LG Kassel - 5 O 1954/21

LG Kassel - 5 O 1954/21
Court:	LG Kassel (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 15 GDPR
Decided:	05.07.2022
Published:
Parties:
National Case Number/Name:	5 O 1954/21
European Case Law Identifier:	ECLI:DE:LGKASSE:2022:0705.5O1954.21.00
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Buergerservice Hessen (in German)
Initial Contributor:	n/a

The Regional Court Kassel (LG Kassel) held that an access request under Article 15 GDPR for non-data protection related purposes constitutes an abuse of rights as this request is not covered by the protective purpose of the GDPR.

English Summary

Facts

An insurance policy holder (the claimant) had a private health insurance with an insurer (the defendant). After the defendant made certain premium adjustments within the framework of the existing health insurance contract, the claimant initially unsuccessfully requested information on premium adjustments from the defendant. The claimant then asserted that he had the right of access to information from the defendant under Article 15 GDPR concerning the years 2018, 2019, and 2020 to the effect that the defendant had to inform him of the amount of the respective premium adjustments and the information transmitted for this purpose in the form of insurance certificates.

Holding

The Regional Court Kassel (LG Kassel) first considered if the amount of a health insurance premiums constituted personal data. It held that it could not be regarded as personal data as it does not reflect the individualized insurance protection of the insured persons, taking into account their health conditions. It merely provides information on the price of the insurance cover for a particular person as laid down in the insurance contract. Even though there are individual tariffs for the premium amounts, it does not enable the identification of an individual. Therefore, the amount a person spends on their health insurance cannot be regarded as personal data. Consequently, the claimant had no right to access under Article 15 GDPR.

Second, the Court considered whether the claimant could have invoked their Article 15 GDPR rights if the data in question had been personal data. It held that, in light of Recital 63 GDPR, the intent and purpose of the right of access is to make the data subject aware of the processing of personal data and enable them to verify the lawfulness of data processing. The claimant, however, invoked Article 15 GDPR exclusively to examine and check the premium adjustments made by the defendant for possible mistakes which the protective purpose of the GDPR does not cover. Consequently, the Court held that such use of Article 15 GDPR would amount to an abuse of rights and hence is not allowed.

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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.

tenor

    1. The lawsuit is dismissed.

    2. The plaintiff has to bear the costs of the legal dispute.

    3. The judgment provisionally enforceable. The plaintiff is allowed to avert enforcement by the defendant by providing security of 110% of the enforceable amount if the defendant does not provide security in the amount of Pay 110% of the amount to be enforced.

facts

    The plaintiff objects – including by way of a step action – against the increases in the contributions relating to certain tariffs within the framework of the defendant’s existing private health/nursing care insurance contract.

    The plaintiff has had private health insurance with the defendant since July 1, 1985,

    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 on premium adjustments from the defendant, the plaintiff requested the defendant in a legal letter dated August 5, 2021, setting a reasonable deadline for repayment and reduction due to ineffective premium adjustments, including the benefits derived from them. The defendant did not comply with the request.

    The defendant raised the objection of the statute of limitations.

    The plaintiff says that he stands against the defendant based on Art. 15 DS-GVO, § 242 BGB,
    § 810 BGB resulting right to information regarding the years 2018, 2019, 2020 to the effect that the defendant has to inform him of the amount of the respective premium adjustments, the information transmitted for this purpose in the form of insurance certificates and supplements to the insurance certificate as well as the amount of the triggering factors. Without the information asserted with the request for information, the plaintiff could not assess whether premium adjustments in years in which the defendant provided proper justifications within the meaning of Section 203 (5) VVG already lack an effective basis for authorization and therefore for other - material - reasons are ineffective. Such ineffectiveness for material reasons can always be considered if the triggering factor "insurance benefits" on which the premium adjustment is based was between 5-10%. The premium adjustment notifications from the defendant in the years 2018 up to and including 2020 would not meet the formal requirements of Section 203 (2) VVG. The plaintiff is therefore aware of a claim for repayment, but it is unknown how high and in which tariffs these premium adjustments were made in detail.

