OLG Karlsruhe - 12 U 305/21

OLG Karlsruhe - 12 U 305/21
Court:	OLG Karlsruhe (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 12 GDPR Article 15 GDPR
Decided:	29.11.2022
Published:	16.12.2022
Parties:
National Case Number/Name:	12 U 305/21
European Case Law Identifier:
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	lrbw.juris.de (in German)
Initial Contributor:	Lejla Rizvanovik

The OLG Karlsruh confirmed the decision of a lower court and affirmed that an access request pursuant to Article 15 GDPR constitutes an abuse of rights when it is not motivated by data protection related concerns.

English Summary

Facts

The controller and defendant is a private company in the field of health insurance. The plaintiff is one of their costumers.

The insurance conditions of the defendant provided for its right to adjust the insurance premiums. At an unspecified time, the controller decided to do so. In response, the plaintiff sought information from the defendant about increased contributions to their private health and nursing care insurance. He requested information and documents regarding all contribution adjustments from January 1, 2011. The defendant refused the request.

Subsequently, the plaintiff engaged in court proceedings. He argued that he has lost the insurance certificates and accompanying documents from the years 2011 to 2020 but that the information is needed to calculate whether the increase of insurance premiums was legitimate. The plaintiff based his right to receive information, among other things, on Article 15 GDPR.

The plaintiff believed to have justified reasons to believe that the premium adjustments made by the defendant were illegal.

The court of first instance decided to reject the claim and reasoned that Article 15 GDPR would have to be "teleologically reduced" to the information listed in Article 15(1)(a)-(h) GDPR. Based on these provisions, data subjects only have the right to summaries of personal data but not concrete documents, files or records.

The data subject decided to appeal the court's decision.

Holding

The court of appeal upheld the decision of the lower court by stating that an access request about the contents of the documents used to justify the premium adjustments cannot be supported by Article 15 GDPR.

First, it pointed out that, according to Article 15 GDPR, controllers must provide a data subject with the personal data which is processed by them. The right of the data subject to receive information serves the purpose of becoming aware of the processing of the data and to checking its legality.

Second, the court deemed the plaintiff's use of Article 15 GDPR an "abuse of rights". Pursuant to Article 12(5) GDPR, controller may refuse access requests if they are "excessive". Whether the request was "excessive" in a narrow sense was unclear, however, this would be irrelevant as the court held that in a broader sense every request which is issued in the abuse of the law would be "excessive". This includes requests that solely aim to harass a controller, as the court deemed to be the case in the concerned proceedings. The purpose of Article 15 GDPR was for data subjects to obtain an overview of the personal data processed by a controller and to assess whether the processing was legal. In the case at hand, the plaintiff's access request was neither based on data protection aims nor any other legitimate purpose. According to the plaintiff's own submission, he has a statement of reasons by the controller for the insurance premium increases. As this is sufficient to review the lawfulness of the premium adjustments, the plaintiff does not have a need for the requested documents. Consequently, the request had to be considered an abuse of right.

The court also noted that it was unclear whether the documents requested are personal data pursuant to Article 4(1) GDPR and whether the request could be deemed "excessive" in a narrow sense, however, as the abuse of rights was already established, these questions became irrelevant.

In sum, the court rejected the plaintiff's claim.

Comment

This case is in stark contrast with the decision 8 U 165/22 by OLG Celle, which, in comparable circumstances, held that the motivation of a data subject's Article 15 GDPR access request is irrelevant to the legitimacy of the request.

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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.

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Karlsruhe Higher Regional Court judgment of November 29, 2022, 12 U 305/21
The policyholder's right to information in private health insurance about past premium adjustments

guiding principles

1. Section 242 of the German Civil Code entitles the policyholder to information about past premium adjustments and the documents sent to him in this regard, insofar as the corresponding supplements and documents are no longer available to him.

2. A further right to information about the content of the enclosures known to him and available for the premium adjustments (reasons and information sheets) does not follow from the GDPR either.

