OLG Köln - 20 U 295/21

OLG Köln - 20 U 295/21
Court:	OLG Köln (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 4(1) GDPR Article 12(5) GDPR Article 15(1) GDPR Article 15(3) GDPR
Decided:	13.05.2022
Published:
Parties:
National Case Number/Name:	20 U 295/21
European Case Law Identifier:	ECLI:DE:OLGK:2022:0513.20U295.21.00
Appeal from:	LG Aachen 9 O 488/20
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Justiz NRW (in German)
Initial Contributor:	Heiko Hanusch

The Higher Regional Court of Köln held that an access request of an insurance holder aimed to verify the lawfulness of premium increases - and not the lawfulness of the data processing - cannot be considered as excessive under Article 12(5) GDPR.

English Summary

Facts

The data subject has a health insurance contract with the controller. The controller increased the premiums during the contract. The data subject payed the increased premiums for a while but then filed a lawsuit against the controller demanding a refund as well as access to all supplements to the insurance policy and all notification letters sent to him during the contractual relationship under Article 15 GDPR.

The court of first instance, the Regional Court of Aachen (Landgericht Aachen – LG Aachen), ruled in favour of the data subject.

The controller appealed this decision arguing that the right to access under Article 15 GDPR does not grant a right to access to documents but its only purpose is to make the processed data transparent. Moreover, it argued that granting the access to such a wide extent would amount to an inadmissible discovery of evidence which is contrary to the civil procedural principle that each party must bring forward its evidence itself. Lastly, the controller also invoked the excessiveness of the request under Article 12(5) GDPR alleging that the data subject uses Article 15 GDPR only to verify the validity of the premium increases and not to verify the lawfulness of the processing.

The data subject has a health insurance contract with the controller. The controller increased the premiums during the contract. The data subject payed the increased premiums for a while but then filed a lawsuit against the controller demanding a refund as well as access to all supplements to the insurance policy and all notification letters sent to him during the contractual relationship under Article 15 GDPR.

The court of first instance, the Regional Court of Aachen (Landgericht Aachen – LG Aachen), ruled in favour of the data subject.

The controller appealed this decision arguing that the right to access under Article 15 GDPR does not grant a right to access to documents but its only purpose is to make the processed data transparent. Moreover, it argued that granting the access to such a wide extent would amount to an inadmissible discovery of evidence which is contrary to the civil procedural principle that each party must bring forward its evidence itself. Lastly, the controller also invoked the excessiveness of the request under Article 12(5) GDPR alleging that the data subject uses Article 15 GDPR only to verify the validity of the premium increases and not to verify the lawfulness of the processing.

Holding

The Higher Regional Court of Köln (Oberlandesgericht Köln – OLG Köln) rejected the arguments of the controller and upheld the lower court’s judgement.

First, the court referred to case law by the German Supreme Court (Bundesgerichtshof – BGH decision from 15.06.2021, case no. VI ZR 576/19) to establish that personal data under Article 4(1) GDPR means information which by virtue of its content, purpose or effects, is linked to a specific person. The court then concluded that the supplements to the insurance policy as well as the notification letters meet these requirements. For the supplements the court found that they show the contend and conditions of the insurance cover provided to the data subject by the controller. Regarding the notification letters the court reasoned that they are also sufficiently linked to the data subject because they inform the respective policyholder of a change in his insurance contract on a certain date.

Second, the court found that the right to a copy under Article 15(3) GDPR is independent from the right to access under Article 15(1) GDPR and is to be construed extensively. Consequently, the court held that Article 15(3) GDPR gives the data subject a right to a copy of the data in its raw form.

Third, the court rejected the arguments of the controller. It concluded that the controller was neither under § 242 BGB (German Civil Code) nor under Article 12(5) GDPR allowed to reject the request as excessive. It also rejected to limit the scope of Article 15(3) GDPR teleologically, only because the request was aimed at verifying the lawfulness of premium increases and not at verifying the lawfulness of the data processing. It reasoned 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 the 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 rights. Moreover, the court found that there is no way to verify that the 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 data. Consequently, the court noted that it is unreasonable to make the right to access dependent on an unverifiable assertion about the inner motivation of a data subject. The court also rejected the controller's argument that granting the access would amount to an inadmissible discovery of evidence, because the inadmissibility of discovery is a procedural concept which cannot be transferred to a material claim such as Article 15 GDPR.

