in receiving information is made.
It is up to the press itself to decide which information is necessary for its research preparatory to the potential reporting on a particular topic. State bodies must not be provided with opportunities for co-deciding on the informational value of certain facts and for indirectly influencing the contents of publications in this way BVerwG, judgment of 1 October - 6 C Such an opportunity to unlawfully exert influence would be found if the right of the press to receive information were to be given lesser weight in the requisite weighing of interests in the individual case with regard to the restricted means of control of the Administration of the German Bundestag concerning the use of the benefits in kind.
Due to the binding nature of the findings with regard to the facts made in the appeal judgment, which are not challenged in the appeal on points of law, the trade and business secrets are not to be taken into account in the requisite weighing of interests in the individual case. There is a legal connection between this data and the exercise of the parliamentary mandate.
This arises from article 38 1 second sentence GG, which recognises the double status of the Members of the Bundestag, as elected parliamentary mandate holders and as private persons. The two spheres cannot be strictly separated; parliamentary democracy requires parliamentary members to be "whole persons". Even though the use of the fixed rate of benefits in kind for office equipment and furnishings is not directly connected to political decision-making in the parliamentary sphere, which forms the core of the exercise of the parliamentary mandate; it does, however, enable the actual exercising of the mandate.
The freedom of the parliamentary mandate guaranteed by article 38 1 second sentence GG also ensures the worthiness of protection of the Members of the Bundestag's personal data in this area as well, which can in general be an obstacle to the right of the press to receive information.
Section 12 1 first sentence of the Members of the Bundestag Act AbgG, Abgeordnetengesetz provides for compensation of the costs incurred by the parliamentary mandate, i. If such a connection exists, then the system of a fixed rate of benefits in kind allows for the acquisition of prestigious as well as technical objects used for performing mandate-related duties.
However, the use of public resources is governed by the principle of the frugal and cost-efficient use of resources that found its codification in section 7 1 of the Federal Budget Code BHO, Bundeshaushaltsordnung see BVerwG, judgment of 24 November - 9 A Within this legal framework, the Members of the Bundestag are not - as argued by the claimant - under an obligation to purchase or borrow less expensive consumer goods, or to group together with other Members and acquire goods in order to share them.
In these cases, the personal data of an individual Member of the Bundestag or even of a group of Members of the Bundestag worthy of being protected could not be relied on to impair the interest in receiving information. The latter requires that concrete indications of wide-spread abuse in the invoicing of objects according to the fixed rate of benefits in kind can be established. It is only when this requirement has been met that it is justifiable to allow the press access to the personal data of not only individual Members of the Bundestag but also, as requested by the claimant, of all affected Members.
According to a press report adduced in the proceedings at the lower court, Members of the Bundestag acquired and invoiced Montblanc writing utensils with a total value of approximately EUR 68, Of these acquisitions, writing utensils were allocable alone to the period from August to October , some of which, according to the press report, had been delivered to Members leaving the Bundestag. There are therefore indications of a use of the fixed rate of benefits in kind outside the legal boundaries by certain Members of the Bundestag on account of their acquisitions made close to the end of the legislative period and because it was already clear to them at the time of the acquisitions that they would be leaving the Bundestag.
However, these indications do not suffice for an assumption of wide-spread abuse. On the one hand, it must be taken into account that there are no time restrictions with respect to the claiming of the compensation for costs pursuant to section 12 AbgG.
There is one exception in the area of Member's allowances but it only applies to Members who join the German Bundestag in the last quarter year of a legislative period.
Section 13 AbgG stipulates that these Members have no claim to the benefits set out in section 12 2 and 3 AbgG if the Bundestag has already concluded its activities. On the other hand, the freedom of the parliamentary mandate entails a minimum amount of trust in the Members of the Bundestag that the vast majority of these Members elected by the people will exercise their freedom in a prudent and responsible manner. The fact that he has refrained from doing this cannot create an obligation to disclose the personal data of all Members of the Bundestag who invoiced the particular objects in question.
The question whether article 10 1 ECHR - according to the recent case-law of the European Court of Human Rights ECtHR - establishes a general right - and not merely a right restricted to special groups of cases - of the press to access administrative information can be left open see BVerwG, judgment of 20 February - 6 A 2.
This is because such a right would, in any event, be restricted by i. To be in conformity with the ECHR, such restrictions of the right guaranteed by article 10 1 ECHR must be legitimate and necessary in a democratic society, i. The protection of personal data in the context of the exercise of the parliamentary mandate satisfies such requirements. There is no apparent reason why, for the weighing of interests in the individual case, different requirements should be inferred in this respect from article 10 ECHR.
BVerwG 6 C Protection of personal data of Members of the German Bundestag can preclude provision of information to the press about office supplies. DE Print Document. Direct constitutional right of the press to receive information from the Administration of the German Bundestag Headnotes 1. Summary of the facts The claimant, a journalist, is requesting the handing over of photocopies of all documents concerning the use of benefits in kind by the Members of the 16th German Bundestag in with respect to Montblanc writing utensils and digital cameras.
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