LG Berlin - 31 O 714/21
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| LG Berlin - 31 O 714/21 | |
|---|---|
 | |
| Court: | LG Berlin (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 15 GDPR |
| Decided: | 11.02.2022 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 31 O 714/21 |
| European Case Law Identifier: | DE:LGBE:2022:0211.31O714.21.0A |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | beck-online (in German) |
| Initial Contributor: | Fabian Dechent |
The Regional Court Berlin held that a right to information under Article 15 GDPR cannot be enforced by way of an interim injunction. There is no legal principle that the assertion of the right to access is always urgent.
English Summary
Facts
The plaintiff is the shareholder of two companies that were part of a German airline (hereinafter “companies”). The defendant is the insolvency administrator of these companies. The accounting of the companies was done by an accounting department respectively by an external service provider. By order, a German Local Court ordered the seizure of the business records, in particular the accounting records. Afterwards, the defendant continued to provide the plaintiff with access to the accounting systems. The parties dispute whether full access was granted in the process. The plaintiff requests that the defendant shall be obliged to set up full data access by means of an interim injunction. The plaintiff bases the claim, inter alia, on Article 15 GDPR. The defendant requests that the application for an interim injunction shall be dismissed.
Holding
The court ruled that a right to access pursuant to Article 15 GDPR probably did not exist in this case. In any case, this request for access is not an urgent matter and can therefore not be asserted by way of an interim injunction.
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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.
Tenor:
1. The application for an injunction is denied.
2. With the exception of the costs of the secondary interveners, which they each bear themselves, the plaintiff has to bear the costs of the legal dispute
3. The judgment is provisionally enforceable. The plaintiff can avert the enforcement of the defendant by providing security in the amount of 110% of the amount enforceable on the basis of the judgment if the defendant does not provide security in the amount of 110% of the amount to be enforced in each case before enforcement.
4. The value in dispute is set at €6,334,000.00.
facts:
1The plaintiff seeks the issuance of an interim order with regard to IT systems, business documents and data, in particular accounting data, of two insolvent companies, mbH (hereinafter: G1.) and the mbH (hereinafter: G2.). The defendant is the insolvency administrator of both G1. (insofar procedurally claimed as defendant to 1)) as well as G2. (insofar as defendant to 2)).
2G2. and G1. were part of a group of companies that operated an airline under the name "...". The plaintiff is the sole shareholder of G2. and was Managing Director of the G1.. The G2. is in turn a shareholder of G1, according to the plaintiff the sole shareholder, according to the defendant the majority shareholder with a stake of 91.8%.
3By decision of February 5th, 2019, the District Court of Charlottenburg appointed the defendant as provisional insolvency administrator of G1., by decision of February 26th, 2019 as preliminary insolvency administrator of G2.. With decision of April 1st, 2019, the insolvency proceedings over the assets of G1 from 05/01/2019 on the assets of the G2. opened and the defendant was appointed insolvency administrator. The insolvency proceedings were based on own applications dated February 4th, 2019 (for G1.) and February 25th, 2019 (for G2.).
4By decision of May 17, 2019, the district court Tiergarten ordered the confiscation of the business documents of G1 on the basis of preliminary proceedings directed against the plaintiff. on, in particular the accounting documents.
5The G1. had its own accounting department before the insolvency proceedings. The bookkeeping was carried out using the software Microsoft Dynamics NAV (also called Navision). The individual booking data records recorded in the software each show, among other things, a booking, due and construction date. The creation date indicates the time at which a posting data record was entered into the system. In addition, the booking data records are numbered consecutively when they are created. The software also offers the option of linking booking documents (invoices, receipts, bank statements, etc.) to the actual booking data record for direct retrieval in electronic form.
6After the opening of insolvency proceedings, the defendant had further postings made in the system, also stating posting data that fell before the opening and filing of insolvency proceedings. The details of this are disputed.
7From May 10th to 21st, 2019, the defendant had the accounting data "mirrored", whereby the specific meaning is disputed between the parties.
8Furthermore, the G1. as part of their business operations, including the application programs "Airpas" and "Confluence". The defendant had this switched off after the opening of the insolvency proceedings.
9The accounting of the G2. was carried out by an external company, Steuerberatungsgesellschaft mbH.
