LG Essen - 18 O 204/21

LG Essen - 18 O 204/21
Court:	LG Essen (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 4(1) GDPR Article 12(5)(b) GDPR Article 15 GDPR
Decided:	23.02.2022
Published:
Parties:
National Case Number/Name:	18 O 204/21
European Case Law Identifier:	ECLI:DE:LGE:2022:0223.18O204.21.00
Appeal from:
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Justiz-Online (in German)
Initial Contributor:	Heiko Hanusch

The Regional Court Essen held that an insurance company can reject an access request as excessive if the request's purpose is not to be aware of or verify the lawfulness of the processing but to verify the validity of increases to insurance premiums.

English Summary

Facts

The controller is a private health insurance company. The data subject is a customer of the controller. The parties are in dispute about the validity of several increases to the insurance premiums. The data subject requested refund of overpaid premiums as well as information on all adjustments to the premiums in the form of notification letters sent to the data subject and supplements to the insurance policy to verify the lawfulness of the increases. The controller rejected both claims. Consequently, the data subject filed a lawsuit against the controller with the Regional Court of Essen (Landgericht Essen - LG Essen).

Holding

The Regional Court of Essen rejected the data subject's claim entirely.

Regarding the notification letters, the court concluded that the data subject has no right to access under Article 15 GDPR , because the notification letters are standardised letters sent to every policy holder and, therefore, not personal data under Article 4(1) GDPR. Moreover the court found that the controller can refuse to act on the request according to Article 12(5)(b) GDPR, because the request is excessive. The court held that the "repetitive character" of a request is just an example under Article 12(5) GDPR and that an access request can also be considered excessive if the request does not serve the purpose of verifying the lawfulness of the processing as stated in Recital 63. The court then established that the data subject's request does not serve this purpose but solely aims at verifying the validity of the premium increases.

Comment

The decision is in line with many other decisions by German Courts (see OLG Dresden - 4 U 1905/21; OLG Nürnberg - 8 U 2907/21; LG Krefeld - 2 O 448/20); however, there is also a recent decision by the OLG Köln - 20 U 295/21 which convincingly demonstrates that the right to access under Article 15 GDPR is not and should not be limited by the purpose pursued with the request. As stated by the OLG Köln, and opposed to the LG Essens' view, the notification letters sent to a data subject constitute personal data under Article 4(1) GDPR because they show the content and conditions of the insurance cover provided to the particular data subject by the controller. The LG Essen missed the fact that, even if the notification letters are standardised, they are still addressed to one specific person and have an effect on this person. The OLG Köln further established that the overall purpose of the GDPR is to protect all rights and freedoms of the individual against harm and risks arising from the processing of personal data, and not only the rights and freedoms enshrined in data protection law. Therefore, the court concluded that a data subject pursues a recognizable, legitimate interest when using Article 15(3) GDPR to reduce an asymmetric level of information between himself and the controller in order to protect his or her rights. Moreover, the OLG Köln found that there is no way to verify that a data subject is indeed only interested in the copy of his data to check the validity of the premium increases and is not also concerned about the protection of his or her 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.

Essen Regional Court, 18 O 204/21





 Date: 02/23/2022
 Court: District Court of Essen

 Chamber: 18th Civil Division

 Decision Type: Judgment
 File number: 18 O 204/21

 ECLI: ECLI:DE:LGE:2022:0223.18O204.21.00


 Keywords: Contribution adjustment health insurance

 Standards: GDPR Art. 15 Para. 1

 Subject: private insurance law


 Tenor:
                              The charges get dismissed.


                              The plaintiff bears the costs of the lawsuit.

                              The judgment is subject to a security deposit of 110% of the
                              provisionally enforceable for the amount to be enforced.



 Fact: 1

 The parties argue about the information and effectiveness of contribution increases in the 2nd

 private health insurance.

 The plaintiff maintains with the defendant under the ins. no. … a private health 3
 /Care insurance. From the fundamentally given possibility, the monthly
 to unilaterally adjust the insurance premiums to be paid, the defendant made in the
 past use. This was preceded by the contribution adjustments

 corresponding notification and information letters from the defendant. Likewise were dem
 Plaintiff sent corresponding supplements to the insurance policy.

 In a letter from a lawyer dated July 21, 2021, the plaintiff requested the defendant without specific 4
 Calculation for the repayment of all premium adjustments based on ineffective
 Contributions together with reduction of future contributions and exemption from extrajudicial

 attorney's fees.

 The plaintiff claims that he has the complete insurance documents for quantification 5
 of the claims. He is of the opinion that his contributions in the past have been wrongly adjusted several times due to insufficient justification and
he was therefore entitled to claims for reimbursement against the defendant.