Lastly, the court allowed the appeal to the Supreme Court (Bundesgerichtshof - BGH) because of the fundamental importance of the legal matter and the inconsistency of case law on this matter [see Comment section].

Comment

The decision of the Higher Regional Court of Köln stands in contrast to several other decision by German courts which restricted the right to access in similar cases (see OLG Dresden - 4 U 1905/21; OLG Nürnberg - 8 U 2907/21; LG Krefeld - 2 O 448/20). However, the present decision by the OLG Köln is, in my opinion, conclusive and persuasive. As stated by the OLG Köln, making the right to access under Article 15 GDPR dependent on the inner motivation of the data subject is not a reasonable approach. This is also in line with the EDPB's guidelines on access where it is stated in para 13 that "[...] controller should not assess "why" the data subject is requesting access, but only "what" the data subject is requesting [...]".

On other points the decision, however, is not in line with the guidelines on access. The guidelines state in para 23 that the right to a copy "is not to be understood as an additional right of the data subject, but as [a] modality of providing access to the data" and in para 131 that "[...] under some circumstances it could be appropriate for the controller to provide access through other ways than providing a copy [...] [like] oral information, inspection of files, onsite or remote access without [the] possibility to download". However, in my opinion, at least the second statement contradicts with the wording of sentence 1 of Article 15(3) GDPR which expressly and clearly states that "[t]he controller shall provide a copy of the personal data undergoing processing."

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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.

Cologne Higher Regional Court, 20 U 295/21





 Date: 05/13/2022
 Court: Cologne Higher Regional Court

 Panel: 20th Civil Senate

 Decision Type: Judgment
 File number: 20 U 295/21

 ECLI: ECLI:DE:OLGK:2022:0513.20U295.21.00


 Lower instance: District Court of Aachen, 9 O 488/20

 Keywords: right to information, contribution adjustments

 Standards: § 203 VVG; Art. 15 GDPR


 Tenor:
                               The appeal of the defendant against the 24.11.2021

                               announced judgment of the district court Aachen - Az. 9 O 488/20 -
                               is rejected.

                               The defendant bears the costs of the appeal proceedings.

                               This judgment and the contested judgment are provisional
                               enforceable. The defendant may request enforcement by the

                               Plaintiff with regard to the assessed payment obligation
                               through a security deposit of 110% of the due
                               Judgment enforceable amount and with regard to
                               Conviction to provide information by security management in
                               Avert the amount of EUR 500.00 if the plaintiff does not

                               Enforcement Security equal to 110% of each
                               enforceable amount.

                               The revision is for the defendant with regard to the question of
                               existence and content of the right to information.



 Reasons: 1


 I. 2

 The parties argue about the effectiveness of the contribution increases in the case of the defendant 3
 the plaintiff's private health insurance existing under insurance number X1
 and a related request for information. For the details, reference is made to the facts of the first instance judgment.

The district court found that the increases

- in the plaintiff's tariff A from April 1, 2017 to March 31, 2020 in 5
amount of EUR 43.29,


- in the tariff D existing for Mrs. B C from 04/01/2017 to 03/31/2019 in 6
Amount of EUR 4.80

- and in the tariff F existing for Mr. E C from 04/01/2017 to 03/31/2018 in 7
Amount of EUR 20.22


were ineffective and the plaintiff failed to pay the increase contribution 8
had been obliged. Furthermore, it ordered the defendant to pay the plaintiff 1,916.28
EUR plus interest and found that the defendant handed over to the plaintiff
is obligated to the uses that they have drawn from the premium share up to February 11, 2021
have, which the plaintiff paid for the invalid contribution increases. About that

In addition, it ordered the defendant to provide the plaintiff with information about all premium adjustments
grant, which the defendant made in the years 2011 to 2016 by submission
the information provided to the plaintiff for this purpose in the form of letters and
Supplements to the insurance policies for the years 2011 to 2016. Incidentally, das

district court dismissed the action.