10After the opening of the insolvency proceedings, the defendant had a technical option for electronic remote access to company data set up from January 2020 and provided the plaintiff with the corresponding access data, although the details are disputed.
11The defendant commissioned aucdecon AG to prepare two (private) reports on the economic circumstances of G1., which were submitted on June 23, 2021 and November 10, 2021.
12Between the parties - as far as relevant here - three further legal disputes are pending before the district court of Berlin, in each of which the (local) defendant as plaintiff claims the local plaintiff for payment:
13In the proceedings relating to file number 30 O 14/20, he acts as insolvency administrator over the assets of the G2. Claims for restitution of EUR 1.57 million due to challenges under insolvency law, specifically contested are repayments on a shareholder loan. In the proceedings relating to file number 97 O 6/22 (formerly: 96 O 24/21), he acts as insolvency administrator for the assets of G1. Claims for the payment of shareholder contributions of around EUR 10.10 million in connection with a capital increase in 2014/2015. In the proceedings relating to file number 94 O 82/21, he acts as insolvency administrator for the assets of G1. in the amount of EUR 20.0 million claims for the return of payments after insolvency on the basis of § 64 GmbHG old version, whereby he asserted an insolvency of G1. since May 31, 2019 and in this respect refers to the expert opinions he obtained from audecon AG.
14 The plaintiff now seeks to prohibit the defendant from switching off IT systems and any changes to business documents or data and to oblige him to grant comprehensive access to the electronic business data and essentially claims:
151. The defendant (in his capacity as insolvency administrator of G1.) intends to sue the plaintiff for unjustified claims in the three-digit million range in order to obtain the highest possible payments from manager liability insurance. In addition, the defendant claims that an insolvency of G1. had occurred earlier than this was actually the case and justify this with accounting data from G1. or on the basis of expert opinions prepared by audecon AG.
16 The accounting data was handed over to the defendant in good condition, but has since been manipulatively changed by him:
17 To the extent that it is undisputed that some of the bookings made after the opening of insolvency show booking data that was before the opening of insolvency, the impression should be given that the transactions had already been booked before the insolvency was declared; this obscures the content of the pre-insolvency accounting.
18Furthermore, the defendant also had invoices placed in the accounts as liabilities that were implausible or unjustified. In other cases, he had the information (“trigger”) provided at the instruction of the plaintiff not to book creditor claims as due liabilities removed, so that these liabilities now appear as due although they are unjustified.
19 The posting data records in Microsoft Dynamics NAV were linked to the underlying documents (as scanned documents) when they were handed over to the defendant. The defendant had these links removed, so that it is no longer possible to allocate or check the postings.
20 The defendant also "changed and restructured" IT systems and server landscapes. Literally, "masses" of data were lost as a result of the shutdowns he initiated.
21 The application programs "Airpas" and "Confluence" switched off by the defendant were said to have been necessary: Airpas was used to check invoices for the direct costs of flight operations (direct operating costs, DOC, e.g. fuel costs and airport fees) in a standardized way, so that an invoice verification in this respect is now no longer possible. Confluence was said to have been used for internal company communication and the creation of documents and projects, was switched off for incorrect reasons so that the content generated in it was no longer accessible.
22It is an "open secret" that the defendant handed over the physical business documents to service providers for file archiving and destruction in the second quarter of 2019 (in this respect undisputed) and the files were "apparently" largely destroyed.
232. The defendant has not granted the plaintiff full access to G1's business documents since the opening of insolvency proceedings and the plaintiff's release as managing director. more, although the plaintiff has been trying to do so for around two years.
24The access now provided via remote access (VPN) was only opened after repeated requests. The access is insufficient insofar as it is not possible to save (download) the data available there. In addition, the defendant does not grant him access to all data that is available to him: The defendant has all accounting data including the associated supporting documents in linked form and has also made them available to audecon AG in this form. Audecon AG also had the option of saving the documents.
25 The Defendant only made the expert opinions of audecon AG available for inspection after repeated requests and initially incomplete.
26Disclosure of G2 business records. the defendant refuses completely.
273. The present pursuit of his requests is also urgent:
28 With regard to the request for injunctive relief (items 1 and 3 of the requests), it follows from the fact that it is to be feared that the defendant will continue to use accounting data from G1 in the future. manipulate or switch off or delete systems or programs that are used to process the G1. and are necessary to clarify the “true conditions”. It is also to be feared that the impression given by the defendant due to the changed accounting data that G1. continue to solidify what is unreasonable.
