OLG Köln - 15 U 137/21

OLG Köln - 15 U 137/21
Court:	OLG Köln (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 15 GDPR Article 82 GDPR
Decided:
Published:
Parties:
National Case Number/Name:	15 U 137/21
European Case Law Identifier:
Appeal from:	LG Bonn (Germany) 15 O 356/20
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Rewis (in German)
Initial Contributor:	Sainey Belle

The Higher Regional Court of Cologne (OLG Köln) awarded a data subject €500 under Article 82(1) GDPR due to a controller's delayed response in providing the data subject information pursuant to Article 15(1) GDPR.

English Summary

Facts

In September 2016, the data subject instructed a lawyer (the controller) to handle her claim arising from a traffic accident. As part of the instruction, the controller had to collate and examine relevant documents and take any appropriate actions. The performance included the continuous processing of the data subject's personal data.

On 7 January 2020, the data subject requested information pertaining to the traffic accident claim from the controller under Article 15 GDPR. The information was provided 10 months later in October 2020. The data subject claimed that she had been psychologically burdened by the delay in receiving the information, that she had felt stress and concern about the handling of her traffic accident claim and was unable to move forward in the claim with her new legal representative. Consequently, she claimed compensation for non-material damage suffered by her under Article 82(1) GDPR.

Holding

First, the Higher Regional Court of Cologne (OLG Köln) considered whether Article 82(1) GDPR only covers damages that have arisen as a result of processing not in accordance with the GDPR or whether it also covers damages arising from infringements of any provision of the GDPR. It pointed out that Article 82(1) GDPR refers to an "infringement of this Regulation" in general. Although Recital 146 GDPR refers to "any damage which a person may suffer as a result of processing that infringes this Regulation", the concept of processing under Article 4(2) GDPR is broadly defined. It refers to disclosure by transmission, which may also include the provision of information such as in the case at hand. Lastly, the Court referred to Recital 60 which states that the principles of fair and transparent processing require that the data subject be informed of the existence of the processing operation and its purposes. Since data subjects are granted a corresponding right of access in order to be aware of the processing and to be able to verify its lawfulness, Article 82(1) GDPR should be interpreted as including any infringement of the Regulation, not just those relating to the processing of personal data. Hence, the Court held that breaches of obligations to provide information under Article 12(3) and Article 15 GDPR can also serve as a basis for a claim for damages.

Second, the Court examined whether the data subject had suffered non-material damage within the meaning of Article 82(1) GDPR. In light of Recitals 146 and 75 GDPR, it held that she had, as she had suffered loss of control over her data as well as potential economic loss arising from the loss of time crucial for the settlement of her traffic accident claim. The Court did not rule on whether a violation of a GDPR provision alone is sufficient or whether a proof of concrete damage is required, as the data subject provided comprehensive evidence of the non-material damage suffered by her. Similarly, the question of de minimis threshold was irrelevant in this case because the damage suffered was held to go beyond a mere triviality.

Taking into account that the controller did not did not make the data available to any third party, the court awarded the data subject damages of €500.

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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.

object

Late data protection information justifies a claim for damages under Art. 82 GDPR (here: 500 euros)

tenor

On appeal by the plaintiff, the judgment of the Bonn Regional Court of July 1, 2021 (15 O 356/20) is partially amended and the defendant is sentenced,

to indemnify the plaintiff from further pre-trial legal fees of EUR 216.40 in addition to the conviction in the first instance,
to pay the plaintiff an amount of 500 euros plus five percentage points above the base interest rate since October 9, 2020 for the delayed provision of data information,
to pay the plaintiff an amount of EUR 2,683.21.
The costs of the legal dispute in the first instance and second instance, including the costs incurred by the interveners, are borne by the defendant.

The judgment is provisionally enforceable without security. The defendant is waived to avert the enforcement of the plaintiff by providing security of 110% of the amount enforceable on the basis of the judgment if the plaintiff does not provide security of 110% of the amount to be enforced before enforcement.

The revision is allowed.

reasons

I
1
The plaintiff is suing her former lawyer - insofar as this is still of interest in the appeal proceedings - for payment of immaterial damages due to late data disclosure, for exemption from further out-of-court attorney's fees for the assertion of the data disclosure and for determination of the non-existence of a fee claim from the earlier mandate. With regard to the further details of the facts and the dispute as well as the first-instance applications, reference is made to the facts of the contested judgment.

