The Bundesverwaltungsgericht (BVerwG, Federal Administrative Court) dismissed the appeal on points of law lodged by a passenger joined to the proceedings as inadmissible due to a lack of substantive prejudice (BVerwG, order of 29 September 2026 – 6 C 9.25 (case no.)). In the view of the 6th Senate, a joined party must be adversely affected by the contested decision in their own substantive rights. This applies regardless of whether the joinder was discretionary or mandatory.
Dispute over video recordings from an S-Bahn train
Passenger requested a copy of the recording
The proceedings arose from a passenger’s request that the operator of Berlin’s public S-Bahn network provide him with a copy of the video recordings of his journey. In doing so, he relied on the right of access under Art. 15(3) GDPR (General Data Protection Regulation).
The claimant refused to provide the recording, referring to its data protection policy, which had been coordinated with the Berliner Beauftragte für Datenschutz und Informationsfreiheit (Berlin Commissioner for Data Protection and Freedom of Information). Under that policy, the operator cannot itself access the recordings. They may be disclosed exclusively in response to requests for information from law enforcement authorities. Otherwise, the recordings are continuously overwritten after 48 hours.
The claimant had already informed the passenger about the manner in which the data was processed and the storage period in accordance with Art. 15(1) GDPR.
Warning issued by the data protection authority as the subject matter of the proceedings
The competent data protection supervisory authority issued a warning to the operator for refusing to provide the video recording. The company brought an action challenging that warning.
The Verwaltungsgericht Berlin (Berlin Administrative Court) set aside the warning in its judgment of 12 October 2023 – 1 K 561/21 (case no.). The Oberverwaltungsgericht Berlin-Brandenburg (Higher Administrative Court of Berlin-Brandenburg) upheld that outcome in its judgment of 13 May 2025 – 12 B 14/23 (case no.).
In the view of the Oberverwaltungsgericht, the video recordings did contain personal data. However, the claimant was entitled to refuse disclosure on the basis of its data protection policy. That policy was intended to comply as fully as possible with the requirements of the GDPR and the passengers’ personality rights. By contrast, the joined party’s interest in obtaining the video recording itself carried less weight.
Substantive prejudice as a requirement for an appeal on points of law
Joinder alone does not confer a right of appeal
The Bundesverwaltungsgericht confirmed its established case law regarding appeals lodged by persons joined to proceedings. According to that case law, the status of a joined party is not sufficient to render an appeal on points of law admissible.
In particular, the following requirements must be met:
- The contested judicial decision must cause substantive prejudice to the joined party.
- The adverse effect must concern the joined party’s own legal position.
- This requirement applies to both discretionary and mandatory joinder.
Merely formal participation in administrative court proceedings therefore does not in itself confer standing to appeal. Rather, the decisive issue is whether the decision causes independent substantive prejudice to the joined party.
Final judgment in civil proceedings
Civil proceedings that had already been concluded were decisive in establishing the absence of substantive prejudice. In parallel, the passenger had asserted a claim against the operator for compensation for non-material damage. By the time the appeal on points of law was lodged, that claim had already been dismissed by a final judgment.
In its appellate judgment of 13 December 2023, the Landgericht Berlin (Berlin Regional Court) had based its decision cumulatively on two grounds. One of those grounds was that no breach of the GDPR by the operator could be established.
It was therefore established with final and binding effect as between the passenger and the claimant that no data protection infringement had occurred. This finding, which had effect inter partes, was decisive for the assessment of substantive prejudice.
No prejudice resulting from the warning being set aside
Administrative court decision did not alter the legal position
Setting aside the data protection warning did not worsen the joined party’s substantive legal position. Because of the final civil court judgment, he could no longer argue against the claimant that its refusal to provide the video recording had infringed the GDPR.
In this respect, the administrative court decision did not create any additional adverse effect. The data protection issue relevant between the parties had already been finally determined by the civil court.
The joined party therefore suffered no substantive prejudice as a result of the warning being set aside. For that reason, his appeal on points of law was inadmissible. In its reasons for the decision, the Bundesverwaltungsgericht also addressed the submissions made by the Representative of the Federal Interest.
Significance of the EU law principle of effectiveness
Avoiding conflicting decisions
According to the order, the requirement of substantive prejudice is also consistent with the EU law principle of effectiveness. This requirement makes the enforcement of rights arising from the GDPR neither practically impossible nor excessively difficult.
In reaching its decision, the Bundesverwaltungsgericht considered the case law of the Court of Justice of the European Union (CJEU). According to that case law, divergent decisions by civil and administrative courts concerning the same data protection matter may call into question the objective of recital 10 of the GDPR. That recital seeks to ensure a consistent and high level of data protection throughout the European Union.
Substantive prejudice as an admissibility requirement helps to avoid conflicting judicial outcomes. Where it has already been established by a final and binding judgment between the directly involved parties that no data protection infringement occurred, a joined party need not be able to obtain a further judicial decision on the merits solely by virtue of their procedural status.
Implications for data protection proceedings
The order illustrates the distinction between participation in proceedings and the individual prejudice required for an appeal. Even where an administrative court decision concerns circumstances in which the joined party was directly involved, substantive prejudice does not automatically follow.
The interaction between parallel civil and administrative proceedings is particularly significant. A final determination by a civil court may mean that an administrative court decision no longer affects the joined party’s substantive legal position. The binding effect nevertheless remains limited to the legal relationship between the parties to the civil proceedings.
When assessing access claims, video recordings and parallel court proceedings, companies and data subjects may need to consider various data protection issues. MTR Legal assists clients with such matters as part of its legal advice on data protection law.
