LG Gießen - 5 O 457/20

LG Gießen - 5 O 457/20
Court:	LG Gießen (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1)(f) GDPR Article 17(1)(a) GDPR Article 17(1)(c) GDPR Article 17(1)(d) GDPR
Decided:	04.10.2021
Published:
Parties:
National Case Number/Name:	5 O 457/20
European Case Law Identifier:	ECLI:DE:LGGIESS:2021:1004.5O457.20.00
Appeal from:	LG Gießen (Germany) 3 O 196/20
Appeal to:
Original Language(s):	German
Original Source:	Bürgerservice Hessenrecht (in German)
Initial Contributor:	n/a

The Regional Court of Gießen dismissed a data subject's request to erase a negative entry in the database of a credit reference agency. After conducting a balancing test, the Court held that the data subject's interest did not override the agency's legitimate interest in informing future business partners about the creditworthiness of their debtors.

English Summary

Facts

The controller is a credit reference agency. The data subject is a private person over whose assets, insolvency proceedings were opened. In the course of the insolvency proceedings the data subject was granted a discharge of residual debt, which the controller added to the data subject’s credit report as a negative entry. The data subject unsuccessfully requested the controller to remove the entry and the subsequent applications for an injunction were rejected for lack of merit at trial.

The data subject argued that the negative entry was to his detriment as it restricted his ability to participate in economic life. In particular, he could not obtain overdrafts, finance property or car, or place internet orders on account. He argued that the processing of the data on the discharge of residual debt by the controller was unlawful. The data subject requested, inter alia, to order the controller to remove the entry. The controller instead justified the processing with the necessity to provide its contract partners with facts to assess the data subject's creditworthiness. Deleting the entry would deceive potential lenders and possibly induce them to grant a loan without having sufficient information on the data subject's actual creditworthiness.

The court had to decide whether the data subject was entitled to have the negative entry deleted and whether the data subject was entitled to injunctive relief against the controller’s data processing in connection with the discharge of residual debt.

Holding

The appellate court dismissed the claim. It held that the requirements for a claim for erasure pursuant to Article 17(1) GDPR were not met, and the processing is lawful pursuant to Article 6(1)(f) GDPR.

Pursuant to Article 17(1), data subjects have the right to demand from the controller that their personal data be deleted without undue delay, provided that one of the grounds specified in the provision, applies. This is in particular the case if there are no overriding legitimate grounds for the processing, the purpose of processing no longer exists or the processing of personal data was unlawful.

The court pointed out that, according to the German Federal Court of Justice, a legitimate interest exists if credit lenders transfer the management of their interests to credit reference agencies for reasons of security and rationalisation. Criteria for the risk-free approval of credit applications also include information on insolvency proceedings and their outcomes. Thus, the notification of the granting of a residual debt discharge is in the interest of the controller. Granting a residual debt discharge does not aim at enabling debtors to participate in economic life as if insolvency proceedings had not existed at all. The data subject cannot demand to be put on an equal footing with a person who was never affected by insolvency. Such interests are not protected and therefore cannot outweigh the interest of future business partners in checking the creditworthiness of their debtors. In conclusion, the data subject had no overriding legitimate interest in the removal of the entry.

The processing of the residual debt discharge entry by the controller is lawful. Thus, a claim for deletion under Article 17(1)(d) GDPR has no merits. Moreover, the Court held that the negative entry is stored by the controller in order to provide its contract partners with information about it. This purpose persists and could not be pursued without the entry. A claim for deletion pursuant to Article 17(1)(a) GDPR has no merits either. Lastly, a claim for deletion also does not follow from Article 17(1)(c) GDPR. The data subject has neither objected nor is the data subject's particular personal situation apparent.

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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

    The action is dismissed.

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

    The judgment is provisionally enforceable against security in the amount of 110% of the respective amount to be enforced.

    The value in dispute is set at €10,000.

Facts

    The plaintiff seeks deletion and injunction from the defendant after the defendant included a negative entry in its information file about the discharge of residual debt granted to the plaintiff.

    The plaintiff is a private person, the defendant is a joint institution of the lending German economy in the sense of a credit agency. After insolvency proceedings were conducted on the plaintiff's assets upon his application, the Gießen Local Court granted residual debt discharge by order of 16.04.2020 (Ref.: 6 IK 48/14). On 17.04.2020, the defendant entered the granting of residual debt discharge in its database.

