BGH - VI ZR 183/22

BGH - VI ZR 183/22
Court:	BGH (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 4(2) GDPR Article 5 GDPR Article 6 GDPR Article 82(1) GDPR
Decided:	28.01.2025
Published:	28.01.2025
Parties:
National Case Number/Name:	VI ZR 183/22
European Case Law Identifier:	ECLI:DE:BGH:2025:280125UVIZR183.22.0
Appeal from:	LG Koblenz (Germany) 12 O 59/21
Appeal to:	Appealed - Overturned OLG Koblenz (Germany) 5 U 2141/21
Original Language(s):	German
Original Source:	Juris.Bundesgerichtshof (in German)
Initial Contributor:	Sofia Papadopoulou

The Supreme Court of Justice (BGH) awarded €500 to the data subject for reputational harm, ruling that the Controller (telecom provider) violated Article 82 GDPR by unlawfully reporting disputed debt to SCHUFA and delaying its deletion.

English Summary

Facts

On 25 September 2018, the data subject signed a mobile phone contract witht the controller (telecom provider), which allowed an early renewal with a new 24-month term at a lower rate. On 27 December 2018, the data subject renewed the contract under the early renewal option. Controller's confirmation incorrectly stated that the previous contract ends in 2008 instead of 2018. The data subject later, on 6 January 2019, revoked the renewal, claiming withdrawal rights. The Controller kept on billing the data subject for contract-related charges, which remained unpaid. On 16 September 2019, the Controller reported the alleged unpaid debt to SCHUFA, although the debt was disputed and not legally confirmed, meaning that the disclosure should not have been made. Subsequently, on 27 September 2019, the Controller requested SCHUFA to delete the enty of the disputed debt, which eventually was not removed immediately. The entry remained for nearly two years, negatively impacting the data subject's creditworthiness. As a result, the data subject was even denied a bank loan, citing the SCHUFA record.

Given that, the data subject sued the Controller, claiming €6,000 in non-material damages under Article 82 GDPR for reputational harm. The Regional Court (LG Koblenz) denied the GDPR-based damages, ruling in favor of the Controller.

On 18 May 2022, the Higher Regional Court (OLG Koblenz) overturned its first ruling and awarded €500 in non-material damages for reputational harm.

Holding

The BGH clarified that non-material damages shall be interpreted autonomously in the EU and that GDPR damages serve a compensatory, not punitive function. It further upheld the OLG's decision and ruled that the SCHUFA entry was unlawful under Article 5 GDPR and Article 6 GDPR.

Comment

In this decision, we can see how the Federal Court of Justice explicitly confirms non-material damages (reputational harm) under GDPR and sets a good precedent for future cases, especially in the areas of credit scoring and financial data processing. This can be perceived as a good step towards enforcement of the GDPR provisions and data subjects' rights.

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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.

