View source for LG Gießen - 2 O 186/22

{{COURTdecisionBOX

|Jurisdiction=Germany
|Court-BG-Color=
|Courtlogo=Courts_logo1.png
|Court_Abbrevation=LG Gießen (Germany)
|Court_Original_Name=Landgericht Gießen
|Court_English_Name=Regional Court of Gießen
|Court_With_Country=LG Gießen (Germany)

|Case_Number_Name=2 O 186/22
|ECLI=

|Original_Source_Name_1=OpenJur
|Original_Source_Link_1=https://openjur.de/u/2455784.html
|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=08.09.2022
|Date_Published=
|Year=2022

|GDPR_Article_1=Article 15 GDPR
|GDPR_Article_Link_1=Article 15 GDPR
|GDPR_Article_2=
|GDPR_Article_Link_2=
|GDPR_Article_3=
|GDPR_Article_Link_3=

|EU_Law_Name_1=
|EU_Law_Link_1=
|EU_Law_Name_2=
|EU_Law_Link_2=

|National_Law_Name_1=§ 242 BGB
|National_Law_Link_1=https://www.gesetze-im-internet.de/bgb/__243.html
|National_Law_Name_2=§ 254 ZPO
|National_Law_Link_2=https://www.gesetze-im-internet.de/zpo/__254.html
|National_Law_Name_3=§ 3 VVG
|National_Law_Link_3=https://www.gesetze-im-internet.de/vvg_2008/__3.html
|National_Law_Name_4=
|National_Law_Link_4=
|National_Law_Name_5=
|National_Law_Link_5=

|Party_Name_1=
|Party_Link_1=
|Party_Name_2=
|Party_Link_2=

|Appeal_From_Body=
|Appeal_From_Case_Number_Name=
|Appeal_From_Status=
|Appeal_From_Link=
|Appeal_To_Body=
|Appeal_To_Case_Number_Name=
|Appeal_To_Status=Unknown
|Appeal_To_Link=

|Initial_Contributor=Sara Horvat
|
}}

The Regional Court of Gießen dismissed a data subject's claim based on the right of access under [[Article 15 GDPR]] because the claim did not concern data protection interests but exclusively served the pursuit of benefit claims. 

== English Summary ==

=== Facts ===
The data subject contracted a private health insurance with the controller. The controller informed the data subject that their insurance premiums would increase. The data subject received the corresponding insurance certificates from the controller. Subsequently, the data subject unsuccessfully requested additional supplementary information about the increase of premiums. Consequently, the data subject decided to sue to controller, arguing that the controller is obliged to give them access to the supplementary information pursuant to [[Article 15 GDPR]]. Additionally, the data subject referred to other court proceedings which held invalid comparable premium increases from the same insurance company, to clarify the reasons for their claim for supplementary information.

=== Holding ===
The court dismissed the claim based on [[Article 15 GDPR]]. It held that the access request constituted an abuse of rights (Section 242 of the German Civil Code). According to this principle, an exercise of a right is not permitted if, among other things, the claimant takes advantage of a formal legal position or asserts something in which he or she has no self-interest worth protecting. 

According to the intention of the data subject, the requested information is to serve exclusively the pursuit of benefit claims. This is a purpose completely unrelated to the purpose of [[Article 15 GDPR|Article 15 GDPR]]. According to recital 63 of the GDPR, the right of access under [[Article 15 GDPR|Article 15 GDPR]] serves the data subject to be aware of the processing of their personal data and to be able to check its lawfulness. Thus, [[Article 15 GDPR|Article 15 GDPR]] is intended to enable a lawfulness check on data processing operations. The data subject should be able to assess the scope and content of the stored data. Moreover, the information received through [[Article 15 GDPR]] also serves to enable the data subject to exercise further rights under the GDPR, in particular the right to rectification under [[Article 16 GDPR|Article 16 GDPR]], the right to erasure under [[Article 17 GDPR|Article 17 GDPR]], and the right to restriction of processing under [[Article 18 GDPR|Article 18 GDPR]]. 

The court therefore rejected the claim of the data subject as the they had no relevant data protection interests: "not even as a reflex". 

== Comment ==
''Share your comments here!''

== Further Resources ==
''Share blogs or news articles here!''

== 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>
tenor

1. The lawsuit is dismissed.

2. The plaintiff bears the costs of the legal dispute.

3. The judgment is provisionally enforceable against security of 110% of the amount to be enforced.
facts

The parties argue about the effectiveness of contribution increases in private health insurance.