    The plaintiff claims that tariff S335 had a contribution increase of 01/01/2016 in the amount of 0.62 € took place. He believes that the corresponding notifications by the defendant regarding the premium adjustment for 2016 would not meet the requirements of Section 203 (5) VVG.

    After the plaintiff initially announced that he would only receive information about the respective amount of the triggering factors for the contribution increases since 2018, the determination of the new assessments still to be specified according to application to 1) and the payment of an amount to be quantified after the information was given, exclusively by way of a step-by-step lawsuit, as well as corresponding To request uses (for the details, reference is made to p. 2 of the statement of claim), the plaintiff switched to a numbered partial claim in a letter dated December 28, 2021, cumulated with an unnumbered step-by-step claim (cf. p. 54 ff. of the case). Then, in a letter dated June 1, 2022, the plaintiff announced – as in the statement of claim – that he intended to proceed by way of a step action (cf. p. 132 et seq.). Ultimately, in a letter dated June 9th, 2022 (page 154 et seq.), the plaintiff changed his applications to a numbered partial claim, cumulated with an unnumbered step-by-step claim.

    The plaintiff now requests

    1. It is determined that the following reassessments of the premiums in the health/care insurance existing between the plaintiff and the defendant with the insurance number "..." are ineffective:

    · the increase of the contribution in tariff S335 from 01/01/2016 in the amount of €0.62

    and the plaintiff is not obliged to pay the respective difference, and the total amount must be reduced by a total of €0.62, taking into account the reductions that have taken place.

    2. The defendant is sentenced to pay the plaintiff €44.64 plus interest therefrom in the amount of five percentage points above the respective base interest rate from lis pendens.

    3. It is established that the defendant,

    a) the plaintiff is obliged to hand over benefits that it has drawn from the premium share that the plaintiff has paid for the premium increases listed under 1),

    b) has to pay interest on the benefits to be released according to 3a) in the amount of five percentage points above the respective base interest rate from pendency

    4. The defendant is sentenced to provide the plaintiff with information about all premium adjustments made by the defendant in the contract concluded between the parties in the years 2018, 2019, 2020 for insurance number "..." and to provide suitable documents for this purpose , which contain at least the following information:

    · The amount of the contribution adjustments for the years 2018, 2019, 2020, naming the respective tariffs in the insurance relationship of the plaintiff side,

    · The information transmitted to the plaintiff for this purpose in the form of insurance policies and supplements to the insurance policy for the years 2018, 2019, 2020, and

    The reasons for the years 2018, 2019, 2020 sent to the plaintiff for the purpose of adjusting the premium

    5. The defendant is sentenced to provide the plaintiff with information about the amount of the triggering factors for the recalculation of the premiums in all former and current tariffs of the insurance contract with the insurance number "..." for the last 10 years.

    6. To order the defendant to pay the plaintiff an amount still to be quantified after the information has been provided in accordance with the application for 4), plus interest therefrom in the amount of five percentage points above the respective base interest rate since lis pendens.

    7. The defendant is sentenced to return to the plaintiff the uses in the amount still to be quantified after the information has been provided in accordance with the application for 4), which the plaintiff paid for the contribution adjustments to be listed.

    8. The defendant is sentenced to indemnify the plaintiff with regard to the out-of-court legal prosecution costs of €713.76 plus interest of five percentage points above the respective base interest rate since lis pendens.

    The defendant requests

    reject the complaint.

    The defendant believes that proceeding by way of a step action is already inadmissible. In particular, this would not serve to quantify their claim. In the present case, the requested information would serve the legal examination of whether the claims mentioned in the subsequent applications exist at all. This purpose lies outside of § 254 ZPO. It is undisputed that the quantification is possible without further ado, since the plaintiffs are aware of all the premium adjustments and thus all the difference amounts. The plaintiff has no conceivable basis for any claims to information, even in substance.

    To the extent that the plaintiff claims that tariff S335 as of January 1, 2016 is a contribution adjustment, this is wrong. Rather, according to Annex B1 (page 151 of the case file), the increase in the contribution – insofar as this ultimately remained unchallenged – is due to a reduction in the credit granted in the previous year in the amount of 3.02 € based, which is withdrawn from the legal review. The assertion of a premium adjustment in the EBE tariff is also recognizable in the dark, in which premium adjustments were made neither on May 1st, 2018 nor on January 1st, 2019.