29Furthermore, the Defendant communicated to the press the alleged liability claims against the Plaintiff on the basis of the false accounting data, which damages its reputation.
30The requests for access to the business documents (numbers 2 and 4) are necessary in view of the parallel legal disputes between the parties:
31In the other legal dispute pending between the parties regarding file number 97 O 6/22 (formerly: 96 O 24/21), the defendant claims that G1 is insolvent on the basis of the accounting documents. since 2014. In the proceedings relating to file number 94 O 82/21, the defendant alleges that G1 is insolvent. since at least May 2018; the (local) plaintiff is requested to comment on this within six weeks. In the proceedings relating to file number 30 O 14/20, a date for the oral hearing was set for February 1, 2022. He therefore urgently needs the insight, in order to be able to defend himself in these proceedings or to prepare for the proceedings, he needs all the documents listed in his applications; he could not be referred to the assertion of the claims he is pursuing here in the main because of the procedural disadvantages that were threatening in the meantime.
32After the inspection, he intends to evaluate the appraisals of audecon AG obtained by the defendant, which is time-consuming.
33He also did not himself delay the legal prosecution in the interim legal protection. He was only able to recognize the changes in the accounting data after September 28, 2021 and only verified them in December 2021. From the claim based on § 64 GmbHG old version and the assertion of an earlier insolvency maturity of the G1. he only found out in November 2021.
34Since his right to inspect also follows from Art. 15 GDPR, waiting for a decision on the main issue is unreasonable anyway.
35An anticipation of the main issue is not to be feared with regard to the request for injunctive relief, but in any case permissible with regard to the request for inspection after weighing up the interests.
36By briefs dated January 23, 2022 and January 24, 2022, the interveners named in the caption - former co-managing directors of G1. - declares that he will join the legal dispute on the part of the plaintiff as a secondary intervener.
37The plaintiff requests that an injunction be issued with the following content:
1. a) The respondent to 1. is prohibited from using the IT systems, such as file, database and e-mail servers, and application programs, such as Microsoft Dynamics NAV, Microsoft Office 365 and its component Microsoft Outlook, ELO, RA-MICRO, der mbH iI to destroy the business documents generated or received before the opening of insolvency proceedings on April 1, 2019 and/or to delete, change, supplement or manipulate corresponding data in any other way or to make them unrecognizable by enriching them with further data and/or bookings and/or make their evaluation more difficult.
b) Respondent 1. is threatened with a fine of up to 250,000 euros for each case of infringement, alternatively imprisonment for up to six months and, in the event of a repeat offense, imprisonment for up to two years.
2. a) The respondent to 1. is obliged to grant the applicant unrestricted direct data access (e.g. via VPN) to the IT systems and application programs mentioned under 1. a) and all until the opening of insolvency proceedings until a decision is made on the main issue on April 1st, 2019 generated or received business documents and data of mbH iI, in particular
(1) Documents for all contracts in which the mbH i.I. is or was involved, outgoing and incoming invoices, cash books, cash register records, cash receipts, bank statements, bank statements;
(2) financial plans, reorganization reports, documentation and correspondence regarding negotiations with investors;
(3) Financial accounting, in particular annual financial statements, lists of totals and balances, BWA, open item lists, account sheets, G/L accounts, debtors, creditors and all financial accounting data in accordance with GoBD;
(4) Contracts with group companies and directors and related correspondence;
(5) Claim registrations and their attachments as well as associated correspondence, to grant until the final conclusion of the insolvency proceedings.
b) The respondent to 1. is obliged to enable the applicant to download copies of the data made accessible to him in accordance with Section 2 a) directly onto his own data carriers (actual download option) until a decision is made on the main issue.
3. a) The respondent to 2. is prohibited from using the IT systems, such as file, database and e-mail servers, and application programs, such as Microsoft Outlook of mbH i.I. to destroy the business documents generated or received before the opening of insolvency proceedings on May 1st, 2019 and/or to delete, change, supplement or manipulate corresponding data in any other way or to make them unrecognizable by enriching them with further data and/or bookings and/or make their evaluation more difficult.
b) Respondent 2 is threatened with a fine of up to EUR 250,000 for each case of infringement, alternatively with detention for up to six months and in the event of a repeat offense with detention for up to two years.