The plaintiff maintains private health insurance with the defendant for insurance certificate number ... .

As part of the contractual relationship, premium adjustments were made at times that are not known in greater detail. The defendant informed the plaintiff in writing about the premium increases and sent the corresponding insurance certificates or supplements to the insurance certificate.

After the plaintiff initially unsuccessfully requested information from the defendant on premium adjustments, the plaintiff requested the defendant to hand over the letters in a letter dated November 26, 2021, setting a deadline. The defendant refused the release of the documents in a letter dated December 9, 2021.

The defendant raised the objection of the statute of limitations.

The plaintiff claims that the defendant is entitled to a claim for information based on § 3 para. 3 VVG and Art. 15 DS-GVO regarding the years 2012 to the present day, to the effect that the defendant has to hand over the letter of increase to him. In addition, it is known from other proceedings against the defendant that increases in contributions were ineffective.

The plaintiff requests

1. To order the defendant to add supplements to the insurance policy for the insurance number ... relating to all premium adjustment letters and the associated accompanying letters to the supplements, relating to the period from 2012 to the present day, the original insurance policy, as well as the general insurance conditions on which the contract was concluded and Documents on any tariff changes to be handed over to the plaintiff.

2. Ordering the defendant to pay the plaintiff the total sum of unjustly paid increases in contributions resulting from the application for I. plus interest at a rate of 5 percentage points above the respective base interest rate since pendency.

3. Establish that the defendant

a) is obliged to hand over the benefits that it has drawn from the share of the premium that it has paid for the unjustly paid premium increases resulting from the application for 2.

b) has to pay interest on the uses to be issued according to 3. a) in the amount of 5 percentage points above the respective base interest rate since pendency.

The defendant requests

reject the complaint.

The defendant is of the opinion that the procedure by way of a step action is already inadmissible. According to no conceivable basis for a claim, the plaintiff was entitled to any claims for information.

For further details, reference is made to the pleadings submitted by the parties and the minutes of the oral hearing of August 15, 2022.
reasons

The action is inadmissible and, moreover, unfounded.

The linking of requests for information and unnumbered requests for benefits or requests for a declaration made by the plaintiff by way of a step action according to § 254 ZPO is inadmissible.

The provision of Section 254 ZPO allows, as an exception to Section 253 (2) No. 2 ZPO, to make a claim for benefits without a number of amounts pending by linking it with a request for information that specifies the number of the claim. The special feature of the step action does not consist in the admission of a claim combination in an action, but should above all bring the plaintiff to the benefit of the substantive effects of lis pendens, in particular those of § 204 para. 1 BGB. From the reference to Section 253 (1) No. 2 ZPO, which is expressed through the systematic arrangement in immediate succession, it follows that the purpose of Section 254 ZPO is not to make it easier for the plaintiff to conduct the case in general or to give him certainty to mediate about the success of a request for performance by bringing the dispute about the reason for the claim forward with a request for information. As a result, the requirement of certainty laid down by the legislature in Section 253 ZPO would be completely and ultimately devalued. It follows that in the context of a step action, the information is merely an aid to bring about the (still) lacking certainty of the entitlement to benefits (cf. BGH, NJW 2011, 1815 para. 8, beck-online; Zöller/Greger, ZPO, § 254 para. 6). On the other hand, the combination of an indefinite entitlement to benefits and a preparatory entitlement to information, which is characteristic of a step action, is not available if the information does not serve the purpose of determining the entitlement to benefits at all, but is intended to provide the plaintiff with other information about his legal prosecution that is not related to the determinability as such ( BGH, NJW 2000, 1645 [1646]; NJW 2002, 2952 [2953]).

Measured against this, the step action is inadmissible. The bundle of information requested by the plaintiff evidently serves to check for the first time whether there is a claim against the defendant at all. The fact that information about the amount of the adjustments and the naming of the tariffs is required as an individual element of the information bundle as a dependent sub-element cannot change this. In this respect, it is a dependent part of the application, which becomes clear from the fact that even if the amount is known, the reason for the claim would remain unclear. Because even if the amount of the increase was known, it would not be possible to check the formal legality.

The then inadmissible step action is to be reinterpreted as an objective accumulation of actions independent of the grading according to § 260 ZPO, if it can be assumed that the request for information should also be pursued independently of the grading (cf. BGH, judgment of 02.03.2000 - III ZR 65/99 ; BGH, judgment of April 18, 2002 - VII ZR 260/01 -, para. 21, juris; BGH, NJW 2002, 2952 (2953)); MüKoZPO/Becker-Eberhard, 6th edition 2020, ZPO § 254 marginal note 7). A reinterpretation means that the plaintiff has to quantify its payment request independently of the information being provided; otherwise this application is to be dismissed as inadmissible (cf. BeckOK ZPO/Bacher, 40th ed. 03/01/2021, ZPO § 254 para. 6).