    The court issued instructions and in particular asked for the supposed notification letter to be sent regarding the claimant's alleged increase in premiums as of January 1st, 2016 in tariff S335. The plaintiff failed to do so.

    For further details of the facts and the dispute, reference is made to the content of the exchanged briefs and attachments.

Reasons for decision

    I

    The lawsuit is to 4.-7. already inadmissible and otherwise (in any case) unfounded.

    1.

    The plaintiff has no claim against the defendant for reimbursement of the increased amounts paid pursuant to Section 812 (1) sentence 1 Var. 1 BGB still to the desired determinations (applications to numbers 1.-3.).

    Because according to the arguments of the parties, it can be assumed that the plaintiff's applications for numbers 1.-3. Challenged increase in contributions in tariff S335 on 01/01/2016 in the amount of 0.62 was not a premium adjustment within the meaning of § 203 VVG, so that it is not subject to review by the court.

    In this respect, the defendant submitted - which remained unchallenged - that this increase in contributions was based solely on a reduction in the credit granted in the previous year. In addition, it has submitted Annex B1, from which that circumstance unequivocally emerges; since the plaintiff's mere sweeping assertion that it is a matter of a premium adjustment within the meaning of Section 203 VVG is already irrelevant, Section 138 (2) ZPO. This applies all the more since the plaintiff does not comment further on the court's corresponding notice - which preceded the above submissions by the defendant - that the alleged increase in contributions could not be reviewed by the court anyway in the absence of a letter of increase in contributions and that the relevant documents may be submitted accordingly taken.

    2.

    a)

    The claims for claims 4.-7.. and 4. asserted by way of a step action in accordance with § 254 ZPO - determination of the ineffectiveness of all of the plaintiff's defendant made and after the issuance of the information requested with the application for numbers 4 and 5 to be specified in more detail Increases in premiums and payment of the amount yet to be quantified, as well as usage plus interest - are already inadmissible. Because these describe neither the object of the desired determination or release of use nor the amount of the desired payment, § 253 Para. 2 No. 2 ZPO (cf. OLG Munich loc /20, BeckRS 2021, 40428 para. 39).

    In particular, there is nothing different in this case from § 254 ZPO.

    With the institution of the step action according to § 254 ZPO the plaintiff should not generally be made easier to conduct the case, but only contrary to the provision of § 253 Section 2 No. 2 ZPO an indefinite application should be allowed. The inability to provide specific information about the service claimed by him at the last stage of his lawsuit must be based on the circumstances about which he is requesting information at the first stage, or the request for information must serve to prepare the specific information to be provided at the last stage (cf. BGH, judgment of March 29, 2011, VI ZR 117/10). The connection of § 254 ZPO, on the other hand, is not available if the information does not serve the purpose of determining the entitlement to benefits at all, but rather the plaintiff is to be provided with other information about the legal prosecution that is not related to the determinability (cf. BGH, judgment of March 2, 2000, III ZR 65/99). Accordingly, the step action brought by the plaintiff is inadmissible. Because the plaintiff did not seek to merely quantify a specific benefit claim or to specify it in any other way (comparable to the quantification) with the information (claim for claim 1) - unlike this merely repeated formulaically. Rather, the plaintiff also requests the information with the aim of determining whether there is a claim against the defendant at all due to formal or material ineffectiveness; he therefore requests that his claims be named in the first place (also OLG Munich reference decision of November 24th, 2021 - 14 U 6205/21, BeckRS 2021, 40311 para. 58; OLG Hamm, decision of November 15th, 2021 - I-20 U 269 /21; OLG Dresden, judgment of March 29, 2022 – 4 U 1905/21).

    3.

    The then inadmissible step action is to be reinterpreted as an accumulation of actions (§ 260 ZPO) (BGHZ 189, 79-87, para. 13). However, the independent and admissible claim for information (claim for action to 4) is unfounded.

    a) In particular, the right to information does not result from Art. 15 GDPR.