He is also of the opinion that the step action he has brought is admissible. a 6
Right to information results from Art. 15 GDPR, § 242 BGB and § 810 BGB.


The plaintiff originally applied with the application for 5) to have him with regard to the 7th
extrajudicial legal prosecution costs in the amount of €1,054.10 plus
Interest of five percentage points above the respective base interest rate of the ECB since
release pendency.


The plaintiff now requests that

1) 9

The defendant is sentenced to provide the plaintiff with information about all premium adjustments
grant, which the defendant in the contract concluded between the parties in the
years 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020

Insurance number ... has made and suitable documents available for this purpose
must contain at least the following information:

• the amount of the premium adjustments for the years 2011, 2012, 2013, 2014, 2015, 2016, 11
2017, 2018, 2019, 2020 naming the respective tariffs in the insurance relationship

the plaintiff side,

• the information transmitted to the plaintiff for this purpose in the form of 12
Insurance certificates and supplements to the insurance certificate for the years 2011, 2012,
2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020 as well

• the respective amount of the triggering factors for the recalculation of the premiums in 13

All former and current tariffs of the insurance contract with the
Insurance number ... since 01.01.2012.

2) 14

It is established that after the information has been provided in accordance with the application for 1), there are still 15
more precisely to be designated new determinations of the premiums in between the plaintiffs

and the defendant's existing health insurance with the insurance number ...
are ineffective and the plaintiff is unable to pay the respective difference
committed, as well as that the total amount due monthly for the future on an after
Provision of the information according to the application for 1) still to be quantified under

to be reduced taking into account the reductions that have taken place.

3) 16

The defendant is sentenced to submit to the plaintiff, after the information has been provided in accordance with Section 17
the application for 1) still to be quantified plus interest therefrom in the amount of five
Percentage points above the respective base interest rate to be paid from lis pendens.


4) 18

The defendant is sentenced 19

                                                                                                20,a)

on the plaintiff’s side, the uses in the after the information was provided in accordance with the application for 1) 21
still to be quantified amount that the defendant up to the time of
lis pendens from the share of the premium that the plaintiff has drawn on the under 2)

has paid the contribution adjustments to be listed,

b) 22

the interest from the benefits to be surrendered in the amount of five percentage points over 23
to be paid to the plaintiff at the respective base interest rate from the pendency.


5) 24

The defendant is sentenced to inform the plaintiff with regard to the extrajudicial legal 25
Legal costs of €1,212.61 plus interest of five
Percentage points above the respective base interest rate of the ECB since lis pendens
to release.


The defendant requests that 26

reject the complaint. 27

The defendant denies that the plaintiff received the requested information and documents
not exist. She is of the opinion that the step action is inadmissible and that
Claim for information unfounded. Furthermore, she raises the objection of the statute of limitations.


Due to the further details of the factual and disputed situation, the mutual 29th
Documents and attachments submitted to the file and the reasons for the decision are referred to.

Reasons for decision: 30

The lawsuit is partially inadmissible and otherwise unfounded. 31


As far as the PVN maintenance obligation insurance tariff maintained by the defendant is concerned, 32
the Essen Regional Court would not have jurisdiction according to § 51 Para. 2 SGG and the lawsuit would already be over
not permitted for this reason. With the request for information, the plaintiff requests information “about all
Contribution adjustments (...) to the insurance number (...)". With brief dated February 19, 2022
However, the plaintiff has made it clear that the asserted claims for information are not

Contribution adjustments in compulsory long-term care insurance should concern. The complaint is
accordingly restrictive.

I 33

The declaratory application for 2) 34, which has not yet been specified for specific contribution adjustments

and the unnumbered benefit applications for 3) and 4) are inadmissible, since there is already one
specific claim within the meaning of Section 253 (2) No. 2 ZPO is missing.

These applications are also not admissible by way of a step action according to § 254 ZPO. A 35
Step action is only permissible from the outset and thus creates the possibility that
Initially allow performance requests to be unnumbered if the information on the determination of the

entitlement to benefits, but not if the procurement of information alone
Enforcement of the claim serves (Zöller/Greger, ZPO 33rd ed., § 254 para. 2). On the other hand, it is inadmissible if the information is not provided for the purpose of determining the
entitlement to benefits, but the plaintiff others with the determinability as such
provide unrelated information about his legal prosecution
should (cf. BGH, judgment of April 18, 2002 - VII ZR 260/01; OLG Hamm, decision of

15.11.2021 – I-20 U 269/21 with further details). The one pursued as part of the step action
Accounting is therefore merely an aid to the (still) lacking certainty of the
to bring about a claim for benefits.