4. a) The respondent to 2. is obliged to grant the applicant unrestricted direct data access (e.g. via VPN) to the IT systems mentioned under 3. a) including all application programs as well as all business documents and data of the mbH iI, in particular
(1) Documents for all contracts in which the mbH i.I. is or was involved, outgoing and incoming invoices, cash books, cash register records, cash receipts, bank statements, bank statements;
(2) financial plans, reorganization reports, documentation and correspondence regarding negotiations with investors;
(3) Financial accounting, in particular annual financial statements, lists of totals and balances, BWA, open item lists, account sheets, G/L accounts, debtors, creditors and all financial accounting data in accordance with GoBD;
(4) Contracts with group companies and directors and related correspondence;
(5) Claim registrations and their attachments as well as associated correspondence, to grant until the final conclusion of the insolvency proceedings.
b) The respondent to 2. is obliged to enable the applicant to download copies of the data made accessible to him in accordance with Section 4a) directly onto his own data carriers (actual download option) until a decision is made on the main issue.
38The defendant requests that
dismiss the application for an injunction,
alternatively, to order the applicant to bring an action within two weeks on the merits.
39He initially denies that the business data of the G1. and G2. were made available in full or in the condition claimed by the plaintiff, in particular there are indications that data had been deleted to a large extent by the managing directors or under their responsibility. G2 servers existing before the opening of bankruptcy. are untraceable to this day.
For the rest, he basically claims:
401. The bookings made under his responsibility at G1. explained that when the insolvency proceedings were opened, a large number of documents amounting to around 11 million euros were only "parked" (i.e. scanned and marked, but not posted) and a further number of business transactions had not even been parked. Overall, he came across around fifty filled storage compartments full of unprocessed invoices. He had this recapitulated. Incidentally, this had already begun under the responsibility of the plaintiff during the preliminary insolvency proceedings.
41 Around 5,000 documents were recorded in this way, which led to around 110,000 individual bookings. In practice, the "posting date" in Microsoft Dynamics NAV is G1. the performance date has been recorded. According to this system, the business transactions that had not been recorded until then were also entered, insofar as this was still technically possible (booking data before November 2018 were "blocked"), even if these were data before the opening of insolvency proceedings.
42 The subsequent entry was completed on June 30, 2019 and the accounting data from Navision and the database of the G1. saved (“frozen”); further bookkeeping after this day is kept in the defendant's own system (win insolvency), in Navision no more changes or postings have been possible since then.
432. The "Airpas" and "Confluence" programs were only required for active flight operations and were therefore switched off - to save on license costs. He does not currently intend to switch off any other systems or software.
44 The links between accounting records in NAV and the associated supporting documents were not removed under his responsibility. Rather, the postings were only linked to receipts in an extremely incomplete manner when the data was taken over and most of the receipts were stored on a separate drive ("scan invoice"), but sometimes also in completely different places, e.g. in directories with the first names of former clerks been filed.
453. He made all data available to the defendant via the undisputedly existing VPN access that he himself had at his disposal. This access also has a download option using a so-called transfer drive.
46The defendant's assumption that he had made further data available to audecon AG was incorrect: the undisputed data mirroring was carried out in order to differentiate between the accounts payable and accounts receivable from the time before and the time after the opening of insolvency.
Reasons for decision:
I
47The court can decide on the application for the issuance of an injunction without the plaintiff and the defendant being granted a period for further written comments - in accordance with their applications made in the oral hearing on January 26, 2022.
48 In relation to the plaintiff, this is based on the fact that the pleadings of the defendant dated January 24 and 25, 2022 (Vol. II Bl. 48 f., 59 ff. dA), which were not available to him in advance and were only handed over during the oral hearing, do not contain any innovations that are relevant to the decision and the application was to be rejected regardless of what was said therein.
In relation to the defendant, the same result already results from the recognized decision, by which he is not adversely affected: In this respect, a curtailment of his right to be heard is ruled out.