2
The district court allowed the action in part and dismissed the remainder. The negative application for a declaratory judgment regarding a (further) compensation claim by the defendant in the amount of 1,499.81 euros from the invoice dated August 31, 2020 is justified, since the defendant was only entitled to a fee claim of 2,348.94 euros from this invoice, which was already due the advance payment received from him in the amount of EUR 4,671.11 is covered, which means that he cannot demand further payments. On the other hand, the plaintiff cannot claim damages under Art. 82 GDPR and the claim for exemption from extrajudicial legal fees only exists in the amount of 41.77 euros, because the object value for the data protection information is only 500 euros.

3
The plaintiff has appealed against this judgment and is pursuing her first instance applications to the extent of the rejection. In addition, as a new auxiliary request for the primarily requested referral of the legal dispute to the district court, she is now also asserting a claim for a declaratory judgment to the effect that the defendant is entitled to "no claims overall" from the invoice dated August 31, 2020.

4
The plaintiff claims that the legal fees of her legal representative for the pre-court assertion of the right to information (application for appeal re 1) were calculated on the basis of an object value of EUR 5,000 and not, as assumed by the regional court, of EUR 500. With regard to the second appeal, the regional court failed to recognize that there is a claim for damages under Art. 82 (1) GDPR in the event of any violation of the provisions of the General Data Protection Regulation and in this respect no “de minimis limit” has to be exceeded. Rather, the provision should be interpreted autonomously, regardless of the specifics of German law. An amount of at least 1,000 euros is appropriate for the delayed data disclosure of the defendant. With the appeal to 4), the plaintiff complains of a violation of her right to be heard, insofar as the district court treated the step action as inadmissible. It did not give any indication in this regard when the plaintiff expressly filed the application for 1) as a staged action in the oral hearing. For a staged lawsuit, however, it is sufficient that claims for damages are reserved. In addition, the application for 6) was also submitted as a further application in the step ratio. The plaintiff further asserts that - if the regional court had given her a corresponding notice - she would have made the application for 6) instead in the version of the auxiliary appeal for 5). The defendant was not entitled to any claims for remuneration from the invoice in question because it was formally incorrect and the defendant also provoked the termination of the mandate through continued inactivity. The plaintiff was therefore damaged insofar as she had to pay the fee for the processing of the same mandate to a new lawyer again.

5
In the appointment of May 19, 2022, the plaintiff declared that she would only pursue her original application for payment of monetary compensation for the delayed data disclosure in the amount of 500 euros. The application for 4) - aimed at remittal with regard to the step action in connection with data information and claims for damages/exemption - has been changed by the plaintiff into an application for payment of the fee received from the defendant in the amount of 2,683.21 euros.

6
The plaintiff therefore now requests

7
partially set aside the judgment of the Bonn Regional Court of July 1, 2021 (15 O 356/20) and

order the defendant to indemnify the plaintiff against further pre-trial legal fees of EUR 216.40,
to order the defendant to pay the plaintiff compensation for pain and suffering in the amount of 500 euros plus five percentage points above the base interest rate since lis pendens,
order the defendant to pay the total costs of the first-instance and second-instance proceedings,
order the defendant to pay her an amount of EUR 2,683.21,
alternatively to 4.
to determine that the defendant is not entitled to any claims against the plaintiff from its invoice no. 20-0805 of August 31, 2020, neither in the amount of 1,499.81 euros nor in a further amount from this invoice,
most helpful
to set aside the judgment of the Bonn Regional Court of July 1, 2021 (15 O 356/20) and to refer the matter back to the Bonn Regional Court for a new hearing and decision.
8th
The defendant requests

9
to dismiss the appeal.

10
With regard to the further submissions of the parties, reference is made to the pleadings exchanged in the appeal proceedings.

II.
11


12
The plaintiff's appeal is based on the (main) applications made in the oral hearing before the Senate according to § 533 ZPO and leads to an amendment of the contested decision to this extent.