Measured against these standards, the step action is inadmissible here. The plaintiff is 36

in the present case it is not a question of quantifying one that is readily apparent from accounting
resulting claim. Rather, the applications are aimed at examining whether there is one at all
claim exists. Because this just depends on what is after any
information regarding the correctness of any justifications. Of the
A right to information is only used to check the assumption made

unlawful contribution increase asserted to possibly
to be able to reclaim unjustly paid premium increases. The coveted information
therefore serves solely to obtain evidence in order to justify an action for performance at all
and to make the content conclusive.


The necessary connection between requests for information and requests for benefits is missing 37
in particular because the information is intended to enable the plaintiff to assess whether
he is basically entitled to a claim.

This 38th
Don't go into detail. The requirements of § 254 ZPO are with regard to

unquantified application for benefits thus not present in the result. For this reason must also
the admissibility of the application for a declaration is denied. In the event of a failure
Reclaim is no longer a (always permissible)
Interim declaratory action according to § 256 paragraph 2 ZPO.

After the necessary reinterpretation into an objective accumulation of lawsuits, however, the application to 1) 39

allowed.

ii. 40

However, the sought-after right to information is unfounded. In this respect, there is no 41
The basis for a claim for the requested information is clear or the requirements are clear

not fulfilled.

The plaintiff claims, without substantiation, that the calculation of the premium increases 42
not be able to without information from the defendant. In this regard will not
specifically stated, for what reason the defendant undisputedly in
documents provided to the plaintiff in connection with premium increases (no longer)

should be present. The plaintiff himself submits that the defendant gave him supplements and
Information letter sent and in the plaintiff's pleadings is partly also
quoted from these to justify the ineffectiveness of the respective contribution adjustment.
This is in contradiction to the sweeping assertion that the documentation for quantification

are not available.

1st 43rd

A claim does not result from Art. 15 Para. 1 GDPR. With the standardized 44, letter of justification, which is uniformly sent to all policyholders in an identical
form are sent, it is already not personal data in the sense
the GDPR.

The defendant also has a right of refusal under Art. 12 (5) sentence 2 lit. b) GDPR, 45

since the application is based on the objection of abuse of rights arising from Section 242
opposes. The provision only lists the frequent repetition as an example for
an "excessive" request. However, the use of the word "in particular" makes
clear that the provision also intends to cover other abusive applications (cf.

Heckmann/Paschke, in Ehlmann/Selmayr, General Data Protection Regulation 2nd edition, Art. 12
paragraph 43). With the application, the plaintiff also asserts a formal legal status in which
he has no self-interest worthy of protection.

When interpreting what is abusive in this sense, the protective purpose of the 46th
GDPR to take into account. As can be seen from recital 63 of the regulation

results, the meaning and purpose of the right to information standardized in Art. 15 GDPR is that it
to enable the data subject to contact the
to become aware of the processing of the personal data concerning them and to
To be able to check the legality of this processing (also BGH, judgment of

06/15/2021 - VI ZR 576/19; OLG Hamm, loc.cit.). The person concerned should in particular
Able to assess the scope and content of the stored data. The information should also
serve to give the data subject further rights to rectification, erasure and
to allow restriction of processing (Articles 16, 17 and 18 GDPR).

In order to become aware of this for the purpose of reviewing the data protection 47

Permissibility of the processing of personal data is the responsibility of the plaintiff
own claims, however. Plaintiff does none of the foregoing
interests apply. Rather, the sense and purpose of the information he is requesting is
— as can be seen from the coupling with the inadmissible claims for a declaration and
Payment unequivocally results - only the review of any by the defendant

premium adjustments made due to possible formal deficiencies according to § 203 para. 5
VVG and the pursuit of the resulting claims for benefits. So it's all about him
solely to verify any pecuniary claims against the defendant. Such
However, the procedure is not covered by the protective purpose of the GDPR (cf. OLG Hamm,

a.a.O. with further information). It does not even concern the person pursued by the regulation as such
Privacy. One that is so removed from the regulatory content of the legal basis
Desire is not worth protecting.

2nd 48th

There is also a claim from §§ 241 Paragraph 2, 242 BGB in conjunction with the between the 49th

parties' existing insurance contract is not taken into account. Because such a claim
requires that the debtor in an excusable manner about the existence or the
The extent of his right is uncertain. The plaintiff has not sufficiently demonstrated that
since he himself states that the relevant documents were made available to him. He

has not explained in a comprehensible way that and why it is exceptionally no longer possible for him
possible to see which premium adjustments have been made. like it too
Any loss of papers or lack of knowledge shall be borne by the plaintiff
does not exist, so that a lack of knowledge through no fault of one's own cannot be determined.

