OLG Hamburg - 13 U 70/23

OLG Hamburg - 13 U 70/23
Court:	OLG Hamburg (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1) GDPR Article 82(1) GDPR
Decided:
Published:
Parties:	Barclays Bank Ireland PLC Hamburg Branch
National Case Number/Name:	13 U 70/23
European Case Law Identifier:	ECLI:DE:OLGHH:2024:0110.13U70.23.00
Appeal from:	LG Hamburg (Germany) 318 O 56/22
Appeal to:
Original Language(s):	German German
Original Source:	Landesrecht Hamburg (in German) Winning Lawyer (in German)
Initial Contributor:	n/a

A court ruled that a bank violated Article 5 and 6 GDPR by reporting disputed debts to a credit rating agency. The court awarded the data subject €4,000 in damages under Article 82 GDPR.

English Summary

Facts

The data subject had a credit card account with Barclays Bank Ireland PLC Hamburg Branch (the controller). After canceling the account, the controller requested the payment of over €1,000 from him, which he disputed. Despite his dispute, the controller reported the outstanding amount to SCHUFA, a german credit rating agency. SCHUFA eventually deleted the entry at the data subject's request, but the controller reported the claim again.

Consequently, a different bank (ING Bank N.V.) denied the data subject a loan and a third bank (Hanseatic Bank GmbH & Co KG) blocked his credit card.

The data subject lodged a lawsuit at the Regional Court Hamburg ("LG Hamburg") to claim damages under Article 82 GDPR, arguing that the controller's transmissions to SCHUFA were unjustified. The court held that the controller had no legitimate interest under Article 6(1)(f) GDPR to disclose the data subject's personal data to SCHUFA. As the claim was disputed, the controller should not have reported this information to SCHUFA. The court dismissed the controller's argument that the SCHUFA entry was necessary to assert the claims or to protect the credit industry. Thus the court found that the controller violated Article 5 GDPR and Article 6 GDPR in conjunction with Article 4(2) GDPR by disclosing the data subject's personal data to SCHUFA and awarded the data subject €2,000 in damages.

The data subject appealed the amount of the damages at the Higher Regional Court Hamburg ("OLG Hamburg").

Holding

The court held that the controller violated Article 5 GDPR and Article 6 GDPR in conjunction with Article 4(2) GDPR by reporting the claims against the data subject to SCHUFA twice, even though the conditions for such reports were not met. This caused non-material damage to the data subject, harming his social reputation by portraying him as an unreliable debtor. Additionally, the data subject experienced negative consequences, such as being denied a loan and having his credit card blocked.

The court held that not all circumstances were sufficiently weighted when assessing the compensation for pain and suffering to be awarded. The court emphasized that the controller made a second report despite the data subject's continued dispute of the claim. This demonstrated a reckless disregard for the wrongful outcome, further violating the GDPR.

The court took into account similar cases without specific impacts from reports to SCHUFA and without the controller's intentional conduct, where the court awarded €1,000 in damages per report. Therefore, the court held that a significantly higher amount of € 2,000 per report would be considered appropriate and sufficient.

Thus, the court awarded a total of €4,000 euros in damages.

Comment

Share your comments here!

Further Resources

Share blogs or news articles here!

English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

Tenor

1. Upon the plaintiff's appeal, the judgment of the Hamburg Regional Court dated 19 April 2023, Case No. 318 O 56/22, is partially amended and rephrased as follows, dismissing the further appeal:

    The defendant is ordered to pay the plaintiff compensation for pain and suffering in the amount of €4,000 and pre-litigation attorney fees in the amount of €498.57, plus interest at a rate of 5 percentage points above the base rate since 7 April 2022.

    The remainder of the claim is dismissed.

2. The costs of the first instance are to be borne by the plaintiff at 60% and the defendant at 40%. The costs of the appeal proceedings are to be borne by the plaintiff at 36% and the defendant at 64%.

3. The judgment is provisionally enforceable.
    The contested decision is provisionally enforceable without security in accordance with clause 1.

Order

The value of the dispute for the appeal proceedings is set at €7,500.

Reasons

1. I. Pursuant to §§ 540 (2), 313a in conjunction with 544 (2) No. 1 ZPO, the presentation of the parties' submissions and the applications is omitted.

2. II. The plaintiff's admissible appeal, which was filed and substantiated in due form and time, is partially successful on the merits.

3. The plaintiff is entitled to compensation for non-material damage against the defendant pursuant to Article 82 (1), (2) Sentence 1 GDPR in the total amount of €4,000.

