View source for AG München - 322 C 3109/23 (2)

{{COURTdecisionBOX

|Jurisdiction=Germany
|Court-BG-Color=
|Courtlogo=Courts_logo1.png
|Court_Abbrevation=AG München
|Court_Original_Name=Amtsgericht München
|Court_English_Name=Local Court Munich
|Court_With_Country=AG München (Germany)

|Case_Number_Name=322 C 3109/23 (2)
|ECLI=ECLI:DE:AGMUENC:2023:0726.322C3109.23.2.0A

|Original_Source_Name_1=Bayerische Staatskanzlei 
|Original_Source_Link_1=https://www.gesetze-bayern.de/Content/Document/Y-300-Z-BECKRS-B-2023-N-22736?hl=true
|Original_Source_Language_1=German
|Original_Source_Language__Code_1=DE
|Original_Source_Name_2=
|Original_Source_Link_2=
|Original_Source_Language_2=
|Original_Source_Language__Code_2=

|Date_Decided=26.07.2023
|Date_Published=
|Year=2023

|GDPR_Article_1=Article 6(1)(f) GDPR
|GDPR_Article_Link_1=Article 6 GDPR#1f
|GDPR_Article_2=Article 17(1)(a) GDPR
|GDPR_Article_Link_2=Article 17 GDPR#1a
|GDPR_Article_3=Article 17(1)(d) GDPR
|GDPR_Article_Link_3=Article 17 GDPR#1d
|GDPR_Article_4=
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|National_Law_Name_1=
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|Appeal_From_Body=
|Appeal_From_Case_Number_Name=
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|Appeal_To_Status=Not appealed
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|Initial_Contributor=Sara Horvat
|
}}

The data subject demanded the erasure of the data in the HIS Information System upon [[Article 17 GDPR]], as the vehicle had been repaired. The interest to prevent insurance fraud prevailed and the processing is lawful upon [[Article 6 GDPR#1f|Article 6(1)(f) GDPR]].

== English Summary ==

=== Facts ===
The plaintiff - the data subject, suffered damage to his vehicle with the vehicle identification number, which is insured with the defendant, on 28.03.2022. The defendant processed and settled this claim as the liable insurer on the basis of a cost estimate submitted by the plaintiff. The calculated repair costs excluding VAT amounted to EUR 3,351.93. The defendant then forwarded the following information to the HIS Information System (HIS - Hinweis- und Informationssystem, a federal directory of the German insurance industry); Date of the fictitious settlement, reporting body, Motor vehicle Reference number of the reporting body, 

The defendant - the data controller,  did not delete or arrange for the deletion of the entry despite a request from the plaintiff or his attorney of record.

The data subject claims that the entries in the HIS directory are incorrect, as their vehicle was repaired and therefore there is no fictitious settlement of the damage. Moreover, there was no need for storage due to the repair carried out.

In this case, the parties were arguing if the data of the data subject could be deleted upon [[Article 17 GDPR|Article 17 GDPR]] from the federal Notice and information system, since there was no reason to retain the Data in the system, since the insurance paid for the repair.

=== Holding ===
The court held that, in the case of a fictitious settlement of vehicle damage exceeding EUR 1,500, the comprehensive insurance of the policyholder is authorized to report the occurrence of a fictitious settlement, the amount of the incurred damage, and the vehicle identification number to the HIS Information System.

Even in the case of a (flat) claimed repair of the damage with a remaining diminished value, there is still an overriding interest in this reporting, and therefore, no deletion under [[Article 17 GDPR|Article 17 GDPR]] is required.

Even in the event of a proper and expert repair, a balancing of interests under [[Article 6 GDPR#1f|Article 6(1)(f) GDPR]] indicates a continued interest of the insurer in reporting the data to the HIS Information System of the German Insurance Industry. This is because, despite a proper and comprehensive repair, the fact that the vehicle has suffered significant past damage remains, which represents disclosable information in the event of a sale and typically leads to a permanently diminished value of the vehicle, especially in the absence of specific evidence of repair.

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== English Machine Translation of the Decision ==
The decision below is a machine translation of the German original. Please refer to the German original for more details.