13
1. The plaintiff's appeal is justified with regard to the exemption from further pre-court attorney's fees for the assertion of the claims for information under data protection law in the amount of EUR 216.40 requested with the appeal application for 1). Because the relevant fee claim of the plaintiff is - in this respect, the Senate refers to its decision of January 27, 2022 in the dispute value complaint proceedings (Az.: 15 W 55/21, Bl. 1649 f d.A.) - to be calculated from an object value of 5,000 euros and not from one of 500 euros, as the regional court used as a basis.

14
2. With regard to the "pain and pain" demanded with the appeal application for 2) for the delayed data disclosure, which, according to the plaintiff's detailed explanations, means a claim for damages for immaterial damage under Art. 82 Para. 1 DSGVO, the appeal is within the scope of the Plaintiff in the appeal proceedings further asserted claim of 500 euros from Art. 82 (1) and (2) GDPR. The Senate evaluates the reduction of the application by EUR 500 in the appointment as an (implicit) partial withdrawal of the appeal.

15
According to Art. 82 Para. 1 and 2 GDPR, every natural person who has suffered immaterial damage due to a violation of the GDPR is entitled to compensation from the person responsible.

16
a. A violation of the GDPR by the defendant as the person responsible according to Art. 4 No. 7 GDPR is given here.

17
According to Art. 15 Para. 1, Para. 3, Art. 12 Para. 3 Sentence 1 GDPR, the person responsible must provide the relevant information within one month of receipt of the request for data information (here: letter from the plaintiff dated January 7th, 2020). . The defendant only provided the information in the course of the proceedings in October 2020 and also only released the reference files at this point in time. In this respect, the Senate does not follow the opinion of the regional court that Art. 82 GDPR only covers damage that has arisen “through processing that does not comply with this regulation” and that this constitutes violations of the information obligations under Art. 12 Para. 3 or Art. 15 DSGVO cannot serve as a basis for a claim for compensation (cf. also LAG Hamm, judgment of May 11, 2021 - 6 Sa 1260/20, juris; also OLG Stuttgart, judgment of March 31, 2021 - 9 U 34/21 , juris para. 29; cf. also Weber, CR 2021, 379 with further references). Art. 82 Para. 1 GDPR speaks of a "violation of this regulation" and not of data processing contrary to the regulation. The Regional Court's view that this regulation contained in Art. 82 Para. 1 GDPR should then be specified - i.e. restricted - by Art. 82 Para be taken with sufficient certainty. Recital 146 also speaks of the fact that damage should be compensated that "a person suffers as a result of processing that is not in accordance with this regulation". However, the concept of processing in Art. 4 No. 2 GDPR is broadly defined and also includes, for example, "disclosure by transmission", which ultimately also includes the information at issue here. In addition, it follows from Recital 60 that the principles of fair and transparent processing require that the data subject is informed of the existence of the processing operation and its purposes. In return, she is granted a corresponding right to information (“easily and at reasonable intervals”) (cf. recitals 63 and 75) in order to be aware of the processing and to be able to check its legality. If, however, the protection of the data subject is to be strengthened in this regard through rights to information and information, and thus to ensure fairness and transparency in the processing operation, this speaks decisively for the obligation to pay compensation according to Art. 82 Para. 1 DSGVO for every violation of the provisions of the regulation apply.

18
b. This behavior of the defendant caused the plaintiff non-material damage within the meaning of Art. 82 (1) GDPR. In the present case, the controversial question of whether the violation of a provision of the GDPR is sufficient for a claim under Art. 82 (1) GDPR or whether it also requires the presentation and proof of concrete damage is not relevant (cf. Frankfurt Higher Regional Court , Judgment of March 2, 2022 - 13 U 206/20, juris with w.N.). In the present case, the plaintiff has presented comprehensively and unchallenged by the defendant what (immaterial) consequences the defendant's refusal to provide data had for her. These circumstances presented by the plaintiff are also sufficient to justify immaterial damage within the meaning of Art. 82 (1) GDPR. In the present case, the plaintiff primarily refers to the fact that she was psychologically stressed by the defendant's delayed data disclosure; she had felt stress and concern with regard to the settlement of her claims arising from the traffic accident. Against the background of the fact that the concept of damage according to recital 146 must be interpreted broadly and recital 75 lists examples of actions that can lead to compensation ("... if the processing leads to discrimination, identity theft or fraud, a financial loss , damage to reputation, loss of confidentiality of personal data subject to professional secrecy, unauthorized removal of pseudonymisation or other significant economic or social disadvantages if the data subjects are deprived of their rights and freedoms or are prevented from using the personal data concerning them to control..."), non-material damage to the plaintiff in the sense of such a "loss of control" over her data (cf. Korch, NJW 2021, 978; Bergt, in: Kühling/Buchner, DS-GVO/BDSG, 3rd ed 2020, Art. 82 para. 18b with further references; critical LG Munich I v. 2.9.2 021 - 23 O 10931/20, GRUR-RS 2021, 33318) and a threatening influence on their economic position, in particular a loss of time in connection with the settlement of the traffic accident damage with the opposing liability insurer, cannot be denied.