4. The defendant, as the "controller" within the meaning of Article 4 No. 7 GDPR, violated its obligations under Articles 5, 6 in conjunction with Article 4 (2) GDPR by reporting its claims against the plaintiff to Schufa twice, although the conditions for this were not met. Reference is made to the correct statements of the Regional Court, which the Court of Appeal fully endorses.

5. As a result, the plaintiff also suffered compensable non-material damage. The Regional Court carefully and convincingly reasoned that the plaintiff had to endure an impairment of his social reputation due to the double unauthorized report to Schufa, portraying him as an unreliable debtor.

6. The plaintiff also demonstrated that the Schufa report and the resulting worsened credit risk assessment had specific negative consequences regarding the granting of a loan by I. (Exhibit K16) and the blocking of his credit card by H. Bank (Exhibit K17).

7. However, the Court of Appeal believes that not all circumstances were adequately considered in determining the compensation for pain and suffering.

8. The CJEU (judgment of 4 May 2023, C-300/21, para. 51) stated that the GDPR does not contain any provisions regarding the criteria for determining the amount of compensation to which a person is entitled under Article 82 GDPR if damage has been caused by a breach of the regulation. It is the responsibility of each Member State's law to establish the criteria, ensuring compliance with the principles of equivalence and effectiveness.

9. Accordingly, the criteria for assessing compensation for pain and suffering under German law are decisive, whereby the amount of the claim is to be determined based on an assessment of the overall circumstances of the case, considering the compensatory and satisfactory functions of the compensation.

10. Consequently, particular importance must be attached to the fact that conditional intent must be assumed on the part of the defendant. The defendant made the first report even though the plaintiff had expressly disputed the claim in response to the defendant's notification that a report to Schufa would be made if he did not contest the claim (letter of 1 December 2019, Exhibit K7). The second report was also made despite further disputes by the plaintiff (letter of 29 December 2019, Exhibit K11), his request for deletion, and an interim deletion by Schufa itself (Exhibit K14). Such behavior can only be interpreted as the defendant knowingly and at least with reckless acceptance of the possible wrongful outcome, violating its obligations under the GDPR. Additionally, the defendant refused to revoke the negative entry despite the plaintiff's request and explanation of its illegality.

11. Considering the described circumstances and a recently decided comparable case by the Senate, where no concrete impacts resulted from the Schufa report and no intentional conduct by the defendant was found (13 U 71/21) and a compensation of €1,000 per report was awarded, a significantly higher amount of €2,000 per report, totaling €4,000, is deemed appropriate and sufficient, thus the further appeal is dismissed.

12. 2.) The appeal is also partially justified concerning the claimed pre-litigation attorney fees. Given the need to await the damage development until deletion, the plaintiff's legal representative was not required to assert the compensation claim simultaneously with the deletion request. The fact that the claim for pre-litigation attorney fees against the defendant, which was settled, may have been calculated based on an overly high dispute value and fee rate is irrelevant since this is not disputed between the parties.

13. The claim for payment of pre-litigation attorney fees exists only to the extent stated in the tenor. The value of the pre-litigation activity is generally calculated only from the legitimate principal claim. The legitimate claim for non-material damage, as previously stated, is only €4,000. However, considering that the final amount of the claim is subject to judicial discretion, the Senate follows the OLG Munich (judgment of 23 February 2022, 7 U 1195/21, juris para. 50, 54 f) that a 20% overclaim in compensation requests is not detrimental to costs, thus the plaintiff is to be treated as if he had prevailed with €4,800 (= 120% of €4,000). Adding the claimed material damage of €4,771.39 results in a dispute value of €9,571.39.

14. Furthermore, the Court of Appeal considers a 1.3 fee for pre-litigation activity appropriate. According to the legal fee provision in No. 2300 VV-RVG, a fee higher than 1.3 can only be demanded if the activity was extensive or difficult. This is not evident in this case. The fact that, according to the Federal Constitutional Court, the scope, impact, and requirements for non-material damage claims under the GDPR are still unclear is not sufficient, especially as it is not apparent that pre-litigation activities addressed these unresolved issues.

15. Accordingly, the business fee amounts to €725.40. Since the plaintiff demands reimbursement of the remaining business fee after offsetting per Vorb. 3 (4) VV RVG at a rate of 0.55 (plus expenses and VAT), the claim regarding attorney fees is justified only in the amount of €498.57 (0.55 of €725.40 = €398.97 + €20.00 expenses + €79.60 VAT) plus interest from the date of lis pendens.

16. The decision on costs follows from § 92 (1) ZPO, considering that a 20% overclaim is not detrimental to costs (see above).

17. The decision on provisional enforceability follows from §§ 708 No. 10, 711, 713 ZPO.

18. The conditions for allowing a revision are not met.