<pre>
Title:
Reporting of data to the notice and information system (HIS) of the German insurance industry in the event of fictitious claims settlement in comprehensive insurance
Chain of standards:
GDPR Art. 6, Art. 17
Guiding principles:
1. In the case of a fictitious settlement with vehicle damage that exceeds EUR 1,500.00, the policyholder's comprehensive insurance is entitled to send the amount of the damage incurred and the vehicle identification number of the affected vehicle to the HIS as the reason for reporting the fictitious settlement -Information system to report. (Rn. 15 – 19) (editorial principle)
2. Even in the case of a merely (generally) claimed repair of the damage with a remaining reduced value, there is still an overriding interest in this report, so that deletion does not need to be carried out in accordance with Article 17 of the GDPR. (No. 21 – 24) (editorial principle)
3. Even in the case of a proper and professional repair, there is a continued interest of the insurer in the reporting of the data to the notice and information system (HIS) of the German insurance industry when weighing up the interests in accordance with Art. 6 GDPR. Even with a professional and comprehensive repair, the fact remains that the vehicle has suffered significant damage in the past, which represents information that must be clarified in the event of a sale and usually leads to a permanent reduction in the value of the vehicle, especially if there is no specific damage Evidence of a repair is available. In order to be able to carry out such an assessment, a continuing interest in storing the data in the HIS - regardless of the quality of the repair carried out - must be affirmed (connection to AG Düsseldorf BeckRS 2023, 12459; differentiation from LG Schweinfurt judgment of April 12, 2021 - 23 O 809/20; for the legal situation according to the BDSG see AG Coburg BeckRS 2013, 3586). (Nos. 25 and 26) (editorial principle)
Tags:
Traffic accident, comprehensive insurance, fictitious damage settlement, notice and information system, HIS, data processing, deletion claim, insurance abuse, personal data, legitimate interest
Location:
BeckRS 2023, 22736


tenor

1. The lawsuit is dismissed.

2. The plaintiff must bear the costs of the legal dispute.

3. The judgment is provisionally enforceable. The plaintiff can avert the defendant's enforcement by providing security in the amount of 110% of the amount to be enforced, unless the defendant pays 110% of the amount to be enforced before enforcement.

The amount in dispute is set at EUR 1,000.00.

Facts of the case

1
The parties are in dispute over a claim to the deletion of data from the notice and information system (HIS).

2
The plaintiff suffered damage to his vehicle with the vehicle identification number, which is insured by the defendant, on March 28, 2022. The defendant processed and settled this damage as compulsory insurance under the damage number based on a cost estimate submitted by the plaintiff. The calculated repair costs without VAT amounted to EUR 3,351.93. The defendant then passed on the following information to the company Informa HIS GmbH, which entered the following into the HIS directory:

Fictitious billing from March 28, 2022

Division: Motor transport Reference number of the reporting body:

3
Despite requests from the plaintiff or his legal representative, the defendant did not delete the entry or cause such deletion.

4
The plaintiff claims that the entries in the HIS directory are incorrect because the plaintiff's vehicle was repaired and there is therefore no fictitious settlement of the damage. Furthermore, due to the repair being carried out, there would be no need for storage.

5
The plaintiff requests

I. The defendant is ordered to delete or have deleted the entry it made about the plaintiff in the HIS directory:

Fictitious settlement, from March 28, 2022

Reference number of the reporting body:

II. The defendant is further ordered to pay the plaintiff EUR 159.94 plus interest of 5% points above the respective base interest rate since October 5, 2022.

6
The defendant requests

7
The defendant is of the opinion that no personal data was stored. In any case, a balancing of interests would show that the insured community has an overriding interest. The defendant also claims that the plaintiff's vehicle was in any case not completely repaired properly and professionally and is of the opinion that even if the repair was completely repaired correctly and properly, there is still an interest in reporting it.

8th
For additional information, please refer to the parties' written submissions.

9
The parties have agreed to a decision in the written procedure.

Reasons for the decision

10
The admissible action is unfounded.

Lack of right to deletion

11
I. The plaintiff has no claim against the defendant under Article 17 Paragraph 1d) GDPR to ensure that the disputed entry in the HIS is deleted.

12
According to Art. 17 Para. 1 d) GDPR, personal data must be deleted if the personal data has been processed unlawfully.

13
The reported data is probably personal data within the meaning of the regulation, as a connection to the plaintiff as a person can be established by simply querying the VIN.

14
Contrary to the plaintiff's opinion, however, there is no incorrect entry in the HIS directory and therefore no unlawful processing of the data. The court considers it to be sufficiently proven that the disputed damage to the plaintiff's vehicle was settled by the defendant based on a fictitious settlement. It is undisputed that the plaintiff submitted a cost estimate to the defendant. Based on this cost estimate, the defendant settled the damage in a letter dated April 26, 2022 (attachment to the defendant's written statement dated May 25, 2023) and reimbursed the plaintiff for the net repair costs. Even if the plaintiff actually repaired his vehicle afterwards, this does not change the fictitious billing initially made by the defendant. It was also not stated that the plaintiff had subsequently changed his billing method and was now billing based on specific repair costs incurred.

15
In addition, the processing of the data about the fictitious billing in the HIS was lawful because the insurance company had a legitimate interest.

