OLG München - 3 U 2906/20

OLG München - 3 U 2906/20
Court:	OLG München (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 4(1) GDPR Article 15(1) GDPR Article 15(3) GDPR
Decided:	04.10.2021
Published:
Parties:
National Case Number/Name:	3 U 2906/20
European Case Law Identifier:
Appeal from:	LG München I 3 O 909/19
Appeal to:
Original Language(s):	German
Original Source:	Bayern.Recht (in German)
Initial Contributor:	Florian Wuttke

The OLG Munich held that Article 15(3) GDPR confers and independent entitlement on data subjects to be provided with copies of all their personal data. Defendants ordered to hand over copies of telephone notes, memos and protocols to the claimant.

English Summary

Facts

In accordance with Article 15(3) GDPR the claimant, as the data subject, demanded in a pre-action measure that the defendants provide her with copies of all of the claimant’s personal data held by the defendants. In particular, the claimant requested copies of telephone notes, memos, protocols, e-mails, letters and underwriting documents for capital investments. The defendants subsequently provided information on the claimant’s personal data in accordance with Article 15(1) GDPR. However, they did not provide the claimant with copies of the documents. The refusal to provide the copies was based on the defendants' argument that Article 15(3) GDPR only governs the method in which information is provided, but does not confer an entitlement on the data subject to be provided with copies.

In the subsequent trial, the claimant widened her claim and demanded that the defendants be ordered to provide her with copies of all personal data, including the requested notes, memos and documents. At trial, the court found that the data in question was in fact personal data and ordered the defendants to provide the claimant with copies of all her personal data. The defendants appealed to the OLG Munich to revoke the decision of the trial court.

The OLG Munich had to decide on the question if a claim under Article 15 GDPR entitles the data subject to be provided with copies of the personal data and whether Article 15(3) GDPR contains an independent entitlement to have a copy of the personal data handed over to the data subject.

Holding

The appellate court dismissed the defendants' application and upheld the trial court's decision to order the defendants to provide the claimant with copies of all her personal data.

Regarding the independent entitlement to have a copy of the personal data handed over to the data subject, at para. 20 the court was convinced that "an individual entitled to information under Article 15(1) GDPR is also independently entitled to be provided with copies pursuant to Article 15(3) GDPR. Paragraphs 1 and 3 of Article 15 GDPR are two different entitlements, which concern the same subject matter - personal data - but have different legal effects.” The structure of the Regulation suggests that Article 15(3) GDPR is a separate claim. In Article 15(3) GDPR, the Regulation does not just further specify the right to information according to Article 15(1) GDPR, but instead introduces an independent provision, the wording of which creates an obligation on the controller to provide the data subject with copies of the personal data. The court held at para. 21 that “the subject matter of this obligation is not merely an abstract enumeration of the existing information, as this is already contained in the right to access under Article 15(1) GDPR. Rather, the data subject is entitled to be provided with the information in the form in which it is available to the controller.”

With regard to the personal nature of the copies, the court confirmed that according to Article 4(1) GDPR and the ECJ’s case law, the definition of personal data must be constructed broadly and potentially includes all types of information, both of objective and subjective nature, in the form of opinions or assessments, provided that the information relates to the data subject. In the present case, the claimant’s letters and e-mails to the defendants must in principle be regarded as personal data within the meaning of Article 4(1) GDPR. Telephone notes, memos and protocols which record what the claimant said to the defendants on the phone or in personal conversations must also be classified as personal data.

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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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Title:
Revision, appeal, discretion, compensation, settlement, certainty, information, claim, procedure, extension of suit, suit, data, form, time, personal data, settlement of the legal dispute, personal information
Keywords:
Revision, appeal, discretion, compensation, settlement, certainty, information, claim, procedure, extension of suit, suit, data, form, time, personal data, settlement of the legal dispute, personal information
Lower court:
LG Munich I, final judgment of April 6th, 2020 - 3 O 909/19
Further information:
Revision approved
Reference:
BeckRS 2021, 29747


tenor


1. In response to the appeal of the defendant, the final judgment of the Regional Court Munich I of April 6th, 2020, Az. 3 O 909/19, is amended in section 1 as follows:



The defendants are sentenced to provide the plaintiff with copies of the plaintiff's personal data processed by the defendant relating to the data categories of telephone notes, file notes, meeting minutes, e-mails, letters and drawing documents for investments in the period from 01/01/1997 to 03/31/2018.