    On the one hand, the tariff premiums are not personal data within the meaning of this provision, nor is the provision intended to enable the policyholder to assert pecuniary claims. In this respect, the court makes the following convincing statements by the OLG Munich reference decision v. 24.11.2021 - 14 U 6205/21, BeckRS 2021, 40311 Rn. 36-50 own:

    4.2.1 The tariff premiums are not personal data within the meaning of this provision.

    Contrary to the justification for the appeal on page 19, they do not document “the individualized insurance protection of the insured person, taking into account the state of health”, but only provide information about the price of the provision realized by the insurance contract for this person. What the person spends on the insurance benefit is not to be counted as personal data. If "the calculation of the contribution amount for each tariff individual duel" takes place, this does not make the premium amount an indication that enables a specific person to be identified.

    Whether, in the case of a change in risk premiums that are directly linked to previous illnesses or previous health examinations, a personal statement template (reason for appeal page 19 below) can remain open here, since it has not been stated that this is the case in individual cases.

    The information on which premiums a policyholder has paid (even in several consecutive years) does not have the same quality as the reasoning for the appeal (page 20 above) wants to use for comparison ("information on the insurance account, call notes and telephone memos, regulated benefits, submitted prescriptions correspondence stored and invoices").

    4.2.2 Apart from all this, the meaning and purpose of Art. 15 Para. 3 GDPR is not the office-like structured processing of the policyholder’s documents for the insurer by the insurer with the aim of enabling the policyholder to subsequently assert pecuniary claims if he did not keep documents.

    Rather, the GDPR aims to ensure that the data subject in each case effectively monitors what data the person responsible has and what happens to it The right to information is intended to support personal rights from Section 3, such as claims for deletion.

    Even if one were to judge this differently, the defendant would have a right of refusal under Art. 12 (5) sentence 2 b) GDPR, since it is a question of an application that violates the law. Based on recital 63 sentence 1 DS-GVO, the data subject’s right to information regarding the personal data concerning them serves the purpose of being aware of the processing and being able to check its legality (cf. BGH, judgment of June 15th, 2021, VI ZR 576 /19). According to his own submissions, however, the plaintiff is not concerned with such awareness for the purpose of checking the admissibility of the processing of personal data under data protection law. Rather, as already explained, this is only about being able to check the premium adjustments made by the defendant for possible formal or material deficiencies. However, such a procedure is not covered by the protective purpose of the GDPR (cf. only OLG Hamm, decision of 15.11.2021 - 20 U 269/21; now also OLG Dresden, loc.cit.).

    b) Section 242 of the German Civil Code also does not give rise to any right to information.

    A right to information based on the point of view of good faith presupposes that the legal relationships existing between the parties entail that the entitled person is excusably uncertain about the existence or scope of a right and the obligated person is in a position to easily provide the information required to eliminate this uncertainty (see BGH, judgment of August 1, 2013 - VII ZR 268/11). However, that is lacking here.

    It is undisputed that the plaintiff received the documents from the defendant at the time, which gave him information about which tariffs are being adjusted and in which cases the tariff has changed for reasons other than an adjustment. The fact that they may no longer be available to him does not excuse his uncertainty. Reasons for this are not transparently stated (cf. Higher Regional Court Munich reference decision of November 24th, 2021 - 14 U 6205/21, BeckRS 2021, 40311 para. 58; Higher Regional Court Hamm, reference decision of November 15th, 2021 - I-20 U 269/21; Higher Regional Court Dresden, loc.cit.).

    c) Contrary to the plaintiff's view, such a right to information does not result from § 810 BGB. The legal consequence of the provision is a right to inspect files. The transmission of documents that have been compiled in a structured manner and in this respect systematically prepared is neither identical to an inspection of files nor is one of them a negative of any kind.

    d)

    Furthermore, the plaintiff is not entitled to any information against the defendant regarding the respective amount of the triggering factors for the recalculation of the premiums in all former and current tariffs of the insurance contract for the last 10 years from § 242 BGB (application for number 5.).

    Because such a claim would in any case presuppose that there is an overriding probability of the claim for benefits to be prepared with the corresponding information. This is missing here. Because the plaintiff's argument that any premium adjustments that were triggered by a threshold deviation in the calculation basis for insurance benefits that are not above the statutory threshold of 10%, but above 5%, are ineffective is not valid.