3. A staged lawsuit, with which the request for information is combined with requests for the ineffectiveness of an amount yet to be named and the repayment of an amount yet to be specified, is inadmissible. However, the request for information remains admissible as such.

tenor

1. Upon the plaintiff’s appeal, the judgment of the Mosbach Regional Court of September 9, 2021, Az. 7 O 40/20, is amended:

The defendant is sentenced to provide the plaintiff with information about all premium adjustments that the defendant made in the contract concluded between the parties in the years 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019 and 2020 for the insurance number has. The information must contain the following information:

a) the amount of the contribution adjustments, naming the respective tariffs in the insurance relationship of the plaintiff,

b) the information transmitted to the plaintiff for this purpose in the form of insurance certificates and supplements to the insurance certificate.

Moreover, the application is dismissed.

2. The further appeal is rejected.

3. The costs of the legal dispute are set aside against each other.

4. The judgment is provisionally enforceable.

5. The revision is not admitted.

reasons

 
I
1
The plaintiff requests information from the defendant about increases in contributions to his private health and long-term care insurance, determination of the ineffectiveness of the premium increases yet to be specified and their interest-bearing repayment.
2
The plaintiff has had private health insurance and long-term care insurance with the defendant since August 1, 1987. Tariff G… covers outpatient and inpatient treatment and dental treatment, Tariff S… covers daily hospital allowances. The contractual relationship is based on the MB/KK 2009. The insurance conditions of the defendant provide for the right of the insurer to adjust premiums under § 8b AVB.
3
By e-mail dated September 28/29, 2020, the plaintiff requested the defendant to provide information and send documents regarding all premium adjustments from January 1, 2011. In a letter dated October 1, 2020, the defendant rejected the request for information and claimed that the premium adjustments corresponded to the statutory provisions.
4
The plaintiff has submitted:
5
He had lost the insurance certificates and supplementary sheets sent to him from the years 2011 to 2020.
6
A procedural approach by way of a step action is permissible, since the information is required to quantify the application for benefits. According to §§ 3 Para. 4 VVG, § 810 BGB analogously, § 666 BGB and Art. 15 DS-GVO, the plaintiff is entitled to a claim for surrender and information. The plaintiff has reasonable grounds to assume that the premium adjustments made by the defendant were unlawful. Claims by the plaintiff from this are neither time-barred nor otherwise unenforceable.
7
The plaintiff has requested:
8th
1. The defendant is sentenced to provide the plaintiff with information about all premium adjustments from January 1st, 2011 until pendency, which the defendant made in the contract concluded between the parties with the insurance number ... and to provide suitable documents for this purpose, in containing at least the following information:
9
the amount of the contribution increases, naming the respective tariffs in the insurance relationship of the plaintiff,
10
the information transmitted to the plaintiff for this purpose from letters and supplements to the insurance policy, as well as
11
the information from the letter of justification and the supplementary sheets transmitted to the plaintiff for the purpose of increasing the contribution.
12
2. It is established that all increases in the plaintiff's health insurance rates, which the defendant made to the plaintiff's side within the framework of the existing health insurance relationship between them for the insurance number ..., and after the information was provided in accordance with the application for number 1, to be described in more detail are ineffective and the plaintiff is not obliged to pay the respective increase amount, as well as that the total amount due monthly for the future is to be reduced to an amount to be precisely quantified after the information has been provided in accordance with the first claim.
13
3. The defendant is sentenced to pay the plaintiff an amount to be quantified after the information has been provided in accordance with claim number 1 plus interest therefrom in the amount of five percentage points above the respective base interest rate since lis pendens.
14
The defendant has requested
15
reject the complaint.
16
She raised the objection of the statute of limitations and otherwise submitted:
17
