OLG Bremen - 1 W 18/21

OLG Bremen - 1 W 18/21
Court:	OLG Bremen (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 82 GDPR Article 267(3) TFEU
Decided:	16.07.2021
Published:
Parties:
National Case Number/Name:	1 W 18/21
European Case Law Identifier:	ECLI:DE:OLGHB:2021:0716.1W18.21.00
Appeal from:	LG Bremen
Appeal to:
Original Language(s):	German
Original Source:	openJur (in German)
Initial Contributor:	n/a

A German Higher Regional Court ruled that a claim for damages under Article 82 GDPR requires a damage. In order to assert a claim for compensation for non-material damage, it is also not sufficient to allege a breach of the provisions of the GDPR without providing information on the resulting non-material damage.

English Summary

Facts

The data subject wanted to assert a claim for compensation for immaterial damage against the controller. To this end, the data subject first applied for legal aid. For this purpose, the data subject set out the unlawfulness of a data processing - not described in the decision. Nothing was said about a non-material damage. For this reason, the Regional Court of Bremen dismissed the application.

The data subject filed an immediate appeal against this decision.

Holding

The Bremen Higher Regional Court (OLG Bremen) rejected the application.

The requirements for a claim for damages were not fully presented. Article 82 GDPR presupposes damage. The asserted mere breach of the provisions of the GDPR is not sufficient for a claim.

Furthermore, the court found that there was no need to refer the case to the ECJ.

First, the wording of Article 82 GDPR clearly presupposes a damage. In this respect, the decision differed from the decision of the Federal Constitutional Court of 14 January 2021 (BVerfG - 1 BvR 2853/19). In that decision, the issue was not whether any damage had occurred at all, but whether there was a materiality threshold for this claim.

Second, there is no obligation to make a reference under Article 267(3) TFEU for the proceedings here, since a decision on a legal aid application does not bind the court in the subsequent main action. In this respect, the parties are free to have the issue, which was originally decided only provisionally, re-examined by the courts.

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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.

A claim for damages under Art. 82 GDPR requires the occurrence of material or immaterial damage. In order to assert a claim for compensation for non-material damage, it is also not sufficient to allege a violation of the provisions of the GDPR without submitting a claim for non-material damage.

In proceedings on the granting of legal aid, the national courts are not obliged to refer a case to the European Court of Justice for a preliminary ruling pursuant to Article 267 (3) TFEU.

Rubrum

Operative part

The immediate appeal of the applicant of 29.03.2021 against the order of the Regional Court of Bremen of 22.02.2021 is dismissed.

Grounds

I.

By her immediate appeal of 29.03.2021, the applicant challenges the order of the Regional Court of 22.02.2021, by which the Regional Court dismissed the applicant's application of 28.08.2019 for legal aid to claim non-material damages or damages for pain and suffering. The Regional Court did not grant the applicant's immediate appeal by order of 23 April 2021.

II.

The applicant's immediate appeal of 29.03.2021 against the order of the Regional Court of 22.02.2021 was to be dismissed for the correct reasons of the impugned decision as well as the order of 23.04.2021 not to grant interlocutory revision. The applicant was to be denied the requested legal aid, as she still did not present any facts that would show that there were sufficient prospects of success for the applicant's legal action as a prerequisite for the granting of legal aid pursuant to § 114 of the Code of Civil Procedure. The applicant fails to recognise that, pursuant to Article 82 of the General Data Protection Regulation (Regulation (EU) 2016/679 of 27 April 2016 on the protection of individuals with regard to the processing of personal data, on the free movement of such data and repealing Directive 95/46/EC, hereinafter: GDPR), a claim for damages requires that a natural person has suffered material or non-material damage due to a breach of that Regulation. The applicant's submissions only contain a submission on an alleged infringement of the provisions of the GDPR, but there is no submission on any non-material damage suffered by the applicant as a result. A referral to the European Court of Justice was already not necessary in view of the unambiguous wording of Art. 82 GDPR: Unlike in the decision of the Federal Constitutional Court of 14 January 2021 (see BVerfG, order of 14 January 2021 - 1 BvR 2853/19, juris para. 21, NJW 2021, 1005), the above considerations are not based on the assumption of a materiality threshold for the concept of damage under Article 82 of the GDPR, but there is already a lack of any submission regarding damage caused to the applicant by the asserted infringement. Moreover, Article 267 (3) TFEU only implies a duty to refer cases to national courts in proceedings in which the decisions of these courts themselves can no longer be challenged with remedies under national law. In the present proceedings on the granting of legal aid, however, it applies, just as in the relationship between proceedings for interim relief and the main proceedings, that there is no obligation to make a reference if the decision to be made is not binding on the court to which the dispute is subsequently submitted in main proceedings and the parties have the option of a renewed review of the question that was initially decided only provisionally (see BVerfG, Order of 19.10.2006 - 2 BvR 2023/06, juris, marginal no. 13, EuR 2006, 814).