Insofar as it is still relevant for the appeal, the district court has the following reasoning: 9
executed:

The premium adjustments made on April 1, 2017 are formally ineffective. the 10th
The letter of instruction and accompanying documents do not meet the requirements of Section 203

Para. 5 VVG. This leave it at the statement that the most important reason for the
Contribution change are the increased healthcare costs. Although this leaves a reference
to the calculation basis "insurance benefits" assume, however, this will only as the
named the most important reason. This is not enough for the policyholder
made it clear that it was precisely the "health costs" that

change initiated the procedure for checking the amount of the premium alone.
In addition, the passage does not convey the necessary understanding that not every
any change in the basis of calculation justifies such an increase,
but actually one that is relevant according to the legal or contractual provisions

change must exist. In contrast, the next but one paragraph of the
The accompanying letter is clearer by now stating that in
Annual comparison in tariff G - the other tariffs are not named
to be found again - the insurance benefits have risen particularly sharply. Here too
however, there is no link to a predetermined threshold value. further

Information in the manner described would also result from the rest
Content of the accompanying letter and taking into account the other enclosures.
These already lack a sufficiently concrete reference to the case of the present one
plaintiff.


A claim for payment arises i.H.v. EUR 1,916.70. It should be noted that 11
the premium amount caused by these increases only until the next
premium adjustment has been paid, which from then on is the basis for the premium payable
has been. The plaintiff is also entitled to the return of the benefits derived from § 818 Para. 1 BGB, limited to the time before the occurrence of the
Obligation to pay interest on the principal claim.

The plaintiff also has a claim against the defendant to the transmission of the
Cover letters related to corresponding premium increases and

Supplements to the insurance policy for the years 2011 to 2016 in accordance with Art. 15 Para. 3 DS-
GMO. According to this, the defendant is liable as the person responsible within the meaning of Art. 4 No. 7 DS-GVO
towards the plaintiff as their contractual partner and data subject within the meaning of Art.
15 Para. 1 DS-GVO the provision of a copy of the processed by you

personal data within the meaning of Art. 4 No. 1 DS-GVO. object of the right to
The data copy is the personal data available to the person responsible in
their rough draft; the claimant is all to be subsumed hereunder
To make correspondence available, regardless of whether it is already available.

The cover letter and supplements to the insurance certificate for the years 2011 to 2016 would be 13

without further notice as personal data within the meaning of Art. 4 No. 1 DS-GVO the law
subject to data copy. The amount of the
Contribution increases for the years 2011 to 2016 based on the respective tariffs.

On the other hand, the 14th

Justifications and supplementary sheets for the years 2011 to 2016. This is according to the
The court's understanding was not about the "letters of justification"; these were rather subordinate
the term "cover letter" used by the plaintiff. The supplementary sheets are missing as
general information letter of the necessary personal reference to as
"Personal Data" covered by the Right to Data Copy.


The right to information derived in this way and to this extent is not 15
barred. According to its nature, it is solely due to the deletion that may have occurred and a
justified refusal due to partial information already provided or as an exception
restricted due to excessive use of the right to information, which in the present case
however, are also not visible. The defendant last with a brief dated

The information submitted on November 5th, 2021 would make the specific request for information clear
not fulfill.

With its appeal, the defendant is pursuing its desire for the full dismissal of the complaint 16
further.


She believes that the adjustment notification from February 2017 met the requirements. the 17th
Reference to the increased healthcare costs should not be understood otherwise than that
The costs for the insurance benefits have risen, which is decisive
The basis for the calculation is insurance benefits. The further explanations can also
the policyholder understand only so. The notification of the relevant reasons

also do not require the indication that a threshold has been exceeded; result in something else
also not from the more recent case law of the Federal Court of Justice.