The step action is inadmissible. The connection between requests for information and requests for performance required for § 254 ZPO is missing, since the information should only enable the plaintiff to assess whether he is entitled to a claim on the merits. In addition, the plaintiff is not entitled to a right to information from any legal point of view. The plaintiff does not have a legitimate interest in sending copies of all the documents requested. The plaintiff's claims are time-barred. For the start of the limitation period, the receipt of the letter of increase should be taken into account. With the statute of limitations for the main claims asserted, the need for information no longer applies. Contribution increases were made by the defendant in each case formally and materially effective.
18
The District Court dismissed the lawsuit. As a step action according to § 254 ZPO, the action is not admissible, since the information does not serve the plaintiff to quantify the application for benefits, but is only intended to enable the assessment of whether there is an ineffective premium increase at all and whether he is therefore entitled to claims. Claim number 1 can, however, be reinterpreted as an action for information brought in an objective accumulation of claims and is admissible as such. In contrast, the application for a declaratory judgment number 2 and the application for benefits number 3 are vague and therefore inadmissible. To the extent permitted, the complaint was not founded. The asserted right to information does not exist, in particular it does not result from Art. 15 Para. 1 DSGVO. The regulation can be teleologically reduced to the information specified in Art. 15 Para. 1 a to h GDPR and an aggregated information or summary overview of individual specific personal data; it does not justify a claim to copies of the relevant documents, files or files themselves. The claim does not result from § 242 BGB either. At best, the plaintiff was unclear about the scope of his claim because he had not taken care of the organization of his contract documents. He also failed to state conclusively why it was not possible for him to quantify the claim. In addition, due to a lack of interest in information, there is no right to information, insofar as the alleged claim to enrichment is statute-barred. Claims from the contribution years up to and including 2017 are time-barred.
19
The plaintiff objects to this with his appeal, in support of which he argues:
20
The step action is admissible; the provision of information is essential for the correct quantification of the application for benefits. The lawsuit is also well founded. The necessary information can only be found in the insurance certificates or their supplements. The right to information results from § 3 para. 3 sentence 1 VVG, which in the event of loss ensures the supply of information that older insurance policies may still have for the policyholder. The claim also follows from Art. 15 (1) GDPR, since the tariff premiums recorded in the insurance policies for the years at issue represent personal data within the meaning of the regulation. The premium amount is calculated individually for each tariff, so that the course of the premium amount has an identification character. The defendant's interests worthy of protection do not stand in the way of this. According to Section 242 of the German Civil Code, the plaintiff can also demand information because the supplements to the insurance policy are not available to him. Without this, he could not determine in which tariffs contribution adjustments had been made and whether the changed payment amount was due to a contribution adjustment that had to be justified. The absence of the documents is also excusable, there is no obligation to keep them. The asserted claim also results from § 810 BGB. According to the meaning and purpose of the provision, an inspection of the documents on the premium adjustment must be included as a minus in the claim or in analogous application of the provision. In addition, the defendant's obligation to keep records for the last ten years would be ineffective if the policyholder did not have a right to information for the same length of time. Any statute of limitations does not preclude the right to information because premium increases were wrongly received for the ineffective premium adjustments even after January 1st, 2017.
21
The plaintiff requests:
22
1. The defendant is sentenced to provide the plaintiff with information about all premium adjustments that the defendant made in the contract concluded between the parties in the years 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019 and 2020 for the insurance number ... has made and to provide suitable documents for this, which contain at least the following information:
23
a) the amount of the contribution adjustments, naming the respective tariffs in the insurance relationship of the plaintiff,
24
b) the information transmitted to the plaintiff for this purpose in the form of insurance policies and addendums to the insurance policy, as well as
25
c) the reasons given to the plaintiff for the purpose of adjusting the premium
26