50The presentation of the plaintiff from the - unresolved - pleading of February 8th, 2022 does not give any reason for procedural measures, in particular it does not justify a reopening of the oral hearing. The plaintiff repeats and deepens his legal opinions, in particular with regard to the admissibility of anticipating the main issue. The court took note of these statements, but they do not justify a different assessment: the question of whether the plaintiff's request would lead to the anticipation of the main issue was not relevant at all.
II.
51The application is admissible, in particular the adjudicating court is responsible according to Sections 937 (1), 940 ZPO in conjunction with Sections 71 (1), 23 No. 1 GVG, Section 19a ZPO.
In particular, the applications are also sufficiently specific, at least taking into account the material request of the plaintiff arising from the application justification and the further brief dated January 17, 2022. The court is not directly bound by the specific wording of the applications in the relevant proceedings for the issuance of an injunction, but makes the orders necessary to achieve the legal protection goal at its discretion, § 938 ZPO. Therefore, there is no need to decide to what extent the applications may have an enforceable content in every detail. The specificity of the application should determine the subject matter of the dispute and thus the scope of the court's examination and decision-making powers in the procedure for interim legal protection, i.e. define the legal protection goal, the content of which the requested order is intended to achieve, and the defendant should know what he is opposed to should defend (cf. Court of Appeal, decision of March 22, 2019 - 10 W 172/18 -, para. 7, juris, with further references). The plaintiff's argument is sufficient, despite some open-ended or unclear formulations in the applications (e.g. insofar as these under points 1 and 3 are aimed at prohibiting the defendant from "manipulation" of data). Because his request, which the defendant also recognized from his response to the application, is clearly aimed at allowing the defendant any change or destruction of business documents of G1. and G2. (sections 1 and 3 of the applications) and to provide him with comprehensive (remote) access to the electronic documents and the business IT systems together with the actual download option (sections 2 and 4 of the applications).
II.
However, the application is unsuccessful in the matter, it is unfounded.
54According to Section 935 ZPO, the court can issue interim injunctions in relation to the subject matter of the dispute if there is concern that a change in the existing situation could thwart or significantly impede the realization of a party's right (precautionary injunction). According to § 940 ZPO, the court can also issue interim injunctions for the purpose of regulating a temporary situation in relation to a disputed legal relationship, provided that this regulation appears necessary, particularly in the case of permanent legal relationships, to avert significant disadvantages or to prevent impending violence or for other reasons (regulatory injunction ).
55The prerequisite is that the plaintiff is entitled to a subjective right, the realization of which is to be secured by the injunction or that he is involved in the disputed legal relationship (claim for injunction, Huber in Musielak/Voit, ZPO, 18th ed. 2021, § 935 para 4, 12 and Section 940 para Disadvantages in relation to the legal relationship threaten (reason for injunction, Huber, loc. cit., § 935 marginal number 13, § 940 marginal number 4).
56The actual circumstances from which the claim for disposal and the reason for it arise must always be made credible, § 921 Para. 1, 936 ZPO. A fact is made credible in this sense if the court is able to obtain a sufficient conviction of the alleged facts on the basis of the means of forming conviction referred to in § 294 ZPO in free assessment of the entire argument. What is required is not - as in the main proceedings - full conviction, but an overwhelming probability of the respective fact in the sense of a degree of credibility adapted to the specific circumstances. The certainty of the determination must be made dependent on the consequences of the decision to be made; in particular, it is not sufficient in general and in any case that (a little) more speaks for than against the correctness of the respective factual assertion (Greger in: Zöller, ZPO, 34 . Edition 2022, § 294 ZPO, Rn. 6 mwN).
Based on this, the plaintiff has not made any facts credible that support the issuance of the requested injunction:
1. (right of disposal)
a (with regard to IT systems of G1.).
58 To the extent that the plaintiff initially requests, with the application made under number 1, to prohibit the defendant (in his procedural role as insolvency administrator over the assets of G1.) from further IT systems of G1. off, he wants to derive a corresponding injunctive relief from Section 241 (2) of the German Civil Code (application, vol. I, p. 51 d.A.; on the other requests within number 1 of the applications below b.).
