OLG Schleswig - 17 U 5/22

OLG Schleswig - 17 U 5/22
Court:	OLG Schleswig (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1)(f) GDPR Article 17(1)(c) GDPR Article 17(1)(d) GDPR § 3 InsoBekVO
Decided:	03.06.2022
Published:
Parties:	SCHUFA Holding AG
National Case Number/Name:	17 U 5/22
European Case Law Identifier:	ECLI:DE:OLGSH:2022:0603.17U5.22.00
Appeal from:	LG Kiel (Germany) 10 O 127/21
Appeal to:	Unknown
Original Language(s):	German
Original Source:	REWIS (in German)
Initial Contributor:	n/a

The Schleswig-Holstein Higher Regional Court (OLG Schleswig-Holstein) ruled that under current German law a credit rating agency may only lawfully process personal information from insolvency proceedings no later than six months after their termination.

English Summary

Facts

The dispute arose between the data subject and the SCHUFA Holding AG, which is the data controller and a German credit rating agency. Insolvency proceedings were opened against the data subject that had been published - as required under German law - on an insolvency notice portal (www.insolvenzbekanntmachungen.de). On March 25 2020, these proceedings had been terminated. § 3(1) of the German Insolvency Notification Regulation (InsoBekV) provides that these entries must be deleted no later than six months after the termination of the insolvency proceedings. The respective entry on the data subject was deleted during this period in the notice portal. The controller, however, stored the information about the insolvency proceedings in their own database.

As a result of the record of the controller, and after the deletion from the national insolvency notice portal, the data subject suffered severe economic consequences. It was not possible for him to switch his health insurance, rent an apartment or conduct business without prepayment. The data subject requested the deletion of his personal data from the SCHUFA records: on 30 November 2020, the data subject requested the controller to stop disclosing the personal information from his insolvency proceedings to third parties. The controller refrained from deleting the records.

The claim of the data subject for the deletion of the records had been dismissed on first instance by the LG Kiel. The data subject appealed the decision to the OLG Schleswig-Holstein.

Holding

The OLG Schleswig-Holstein held that the data subject was entitled to the right of erasure under Article 17(1)(d) GPDR, since the data processing of the controller was not lawful.

The only applicable legal basis for the processing at hand is Article 6(1)(f) GDPR since the data subject neither consented to the processing nor can the activities of the controller be considered necessary for the performance of a task carried out in the public interest, as the OLG already clarified in OLG Schleswig - 17 U 15/21. However, six months after the termination of an insolvency proceeding the data cannot be longer lawfully processed under Article 6 GDPR and the data subject may claim his the right to erasure under Article 17(1)(a) GDPR.

Balancing of interests

The OLG clarifies that the controller has a legitimate interest in storing information of insolvency proceedings for six months after the termination of the insolvency proceedings since it facilitates the defendant's work, makes it more effective and can strengthen its market position. After this period, the interest of the data subject outweigh the economic interest of the controller. The processing of the data at hand does not only violate the data subject's right to informational self-determination, but also other fundamental rights such as the right to freedom of action, the right to freedom of occupation, and the data subject's contractual freedom.

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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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