2. It is established that all unilateral increases in the plaintiff's health insurance tariffs, which the defendant made to the plaintiff's side within the framework of the health insurance relationship between them for the insurance number ... of the years, and after the information was provided in accordance with the application for number 1 are to be specified more precisely, are ineffective and the plaintiff is not obliged to pay the respective increase amount, and that the total amount due monthly for the future is to be reduced to an amount that can still be precisely quantified after the information has been provided in accordance with the first claim.
27
3. The defendant is sentenced to pay the plaintiff an amount to be quantified after the information has been provided in accordance with claim number 1 plus interest therefrom in the amount of five percentage points above the respective base interest rate since lis pendens.
28
The defendant requests
29
to dismiss the appeal.
30
She defends the contested decision.
31
For the details of the facts, unless the Senate has made any deviating findings, reference is made to the judgment of the first instance and to the mutual pleadings of the parties together with annexes.
II.
32
The admissible appeal is only partially successful.
33
1. The lawsuit is only admissible to the extent of the appeal motion number 1.
34
a) The action is inadmissible as a step action within the meaning of § 254 ZPO.
35
aa) According to § 254 ZPO, the specific indication of the services claimed by the plaintiff can be reserved if the action for accounting or for the presentation of a list of assets or for the submission of an affidavit is combined with the action for the surrender of what the defendant made owes to the underlying legal relationship. Section 254 ZPO thus creates an opportunity to pursue an indefinite entitlement to benefits under certain conditions. The accounting pursued as part of the step action is merely a tool to bring about the (still) lacking certainty of the benefit claim. The combination of an indefinite entitlement to benefits and a preparatory right to information, which is characteristic of a staged action, is therefore not available if the information is not intended to determine the entitlement to benefits, but rather to provide the plaintiff with other information about his legal prosecution that is not related to the determinability as such (BGH , Judgment of April 18, 2002 - VII ZR 260/01, juris para. 16; Judgment of March 2, 2000 - III ZR 65/99, juris para. 18).
36
bb) It is the same here. The requested information does not only serve to determine the entitlement to benefits, but is intended to create the conditions for examining whether the plaintiff is entitled to a entitlement to benefits (cf. BGH, judgment of 02.03.2000 loc.cit., para. 19; OLG Nürnberg, judgment of March 14, 2022 - 8 U 2907/21, juris marginal note 34; OLG Dresden, judgment of March 29, 2022 - 4 U 1905/21, juris marginal note 62; OLG Hamm, decision of November 15, 2021 - I-20 U 269/ 21, juris para. 5).
37
b) The inadmissible step action as such is to be reinterpreted as a general accumulation of actions according to § 260 ZPO (cf. BGH, judgment of 03/29/2011 - VI ZR 117/10, juris marginal number 13; OLG Nürnberg loc. cit. marginal 35; OLG Dresden loc Rn. 63; OLG Hamm loc.cit. Rn. 6).
38
aa) The plaintiff's request for information pursued with the action and appeal motion number 1 is inadmissible as the first stage of a class action lawsuit. However, the plaintiff cannot be denied a legitimate interest - at least sufficient for the granting of legal protection - in the requested information. The question of whether he actually has a right to information against the defendant is not a question of the admissibility of the right to information, but of the merits (cf. BGH, judgment of 03/29/2011 loc. cit; judgment of 03/02/2000 - III ZR 65 /99, juris para. 22).
39
bb) On the other hand, the insufficiently specific complaints and appeals Nos. 2 and 3 are inadmissible (OLG Nuremberg, judgment of March 14, 2022 - 8 U 2907/21, juris para. 36).
40
The declaratory application number 2 is not aimed at the determination of a specific legal relationship within the meaning of § 256 Para. 1 ZPO, since it is left open to which increases in the years mentioned it refers and to what extent the total amount due to be reduced for the future is.
41
The benefit application number 3 is unnumbered and therefore indefinite (§ 253 Para. 2 No. 2 ZPO).
42
2. The only admissible appeal motion number 1 is only partially justified. The plaintiff can only request information about the amount of the premium adjustments, naming the respective tariffs and the information sent to him for this purpose in the form of insurance certificates and supplements to the insurance certificate. On the other hand, the plaintiff cannot assert a right to information about the letter of justification sent to the plaintiff for the purpose of the premium adjustments, since he has them according to his own submission.
43
a) The plaintiff can only base his request for information on the amount of the premium adjustments in the respective tariffs and the insurance certificate or the supplements to the insurance certificate on § 242 BGB, since he is only dependent on the information to this extent.
44