There is no legal basis for the asserted right to information. 18
In particular, this cannot be based on Art. 15 GDPR. Let this one

at most, a right to the provision of information related to the amount of the
Contributions paid by the plaintiff. The defendant had this with a document dated
05.11.2021 granted. A further claim can be derived from Art. 15 GDPR
not derive. The purpose of the provision is to enable the person concerned to
to check the legality of the processing of his data and to exercise his right as a data subject. To do this, the processed data would have to be made transparent.
However, a claim for the release of documents is not justified. In addition, there is
the suspicion of investigation, which is why the handing over of documents is not in
come into consideration. A comprehensive right to a copy of all documents would also be contained in

Contradiction to the principle of delivery. As far as the BGH explained that the data
of insurance policies and supplements not categorically from the scope of the
Art. 15 DS-GVO are excluded, this cannot be done on a contribution adjustment letter
be extended. These are used in a variety of cases

identical declarations, so that it is necessary to link the communicated
Information with a specific person is missing. Anyway, it is one
obviously excessive application within the meaning of Art
is aimed at checking the lawfulness of the processing of the data collected, but
to obtain the information in the simplest and most convenient way possible

would be required to bring an action for reimbursement of contributions paid
to be able to prepare.

Other bases for a claim are also not available. Art. 3 para. 3 VVG come 19
out of the question in this respect because this only protects the policyholder from difficulties in providing evidence

should protect with regard to the conclusion of the contract and therefore the policyholder
only a right to the issuance of a new insurance certificate is granted.
In any case, a request for information based on § 3 para. 3 VVG is abusive,
because the mere naming of the increase contributions to substantiate a possible lawsuit
not sufficient; the cover letters requested with the request for information

and the policyholder does not receive leaflets about § 3 para. 3 VVG. § 3 paragraph 4
According to its wording, the VVG is limited to declarations that
policyholder gave up.

Art. 7 para. 4 VVG is not applicable because the documents are already in writing 20
were communicated and the meaning and purpose of the provision is anyway only to the

to provide the policyholder with evidence of the concluded contract.

A corresponding claim does not result from § 242 BGB either. Here it is already missing at 21
the condition that the person requesting information cannot reasonably be expected to
can obtain the information and the person obliged to provide information can easily provide it

because it can be assumed that all documents are in the plaintiff's possession
located. It can be expected that the contractual documents will be properly processed
had been managed. Even in the event of a loss, however, there is a lack of the
required excusability. The requested retrospective information is for the defendant
and compilation of documents involved immense effort.


§ 666 BGB does not apply because the 22nd
Health insurance contract for no service contract, which is an agency for
have an object, act.

§ 810 BGB is not applicable in addition to § 3 VVG, but is also only available for inspection 23

in documents and not aimed at making copies. It's also missing
required legitimate interest.

In any case, any repayment claims are in any case up to and including 2016 24
statute-barred, with the result that claims for information would no longer be considered.

                                                                                               25, The defendant requests that

the judgment of the Aachen Regional Court of November 12, 2021 on file number 9 O 488/20 26
amend and dismiss the complaint in its entirety.

The plaintiff requests that 27


 to dismiss the appeal. 28

The plaintiff claims that the district court was right in assuming that the 29th
disputed letter of notification would not have satisfied the requirements.

In particular, there is no indication that there is a predetermined threshold 30

give that has been exceeded. In any case, the BGH has the formal ineffectiveness
the disputed contribution increase already confirmed.

Finally, the regional court also correctly assumed that the 31st
Request for information from Art. 15 DS-GVO result. This is just not on data
limited, which are not yet known to the person concerned. The fixed premium is also

a personal characteristic. In addition, the right to information also arises
from § 242 BGB.

For all further details, reference is made to the written submissions of the parties, the 32nd
documents submitted by them for the files as well as the minutes of the oral

Negotiation of 03/25/2022 referred.

II.33

1. The defendant's appeal is admissible, but has no success in the matter. 34

a. ah. The regional court rightly assumed that the premium increases in 35
tariffs A, D and F were ineffective as of April 1st, 2017.


As the contested judgment correctly states, the premium adjustments are 36
already as formally ineffective because the letter of notification from February 2017
does not meet the formal requirements of Section 203 (5) VVG.