2. Otherwise, the defendant's appeal is dismissed.



3. The decision on costs in the resolution dated August 31, 2021 is the end of the story.



4. The judgment and the judgment of the District Court of Munich I mentioned in section 1 are provisionally enforceable. The defendants can avert compulsory enforcement by providing security in the amount of 110% of the enforceable amount based on the judgment, if the plaintiff does not provide security in the amount of 110% of the respective enforceable amount prior to enforcement.



5. The revision is permitted.

Reasons for decision


1
For a more detailed presentation of both the facts and the history of the first instance of the proceedings, reference is made to the facts of the contested decision (Section 540, Paragraph 1, Sentence 1, No. 1 of the Code of Civil Procedure). In addition and in summary, the following is to be stated, insofar as it is still relevant for the appointment procedure:


2
With a lawsuit filed on January 18, 2019, the plaintiff seeks damages from the defendants in connection with the acquisition of containers from the P. Group due to incorrect clarification. In the course of the pre-trial dispute, the plaintiff requested both defendants by letter dated April 11, 2019 in accordance with Art. 15 (3) GDPR to provide copies of all the plaintiff's personal data available to the defendant. In a letter dated May 6th, 2019 (Annex K 25), the defendants sent information on the individual data stored by the plaintiff, but copies were not provided. With a pleading dated September 16, 2019, the plaintiff expanded her lawsuit to the effect that the defendants were sentenced to hand over copies of all personal data.


3
With the final judgment of April 6th, 2020, corrected by a decision of May 22nd, 2020, the Munich Regional Court I sentenced the defendants to provide the plaintiff with copies of all personal data - in particular in the form of telephone notes, file notes, protocols, e-mails, letters and drawing documents for investments - to hand over that are in their possession. To justify the judgment in this respect, the first court stated that a right to the handover of copies arises from Art. 15 Para. 3 GDPR. It is undisputed between the parties that the defendant is in possession of the relevant documents. This concerns personal data within the meaning of Art. 4 No. 1 GDPR. In addition to the right to information from Art. 15 Para. 1 GDPR, the plaintiff is entitled to an annex claim from Art. 15 Para. 3 GDPR to provide a copy of the data recorded by Paragraph 1. This final judgment was served on the defendants on April 15, 2020. With a brief dated May 13, 2020, received by the court on the same day, the defendants appeal against this final judgment. This was with a brief from 10.06. 2021, received by the court on the same day, justified. The defendants state that the extension of the claim with regard to the claim from Art. 15 Para. 3 GDPR was already inadmissible. The application in the form submitted is also too vague. In addition, a suspension according to § 148 ZPO is requested, since a decision of the ECJ is to be brought about in the context of a preliminary ruling procedure. From a material point of view, Art. 15 (3) GDPR does not give rise to any entitlement to the transfer of copies. This provision only regulates the manner in which information is provided.


4th
The defendants therefore apply to the appellate authority,



to partially amend the judgment under appeal and dismiss the action in its entirety.


5
The applicant requests:



Reject the appeal.




The defendants are sentenced to provide the plaintiff with copies of the plaintiff's personal data processed by the defendant relating to the data categories of telephone notes, file notes, meeting minutes, e-mails, letters and drawing documents for investments in the period from 01/01/1997 to 03/31/2018.



The defendants request with regard to the auxiliary request:



Also to this extent dismiss the action.


6th
In addition, reference is made to the written submissions exchanged between the parties, including the annexes and the minutes of the oral hearing.



7th
The appeal lodged by the defendant is admissible, but not substantiated on the merits.


8th
1. The appeal is admissible; in particular, the limit of Section 511, Paragraph 2, No. 1 of the Code of Civil Procedure has been exceeded. The determination of the complaint, § 2 ZPO, of the defendant is based on § 3 ZPO. In non-property law disputes, the amount in dispute according to § 3 ZPO, taking into account all circumstances of the individual case, in particular the scope and importance of the matter and the financial and income situation of the parties, is to be determined at the discretion. The Senate estimates the plaintiff's interest in the coveted conviction to be at least € 2,000.00 (see OLG Stuttgart GRUR-RS 2021, 20480).


9
2. The proceedings were not to be suspended in accordance with Section 148 of the German Code of Civil Procedure (ZPO). In the present proceedings, as can be seen from the operative part, the revision was allowed. The Senate has thus exercised the discretion to which it is entitled to clarify the question of the extent to which the creditor of a right to information according to Art. 15 GDPR also has a right to the transfer of copies within the framework of the revision procedure.