19
c. The question of a so-called minor reservation - insofar as it relates to the decision of the Federal Constitutional Court of January 14, 2021 (1 BvR 2853/19, NJW 2021, 1005; cf. also OGH of April 15, 2021 - 6 Ob 35/21x, ZD 2021, 631) at all - does not play a role in the present case because the impairments alleged by the plaintiff due to the defendant's delayed data disclosure go beyond a mere trifle. The plaintiff was left in the dark by the defendant for a not inconsiderable period of time about the further fate of the mandate and was not able to access the reference file for months, to gain knowledge of the content of the data stored there and the procedure relating to her to advance the new legal representative.

20
i.e. In terms of amount, the Senate considers the amount of EUR 500 ultimately claimed by the plaintiff to be sufficient and appropriate to compensate for the immaterial damage she suffered under Art. 82 (1) GDPR. In addition to the circumstances set out above, which, in combination with the defendant's willful conduct, speak in favor of the plaintiff, he took into account in favor of the defendant that the plaintiff's data had not been made accessible to any third party and that the question of a preventive function of the compensation in the present case was based on of the defendant's temporary illnesses resulting from the files does not play a decisive role and ultimately cannot justify higher compensation.

21
3. Finally, the plaintiff's appeal is also justified with regard to the appeal application to 4), regarding the amendment of the application in the appeal proceedings, there are no admissibility concerns.

22
The plaintiff has a claim against the defendant for payment of an amount of EUR 2,683.21 from § 812 para. 1 sentence 1 BGB because she has effectively terminated the legal contract existing between the parties and the defendant has asked her to reimburse him advance payments made by the legal protection and liability insurer. In view of the success of this application, a decision on the alternative applications 5) and 6) is not necessary.

23
a. The defendant has undisputedly at least payments from the liability insurer of the accident opponent (VHV Allgemeine Versicherung AG) in the amount of EUR 1,392.30 (page 1515 of the file) and from the legal protection insurer of the plaintiff (D. AG) for the processing of the mandate of the plaintiff. received in the amount of 1,290.91 euros (page 1514 of the file).

24
b. These payments made within the framework of the multi-person relationship are to be regarded as payments by the plaintiff to the defendant's claim for fees from the lawyer's contract within the framework of an unjust enrichment settlement. Because when these payments are objectively viewed by the opposing liability insurer or one's own legal protection insurer from the recipient horizon, taking into account the intended purpose of this service (cf. Martinek/Heine, in: Herberger/Martinek/Rüßmann/Weth/Würdinger, jurisPK-BGB, 9. Aufl., § 812 BGB (status: June 27th, 2022), para. 107; BGH, ruling of October 21st, 2004 - III ZR 38/04, juris), these each represent a performance by the plaintiff to the defendant's claim for fees .

25
c. In the relationship between the defendant and the plaintiff, there is no longer any legal basis for these services because the latter effectively terminated the initially existing legal contract dated September 8, 2016 and the defendant lost his entitlement to the fees for the activities he had already carried out as a result of this termination.

26
ah. The plaintiff terminated the mandate contract concluded on September 8, 2016 with the defendant in a letter dated January 7, 2020. The lawyer's contract is a service contract that deals with agency (§§ 627, 675 BGB) and can therefore be terminated by either party without reason or without notice (cf. BGH, judgment of March 7th, 2019 - IX ZR 221 /18, juris with further references; BGH, judgment of 16.7.2020 - IX ZR 298/19, juris).

