BGH - VI ZR 15/23

BGH - VI ZR 15/23
Court:	BGH (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 15(1) GDPR
Decided:	06.02.2024
Published:
Parties:
National Case Number/Name:	VI ZR 15/23
European Case Law Identifier:
Appeal from:	OLG Celle (Germany) 8 U 165/22
Appeal to:	Not appealed
Original Language(s):	German
Original Source:	BGH (in German)
Initial Contributor:	ec

The Supreme Court found that a data subject has no right to a copy of documents justifying premium increases in an insurance contract, unless they show how these documents are necessary to contextualise and ensure the comprehensibility of their personal data.

English Summary

Facts

The data subject has private health and long-term care insurance with the controller. The controller increased the contributions in 2018 and 2020. The data subject considers the premium increases to be unlawful. Consequently, in civil court, the data subject requested information on the basis of Article 15(1) GDPR from the controller about premium increases starting from 2016, including justifications for the premium adjustment and supplements to the insurance policy.

The Landsgericht Verden (Regional Court of Verden) upheld the action.

The controller appealed the decision to the Oberlandesgerichts Celle (Higher Regional Court of Celle). However, the Court of Appeal held that the data subject is entitled to the asserted right to information under Article 15(1) GDPR. It found that letters from the controller to the data subject, even standard letters sent to a large number of recipients with the same content, are subject to the right to information as they contain information about the data subject.

The controller appealed to the Bundesgerichtshof (German Supreme Court).

Holding

The Supreme Court held that the access request by the data subject cannot be affirmed based on the reasoning of the Court of Appeal.

Article 15 GDPR and the GDPR as such are applicable, even if the processing occurred before the GDPR came into force in 2018. This is because the request was submitted after 2018. The CJEU previously ruled that “it is applicable to a request for access to the information referred to in that provision where the processing operations which that request concerns were carried out before the date on which that regulation became applicable, but the request was submitted after that date.” (see CJEU Case C-579/21, para 36).

However, Article 15 GDPR cannot be used in the case at issue, because of the following reasons:

Firstly, in light of the broad scope of personal data under Article 4(1) GDPR, letters from the data subject to the controller are to be classified as personal data in their entirety. However, letters from the controller to the data subject are only personal data if they contain information about the data subject in accordance with the criteria in Article 4(1) GDPR. Therefore, only the personal data of an insurance policy falls under Article 15(1) GDPR.

Secondly, the data subject’s request was for a copy of the controller’s entire letter justifying the premium increase in 2016 including the attachments. However, the letters and attached annexes of the controller as a whole do not contain personal data. Thirdly, the data subject does not have any right under Article 15(3) GDPR to a copy of the explanatory letter and attachments. The term “copy” in Article 15(3) GDPR refers to the personal data it contains and not a document as such. Therefore, the copy must contain all personal data that is the subject of the processing. The CJEU previously ruled that the reproduction of excerpts from documents or even entire documents or excerpts from databases may be indispensable if the contextualisation of the processed data is necessary to ensure their comprehensibility and to guarantee the data subject the effective exercise of their rights (see CJEU C-487/21 para 31-41 and 45, CJEU C-579/21 para 66 and CJEU C-307/22 para 74). However, this does not apply in this case, because the data subject did not argue why the complete letter of justification including attachments would be necessary and it was also not apparent why this otherwise would be necessary.

The Supreme Court concluded that the case must be referred back to the Court of Appeal because of an unresolved issue under national law.

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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.

From Article 15 Paragraph 1 and 3 GDPR there is generally no entitlement to copies of the letters of justification including attachments to premium adjustments in private health insurance (connection to BGH, judgment of September 27, 2023 - IV ZR 177/22, NJW 2023, 3490 Rn. 45 ff.).
tenor

Upon the defendant's appeal, the judgment of the 8th Civil Senate of the Celle Higher Regional Court of December 15, 2022 is overturned in terms of costs and to the extent that the defendant's appeal against the judgment of the 8th Civil Chamber of the Verden Regional Court of January 12, 2022 with regard to the request for information is rejected has been.

To the extent of the annulment, the matter will be referred back to the appeal court for a new hearing and decision, including on the costs of the appeal proceedings.