    By letter from a lawyer dated 14.05.2020, he unsuccessfully requested the defendant to delete the entry after he was able to view the negative entry on 20.04.2020 by means of a data overview, which he was able to access through his online access at the defendant. The subsequent applications in the preliminary injunction proceedings (LG Gießen, decision of 23.06.2020, ref.: 3 O 196/20 and OLG Frankfurt a. M., decision of 12.08.2020, ref.: 7 W 19/20) were rejected in both instances due to the lack of a claim for injunction and grounds for injunction.

    The plaintiff claims

    that he did not have an overdraft facility with his bank and could not finance a property or a car or make a normal order on the internet on account. In particular, the contested entry has a negative impact on the conclusion of rental, loan, telecommunication, insurance and energy contracts as well as other mail-order contracts, so that he can only participate in economic life to a limited extent.

    He is of the opinion that the processing of the data on the residual debt discharge is unlawful. Since the lawfulness of the processing is based on Article 6(1)(f) of the GDPR, an actual balancing of interests must be carried out, but such a concrete balancing of interests has not taken place. The entries had to be deleted unless the defendant could prove, in the context of a concrete weighing of individual cases, that there was an overriding interest in further processing.

    The applicant claims that the Court should,

    1. the defendant is ordered to remove the negative entries on the applicant contained in its database with the following wording:

    "Information from public directories

    Residual debt discharge granted: This information comes from the publications of the insolvency courts. We have been notified of the granting of discharge of residual debt in respect of these insolvency proceedings.

    File number ............... The case is kept at the insolvency courts ..........

    ............. under this file number

    .......     

    ...... Date of the event: "

    to be cancelled.

    (2) The defendant is ordered to refrain from initiating and storing the entry referred to in the application under 1) again, subject to the avoidance of an orderly fine to be fixed for each case of infringement in the amount of at least 5.00 euros and a maximum of 250,000.00 euros or, in the event that this cannot be recovered, of an orderly detention or orderly imprisonment of up to six months, to be enforced against one of the members of the management.

    The defendant is ordered to pay to the plaintiff the remainder of the business fee incurred pursuant to §§ 13, 14 No. 2300 VV RVG in the amount of EUR 890.30 plus five percentage points above the base interest rate from the date of the lis pendens.

    The defendant applies for

    dismiss the action.

    The entry in question was lawfully processed by the defendant and was necessary in order to inform the defendant's contractual partners correctly about facts which were necessary for the assessment of the plaintiff's creditworthiness. Deleting the entry in question would lead to the defendant certifying that the plaintiff had not had any payment difficulties in the last three years. This would deceive potential lenders and possibly induce them to grant a loan without sufficiently checking the plaintiff's actual creditworthiness. The warning function of the entry on the discharge of residual debt would lead to a more careful examination of creditworthiness and thus also prevent risks for potential borrowers.

    It claims that even if the alleged effects of the contested entry were true, this would not change the legality of the entry, as the legitimate interests of the defendant, its contractual partners and the general public prevail.

    Reference is made to the contents of the pleadings exchanged between the parties, together with the annexes, for the further facts of the case and the dispute.

Reasons for decision

    The action is admissible but unfounded, because the plaintiff has neither a claim against the defendant for the deletion of the entry at issue nor a claim to refrain from processing data in connection with the granted discharge of residual debt.

    The requirements for a claim for deletion pursuant to Article 17(1) of the GDPR are not met. According to Article 17(1) of the GDPR, the data subject has the right to demand that the controller erases personal data relating to him or her without undue delay, provided that one of the grounds set out in Article 17(1)(a) to (f) of the GDPR applies. In particular, if the purpose for which the data was collected no longer exists, the data was processed unlawfully or there are no overriding legitimate grounds for the processing, this is the case.

    In the present case, however, the processing is lawful pursuant to Art. 6 (1) f) DSGVO.

    According to this provision, the processing is necessary to protect the legitimate interests of the controller or a third party, unless such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require the protection of personal data.