In principle, the following applies: According to the case law of the Federal Court of Justice (cf. only BGH, judgment 37
dated 16.12.2020, Az. IV ZR 294/19 - quoted from juris) requires notification of the

The decisive reasons for the reassessment of the premium according to Section 203 (5) VVG
Specification of the basis of calculation, whose not only temporary change the
reassessment according to §203 paragraph 2 sentence 1 VVG. The insurer has to be there
do not state to what extent this basis of calculation has changed. He has

nor the change in other factors that have influenced the amount of the premium,
such as the actuarial interest rate. The policyholder must
Messages can be seen with the required clarity, however, that a change in
mentioned bases of calculation above the applicable threshold the concrete
triggered an increase in contributions (cf. BGH, judgment of February 9th, 2022, Az. IV ZR 337/20; judgment

from July 21, 2021, Az. IV ZR 191/20; BGH, judgment of October 20, 2021, case no. IV ZR 148/20; BGH,
Judgment of November 17, 2021, Az. IV ZR 113/20 - each quoted from juris). So he has to
in particular, it should also be made clear that there is a predetermined threshold for
there is a change in the relevant basis of calculation, the exceeding of which

triggered the premium adjustment in question here (cf. in particular BGH, judgment of February 9th, 2022, Az. IV ZR 337/20; judgment of July 21st, 2021, Az. IV ZR 191/20; so expressly
now also OLG Celle, judgment of January 13, 2022, Az. 8 U 134/21 - quoted from juris).

The letter regarding the increase on April 1, 2017 (Annex I 6, Bl. 371 ff. LG) is sufficient for these 38
requirements not. It says in part:


"(...), 39

today we are informing you that we will be adjusting your contribution as of April 1, 2017 40
have to.

Why is your post changing? The most important reason is the increased 41

healthcare costs. Diagnostic and therapeutic methods are constantly evolving. This
have their price. But they help you to heal faster.

(...) 42

In a year-on-year comparison, the insurance benefits in Tariff G have risen particularly sharply. 43
This applies above all to the inpatient area. We also registered in the outpatient area

an increased utilization. Medicines and bandages are particularly affected here.
In the dental field, benefits for orthodontics increased in particular. the
The benefits paid out were significantly higher than in the previous year. Mainly because of that
we have to adjust the posts.


(...) 44

For further reasons for the premium adjustment, please refer to the supplement "Ein 45
Practical example of the H".

(...)”. 46

With this or at least an almost identical letter of notification including attachments, 47

the BGH already in its judgment of July 21, 2021 (Az. IV ZR 191/20 - quoted
according to juris), which an appeal against the decision of the 9th civil senate of July 7th, 2020,
Az. 9 U 227/19 (cited according to juris), employed and stated (margin no. 25 ff.),
that at least not from the mention there of increased healthcare costs
show that there is a predetermined threshold for a change in the

There are performance expenditures, the exceeding of which is the one in question here
triggered a premium adjustment. The required information can be found here
in particular not from the attachments to the notification letters (cf. also OLG Köln,
9. Civil Senate, Az. 9 U 227/19, Rn. 43 ff. - quoted from juris). There, too, only

general information on the legal thresholds is given; a 
there is no specific reference to the tariff increases that have been implemented. General information in the
Information sheets indicate that a change in one of the two bases of calculation
may trigger a premium adjustment and mere explanations of the general
Legal and tariff bases meet the requirements of §203 Para.5 VVG

but not. Rather, the notice states unequivocally, clearly and unequivocally
point out which changed basis of calculation for the specific one in question
premium increase was decisive. This is missing here.

Based on this, the regional court also correctly assumed that the 48th

Contribution increases in tariffs A, D and F from 01.04.2017 to the respective
Subsequent adjustment - with regard to this limitation, the district court judgment has become legally binding - are ineffective and the plaintiff is unable to pay the respective
increase contribution was obliged.

bb From this follows the obligation of the 49th
Defendant to repay the amount paid for the invalid contribution increases

Amounts of EUR 1,916.28 plus interest and for the issuance of the resulting im
Period until February 11th, 2022. Because of the details of
Justification and calculation can be used in full to avoid repetition
the correct explanations in the challenged judgment are referred to. This

- about the underlying assumption of the ineffectiveness of the
Contribution adjustment beyond - rightly not attacked by the appeal.

b. The district court also rightly ordered the defendant to provide the plaintiff with information 50
to issue all contribution adjustments that they made in the years 2011 to 2016
made by submitting the information sent to the plaintiff for this purpose

Information in the form of cover letters and supplements to the insurance policy of the years
2011 to 2016.

ah. However, there is no corresponding right to information in the present case 51
from § 242 BGB.