ECLI:DE:BGH:2025:280125UVIZR183.22.0
FEDERAL COURT OF JUSTICE
IN THE NAME OF THE PEOPLE
JUDGMENT
VI ZR 183/22
Announced on:
January 28, 2025
Holmes
judicial clerk
as clerk
of the office
in the legal dispute
Reference work: yes
BGHZ: no
BGHR: yes
JNeu: yes
GDPR Art. 82 para. 1
On the question of non-material damage within the meaning of Art. 82 para. 1 GDPR.
BGH, judgment of January 28, 2025 - VI ZR 183/22 - OLG Koblenz
LG Koblenz
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The VI. In the written procedure pursuant to Section 128 Paragraph 2 of the Code of Civil Procedure, taking into account written submissions received by December 31, 2024, the Civil Senate of the Federal Court of Justice by the presiding judge Seiters, the judge von Pentz, the judges Dr. Klein and Dr. Allgayer, and the judge Dr. Linder ruled: The defendant's appeal against the judgment of the 5th Civil Senate of the Koblenz Higher Regional Court of May 18, 2022 is dismissed at its expense. As a matter of law, the facts of the case: The parties are still arguing in the appeal proceedings about the amount of non-material damages for violation of the General Data Protection Regulation (GDPR). The defendant concluded a mobile phone contract with the plaintiff, a telecommunications company, on September 25, 2018. The contract gave the defendant the option of switching to a cheaper tariff in the event of an early contract extension of 24 months. The defendant exercised this option on December 27, 2018. The plaintiff's order confirmation dated December 27, 2018 states: "Your previous tariff ... with all inclusive services will cease to apply on December 27, 2008." The defendant revoked the "contract dated December 27, 2018" in a letter dated January 6, 2019. The plaintiff invoiced the defendant several times for amounts that the defendant did not pay. She claimed that she had revoked the contract and was not obliged to provide the service. On September 16, 2019, the plaintiff arranged for an entry to be made with SCHUFA to the detriment of the defendant; on September 27, 2019, she ordered the deletion of the entry. The entry was completely deleted in July 2021 at the earliest. With her lawsuit, the plaintiff requested that the defendant be ordered to pay €542 plus interest and additional costs. The defendant opposed the lawsuit and, by way of a counterclaim, requested that the plaintiff be ordered to pay non-material damages in accordance with Art. 82 GDPR in the amount of a partial amount of €6,000 plus interest and to inform SCHUFA that the conditions for reporting personal data and default on payment by the defendant had not been met and that all of the defendant's data provided by the plaintiff had to be deleted. The regional court granted the lawsuit in full and dismissed the counterclaim. On appeal by the defendant, the Higher Regional Court amended the regional court's judgment. It dismissed the action and, rejecting the further appeal, ordered the plaintiff to pay the defendant €500 less an amount of €54.74 recognized by the defendant on the claim as non-material damages plus interest. With the appeal allowed by the appeal court, the defendant is pursuing its claim for payment asserted by way of the counterclaim to the remaining extent.
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Reasons for the decision:
I.
The appeal court (OLG Koblenz, MDR 2022, 962) stated in support of its decision, as far as relevant for the appeal proceedings: The defendant is entitled to payment of non-material damages under Art. 82 (1) GDPR in the amount of €500. The plaintiff had violated her obligations under Articles 5 and 6 in conjunction with Article 4 No. 2 of the GDPR by reporting the defendant's personal data to SCHUFA, although the plaintiff's claims were disputed and had not yet been registered, and a report should therefore not have been made. The defendant had adequately explained the non-material damage she had suffered. She had stated that the data that had been passed on without authorization had been likely to significantly reduce her creditworthiness and make it more difficult for her to participate in economic life. For example, her bank had stopped her from granting a loan, and there was also a fear that she would be denied the right to purchase on account in future online transactions. The defendant had been stigmatized as an insolvent or at least unwilling customer by the illegal passing on of her data to SCHUFA and its publication. This damage to reputation must be compensated in accordance with Article 82 (1) GDPR.

An amount of €500 is appropriate and sufficient to satisfy the

compensatory and satisfaction function of the non-material damages on the one hand, and to take sufficient account of its general preventive function on the other. In order to determine the amount of the claim for non-material damages under Article 82 GDPR, in addition to the substantive seriousness of the

violation, its duration and the context in which the violation occurred,

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the compensatory, satisfaction and preventive function of the claim for damages as well as impending consequences must also be taken into account. In the end, however, the specific circumstances of the individual case are essential.