59So much is right about that, that secondary and consideration obligations in principle justify subjective rights that can be secured with the injunction. However, insofar as the plaintiff wants to derive the secondary obligation from a (assumed) future claim for the return of the business documents after the end of the insolvency proceedings to continue to operate the IT systems to the full extent up to this point in time, the Chamber is not able to do so to this extent to connect. The wording of § 241 Para. 2 BGB (the obligation can ... oblige each part to be considerate ...) proves that consideration obligations are not mandatory and all-encompassing, but require justification in terms of reason and scope and are dependent on the respective legitimate interests of the obligated party ( Olzen in Staudinger, BGB, revised 2019, § 241, para. 419). With regard to future decisions on the shutdown of systems or software - this is the only purpose of the plaintiff's application - a corresponding claim for injunctive relief could only arise if circumstances already exist or have been made credible that would lead to the interest of the plaintiff's interest in maintaining or continuing operation outweighs the respective shutdown interest.
But such circumstances are lacking.
61As the defendant for the programs "Confluence" and "Airpas" plausibly and with credibility explained, there can be considerable interests, in the cases mentioned the saving of software license fees, for the shutdown of individual systems or applications. The insolvency administrator must take into account the interest in avoiding expenses caused by the operation of superfluous IT systems within the framework of his obligation to maintain and manage the insolvency estate. Insofar as the plaintiff rejects this - obvious - savings as a "pretext" (application, vol. I, p. 18 of the case file) he has neither substantiated nor made credible.
62Specific circumstances that would lead to the plaintiff's interests in the continued operation of the systems in general and in relation to any remaining system of the G1. would be so pronounced that it would have to outweigh any interest in deactivation, the plaintiff has not specifically asserted, let alone made credible. He did not specifically describe such circumstances even for the applications listed only as examples in the application text.
63 Such an interest also does not result from the general assertion by the plaintiff that the deactivation would “destroy data” (application, vol. I, p. 18 of the case file). As the court knows from its own expertise - two of the members of the chamber were involved with judicial administration tasks in the IT area for several years - such a general connection does not exist. In modern IT systems, databases are stored on non-volatile storage media (hard drives, flash memory, magnetic tapes, etc.), i.e. storage media that do not lose their content when switched off, but can be reconnected and read later if necessary. The fact that this would be different in the present case is already remote from the starting point. Such a connection does not follow in general, nor is there a loss of data in the specific case from Annex ASt 17 cited by the plaintiff as evidence; this does not contain any relevant statements at all.
64Another, in particular tortious, claim for omission of the shutdown of IT systems does not result from the claim of the defendant, alleged by the plaintiff, to support unjustified liability claims against the plaintiff by manipulating the business documents. Because the plaintiff himself does not claim a connection between this request and the shutdown of entire IT systems or applications as a whole.
b (regarding data and documents of G1.).
65 Also insofar as the plaintiff requests, as a further partial request within the application for 1., to prohibit the defendant from destroying generated or received business documents or deleting or changing electronic data in the manner described in more detail in the application until the opening of the insolvency proceedings on April 1, 2019 (in particular to "manipulate"), he has not made credible any circumstances that carry a corresponding right of disposal:
66aa. With a reasonable interpretation (analogous to §§ 133, 157 BGB), the request of the plaintiff is aimed at informing the defendant of any changes in relation to both the physical business documents and electronically stored data relating to the time before the opening of insolvency - in the sense of addition, deletion or Change of content - to be prohibited:
67 Admittedly, the court does not overlook the fact that his application is literally opposed to "manipulating the data ... making it unrecognizable and/or thereby [sic!] making its evaluation more difficult" and he states as justification that he wants to protect his "rights" and examine "the assertions made" by the defendant (application, vol. I, p. 52 of the file). However, it cannot be inferred from this that the request for an injunction would be limited to specific data changes or changes that can be described in more detail in terms of content. The plaintiff did not recognisably establish any content-related criteria according to which it could be determined whether a change in data - as far as the period mentioned in the application is concerned - would be "manipulative" or would serve the alleged damage plan. On the contrary, as evidenced by his other submissions (briefing of January 26, 2022, Vol. II Bl. 31 of the case file), he sees simply every change in data as a "manipulation" in the sense of the damage plan he claims. The plaintiff complains, for example, that the defendant in the accounting of G1. an indisputable first against the G1. asserted claim and the later crediting of this claim (application, vol. I p. 23 dA), i.e. had transactions recorded in the accounts, the factual correctness of which (regardless of the legal assessment, in particular with regard to the insolvency of the G1 .) the plaintiff himself does not deny. Furthermore, the plaintiff expressly requests the prohibition of any change that makes the evaluation of the data (even just) more difficult: As can be seen from his further submissions, this refers to what he considers to be the “true states” of G1., in particular “the actual contents of pre-insolvency accounting" (Application, Vol. I Bl. 21, 71 dA). The reconstruction of the - factual - content of the pre-insolvency accounting is undoubtedly made more difficult with every subsequent change, so that from this point of view the request of the plaintiff cannot be understood other than the prohibition of any change to the business documents and data. A restriction of the request to certain changes or that, conversely, certain changes should be accepted and not subject to the desired ban cannot be inferred from the application beyond the time limit.