10
3. The plaintiff's extension of the suit dated September 16, 2019 was admissible.


11
3) An extension of the lawsuit does not normally represent a change in the lawsuit, since it does not include any change to the previous subject of the dispute, but the provisions on the amendment of the lawsuit are to be applied accordingly; because the defense of the defendant is made more difficult, the settlement of the legal dispute is delayed, and dealing with a subsequent procedural claim may not be relevant (BGH NJW 2004, 2152, 2154; NJW 2007, 2414, 2415; 2014, 3314 para. 16; 2015, 1296 Rn. 14; 2015, 1608 Rn. 13; 2015, 3576 Rn. 24; Munich Commentary ZPO / Becker-Eberhard, 6th edition 2020, § 263 Rn. 21), which is based on the requirements of § § 263 f. ZPO has to measure. Regardless of whether the present extension of the complaint represents an amendment to the complaint that is always admissible within the meaning of Section 264 of the German Code of Civil Procedure (ZPO), the Regional Court of Munich I has assumed that it is relevant within the meaning of Section 263 of the German Code of Civil Procedure (ZPO). The facts on which the decision is based are, as the regional court pointed out, undisputed; at the time of the extension of the complaint, an oral hearing had not yet taken place. This did not make legal defense more difficult for the defendants, and a delay in the legal dispute is not to be feared.


12th
3) There was also no surprise decision with regard to the fact that the first court had pointed out in the oral hearing on October 29, 2019 that the claim for surrender had to be asserted in a separate procedure. After this date, two further dates took place in the present case, in which the motions of the plaintiff were repeated in each case. Also, up to the decision of March 26, 2020, through which the court determined the announcement date, no decision was made to separate the proceedings. The defendants therefore had to expect a decision regarding the extension of the claim.


13
3) The request of the plaintiff had to be clarified with regard to the auxiliary request that has now been made. In addition, there are no concerns about the specificity of the claim. For the plaintiff as the creditor of a claim under Art. 15 Para. 3 GDPR, it will usually not be clear which documents are with the party obliged to provide information. However, it is not possible to specify the individual documents to be issued with this. On the other hand, the request to surrender all documents does not raise any concerns, since it is sufficiently determined that the defendant must surrender all documents in their possession as copies. However, item 1 of the final judgment of the Munich Regional Court I does not state that only documents relating to the plaintiff are to be surrendered. As a result, the Senate took the opportunity to specify the defendant's conviction accordingly. The application does not meet any concerns beyond the clarification with regard to the specificity within the meaning of Section 253 (2) No. 2 ZPO (see also BGH NJW 2021, 2726 Rn. 31).


14th
4. The Munich Regional Court I rightly sentenced the defendants to hand over copies of the personal data stored with them, Art. 15 Para. 3 GDPR.


15th
4) The information apparent from the operative part of the first instance decision is personal data. According to Art. 4 No. 1 GDPR, personal data is all information that relates to an identified or identifiable natural person. According to this definition and the case law of the ECJ, the term should be understood broadly. It is not limited to sensitive or private information, but potentially includes all types of information, both objective and subjective, in the form of opinions or assessments, provided that it is information about the person in question. The latter requirement is met if the information is linked to a specific person due to its content, purpose or effects (BGH NJW 2021, 2726 with further references). With regard to the data held by the defendant, a connection to the plaintiff can be drawn from the subject or the interlocutor. Letters and e-mails from the plaintiff to the defendant are basically to be regarded as personal data in terms of their entire content in accordance with Art. 4 No. 1 GDPR. The personal information already consists in the fact that the plaintiff has expressed itself accordingly. Telephone notes, file notes and minutes as internal notes with the defendant, which contain information about the plaintiff, are also to be classified as personal data. Here, the defendant records what the plaintiff has said over the phone or in personal conversations (see only BGH NJW 2021, 2726 para. 25).