aa) Within the framework of a legal relationship, the debtor has an exceptional obligation to provide information in good faith if the entitled party is excusably uncertain about the existence and scope of his right and the obligated party can easily provide the information required to eliminate the uncertainty (Federal Court of Justice, judgment of 06/26/2013 - IV ZR 39/10, juris para. 24; BGH, judgment of 05.11.2002 - XI ZR 381/01, juris para. 28). Information can be requested if and to the extent that it can be assumed that there is a claim for payment, the enforcement of which the information is intended to serve (Senate, judgment of 06/28/2019 - 12 U 134/17, juris para. 83; judgment of 02/11/2015 - IV ZR 213/14, juris para. 24). There must be sufficient evidence for such a claim (Federal Court of Justice, judgment of June 26, 2013 loc. cit.; judgment of November 16, 2011 - VIII ZR 106/11, juris para. 11). The scope and content of the information to be provided depend on what information the entitled person needs in order to be able to assert his claim, insofar as this does not conflict with reasonableness or other limits (Federal Court of Justice, judgment of 26.06.2013 loc. cit. marginal number 25 with further references).
45
bb) According to these standards, the plaintiff has a right to information about the content of the insurance policy or the supplements to the insurance policy for the years in dispute (2011 to 2020), in particular about the resulting amount of premium adjustments.
46
(1) The plaintiff has a legitimate interest in the requested information for the purpose of reviewing his past, present and future obligation to pay contributions. The defendant cannot counter this by saying that according to the plaintiff's previous submissions, it is unclear whether and to what extent, due to ineffective premium adjustments in the past, pursuant to Section 812 (1) sentence 1 Var. 1 BGB claims against the defendant.
47
The defendant did not dispute the claimant's assertion that there had been premium adjustments in his contract in the years in question in accordance with Section 203 (2) VVG. The plaintiff does not have to justify the fact that these were ineffective for his right to information. The defendant is - at least when asserting the material ineffectiveness of the premium adjustments - in the context of a claim for enrichment for the effectiveness of the premium adjustments to present and prove (Federal Court of Justice, judgment of June 22nd, 2022 - IV ZR 193/20, juris para. 51 with further references). The same applies if the amount of the policyholder's obligation to pay premiums for the future is in question, which presupposes that premium adjustments in the past were formally and materially effective. The insurer bears the burden of presentation and proof of the effectiveness of the premium adjustment according to Section 203 (5) VVG, insofar as he wants to derive rights from it (Muschner in Langheid/Rixecker, VVG, 7th ed. Section 203 marginal number 67; MünchKomm-VVG /Boetius, 2nd ed. § 203 Rn. 1164). Furthermore, the Senate is aware of numerous proceedings against other insurers that premium adjustments according to Section 203 (2) VVG in the period at issue here were in many cases not justified in accordance with the requirements of Section 203 (5) VVG. Against this background, the plaintiff's assertion that the adjustments made in the years in question were ineffective is sufficient to justify the disputed right to information. The defendant has not yet substantiated this.
48
A claim for information is also not in conflict with the fact that the plaintiff, who has to present a premium increase to substantiate a claim for enrichment (Federal Court of Justice, judgment of June 22, 2022, loc. cit.), has not yet presented increases in specific tariffs. The disputed right to information serves to specify the amount of the claim and the amount of the future obligation to pay contributions.
49
For the right to information, it is irrelevant that the defendant invokes a statute of limitations for any claims for unjust enrichment by the plaintiff. The ineffectiveness of all premium adjustments in the period at issue here (2011 to 2020) can result not only in non-statute-barred claims for enrichment, but also in a reduced obligation to pay premiums for the future.
50
(2) The claimant is dependent on the supplements to the insurance certificate, in particular the resulting information about the amount of the premium adjustments, in order to be able to check and quantify claims for premium refunds and his future obligation to pay premiums. In this respect, he is excusably uncertain about his rights and obligations. He claims that he lost the insurance certificates sent to him from 2011 to 2020 and that they can no longer be found, which the defendant denies. With his declaration of loss, to the persuasion of the Senate, he has plausibly demonstrated that the supplements are no longer available to the plaintiff. The loss is also excusable (also OLG Stuttgart, judgment of November 18, 2021 - 7 U 244/21, juris para. 83). However, it is fundamentally up to the contracting party to carefully keep the documents sent to them if they may need them in the future for information about their rights and obligations under the contract. Good faith does not require the person requesting information to be spared effort at the expense of the person obliged to provide information (for this reason denying a claim under § 242 BGB: Cologne Higher Regional Court, judgment of May 13, 2022 - 20 U 295/21, juris marginal number 47; similarly also: OLG Hamm, decision of November 15, 2021 - 20 U 269/21, juris para. 15; OLG Dresden, judgment of March 29, 2022 - 4 U 1905/21, juris paras. 