VwGH: Representation via citizen card of a minor

Jan 13, 2023 Benn-Ibler Rechtsanwälte GmbH

The Austrian E-Government Act (E-Government-Gesetz, E-GovG) and the Identification Register Ordinance 2009 (Stammzahlenregisterbehördenverordnung 2009, StZRegBehV 2009) provide for the valid registration of the power of representation of legal representatives on a minor’s Austrian citizen card. The assumption that it must also be possible to check details concerning this power of representation on a day-to-day basis is not supported.

In the case at hand, the married parents of a minor daughter filed an application with the Austrian Data Protection Authority for entry of the power of attorney for their respective mobile phone signatures. This application was rejected by official decision. Their appeal to the Austrian Federal Administrative Court (Bundesverwaltungsgericht, BVwG) was also dismissed, since it would have had to be proven that the represented person has confirmed the correctness of the information on the power of attorney or that it was made credible that he or she was aware of the parents’ registration, especially since E-GovG stipulates that the represented person must have at least limited legal capacity.

The Austrian Administrative Court (Verwaltungsgerichtshof, VwGH) considered as follows:

A prerequisite for registration is the fact that there is a legal proxy or a power of attorney relationship, which must be proven to the respective authority (in the above preliminary proceedings, the data protection authority) by the represented party confirming knowledge of the registration or knowledge being made credible by a written statement. The statement made by the Federal Ministry for Digital and Economic Affairs in the response to the appeal that there is currently no automation-based register for civil status data is also not valid. Section 5 (1) of E-GovG only provides for the existence of a power of attorney relationship. A further prerequisite, such as the age of 14 according to the Austrian Federal Administrative Court, is neither compatible with the wording nor with the purpose of the provision. The appellants (the parents of the minor) had already shown in the preliminary proceedings that they were the legal representatives of their daughter. Since no further requirements are necessary, the challenged decision had to be set aside because it was illegal.

VwGH Ro 2022/03/0041 (20 September 2022)