From the point of view of good faith, § 242 BGB, the 52
Policyholders have a right to information against the insurer if
he is in an excusable way uncertain about the existence and scope of his right
and the insurer can easily obtain the information required to eliminate the uncertainty
(cf. only BGH, judgment of 01.06.2016, Az. IV ZR 507/15 - quoted from juris).

The scope and content of the information to be provided depend on which information
the policyholder needs in order to be able to assert his claim, insofar as
which are not opposed by reasonableness aspects or other limits.

In any case, in the present case, a right to information based on Section 242 of the German Civil Code 53 is excluded
in the opinion of the Senate, however, because the plaintiff merely submitted that

he did not have the requested documents. Substantiated lecture to the fact that he this about
have not kept or what efforts he claims to have made to keep them
to be found, was not possible despite a corresponding notice from the Senate dated March 11, 2022.
Even if the right to information according to § 242 BGB is not limited to the case that the

Claimant lost the documents through no fault of his own (cf. OLG
Stuttgart, judgment of November 18, 2021, Az. 7 U 244/21; different, however, probably OLG Munich,
Notice resolution of November 24th, 2021, Az. 14 U 6205/21), but demand it in good faith
in any case not, to the person seeking information effort at the expense of the person obliged to provide information
spare


bb However, the right to information arises – of which the regional court correctly 54
assumed - from Art. 15 Para. 1, 3 DS-GVO.

                                                                                              55, According to Art. 15 Para. 1 DS-GVO, every data subject, according to Art. 4 No. 1 DS-GVO
person identifiable or identified by personal data, the right of
to request confirmation from the person responsible as to whether they are concerned
personal data are processed; if this is the case, it has i.a. A right to

Information about this personal data. According to Art. 15 Para. 3 DS-GVO, the
Controller a copy of the personal data that is the subject of the processing
are to provide.

The term "personal data" according to Art. 4 DS-GVO is broadly defined 56

(Federal Court of Justice, judgment of June 15, 2021, Az. VI ZR 576/19 - quoted according to juris; cf. also our
Judgment of July 26, 2019 in case 20 U 75/18). He is not particularly sensitive or
private information, but potentially includes all types of information
both objective and subjective, provided that it is
Information about the person in question (Federal Court of Justice, judgment of June 15, 2021, Az.

VI ZR 576/19 – quoted from juris). The latter requirement is met if the
Information because of its content, purpose or impact with a
is linked to a specific person (Federal Court of Justice, judgment of June 15, 2021, Az. VI ZR 576/19 - cited
according to law). It is not required that the information be "significant biographical information"

acts that are "in the foreground" of the document in question (Federal Court of Justice, judgment of
June 15, 2021, Az. VI ZR 576/19 – quoted from juris).

As part of its judgment of June 15, 2021 (Az. VI ZR 576/19 – quoted from 57
juris) expressly clarified that in particular neither data of the insurance policy
nor the past correspondence between the policyholder and the insurer

are categorically excluded from the application report of Art. 15 GDPR. the
Letters from the insurer to the policyholder are intended to support the right to information
Rather, insofar as they contain information about the policyholder according to the
criteria shown.

In the present case, after the partial rejection of the 58th

more extensive right to information asserted in the first instance only
about a right to information about those made in the years 2011 to 2016
Contribution adjustments by submitting the information transmitted for this purpose in the form of
Cover letter and supplements to the insurance certificate.


First of all, the 59
supplements to the insurance policy; because from these results, with what content
and under what conditions for the policyholder from the insurer
insurance coverage exists.

However, the letters sent for this purpose also show the necessary link; 60

because it regularly follows from these (the defendant does not submit anything else) that the
Policyholders under a specific date of any change regarding
informed of his insurance contract. They pose regularly at the same time
letter of justification according to § 203 para. 5 VVG, for which the link follows,

that it can be inferred from these that and to what extent changes for what reasons in
have taken place according to a tariff existing for the policyholder.