64, 72; OLG Munich, reference decision of November 24, 2021 - 14 U 6205/21, juris para. 58 ff.). However, the plaintiff did not see any reason to revoke the supplements to the insurance certificate in the long term. In any case, a legal layman does not have to recognize or even consider the possibility that the premium adjustments are ineffective and that he needs the supplements to the insurance policy for later assertion of repayment claims. The defendant, for its part, can easily provide the requested information.
51
cc) In contrast, there is no sufficient justification as to why the plaintiff is dependent on the requested information with regard to the justifications for the premium adjustments (application for appeal number 1 c). These are available to the plaintiff according to his own presentation. Even with the justification for the appeal, the plaintiff alone asserts his interest in sending the supplements to the insurance certificate.
52
b) The plaintiff cannot base a claim for information on the content of the information sheets used to justify the premium adjustment on Art. 15 (1) and (3) GDPR.
53
aa) According to Art. 15 (1) GDPR, the person responsible (Art. 4 No. 7 GDPR), i.e. the person who decides on the purposes and means of processing personal data within the meaning of Art. 4 No. 1 GDPR, has the data subject to provide information about this data. In accordance with Art. 15 Para. 3 Sentence 1 GDPR, he must make a copy of the data that is the subject of the processing available (free of charge). The data subject's right to information serves the purpose of being aware of the processing of the data and being able to check its legality (Federal Court of Justice, judgment of June 15, 2021 - VI ZR 576/19, juris para. 23 with reference to recital 63 p. 1 the GDPR).
54
bb) It can remain open whether the information sheets contain personal data within the meaning of Art. 4 No. 1 HS 1 DS-GVO (according to OLG Köln, judgment of May 13, 2022 - 20 U 198/21, juris para. 76; loc. cit.: OLG Hamm, decision of November 15, 2021 - I-20 U 269/21, juris para. 12). In any case, Art. 12 Para. 5 b) GDPR precludes a right to information. Accordingly, in the case of obviously unfounded or excessive requests, the person responsible can refuse to act on the request of the person concerned, in particular to provide information and a copy in accordance with Art. 15 (1) and (3) GDPR. An excessive application presupposes abusive behavior on the part of the applicant (Bäcker in Kühling/Buchner, GDPR, 3rd ed. Art. 12 para. 37). This includes, for example, applications that have the sole aim of harassing the person responsible (Heckmann/Paschke in Ehmann/Selmayer, GDPR, 2nd ed. Art. 12 para. 43; Bäcker loc. cit.).
55
That's how it is here. The defendant rightly refuses to provide the requested information with regard to the information sheets. The request for information is to be regarded as abusive, since it is obviously based on neither data protection nor any other legitimate objective. According to his own statement, the plaintiff has the opposing letter of justification, so that he does not need it for the purpose he is pursuing with his lawsuit - checking the legality of the contribution adjustments. The Senate does not ignore the fact that the plaintiff's knowledge of the documents to which the asserted claim relates does not in itself exclude the right to information under data protection law, since this enables the data subject to check the legality of the data processing, for example an examination of the correctness of the data, should enable (Federal Court of Justice, judgment of June 15, 2021 loc. cit. Rn. 25 with further references). However, the plaintiff does not pursue such a data protection objective with his disputed request for information. In particular, his request is not aimed at information as to whether the defendant is currently processing the information contained in the letters known to him, in particular storing them (cf. BGH loc. cit.); Rather, his sole request is to obtain information about the content of these letters already available to him.
56
In this respect, no decision is required as to whether an application is excessive if the plaintiff is not pursuing a purpose that falls under the protective purpose of Art. 15 (1) GDPR, but another - non-data protection, but legitimate - purpose (according to OLG Nürnberg, judgment of March 14, 2022 - 8 U 2907/21, juris para. 43 f.; left open by BGH, judgment of June 15, 2021 - VI ZR 576/19, juris para. 33). This question, which the Federal Court of Justice has already submitted to the European Court of Justice (BGH, ECJ submission of March 29, 2022 - VI ZR 1352/20, juris para. 12 et seq.), is not relevant here. The disputed request for information about the letter of justification available to the plaintiff is based neither on a data protection objective nor on any other legitimate purpose, so that it is to be regarded as vexatious and thus as abusive of the law.