The interpretation based on the criteria of §§ 133, 157 BGB shows that the plaintiff wants the requests for information in addition to the performance action and the (interim) declaratory action. In the present case, it cannot be assumed that she wanted to waive his request for information if she cannot assert it in a procedural manner. Accordingly, the unnumbered application for benefits and the vague application for a declaration are inadmissible due to violation of the requirement of certainty of § 253 Para. 2 No. 2 ZPO.

If one were to assume that the plaintiff's request for legal protection was reinterpreted as a claim for information, then the claim would also be unfounded.

The request for information is unfounded. The plaintiff already has no basis for a claim by virtue of which the defendant would be obliged to provide information under the present circumstances.

A claim from § 660 BGB does not exist, since the insurance contract represents neither a contractual relationship nor an agency contract.

A claim does not result from § 242 BGB. Because the claim derived from good faith requires - in addition to the contractual special relationship - ignorance on the part of the claimant - through no fault of his own. However, the plaintiff has made no submissions in this regard. She merely asserts that she is ignorant, since the documents at issue are not available. She does not explain how the alleged loss of the papers came about, so that no ignorance through no fault of her own can be determined.

The plaintiff's right to information cannot be successfully based on Section 15 GDPR in the present situation either. The objection of abuse of rights resulting from § 242 BGB is opposed to it. This is a principle that runs through the entire legal life and which, as a national form, also claims validity within the framework of Section 15 GDPR. According to this, the exercise of a right is u. a. not permitted if the claimant exploits a formal legal position or asserts something in which he has no self-interest worthy of protection (cf. Grüneberg in Palandt, BGB, 2021, § 242 para. 49 f.). These two aspects are present here cumulatively and condense into unfaithful behavior.

According to the will of the plaintiff, the bundle of information sought should only be used to pursue claims for benefits. This is a completely non-regulatory purpose. According to the recital of Art. 63 GDPR, the right to information from Art. 15 GDPR serves the data subject to be aware of the processing of his personal data and to be able to check its legality. Art. 15 GDPR is intended to enable the legality of data processing operations to be checked. The person concerned should be able to assess the scope and content of the stored data. The information also serves to enable the data subject to exercise other rights under the General Data Protection Regulation, in particular the right to rectification under Article 16 GDPR, to erasure under Article 17 GDPR and to restriction of processing under Article 18 GDPR ( cf. Cologne Higher Regional Court, decision of September 3, 2019 - 20 W 10/18).

The plaintiff has none of the aforementioned interests, not even as a reflex. According to his clearly expressed will, the request for information should be limited to examining any pecuniary claims against the defendant. The request of the plaintiff does not even apply to the title of the regulation, namely data protection. A request that has deviated so far from the regulatory content of a legal basis is not worthy of protection. In this context, it must be taken into account that the legislator did not want to create a situation-independent right of information for consumers vis-à-vis companies, which does not exist in general legal transactions. Rather, he has explicitly linked the information to be provided to the purpose of data protection (cf. recital 63 GDPR). The letters have also been sent to the plaintiff. In the interplay of presentation and counter-presentation, she did not substantiate that she received the letters (cf. Section 138 (3) ZPO).

§ 3 VVG does not help the plaintiff to succeed either. According to Section 3 (3) VVG, the policyholder can only request a replacement copy of the insurance policy if the original has been destroyed or lost for another reason. The plaintiff has already failed to substantiate the disputed loss of possession. Irrespective of this, the request would also be abusive because she would only get dependent partial information from the bundle of information, in which she says she is not interested. With the reply, she expressly made it clear that merely naming the increase amounts is not sufficient to substantiate a possible lawsuit. However, she does not receive the letters and leaflets that were decisively requested with the request for information via this provision.

The provision of § 3 Para. 4 VVG does not lead to the objective of the claim, because the policyholder can only demand copies of their own declarations, which is not the issue here.

Insofar as the plaintiff bases its request for information on § 810 BGB, this also does not lead to the goal of the claim, because § 810 BGB only allows inspection of documents - which is not requested here. Irrespective of this, the digitized documents of an insurance company are not documents because the declaration of ideas is not embodied.
</pre>