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 controller is the SCHUFA Holding AG, the biggest German credit rating agency. The data subject is as a businessman operating an one-man business in the steel pipe trading sector and working as a commercial agent as a side-job.
In the past, insolvency proceedings had been initiated against the data subject which was published - as required under German law - on the insolvency announcement portal "www.insolvenzbekanntmachungen.de". On March 25 2020, these proceedings were terminated. Under § 3(1) of the German Insolvency Announcement Regulation (InsoBekV) entries in the insolvency announcement portal must be deleted not 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 portal. The controller, however, stored the information about the insolvency proceedings in their own database even after this period. As a result of these records, the data subject was not able to switch his health insurance, rent an apartment or conduct business without prepayment. On 30 November 2020, the data subject requested the controller to stop disclosing the personal information from his insolvency proceedings to third parties and delete the information. The controller rejected the request of the data subject. It argued that its customers have a legitimate interest to know that the data subject had been insolvent during the time of the insolvency proceedings even after the six months period has elapsed. It considered a three years storage period appropriate.
The data subject, consequently, filed a lawsuit against the controller before the Regional Court Kiel (Landgericht Kiel - LG Kiel) requesting the deletion of the record and the correction of his credit score in a way that the insolvency proceedings are no longer taken into account as a factor in the calculation. The LG Kiel dismissed the claim holding that the controller's and its customer's legitimate interest in knowing about the insolvency proceedings outweighs the interests of the data subject. The data subject then appealed this decision before the Higher Regional Court of Schleswig-Holstein (Oberlandesgericht Schleswig-Holstein - OLG Schleswig-Holstein).
Holding
The OLG Schleswig-Holstein set aside the judgement of the LG Kiel and upheld the claim. It found that the data subject was entitled request the erasure of the record under Article 17(1)(d) GPDR because the processing was unlawful.
First, the court determined that neither Article 6(1)(a) GDPR nor Article 6(1)(e) GDPR provide a legal basis for the processing because the data subject did not consent to the processing and the activities of the controller cannot be considered as 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.
The OLG Schleswig-Holstein disagreed with the view of the LG Kiel that storing the information about the insolvency proceeds even after the six months period of § 3(1) InsoBekV has ended is lawful under Article 6(1)(f) GDPR.
. 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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