57
c) Further claims for the request for information regarding the reasons given are not possible.
58
aa) According to Section 3 (4) sentence 1 VVG, the policyholder can request copies of the declarations that he has made with reference to the contract from the insurer at any time. The claim relates solely to declarations made by the policyholder or his representative (Rudy in Prölss/Martin, VVG, 31st edition § 3 marginal number 9; HK-VVG/Brömmelmeyer, 4th edition § 3 marginal number 29). Other contents of the insurer's files are not recorded (Rixecker in Langheid/Rixecker, VVG, 7th ed. § 3 paras. 6 and 9). This does not include the justifications sent to the plaintiff for the purpose of the premium adjustments.
59
bb) A claim from agency according to § 666 BGB in conjunction with § 675 paragraph 1 BGB is ruled out. The contractual relationship between the parties is neither to be qualified as an order nor as an agency. A corresponding application of § 666 BGB is also out of the question. The premium adjustment according to § 203 para. 2 VVG - unlike the determination of subscription rights (see Saarbrücken Higher Regional Court, judgment of May 17th, 2017 - 5 U 35/16, juris marginal number 41; Rixecker in Langheid/Rixecker, VVG, 7 10) - does not have an agency-like character that could justify a corresponding application of contract law.
60
cc) The right to information does not follow from § 810 BGB, which, in the case of a legal interest in inspecting a document in someone else's possession, justifies a right to permission to inspect against the owner. There is no legal interest with regard to the information letter available to the plaintiff.
61
dd) Contrary to the opinion of the plaintiff, no comprehensive and unconditional right of the policyholder to information or information follows from any commercial law storage obligation of the insurer according to § 257 HGB. Civil law claims cannot be derived from this, because the insurer's storage obligations under commercial law do not exclusively serve the interests of the policyholder (OLG Nuremberg, judgment of March 14th, 2022 - 8 U 2907/21, juris para. 45; OLG Munich, decision of November 24th 2021 - 14 U 6205/21, juris para. 66). Rather, § 257 HGB is a result of the regularity of the accounting and primarily serves to document the commercial activity and to protect creditors (MünchKomm-HGB/Ballwieser, 4th ed. § 257 HGB marginal number 1; Reich/Szczesny/Voß in Heidel/Schall , HGB, 3rd ed. Section 257 paras. 2 and 4).
III.
62
The decision on costs follows from Section 92 (1) ZPO. The decision on the provisional enforceability is based on §§ 708 No. 10, 713 ZPO.
63
The revision is not allowed. There is no reason for admission, in particular the matter has no fundamental importance within the meaning of Section 543 (2) sentence 1 no. 1 ZPO and therefore affects the abstract interest of the general public in the uniform development and application of the law, or if other effects of the legal dispute on the general public particularly affect their interests (cf. BGH, decision of 27.03.2003 - V ZR 291/02 , juris para. 5). A legal question needs to be clarified if different opinions are represented and the question has not yet been clarified by the highest court (BVerfG, decision of 08.12.2010 - 1 BvR 381/10, juris para. 12). This is missing here. The prerequisites for a right to information from § 242 BGB are clarified by the case law of the Federal Court of Justice cited above. The question of whether these requirements are met when claims for information are asserted to check the effectiveness of premium adjustments must be clarified by the judge on a case-by-case basis. The fact that other Higher Regional Courts have rejected a right to information (see above under II 2 a bb (2)) does not therefore require admission of the appeal. For the same reason, there is a lack of divergence on legal issues; the fact that appeal judgments come to different results in similar or identical facts and party submissions is not sufficient for this (cf. BGH, decision of September 16, 2003 - XI ZR 238/02, juris para. 2).
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For these reasons, the admission of the appeal is also not prompted by the fact that the Cologne Higher Regional Court based a right to information regarding the letter of justification/supplementary sheets on Art. 15 Para. 1, 3 DS-GVO (judgment of May 13, 2022 - 20 U 198/21 , juris para. 69 et seq.); In its decision, the Higher Regional Court of Cologne did not address the question of whether the request for information is to be regarded as abusive if neither a data protection nor any other legitimate purpose is being pursued in the individual case.