II.
The defendant's admissible appeal is unsuccessful. The considerations on which the appeal court assessed the non-material damages under Article 82 (1) GDPR at €500 are legally incorrect. Contrary to the view of the appeal, the appeal court should not have given greater weight to a deterrent effect when assessing the damages. Rather, it should not have taken this into account at all, but should have taken into account only a compensatory function of the damages. However, it is not apparent that this legal error would have had an effect to the detriment of the defendant. 1. In the absence of a reference in Article 82 (1) GDPR to the domestic law of the Member States within the meaning of this provision, the term "non-material damage" is to be defined autonomously under Union law
(established case law, ECJ, judgment of June 20, 2024 - C-590/22, DB 2024, 1676 para. 31
- PS GbR; Senate judgment of November 18, 2024 - VI ZR 10/24, DB 2024, 3091
para. 28; each with further references). According to Recital 146, sentence 3 of the GDPR, the concept of
damage should be interpreted broadly, in a manner that fully corresponds to the objectives of this
Regulation (Senate judgment of 18 November 2024
- VI ZR 10/24, DB 2024, 3091 para. 28).
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According to the case law of the Court of Justice of the European Union,
the claim for damages laid down in Article 82 (1) of the GDPR
has an exclusively compensatory function. Contrary to the opinion of the
appellate court and the appeal, it does not fulfil a deterrent or even a punitive function (ECJ, judgment of June 20, 2024 - C-182/22 and C-189/22, NJW 2024, 2599
para. 23 - Scalable Capital; Senate judgment of November 18, 2024 - VI ZR 10/24,
DB 2024, 3091 para. 18; each with further references).
In view of the compensatory function of the claim for damages provided for in Article 82 GDPR, as expressed in Recital 146, sentence 6 GDPR, monetary compensation based on Article 82 GDPR is to be regarded as "full and effective" if it makes it possible to fully compensate for the damage actually suffered as a result of the violation of this regulation (cf. ECJ, judgment of 20 June 2024 - C-182/22 and C-189/22, NJW 2024, 2599 para. 24 - Scalable Capital; Senate judgment of 18 November 2024 - VI ZR 10/24, DB 2024, 3091 para. 96 with further references). Since the claim under Article 82 (1) GDPR has neither a deterrent nor a punitive function, neither the severity of the violation of the General Data Protection Regulation that caused the damage in question may be taken into account, nor the fact of whether the action was culpable (see Senate judgment of November 18, 2024 - VI ZR 10/24, DB 2024, 3091 para. 96 with further references). 2. As non-material damage, the appeal court took into account, on the one hand, the
passing on of the defendant's personal data to SCHUFA, which
in the context of any SCHUFA queries led to an entry at SCHUFA that was visible to an unknown number of
third parties to the detriment of the defendant (see on the loss of control over personal data as non-material damage ECJ, judgment of 4 October 2024 - C-200/23, juris
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paras. 145, 156 in conjunction with 137 - Agentsia po vpisvaniyata; Senate judgment of 18 November 2024 - VI ZR 10/24, DB 2024, 3091 para. 30 with further references). On the other hand, it took into account that the entry in the SCHUFA affected the defendant's creditworthiness and that, according to the unchallenged findings of the appeal court, this had already had a detrimental effect on the defendant, as her main bank had temporarily stopped granting loans. Any material damage resulting from this is not, however, the subject of the action.
3. The appeal has neither claimed nor is it apparent that the amount of €500 awarded by the appeal court was insufficient to compensate for the defendant's non-material damage. When assessing the amount of damages, the appeal court took into account not only the group of those who had access to the plaintiff's personal data in the SCHUFA, but also the duration of the entry and its consequences for the defendant. To the extent that the appeal court wrongly justified the amount of the damages awarded with a compensatory and general preventive function of the damages, it is not apparent that this legal error had a detrimental effect on the defendant. Because these considerations have at most led to the appeal court awarding the defendant higher damages than it would have considered appropriate
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if it had only taken into account the compensatory function of the non-material damages
according to Art. 82 Para. 1 GDPR.
Seiters von Pentz Klein
Allgayer Linder
Lower courts:
LG Koblenz, decision of October 29, 2021 - 12 O 59/21 -
OLG Koblenz, decision of May 18, 2022 - 5 U 2141/21 -