§ 21 BDSG
Application by the supervisory authority for a judicial decision in the event of assumed unlawfulness of a decision of the European Commission
(1)Where a supervisory authority considers an adequacy decision of the European Commission, a decision on the recognition of standard data protection clauses or on the general validity of approved codes of conduct, on the validity of which a decision of the supervisory authority depends, to be unlawful, the supervisory authority shall suspend its proceedings and file an application for a judicial decision.
(2)For proceedings under Subsection (1), the administrative courts shall have jurisdiction. The Code of Administrative Court Procedure shall apply subject to the provisions of Subsections (3) to (6).
(3)An application by a supervisory authority under Subsection (1) shall be decided at first and last instance by the Federal Administrative Court.
(4)In proceedings under Subsection (1), the supervisory authority shall have capacity to be a party to the proceedings. The supervisory authority shall participate in proceedings under 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 submit observations within a period to be determined.
(5)Where proceedings to review the validity of a decision of the European Commission referred to in Subsection (1) are pending before the Court of Justice of the European Union, the Federal Administrative Court may order that the hearing be suspended until the conclusion of the proceedings before the Court of Justice of the European Union.
(6)In proceedings under Subsection (1), Section 47 Subsection (5), first sentence, and Subsection (6) of the Code of Administrative Court Procedure shall apply accordingly. Where the Federal Administrative Court is satisfied that the decision of the European Commission referred to in Subsection (1) is valid, it shall so determine in its decision. Otherwise, it shall refer the question of the validity of the decision to the Court of Justice of the European Union for a preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union.