Amendment of the Federal Data Protection Act
The Federal Data Protection Act (Bundesdatenschutzgesetz, BDSG) in the version published on 14 January 2003 (Federal Law Gazette I, p. 66), last amended by Article 1 of the Act of 28 April 2017 (Federal Law Gazette I, p. 968), shall be amended as follows:
3. In the table of contents, the following text shall be inserted after the reference to Section 42a:
“Section 42b Application of the supervisory authority for a court decision if it believes that a decision by the Commission violates European law”
4. The following subsection 5a shall be added after Section 22 (5): “(5a) The Federal Commissioner may delegate human resources administration and management tasks to other federal bodies as long as doing so does not affect the Federal Commissioner’s independence. Personal data of staff members may be transferred to these bodies as needed for them to perform their delegated tasks.”
5. The following Section 42b shall be added after Section 42a: “Section 42b Application of the supervisory authority for a court decision if it believes that a decision by the European Commission violates the law
(1) If a supervisory authority believes that an adequacy decision of the European Commission or a decision on the recognition of standard protection clauses or on the general validity of approved codes of conduct, on the validity of which a decision of the supervisory authority depends, violates the law, the supervisory authority shall suspend its procedure and lodge an application for a court decision.
(2) Recourse to the administrative courts shall be provided for proceedings pursuant to subsection 1. The Code of Administrative Court Procedure shall be applied in compliance with subsections 3 to 6.
(3) The Federal Administrative Court shall decide in the first and last instance on an application by the supervisory authority pursuant to subsection 1.
(4) In proceedings pursuant to subsection 1, the supervisory authority shall be competent to take part. The supervisory authority shall be a party to proceedings pursuant to subsection 1 as applicant; Section 63 nos. 3 and 4 of the Code of Administrative Court Procedure shall remain unaffected. The Federal Administrative Court may give the European Commission the opportunity to comment within a period of time to be determined.
(5) If a proceeding to review the validity of a European Commission decision pursuant to subsection 1 is pending at the European Court of Justice, the Federal Administrative Court may order its proceeding to be suspended until the proceeding at the European Court of Justice has been concluded.
(6) In proceedings pursuant to subsection 1, Section 47 (5), first sentence and (6) of the Code of Administrative Court Procedure shall apply accordingly. If the Federal Administrative Court finds that the European Commission’s decision pursuant to subsection 1 is valid, it shall state this in its decision. Otherwise it shall refer the question as to the validity of the decision in accordance with Article 267 of the Treaty on the Functioning of the European Union to the European Court of Justice.”