68 However, the plaintiff is not entitled to such an omission of any changes to the business documents of the insolvency debtor.
69 The question of whether the plaintiff would be entitled to such a claim at all (cf. the response to the application for this objection by the defendant, vol. I, p. 190 of the case file) is not even relevant.
70bb. Insofar as the plaintiff assumes that such an obligation to cease and desist exists as a secondary obligation (§ 241 Para. 2 BGB) with a view to a future obligation to return the business documents and data, this does not support such a comprehensive request for injunctive relief in consideration of the legitimate interests of the defendant.
71An assumed duty of consideration on the part of the insolvency administrator would in any case be limited by the legitimate interests and duties of the insolvency administrator himself (cf. a. above). As the defendant rightly explains (response to the application, Vol. I Bl. 156 dA), the accounting obligation of the insolvency administrator according to § 155 Para. 1 Sentence 2 InsO also includes the accounting obligations that arose before the opening of insolvency and have not yet been fulfilled: the person initially obliged to keep accounts The business books and documents of the company are then no longer available to the managing director, so that for this reason alone he is no longer able to fulfill these obligations (still on the bankruptcy code: Supreme Court, decision of June 3, 1997 - 1 W 8260/95 -, para. 6, juris; On the insolvency code: LG Frankfurt (Oder), decision of September 4, 2006 - 32 T 12/05 -, para. 9, juris, each with further references). Such an obligation would be unfulfillable due to the blanket obligation claimed by the plaintiff to refrain from any changes and in particular subsequent postings of unposted business transactions. In addition, the insolvency administrator must have the option, within the scope of the administration of the insolvency estate for which he is responsible, to reorganize and archive business documents or to remove obviously unnecessary documents (e.g. after the expiry of retention periods) destroying them to save on storage costs, and structuring, converting, archiving or even deleting electronic data accordingly.
72A secondary obligation under the law of obligations to refrain from making changes to the data, in particular the accounting, as a whole and unconditionally, does not result from any aspect.
73Something else does not result from the blanket objection that the documents, specifically the accounting, were "in proper condition" when handed over to the insolvency administrator (application vol. I Bl. 34, 43 dA and brief of January 26, 2022, vol. II 10 ff., DA). In contrast, the defendant presented the specific deficiencies in accounting in a vivid and detailed manner with the reply to the application (page 157 ff. of the file), in particular the massive posting arrears, and this with Annex AG 10 - affidavit of his employee - as well as Annex AG 18 and AG 19 further substantiated further documents submitted. The chamber cannot attain an overriding or even sufficient conviction that the bookkeeping was correct when it was handed over to the defendant as insolvency administrator in the sense that there were no documents or business transactions that could potentially be followed up:
74 The affidavit initially provided by the plaintiff (Annex ASt 10) is also exhausted in this respect in generic phrases, in particular that there was a "requirement" to record invoices on paper and the principle "no posting without receipt" was "strictly" observed. He does not explain where he got this knowledge from or in what form he specifically monitored the implementation.
75 The affidavit of the former managing director and intervener (Annex ASt 74) only relates to events up to the year 2015. It is not apparent that the intervener would provide any information at all for the time at which insolvency was opened.
76 The further affidavit of the plaintiff himself (Annex ASt 75) describes - in somewhat more detail - the process of invoice posting and release, but again contains no information that any invoice would have been recorded or where the plaintiff wanted to get direct knowledge about it.
77 The affidavit of Mr. K. (Annex ASt 76) does not explain the question of whether and when which documents were fully booked.