27
bb In the event of such a termination by the client, the lawyer generally retains his right to remuneration in accordance with Section 628 Paragraph 1 Sentence 1 BGB to the extent that he has already provided services and statutory fee-related facts have been triggered as a result (cf. Section 15 Paragraph 4 RVG). In the present case, the plaintiff has also not obtained a claim for damages from § 628 Para. 2 BGB that can be offset against a claim for fees. Because regardless of the question of whether the behavior of the defendant in processing the mandate had the weight of an important reason within the meaning of Section 626 BGB (so-called culprit in dissolution), the two-week period of Section 626 para 2 BGB (cf. BGH, judgment of July 16, 2020 - IX ZR 298/19, juris). However, since the defendant has been inactive for a long time according to the plaintiff's own submissions and this behavior did not occur until two weeks before January 7th, 2020, a claim for compensation cannot be based on this.

28
cc However, the defendant's claim to fees for the work he has done so far in the mandate has lapsed because the plaintiff can base her termination on the defendant's behavior in breach of contract. If the client terminates the contract because the lawyer behaves in breach of contract, his entitlement to the fees for the previous services shall lapse, insofar as the client has no interest in the previous activity of the lawyer (§ 628 Para. 1 S. 2 BGB), he - as in the present case - now has to mandate another lawyer to settle the accident damage (cf. BGH, judgment of 29.9.2011 - IX ZR 170/10, NJW-RR 2012, 294 for a lawyer's contract). The burden of explanation and proof for the requirements of § 628 Para. 1 S. 2 Case 2 BGB falls on the employee because he refers to an exception to the basic remuneration obligation of § 628 Para. 1 S. 1 BGB (BGH, Urt. v. 29.3.2011 - VI ZR 133/10, NJW 2011, 1674 with further information).

29
(1) The defendant is accused of breach of contract within the meaning of Section 628 (1) sentence 2 BGB. Such a behavior requires culpable behavior within the meaning of §§ 276, 278 BGB (Federal Court of Justice, judgment of February 16, 2017 - IX ZR 165/16, NJW 2017, 3376), although according to the wording objectively non-contractual behavior would be sufficient. Not every minor breach of contract by the employee is sufficient to waive the claim for remuneration (Federal Court of Justice, ruling of March 7th, 2019 - IX ZR 221/18, juris). The right to terminate a service contract without notice replaces a right of withdrawal, which is excluded in the event of poor performance in the event of an insignificant breach of duty (§ 323 Para. 5 Sentence 2 BGB). A corresponding restriction must be made for the remuneration of canceled services of a higher nature (§§ 627, 628 BGB). It results from the prohibition of excessive amounts to be found in § 242 BGB, according to which certain serious legal consequences do not arise in the event of minor breaches of contract (BGH, judgment of 29.3.2011 - VI ZR 133/10, juris with further references). On the other hand, it is also not necessary for the breach of contract to be regarded as serious or as an important reason within the meaning of Section 626 (1) BGB (cf. BGH, ruling of July 16, 2020 - IX ZR 298/19 , juris; BGH, judgment of 29.3.2011 - VI ZR 133/10, NJW 2011, 1674 for a medical treatment contract). Such a restriction is not justified for the termination of a contract, which is usually characterized by a special relationship of trust. Corresponding restrictions arise neither from the wording nor from the history of the origin of the provision (cf. Protocols II p. 301 ff.). The decisions or comments quoted by the district court do not relate to behavior in breach of contract according to Section 628 Paragraph 1 Sentence 2 BGB, but to the claim for damages according to Section 628 Paragraph 2 BGB.

30
Taking these principles into account, it can be assumed that the defendant acted in breach of contract due to the plaintiff's undisputed submission regarding the very sluggish handling of the mandate from her point of view and the lack of proper communication about the course of the matter: The plaintiff sued the defendant in September 2016 with the regulation of their claims from the traffic accident of August 26, 2016. As part of this order, the defendant was responsible for collecting the relevant documents, examining them and then presenting the plaintiff's possible claims to the insurer of the other party involved in the accident and - if necessary - asserting them through legal action. The interest-based performance of the mandate includes both the speedy processing of the matter and the ongoing information of the client about the progress of the matter (cf. OLG Düsseldorf, decision of June 27th, 2011 - I-24 U 193/10, juris; OLG Hamm, judgment of July 10, 1986 - 28 U 20/86, juris). In addition to compensation for pain and suffering, the plaintiff's possible claims included loss of earnings due to delayed entry into the workforce, damage to the household and possible damage to property.