Whether also with regard to supplementary sheets sent with the letter of justification, the 61st
necessary connection is to be affirmed, can be left open in the present case. Because that's the extent of it
Claim for information has been legally rejected by the district court.


                                                                                                62, Whether the relevant information is already known to the policyholder (which
should be assumed here, since the plaintiff did not receive the original transmission
denies) and whether he still has the documents or, for which we can be excused, no longer have them, is for
the right to information under data protection law is irrelevant. The BGH has expressly

clarified that the fact that letters are known to the policyholder
do not exclude the right to information under data protection law (judgment of June 15, 2021,
Az. VI ZR 576/19 – quoted from juris). This can also repeatedly request information.

As far as the defendant says, in any case only copies of the data obtained, which are the subject of the 63rd

processing are to be made available, but not copies of the data concerned
Files or documents, it is not clear on the basis of your presentation how
a provision of copies of the data at issue here on your part -
if not by means of a copy of the documents. In any case, the mere notification
the fact that there was an adjustment letter with a supplementary sheet is to fulfill the right to information

obviously not suitable.

Although a claim for the release of copies of documents is partially (cf. OLG 64
Stuttgart, Urt. June 16, 2021 – 7 U 325/20) on the grounds that no, according to the wording
of Art. 15 Para. 3 S. 1 DS-GVO, the data subject has a right only to the

Copy of the personal data being processed. The Senate
shares the opinion of the Munich Higher Regional Court (judgment of October 4th, 2021, Az. 3 U 3906/29 - cited
after juris; so also Schmidt-Wudy in: BeckOK data protection law, 39th edition, stand
01.11.2021, Art, 15 para. 85 with further references; Koreng, NJW 2021, 2692), according to which the concept of
Data copy within the meaning of Article 15 (3) GDPR, which has an independent claim in addition to Article 15

DS-GVO includes, is to be interpreted extensively. The consequence is that the person concerned is
storing body all personal data stored by him in the
are to be sent as a copy to the raw version available to him. The judgments of the ECJ of
17.07.2014, Az. C-141/12 and C-372/12 (quoted from juris) can be used to justify the
contrary view of the defendants are not used because

these are not related to Art. 15 GDPR, but to the previous regulation in Directive 95/46/EC
are.

The assertion of a right to information based on Art. 15 DS-GVO in cases such as 65
the present one is also not to be evaluated as abusive of rights, § 242 BGB.


It is correct that the data subject's right to information regarding the 66
personal data for the purpose of being aware of the processing and
to be able to check their legality (see recital 63 on the GDPR). It
may be assumed that the plaintiff in the present case is not ultimately
In any case, it is not primarily about protecting your data, but about preparation

pecuniary claims. The assertion of a claim based on Art. 15 DS-GVO
However, this does not preclude a supported right to information. Corresponding can
in particular not the decision of the BGH of June 15, 2021 (Az. VI ZR 576/19)
be removed. A determination as to whether a data protection law

There is also a right to information if a policyholder is pursuing purposes that Art.
15 Para. 1 DS-GVO does not protect, has not taken place there.

The question is controversial in case law and literature. 67

The Munich Higher Regional Court (resolution of November 24, 2021, Az. 14 U 6205/21; so both in the 68th
Result as well as in the reasoning also OLG Hamm, decision of November 15th, 2021, Az. 20

U 269/21), for example, rejected a claim for information in a similar case (also) on the grounds that the meaning and purpose of Art. 15 (3) GDPR was not that
Office structured processing of the policyholder's documents for the latter
to be carried out by the insurer with the aim of informing the policyholder
subsequently to enable the assertion of pecuniary claims if

he did not keep his documents.

