In the administrative dispute case
xxx ,
– Plaintiff –
Authorized:
Attorney Sven Adam,
Lange Geismarstr. 55, 37073 Göttingen,
against
Federal Republic of Germany,
represented by:
Federal Police Directorate Munich,
Infanteriestr. 6, 80797 Munich-Schwabing,
– Defendant –
involved:
Bavarian State Attorney's Office
as representative of the public interest,
Ludwigstr. 23, 80539 Munich,
because of
identification, among other things;
here: The plaintiff's appeal against the judgment of the Bavarian Administrative Court
in Munich of July 27, 2016 ( M 7 K 14.1468 ),
is issued by the Bavarian Administrative Court, 10th Senate,
through the judge at the Administrative Court xxx as rapporteur
without a hearing on April 8, 2019
the following
VERDICT:
- The ruling of the Bavarian Administrative Court in Munich of July 27, 2016 is changed. It is determined that the identity verification carried out by federal police officers on January 7, 2014 and the subsequent data comparison were unlawful.
- The defendant bears the costs of the proceedings in both legal proceedings.
- The decision on costs is provisionally enforceable. The defendant can avert enforcement by providing security or depositing the enforceable amount unless the plaintiff first provides security in the same amount.
- The revision is not permitted.
ACT:
The plaintiff is seeking a declaration that an identity check carried out by federal police officers on January 7, 2014 on a train on the route between the city of Lindau (Lake Constance) and Munich and the subsequent data comparison were illegal.
His lawsuit against this, filed on April 8, 2014, with the Bavarian Administrative Court in Munich to declare the illegality of the identity verification and data comparison carried out, was dismissed in a judgment dated July 27, 2016. The plaintiff applied for permission to appeal against the judgment delivered to him on December 29, 2016, which the Senate approved by resolution of February 23, 2018.
On behalf of the plaintiff, an application was made to overturn the judgment of the Bavarian Administrative Court in Munich of July 27, 2016 and to declare that the personal identification carried out by federal police officers on January 7, 2014 and the subsequent personal identification comparison were unlawful.
On April 4, 2019, the defendant stated,
It “recognizes (…) that the personal details of the plaintiff carried out by its officials on January 7, 2014 and the personal details comparison carried out directly by telephone were unlawful”.
The plaintiff then declared by fax on the same day that he accepted the defendant's acknowledgment and applied for a
Judgment of recognition.
In addition to the previous lecture, he explains that he continues to hold a teaching position in Kempten and therefore still regularly takes the train on the said route.
For further details of the matter, reference is made to the authorities and court files submitted.
REASONS FOR DECISION:
The defendant was to be sentenced in accordance with Section 173 Sentence 1 VwGO in conjunction with Section 307 Sentence 1 ZPO in accordance with her acknowledgment as can be seen from the tenor. The decision is made without an oral hearing (§ 173 VwGO in conjunction with § 307 sentence 2 ZPO; see also OVG Sachsen, Uv February 20, 2017 - 3 A 793/16 - juris para. 2 with further references; Peters in Sodan/Ziekow, VwGO, 5. 2018 edition, § 87a para. 15 mwN; Olbertz in Schoch/Schneider/Bier, VwGO, as of September 2018, § 156 para. 11) by the rapporteur (§ 125 para. 1 sentence 1 in conjunction with § 87a para. 1 no. 2 , paragraph 3 VwGO).
In the administrative process, the defendant is also at liberty to recognize the claim in the appeal instance (cf. BVerwG, Uv September 27, 2017 - 8 C 21.16 - juris para. 4 with further references; GB of January 7, 1997 - 4 A 20.95 - juris para. 5 ; BayVGH, Uv February 21, 2002 - 8 B 97.32535 - juris Rn. 4; Saenger in Saenger, Code of Civil Procedure, 7th edition 2017, § 307 Rn. 4). This also applies to the case of the continuation of the declaratory judgment and declaratory action brought here (cf. BVerwG, Uv September 27, 2017 - 8 C 21.16 - juris Rn. 4; Clausing in Schoch/Schneider/Bier, Administrative Court Code, as of September 2018, § 107 Rn. 8; Wolff in Sodan/Ziekow, Administrative Court Code, 5th edition 2018, § 107 Rn. 22).
The defendant has effectively declared its acknowledgment of the claim at issue in the appeal proceedings. Furthermore, the factual judgment requirements necessary for the issuance of a recognition judgment are met; in particular, the plaintiff has a legitimate interest in the requested determination. He holds a teaching position in Kempten and therefore continues to travel regularly by train on the Lindau - Munich route, so that, due to essentially unchanged conditions, identity checks are to be expected in the future and there is therefore a risk of repetition (cf. BayVGH, Bv March 13, 2017 — 10 ZB 16.965 — juris para. 11 with further references). Whether the plaintiff also has a legitimate interest for other reasons, such as rehabilitation (cf. BVerwG, Uv May 16, 2013 - 8 C 14.12 - juris para. 27; BayVGH, Bv August 31, 2018 - 10 ZB 18.871 - juris para. 9 ff.) or under the aspect of typically short-term settlement (cf. BVerwG, Uv June 20, 2013 - 8 C 39.12 - juris Rn. 26 ff.; Uv May 16, 2013 - 8 C 14.12 - juris -Ls- and Rn. 32 mwN; Uv April 29, 1997 — 1 C 2.95 — juris Rn. 21; BayVGH, Bv March 13, 2017 — 10 ZB 16.965 — juris Rn. 10), therefore no clarification is required here.
According to Section 173 Sentence 1 VwGO in conjunction with Section 307, Section 313b Paragraph 1 ZPO, a substantive examination does not take place (cf. BVerwG, Uv September 27, 2017 - 8 C 21.16 - juris Rn. 7; BGH, Uv October 8, 1953 - III ZR 206/61 — juris Rn. 18; Saenger in Saenger, Code of Civil Procedure, 7th edition 2017, § 307 Rn. 9).
The cost decision follows from Section 154 Paragraph 1 VwGO.
The decision on the provisional enforceability of the costs decision is based on Section 167 VwGO in conjunction with Sections 708 ff. ZPO.
The appeal was not permitted because none of the requirements of Section 132 (2) VwGO were met.
Instructions on legal remedies follow.