By law
Facts of the case

The plaintiff has private health and nursing care insurance with the defendant. The defendant increased the contributions in 2018 and 2020. The plaintiff considers the premium increases to be unlawful and, to the extent relevant to the appeal proceedings, calls on the defendant to provide him with information about further premium increases that took place in 2016 and to provide him with the cover letters, justifications and supplementary sheets on the premium adjustment as well as the addenda to the insurance certificate To make available. He did not have the relevant documents.

The regional court upheld the lawsuit in this respect. The higher regional court rejected the defendant's appeal. With the appeal approved by the appeal court regarding the right to information, the defendant is continuing to pursue its motion to dismiss the lawsuit in this regard.
reasons

I

In the opinion of the appeal court, the plaintiff is entitled to the asserted right to information under Article 15 GDPR. The adjustment notifications are personal data within the meaning of Article 4 No. 1 GDPR. The term should be understood broadly. Letters from the defendant to the plaintiff were subject to the right to information insofar as they contained information about the plaintiff. Even if the defendant's letters were probably standard letters that were sent to a large number of recipients with the same content, they were at least related to the plaintiff's specific contract. Even if the plaintiff still has some of the disputed documents, the right to information is neither excessive nor abusive in any other way.

II.

These considerations do not stand up to legal scrutiny. Based on the reasons given by the appeal court, the claim to information asserted by the plaintiff cannot be affirmed.

1. As the Federal Court of Justice decided after issuing the appeal judgment (judgment of September 27, 2023 - IV ZR 177/22, NJW 2023, 3490 Rn. 45 ff.), the asserted claim cannot be based on Art. 15 para. 1 and paragraph 3 GDPR.

a) However, contrary to the opinion of the revision, Article 15 GDPR is applicable in the event of a dispute in terms of time, although the processing operations to which the request for information relates took place in 2016 and thus before May 25, 2018 as the application date of the General Data Protection Regulation ( Art. 99 Para. 2 GDPR) were carried out. The disputed request for information itself was only submitted after this date (cf. ECJ, judgment of June 22, 2023 - C-579/21, NJW 2023, 2555 Rn. 36).

b) Article 15 Para. 1 GDPR gives the data subject a right to information about the processing of personal data to the person responsible for data protection (Article 4 No. 7 GDPR). According to Art. 4 No. 1 GDPR, personal data is all information that relates to an identified or identifiable natural person (“data subject”). According to the case law of the Court of Justice of the European Union, the term is to be understood broadly. It is not limited to 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. The latter requirement is met if the information is linked to a specific person due to its content, purpose or effects (cf. ECJ, judgment of May 4, 2023 - C-487/21, NJW 2023, 2253 para. 23 f .; see also Senate, judgment of June 15, 2021 - VI ZR 576/19, NJW 2021, 2726 Rn. 22 with further references).

According to these principles, letters from the data subject to the person responsible are to be classified as personal data based on their entire content, since the personal information already consists of the fact that the person concerned has expressed themselves in accordance with the letter, but vice versa - as is relevant here - letters to the person responsible the data subject only to the extent that they contain information about the data subject according to the criteria mentioned above. Accordingly, only the personal data of an insurance certificate are not categorically excluded from the scope of application of Article 15 Para. 1 GDPR (BGH, judgment of September 27, 2023 - IV ZR 177/22, NJW 2023, 3490 Rn. 48; see also Senate , judgment of June 15, 2021 - VI ZR 576/19, NJW 2021, 2726 Rn. 25).

c) The plaintiff's application aims to submit a copy of the defendant's entire letter of justification for the contribution increase in 2016, including attachments. Although individual parts of these letters and attachments contain individual personal data of the plaintiff as the defendant's policyholder, neither the letters from the defendant themselves nor the attached attachments (additional sheets, addendum to the insurance certificate) in their entirety constitute personal data of the plaintiff. However, the plaintiff did not limit the asserted claim and his application to the personal data contained in the letters (cf. BGH, judgment of September 27, 2023 - IV ZR 177/22, NJW 2023, 3490 Rn.46 ff. ).

d) The plaintiff cannot derive any right to receive a copy of the justification letter including attachments from Art. 15 Para. 3 GDPR. Art. 15 Para. 3 GDPR sets out the practical modalities for fulfilling the claim under Art. 15 Para. 1 GDPR, but does not grant any further claim of its own. The term “copy” in Article 15 (3) GDPR does not refer to a document as such, but to the personal data it contains. The copy must therefore contain all the personal data that are the subject of the processing. However, the reproduction of extracts from documents or even entire documents or even extracts from databases can prove to be essential when the contextualization of the data processed is necessary to ensure their comprehensibility and to ensure that the data subject can effectively exercise their rights (cf. ECJ, judgments of May 4, 2023 - C-487/21, NJW 2023, 2253 Rn. 31 f., 41, 45; of June 22, 2023 - C-579/21, NJW 2023, 2555 Rn. 66; of October 26, 2023 - C-307/22, NJW 2023, 3481 Rn. 74 f.; BGH, judgment of September 27, 2023 - IV ZR 177/22, NJW 2023, 3490 Rn. 51 ff.).