    Any premium adjustments that have been triggered by a threshold value deviation in the calculation base for insurance benefits that are not above the statutory threshold of 10% but are above 5% are effective.

    It can be left open whether the regulation in § 8b paragraph 2 AVB is ineffective, according to which a premium adjustment can be refrained from if the insurer and the trustee agree that the change in the insurance benefits is to be regarded as temporary. Even if this were the case, this would not mean that the provision in § 8b Para. 1 AVB would also be ineffective, which allows an adjustment - as here - even with a deviation of more than 5% (so now finally clarified by: BGH, judgment of June 22nd, 2022 - IV ZR 253/20).

    According to Section 306 (1) of the German Civil Code, the contract remains in effect if the general terms and conditions are partially ineffective. According to the case law of the Federal Court of Justice, regulations in general terms and conditions that are separable in terms of content and can be understood individually can also be the subject of a separate effectiveness check if they are in an external linguistic connection with other - ineffective - regulations. Only if the part that is to be regarded as effective in the overall structure of the contract no longer makes sense, in particular the part of the clause objected to as being ineffective is of such drastic importance that one has to speak of a completely new contract design that differs completely from the previous one, does the ineffectiveness of the partial clause affect the entire clause . The substantive separability of a clause and thus its division into a substantively permissible and a substantively inadmissible part is always given if the ineffective part of the clause can be deleted without affecting the meaning of the other part (blue pencil test). Whether both provisions relate to the same subject matter is irrelevant (cf. BGH, for example, judgments of March 31, 2021 - IV ZR 221/19 para. 64 and of February 13, 2020 - IX ZR 140/19 para. 26).

    Taking these standards as a basis, the regulation in Section 8b, Paragraph 1 of the AVB is valid without further ado. Even if paragraph 2 is deleted, an independent regulatory content of § 8b paragraph 1 AVB remains; the regulation on lowering the threshold value (paragraph 1) and the extension of the right to adjust contributions in the event of an only temporary change in insurance benefits (paragraph 2) can be clearly distinguished from one another in terms of their regulatory content.

    The regulation in para. 1 does not violate the requirement of a not only temporary change provided for in § 155 para. 3, sentence 2 VAG, § 203 VVG (a.A. OLG Köln, judgment of 22.09.2020 - 9 U 237/19, BeckRS 2020, 28456 para. 47).

    First of all, without the provision in paragraph 2, there is no indication at all of the requirement of a change that is not just temporary. It is true that paragraph 1 does not expressly mention that the duration of the deviation of the actual insurance benefits from the calculated ones must not be just temporary. However, the reverse conclusion cannot be drawn from this - as the plaintiffs do - that contrary to the statutory provision, a premium adjustment should already be possible if the relevant threshold value is exceeded, even temporarily. On the contrary, there would be a loophole, if any, and the regulation must be interpreted and, if necessary, construed in accordance with the mandatory statutory provisions. According to this, the legal regulations that continue to apply ensure that the contributions may only be adjusted in the event of a change in the calculation bases that is not just temporary. The ineffective part of the regulation (paragraph 2) is replaced by the legal regulations of § 203 paragraph 2 VVG, 155 VAG. This applies all the more as the statutory provisions are expressly referred to in the AVB. It is not necessary to repeat all the requirements for a premium adjustment in the AVB (cf. Dresden Higher Regional Court, ruling of December 21, 2021 - 6 U 1127/21, BeckRS 2021, 42204 para. 34, 35; Stuttgart Higher Regional Court, ruling of November 18, 2021 - 7 U 244/21, BeckRS 2021, 37369 paras. 41-47; OLG Schleswig, judgment of December 13, 2021 - 16 U 94/21, BeckRS 2021, 40924 paras. 19-24).

    4.

    In the absence of any claims in the main matter, the plaintiff has no claim against the defendant for exemption from pre-court attorney's fees.

    II.

    The decision on costs is based on Section 91 (1) ZPO. The decision on provisional enforceability follows from §§ 708 No. 11, 711 ZPO.

    III.

    The amount in dispute is set at €6,570.68.