According to the judgment of the Senate, a corresponding teleological 69
However, no restriction should be made (cf. already the judgment of 26.07.2019 in the
Case 20 U 75/18). From the fact that the purpose of Art. 15 DS-GVO is the legality of the

to ensure the processing of the personal data and to give the data subject the
Enabling enforcement of the rights provided for in the GDPR follows
by no means mandatory that the claim be exercised even only for that purpose
may. Rather, the Senate shares the opinion of Bäcker, which convinced him (in:
Kühling/Buchner, DS-GVO BDSG, 3rd edition 2020, Art. 15 para. 42d; so also forests, r+s

2021, 98; Schmidt-Wudy in: BeckOK data protection law, 39th edition, as of November 1st, 2021, Art.
15 para. 85 ff. with further references), who explains that the function of Art. 15 DS-GVO is not in a
exhaust such privacy-internal use of the obtained information. Much more
The aim of the Regulation as a whole is to protect the rights and freedoms of the person

against impairments and threats caused by the processing of personal data
Data. Use the data subject's right to a copy of the data in order to
To reduce information asymmetries between yourself and the person responsible and thus yours
Protecting rights and freedoms is a legitimate and legally recognizable task
Target. It is not important whether these rights and freedoms are

data protection law or in another partial order of law.
A request for a copy with which the
data subject obtains information to prepare for legal proceedings against the
responsible person in which they want to assert external data protection claims
wool.


It should also be noted that, in the opinion of the Senate, there are hardly ever 70
it can be ruled out that the policyholder is at least also concerned about the
protection of his data. Against this background, too, it does not seem sensible to do this
Existence of the right to information according to the DS-GVO from a corresponding - not

verifiable – assertion about the inner motivation of the respective claimant
to make dependent.

On the basis of this, the defendant is also not entitled to the information pursuant to Art. 71
12 para. 5 sentence 2 DS-GVO to refuse. Because the application is not solely because of this
excessive because the plaintiff is not primarily concerned with protecting his rights under the DS-

GMO likes to go. For a chicane or one at unreasonably short intervals
There is also no evidence of recurring requests for information. Whether the request of
Defendant, the verification of the legality of the contribution claims made by her
by their policyholder by not handing over stored documents

to make it more difficult if possible, against the background of contractual duties of care,
is worthy of protection may remain undecided.

                                                                                               72. Finally, the defendant cannot counter all of this by saying that the request for information is open
Exploration directed and therefore contradict the civil procedural
teaching principle. For the present case is not about the question of substantiation and
burden of proof in civil proceedings, but the existence of a substantive law

right to information.

Contrary to the assumption of the defendant, the claim is also not based on fulfillment 73
extinguished. The defendant issued the first instance with Annexes I 13, I 14 and I 15 (page 648
ff. of the case) already provide information on the amount of the contribution in the respective tariffs. This is however

none, not even partial fulfillment has occurred because it is evident from the tabular
Overviews only the amount of the total contributions to be paid in the respective tariff, not
but the respective increase amount shows. This cannot be done in all cases
calculated because the contribution for the year 2010 is not specified as the starting value.

Finally, the right to information based on Art. 15 GDPR is not time-barred. A 74

The statute of limitations could begin here at the earliest with the deletion of the stored data
however, the defendant itself did not claim. On whether payment claims made with the help of
information given could be substantiated would be time-barred, it comes to the
right to information under data protection law.


bb Whether the right to information also arises from other bases for a claim under the VVG, 75
in particular from § 3 para. 3 VVG, § 3 para. 7 VVG, § 7 para. 4 VVG or from one
Synopsis of these standards, taking into account what is expressed therein
coming rationale that the law gives the policyholder the documents
- if necessary again - wants to be made available, which this to assert its

Claims required, results, does not require any in-depth study against this background. The same applies to
the question of one resulting from § 810 BGB or § 666 BGB (in conjunction with § 675 BGB).
Right to information.

2. The defendant's posthumous pleading of April 27, 2022 gives no reason for the 76th
Reopening of the oral hearing.


3. The procedural ancillary decisions are based on §§ 97, 708 No.10, 711 ZPO. 77

4. The revision is made in accordance with § 543 Paragraph 1 No. 1 ZPO with regard to the question of the existence of 78
a right to information arising in particular from Art. 15 DS-GVO
about contribution adjustments that have been made and the information transmitted in this regard. the

In this respect, the legal matter is of fundamental importance (Section 543 (2) No. 1 ZPO); the
Admission is also in terms of - as shown - divergent
Jurisdiction of other Higher Regional Courts also to ensure a uniform
jurisprudence required.

Amount in dispute for the appeal procedure: up to EUR 5,000.00 79