16
The insurance industry has an interest in preventing insurance abuse in the case of multiple billing in the event of fictitious damage calculation. By storing the data, it can be made easier to detect abusive behavior through repeated claims for the same damage to a vehicle. It may be irrelevant whether the operating company has its own legitimate interest in the storage, as it is sufficient to look after the interests of third parties. In these cases, there is the possibility of misuse in that a vehicle that was fictitiously billed for is taken over by a third party at scrap price, is involved in another accident by the third party, and the damage is then billed for again.

17
The storage of the insured person's data is also necessary to prevent crimes or to maintain public safety - which also includes individual legal interests - since there are no milder, equally effective means available.

18
In addition, the entry is also justified in order to accurately assess the amount of damage caused in another traffic accident and to prevent the settlement of an excessively high compensation claim at the expense of the insured community. Other people outside the insured community can also benefit from such a report, since an injured party, as the owner of the vehicle, can also find out about previous damage from the previous ownership period and, if necessary, receive information about the previous damage.

19
In contrast, the harm caused to the plaintiff by storing the data is to be classified as minor in the context of an overall balance of interests.

20
II. The plaintiff also has no right to the deletion of the reported data pursuant to Art. 17 Para. 1 a) GDPR.

21
According to Article 17 Paragraph 1 a) GDPR, personal data must be deleted as soon as they are no longer necessary for the purposes for which they were collected or otherwise processed. This is particularly the case where an examination procedure on which data collection or storage is based has been finally completed with regard to the recorded data (ECJ, NJW 2018, 767).

22
These requirements are not met here. The defendant continues to have a legitimate interest in storage, while the plaintiff's legitimate interests are not affected.

23
The plaintiff's side is of the opinion that there is an impairment of the plaintiff's interests that is worthy of protection, since the plaintiff's vehicle has now been repaired.

24
However, the plaintiff does not state that the plaintiff's vehicle was repaired properly and professionally in accordance with the cost estimate presented. It is also not explained what specific damage was present and what repair measures were carried out with what spare parts and what work steps. Despite a corresponding statement from the defendant and a note from the court, the plaintiff only submitted photographs of a repaired plaintiff's vehicle. There was no further presentation. There is no need to obtain an expert opinion on this question because, in the absence of further information from the plaintiff, such an opinion would amount to pure research.

25
Furthermore, even in the case of a proper and professional repair, when weighing up the interests in accordance with Article 6 of the GDPR, the insurance company's continued interest in the report or the corresponding data must be affirmed.

26
Even with a professional and comprehensive repair, the fact remains that the vehicle has suffered significant damage in the past, which represents information that must be clarified in the event of a sale and usually leads to a permanent reduction in the value of the vehicle, especially if there is no specific damage Evidence of a repair is available. In order to be able to carry out such an assessment, there remains an interest in storing the data in HIS, regardless of the quality of the repair carried out (also AG Düsseldorf, judgment of February 23, 2023, 40 C 226/22).

27
In this respect, registration is also justified in order to be able to accurately assess the amount of damage caused in another traffic accident and to prevent the billing of an excessively high compensation claim at the expense of the insured community. So it's not just about cases of targeted deception, but also constellations are conceivable in which the claimant himself has no knowledge of previous damage or does not correctly assess the extent of the damage or the quality of the repair measures carried out - even in these cases For the benefit of the insured community, it must be possible to examine whether and to what extent new damage has occurred and what repair costs are necessary to eliminate it. The amount of a replacement value is also influenced by this.

28
Insofar as the LG Schweinfurt affirms a deletion claim in its decision of April 12, 2021, Ref. 23 O 809/20, this decision cannot be transferred to the present constellation. Contrary to the facts underlying the decision of the Schweinfurt Regional Court, the plaintiff in the present case did not provide any confirmation of repair. In the court's opinion, it is not only important that double billing is avoided, but that previous damage that has been repaired yourself can potentially affect the assessment of further damage and in particular the replacement value. This interest continues.

Interest and pre-litigation legal fees

29
In the absence of a main claim, there is also no entitlement to reimbursement of the pre-trial legal fees asserted as an additional claim.

Costs and provisional enforceability

30
The cost decision follows from Section 91 Paragraph 1 Sentence 1 ZPO.

31
The decision on provisional enforceability is based on Sections 708 No. 11 and 711 ZPO.

32
The amount in dispute results from the claim without including pre-litigation legal fees. Contrary to the defendant's opinion, the amount in dispute is set at EUR 1,000.00. It is a matter of registering higher repair damage. However, a corresponding reduction must be made since the repair damage is not claimed, but only an entry relating to it. This must be significantly less than the repair damage or a corresponding vehicle value.
</pre>