    In case law, a public interest in the information procedure of the defendant has long been recognised (BGH, judgement of 07.07.1983 - Az. III ZR 159/82, NJW 1984, 436). According to the case law of the Federal Supreme Court, the interest of the credit institutions to centrally transfer the administration of their interests to the defendant for reasons of rationalisation and greater security is in principle justified. The information system set up by the defendant serves both the interests of the individual borrower, because only in this way can a fast, smooth and essentially risk-free processing of loans be guaranteed. The interest in the solvency and willingness to pay also includes insolvency proceedings that have been completed and their outcome, which is why the notification of the granting of residual debt discharge is in the interest of the defendant. Since the plaintiff was without assets when the discharge of residual debt was granted, this is one of several important criteria for the assessment of his creditworthiness in the context of granting a loan (OLG Frankfurt am Main, order of 12.08.2020, ref.: 7 W 19/20, Annex B2).

    Insofar as the plaintiff states that the contested entry prevents participation in economic life, e.g. in the form of not granting loans, this does not lead to a different assessment, at least not in the present case. The registration of the discharge of residual debt does not necessarily prevent credit-relevant contracts; with regard to payment on account, it also depends on whether and which information the traders obtain. Irrespective of the fact that the plaintiff did not elaborate on this, e.g. by stating which flat he was prevented from renting and which other contracts he was supposedly prevented from concluding due to the registration, it should be noted that - assuming the statements were correct - these circumstances would also have to be accepted. For it is not the purpose of granting residual debt discharge that the debtor can participate in economic life again as if the insolvency proceedings had not existed at all. The plaintiff cannot demand to be put on an equal footing with a person who was never affected by insolvency. Such an interest is not worthy of protection and therefore cannot obviously outweigh the interest of future business partners in checking the creditworthiness of their debtors. For potential business partners of the debtor it is important in the context of the credit assessment to know whether the debtor is at risk of becoming insolvent again. For the assessment of this risk, the granting of residual debt discharge can be a not insignificant indication (see OLG Frankfurt a. M. judgment of 14.12.2015 - 1 U 128/15, BeckRS 2016, 547).

    Taking these circumstances into account, an overriding of the plaintiff's legitimate interests is not evident. If the defendant were obliged to delete the entries in dispute, it would provide its contractual partners with the information that it had no knowledge of the plaintiff's unreliability in settling claims from the last three years, which, however, would not be correct (see LG Heilbronn Urt. v. 11.4.2019 - 13 O 140/18, BeckRS 2019, 9246).

    A claim for deletion pursuant to Article 17(1)(a) of the GDPR cannot be considered. This is because according to this provision, a claim for deletion only exists if personal data are no longer necessary for the purposes for which they were collected. However, this is not the case. For, as discussed, the entry about the discharge of residual debt is stored by the defendant in order to be able to provide its contractual partners with information about it. This purpose still exists and could not be pursued further without the entry. According to the defendant's uncontradicted submission, it deletes the data on the defendant's discharge of residual debt exactly three years after the entry. The judgement of the Higher Regional Court of Schleswig-Holstein of 02.07.2021 (file no.: 17 U 15/21), submitted by the plaintiff as annex K6, does not lead to a different assessment. The chamber considers it inadmissible to resort to a national provision such as § 3 InsoBekV in order to interpret the GDPR. In contrast to the insolvency notices, the entries at the defendant are only accessible to the defendant's contractual partners who have a legitimate interest in obtaining information.

    The plaintiff's asserted claim for deletion also does not follow from Article 17(1)(c) of the GDPR, since he neither objected nor is any special personal situation of the plaintiff apparent. The fact that the plaintiff may not receive a loan because of the entry with the defendant about his discharge of residual debt is not an atypical but a typical consequence of the discharge of residual debt. A claim for erasure under Article 17(1)(d) of the GDPR cannot be considered because the defendant lawfully processed the entry on the plaintiff's discharge of residual debt after the defendant and its contractual partners have an overriding interest in the processing under Article 6(1)(f) of the GDPR. The processing of the data is necessary to enable the lenders to make an accurate and objective assessment of the creditworthiness of the potential contractual partner.

    Irrespective of the lack of a risk of repetition, the plaintiff is not entitled to injunctive relief pursuant to § 1004 BGB. As explained, there is no claim for deletion of the entries in dispute. The secondary claim shares the fate of the main claim.

    The decision on costs is based on § 91 (1) ZPO.

    The decision on provisional enforceability is based on § 709 ZPO.