16
4) The claimant's right to information under data protection law is assessed according to Article 15 GDPR, which has been directly applicable since May 25, 2018 (Article 99 (2) GDPR). According to Art. 15 Para. 1 GDPR, the person concerned has the right to request confirmation from the person responsible as to whether personal data concerning them are being processed; if this is the case, she has a right to information about this personal data and certain additional information. According to Art. 15 Para. 3 S. 1 GDPR, the person responsible provides a copy of the personal data that is the subject of the processing. In the present case, the plaintiff is not asserting the right to information from Art. 15 (1) GDPR; the defendants have already given the relevant information in advance of the court. The question of whether Art. 15 (3) GDPR provides an independent claim to the surrender of copies is controversial in literature and case law (cf. on the dispute BeckOK DatenschutzR / Schmidt-Wudy, 37th Ed. 1.8.2021, DS -GVO Art. 15 Rn. 85 ff .; as well as for the overview of case law Leibold, ZD-Aktuell 2021, 05313)


17th
4) The decision of the BGH dated June 15, 2021 (BGH NJW 2021, 2726) submitted by the plaintiff does not answer the question of an independent claim according to Paragraph 3 of Art. 15 GDPR. Although the BGH expressed itself aaO. Rn. 17 such that a copy is made available, since the question of such a claim was not relevant in the decision, the BGH does not take a final position on this.


18th
4) In some cases, a corresponding claim to the surrender of copies is denied. According to the wording of Art. 15 Para. 3 Sentence 1 GDPR, the person concerned is only entitled to a copy of the personal data that is the subject of the processing. The wording of the claim does not include any information that goes beyond the personal data. However, since the right to information in accordance with Art. 15 (1) GDPR is aimed at enabling the data subject to check the legality of the data processing, it is no longer necessary in the context of the right to the transmission of a copy of the personal data to be transmitted than is necessary to check the legality of the data processing. For this purpose, however, it is sufficient that the data subject receives a copy of the information specified in Art. 15 (1) (a) to (h) GDPR. Further information is not required (OLG Stuttgart GRUR-RS 2021, 20480; LAG Baden-Württemberg NZA-RR 2021, 410 Rn. 47; Paal / Pauly / Paal, 3rd edition 2021, GDPR Art. 15 Rn. 33 -39) to check the lawfulness of the data processing.


19th
4) According to a different opinion, Art. 15 Para. 3 S. 1 GDPR contains an independent right to surrender (OVG Münster, ruling of June 8, 2021 - 16 A 1582/20, BeckRS 2021, 13156; BeckOK DatenschutzR / Schmidt-Wudy , 35. Ed. 01.02.2021, DS-GVO Art. 15 Rn. 85; Ehmann / Selmayr / Ehmann, 2nd edition. 2018, DS-GVO Art. 15 Rn. 34; Zikesch / Sörup in ZD 2019, 239, beckonline). Within this view there is again disagreement about the form of the transfer, so it is partly argued that all raw data must be released (Ehmann / Selmayr / Ehmann, loc. SörupaaO.).


20th
4) The Senate is of the opinion that the person entitled to information is entitled not only to the right to information in accordance with Art. 15 Para. 1 GDPR, but also an independent right to have copies made available in accordance with Art. 15 Para. 3 GDPR. Paragraphs 1 and 3 of Art. 15 DS-GVO are two different claims, which concern the same subject - personal data - but differ on the legal side. This suggests the wording and system of the regulation. Since the ordinance and then the national legislature formulated an independent paragraph 3 and not an embodiment of the right to information according to paragraph 1, the system suggests that this is a separate claim. The wording according to Paragraph 3 also includes an obligation on the part of the party obliged to provide information to provide corresponding copies. However, this obligation must be matched by the possibility of the person entitled to information to enforce this obligation (see Koreng, NJW 2021, 2692).


21
4) The subject matter of this claim is not only based on an abstract list of the available information, as this is already contained in the right to information according to Art. 15 (1) GDPR. Rather, the obligee has a right to the transfer of the information in the form in which it is available to the person responsible (so also Koreng op. Cit.). A necessary protection of the debtor is guaranteed by the possibility of blackening according to Art. 15 Para. 4 GDPR.



22nd
The decision on costs follows from Section 92, Paragraph 2, No. 1 of the German Code of Civil Procedure (ZPO). The decision on the provisional enforceability follows from § 708 No. 10, § 711 ZPO.


23
The revision is to be permitted. The legal case is of fundamental importance insofar as the question at issue is to what extent copies and copies can be requested, Section 543 (2) sentence 1 no. 1 ZPO. The question presents itself as a legal question that is relevant to the decision, needs clarification and can be clarified, which can arise in an indefinite number of cases and thereby also affects the abstract interest of the general public in the uniform development and handling of the law.

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