Something else could only apply to the information regarding the triggering factors. 50

In this respect, however, the plaintiff's argument is not sufficiently substantiated, since the plaintiff has not specifically explained when the triggering factors are affected
premium adjustments have taken place. A general obligation to provide information for the last
From the point of view of the chamber, there is no ten years without concrete indications.

3. 51


A claim from § 810 BGB is also not given, since the provision does not have a 52nd
There is a right to information or to the sending of documents (cf. OLG
Hamm, loc.cit.). It is merely a claim to - not applied for here -
Inspection of documents.


4. 53

Apart from that, there would be no entitlement from § 3 Para. 3 VVG. The plaintiff demands 54
among other things, that the defendant gave him the supplements to the insurance policies
provides. But he knows that these have been lost or destroyed
not stated. However, the provision does not give rise to a right to information.


Likewise, there would be no claim from §§ 666, 675 Para. 1 BGB, since the 55th
insurance contract does not constitute an agency agreement.

Further bases for claims are not apparent. 56

5. 57

The plaintiff's request for information is also in this respect abusive of the law, 58

insofar as it is also intended to serve the pursuit of performance claims that are due to
statute of limitations that have occurred in the meantime would no longer be enforceable. The defendant has
legitimately rely on their right to refuse performance in accordance with Section 214 (1) BGB
appointed.


Claims for repayment under the law of enrichment become time-barred in the regular 59th
Limitation period of three years according to §§ 195, 199 paragraph 1 BGB, beginning with the end
of the year in which the claim arose and the creditor of the claim
substantiating circumstances. The repayment claims are included in each case
of the payment of the allegedly increased premium and has become due. Of the

The creditor of the enrichment claim has the necessary knowledge when he makes the payment
and knows the facts showing the lack of legal basis. One
In the present case, the plaintiff was aware of the receipt of the respective messages addressed to him
letter of increase. It is not required that the creditor complete the process legally

rated correctly. (cf. BGH, judgment of November 17, 2021 - IV ZR 113/20; OLG Hamm, judgment of
06/30/2021 - 20 U 152/20, 20 U 162/20)

Accordingly, all claims for reimbursement of the plaintiff under the law of unjust enrichment would be 60
with regard to the premium shares paid before 01.01.2018 are time-barred.

6. 61


A material ineffectiveness of contribution adjustments made in the past is 62
also not visible.

As far as the plaintiff thinks that contribution increases are materially ineffective because they are based on a 63rd
based on an ineffective legal basis, provided that the request for an increase is based on exceeding the threshold value below 10%
corresponding contribution adjustment clause according to § 8b of the insurance conditions
not to complain about. The clause in §8b paragraph 1 AVB is effective and holds in particular
subject to a legal control under the General Terms and Conditions. There is no unreasonable disadvantage for the

policyholder within the meaning of Section 307 Paragraphs 1 and 2 of the German Civil Code. The ineffectiveness of this
The regulation also does not result from the fact that the insurance benefits in
the general insurance conditions also a lower percentage than more than 10%
can be provided. The admissibility of such a regulation already follows from the §§

12 b para. 2 sentence 2 VAG old version, 155 para. 3 sentence 2 VAG.

A possible ineffectiveness of the regulation in § 8b paragraph 2 AVB due to an in the 64
Discrimination in contradiction to the legal regulation according to §307 Abs. 2 Nr.
1 BGB does not affect the effectiveness of the regulation in § 8b paragraph 1 AVB. Because the paragraphs
are not inextricably linked to each other, so that is not the case here

Ban on the reduction in force takes effect. The regulation of paragraph 1 can also apply to
to persist alone. Because the material requirements otherwise arise
from the law itself. In particular, it is still applicable in addition to the AVB
legal regulations secured that only with a not only temporary

Changes in the bases of calculation, the contributions may be adjusted.

The contribution adjustments are also not objectionable in the material sense if a 65th
Contribution increase due to reduced benefit expenditure (cf. BGH, judgment v.
October 20, 2021 - IV ZR 148/20). Once the verification of the basis of account
"Insurance benefit" a deviation in the form of overrun or underrun

of the legal or collectively agreed threshold, is the
According to § 155 VAG, health insurers are obliged to check all premiums of this tariff
and adjust if necessary. In this respect, the law only speaks of a deviation from
more than 10% or the percentage specified in the insurance conditions, without
the right to adjust in the event of falls below this threshold

limit performance spending.

III. 66

In the absence of a main claim, the plaintiff is also not entitled to the 67th
Exemption from pre-court attorney's fees, interest on which is not owed anyway

is.

IV.68

The procedural ancillary decisions result from §§ 91 Paragraph 1, 709 ZPO. 69

The amount in dispute is set at €10,750. 70