This exception does not apply in this case. The plaintiff has neither stated nor is it otherwise apparent that the contextualization of the processed data would be necessary to ensure their comprehensibility, so that, in exceptional cases, it would be necessary to send a copy of the respective complete letter of justification including attachments (cf. BGH, judgment of 27. September 2023 - IV ZR 177/22, NJW 2023, 3490 Rn. 55).

2. The decision on the request for information does not prove to be correct for other reasons (§ 561 ZPO).

a) A right to information does not arise from Section 3 Paragraph 3 VVG. According to this provision, the policyholder can request that the insurer issue a new insurance policy if an insurance policy is lost or destroyed. The cover letters, reasons and supplements requested with the request for information are not covered by this anyway. But even to the extent that the plaintiff requested that the supplements to the insurance certificate from 2016 be made available to him, this cannot be based on Section 3 (3) VVG. The insurance certificate has an information, legitimation and proof function. So that the policyholder can inform himself about the rights and obligations under the contract and provide evidence of these, Section 3 Paragraph 3 VVG gives him the right to have the insurance certificate issued as a replacement. This therefore only covers the insurance certificate including those addenda that reflect the currently valid contract content, not addendums that are already outdated (BGH, judgment of September 27, 2023 - IV ZR 177/22, NJW 2023, 3490 Rn. 42 with further references).

b) Section 3 Paragraph 4 Sentence 1 VVG only refers to the policyholder's own declarations, not those of the insurer, and is therefore also excluded as the basis for a claim (BGH, ibid. para. 43 with further references).

c) The claim cannot be based on Section 810 of the German Civil Code (BGB) either, since it only allows the inspection of a document in someone else's possession (BGH, ibid. para. 44 with further references).

d) Based on the findings made so far, the plaintiff cannot base his disputed request for information on good faith according to Section 242 of the German Civil Code (BGB).

aa) According to Section 242 of the German Civil Code (BGB), the debtor is exceptionally obliged to provide information within the framework of a legal relationship if the entitled party is excusably uncertain about the existence and scope of his right and the obligated party can easily provide the information necessary to eliminate the uncertainty. The approval of the right to information must take into account the respective circumstances of the individual case and in compliance with the principle of proportionality. Within contractual relationships - as here - the right to information can also have the function of providing the entitled person with information about the existence of the claim. There must then be sufficient evidence for the existence of a main claim that is to be asserted with the help of the information (BGH, judgment of September 27, 2023 - IV ZR 177/22, NJW 2023, 3490 Rn. 30 ff. mwN).

In addition, findings must be made that the authorized person no longer has the documents specified in the request for information. Only then can it be certain that he is uncertain about the existence and scope of his rights and cannot reasonably obtain the necessary information himself. Good faith does not require that the person seeking information be spared effort at the expense of the person obliged to provide the information (BGH, ibid. para. 38 with further references).

Finally, the reasons for the loss need to be determined. The policyholder cannot be excused from being uncertain about his rights if he no longer has the documents regarding the premium adjustments and does not provide any further explanation of the reasons for the loss. Only the explanation of the reasons for the loss by the policyholder makes it possible to assess whether the policyholder is exceptionally entitled to a right to information in accordance with Section 242 of the German Civil Code, taking into account the respective circumstances of the individual case and while respecting the principle of proportionality (BGH, ibid. para. 40 with further references).

bb) The appeal court made findings - consistent from its point of view - neither on the fact of the loss of the documents as such - which was disputed by the defendant - nor on the reasons for this loss.

III.

The matter is therefore to be referred back to the appeal court to the extent of the annulment in accordance with Section 563 Paragraph 1 Sentence 1 ZPO so that it can make the findings necessary to examine the claim under Section 242 of the German Civil Code (BGB).

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