31
As evidenced by the reference file handed over by the defendant, it can be seen - among other things in combination with the other reference files for the mandates regarding the mother and sister of the plaintiff - that the defendant did not remain inactive overall, but did correspond with the insurer and made advance payments to the alleged damages in favor of the plaintiff. The files also show that the healing process for all those involved in the accident was quite lengthy and in some cases not yet fully completed. In addition, the behavior of the defendant did not lead to damage in the sense of a statute of limitations for the plaintiff's claims, since the opposing insurer issued a corresponding declaration in a letter dated November 5, 2020 (page 1545) with "Effect of a declaratory judgment that became final on the date of this letter". has submitted.

32
On the other hand, the defendant agrees with the plaintiff's submission that the processing within the total of 3 ½ years between the order and termination was slow despite complaints from the plaintiff, that there were problems in contacting the defendant, that the insurer announced that it would "close the case "And finally the defendant did not prepare/filed the lawsuit he had announced for March 2019 and he also canceled an appointment agreed for December 2019, did not substantiate. He only stated that there were still "appointments" in September and October 2019 - further presentation on these appointments, their result and possible agreements with the client to wait for future events before further activities are carried out towards the insurer or other bodies, there is not any. The reference file submitted by the defendant in the present proceedings also does not reveal any details on the specific course of the mandate or on communication with the plaintiff. For procedural reasons, however, the argument of the plaintiff can be assumed, according to which the defendant at least significantly "delayed" the mandate without giving reasons, at least from the client's point of view, due to the poor communication behavior. Furthermore, since he has not complied with the requirements of Section 50 (1) BRAO for keeping a reference file with the documents submitted in the present proceedings, he is incumbent on him in any case by way of the secondary burden of proof to provide a more detailed explanation of sufficient communication or contact with the plaintiff for the purpose Information about the previous or planned further course of the procedure. The norm of § 50 Para. 1 BRAO aims to ensure the minimum requirement of an administrative structure for legal work on the one hand and to create evidence for the lawyer and his client on the other. In this respect, it serves to protect the client, who receives evidence of any misconduct on the part of the lawyer with the reference file. Keeping a uniform reference file for different procedures therefore regularly represents a lack of organization on the part of the lawyer (cf. BGH, judgment of May 17, 2018 - IX ZR 243/17, juris; Fischer, WM 2019, special supplement no. 1, 3, 9 ).

33
(2) After termination, the plaintiff no longer has an interest in the previous activity of the defendant (§ 628 Para. 1 Clause 2 BGB). Even if she has not indicated - for example by express request or setting a deadline - with regard to the slow processing of the mandate from her point of view - caused by the poor communication behavior of the defendant - that she rejects further processing of the mandate by the defendant or ( legal) consequences, this does not preclude the application of § 628 Para. 1 Clause 2 BGB. Because within the framework of this provision, the sole decisive factor is whether the defendant has breached his contractual obligations and the services rendered up to the point of termination are of no value to the plaintiff because she terminated due to the loss of trust and her now commissioned lawyer in turn charges fees for processing the mandate has to be paid, which - the defendant has not stated otherwise - are not lower because the defendant has already partially processed the mandate.

34
4. The procedural ancillary decisions result from §§ 92 Section 2, 101 Section 1, 516 Section 3 ZPO with regard to the costs and from §§ 708 No. 10 Sentence 1, 711 ZPO with regard to the provisional enforceability. The revision was - limited to the plaintiff's claim for payment of damages for immaterial damage from the delayed data disclosure - allowed, since the question of whether such a delayed data disclosure alone can trigger a claim under Art. 82 GDPR has not been clarified by the highest court and is of fundamental importance meaning is.

35
Appeal amount in dispute: up to 2,500 euros until the application was filed on May 19, 2022 (1,000 euros for application 2) and 1,499.81 euros for application 4)), after that 3,183.21 euros (500 euros for application 2) and 2,683, 21 euros for the application for 4))