78 The woman's affidavit ... (Annex ASt 77) also does not concern the question of whether business transactions at G1. were fully booked at the time the insolvency was opened: Ms. ... was not at G1 at that time, according to her own statements. (but an affiliated company) and otherwise only describes observations in connection with the linking of booking data record and document.
79 Insofar as the plaintiff (briefing of January 26, 2022, vol. II p. 15 et seq. dA) still attacks the details of the defendant’s presentation, that cannot give the court the positive certainty that there were no posting residues at all, so that each accounting activities of the insolvency administrator would have been unnecessary from the outset.
80cc. Insofar as one considers a claim for injunctive relief corresponding to the application requested to be possible with the corresponding application of Section 1004 (1) sentence 2 BGB, the prerequisites are also not met, again regardless of whether the plaintiff would even be the owner of such a claim.
81The prerequisite for such a claim is that further impairments, here in the form of changes to the documents and data stock, are to be feared. For this it is not sufficient that a future impairment is not excluded from the outset (flatly or logically); Rather, what is required is a concrete threat of impairment in the sense of a concrete threat situation, on the basis of which intervention is required, whereby there is a rebuttable actual presumption that the risk of repetition exists if an illegal intervention has already taken place (standard case law, cf. only BGH, Judgment of December 4th, 2018 - VI ZR 128/18 -, para. 9, juris and judgment of September 18th, 2009 - V ZR 75/08 -, para. 12, juris, each with further references).
82That is what is missing here altogether.
83(1) Regarding the physical business records of G1. the plaintiff merely asserts in general that it is an "open secret" that these "service providers for archiving and data destruction" were handed over, the "filing structure" was not maintained and no "inventory" was handed over and the documents were thus "obviously" destroyed had been (application, vol. I p. 29 fdA). To the extent that despite the grammatical wording as a presumption (“apparently”) it is alleged that physical documents not specified in detail were destroyed, this is disputed by the defendant (response to the application, vol. I p. 171 dA) and the court of this not with preponderance or even with sufficient certainty. None of the means of credibility mentioned contains even an indication that any documents would have been destroyed: Insofar as the plaintiff refers to the status report of the defendant of 08.11.2019 (Annex ASt 42) for credibility, this contains no statement at all about a loss of the documents, but only the statement that these were archived. Also from the photos of stacks of files that were handed over (Annex ASt 43, where they were taken or what they specifically show is not shown) and the confiscation order of the Tiergarten district court (Annex ASt 21), there is nothing logically related to the destruction of documents . Overall, this does not make it credible that physical business documents have already been destroyed or otherwise altered or that their destruction or alteration is imminent. The plaintiff's unsupported assertion as such does not convince the court of its correctness.
84 To the extent that the plaintiff complained in a letter dated January 26, 2022 that the defendant had only “generally denied” the destruction and had not provided any evidence of proper storage (Vol. II Bl. 26 dA), he failed to recognize that the burden of proof and substantiation for a ( the risk of repetition within the meaning of § 1004 BGB) first ascent applies to him alone.
85(2) Insofar as the plaintiff specifically claims for the electronic accounting data that the defendant had the link between the accounting data records and the digitally available supporting documents (invoices, account statements, etc.) removed, this is also not sufficient to convince the court in factual terms fixed:
86 The plaintiff referred to his affidavit submitted as attachment ASt 10 (cf. application, vol. I, p. 29, 31, 46 of the case). There it is essentially repeated that the supporting documents were linked to the booking data when the data was handed over by the defendant (Annex ASt. 10, para. 41), which is now largely no longer the case. With a brief dated January 26, 2022, he deepened the lecture and underpinned it with further affidavits.
87 The original affidavit of the plaintiff himself (Annex ASt 10) is ultimately limited to the blanket repetition that everything was available in a linked form when the data was handed over. From which the plaintiff obtains his direct knowledge of how the links in the course of business of G1. were produced and maintained, in particular how he wants to know that this was done in full in each individual case, or any other details that lend his presentation a particularly convincing power are not apparent.
88 The affidavits of the intervener (ASt 74) and the woman (ASt 77) are unproductive in this respect, because they contain no statement whatsoever about the existence of the links at the time the insolvency was opened. At that time Mr. did not work at all and Ms. did not work for G1., but for a sister company.
89Only the recent affidavit of the plaintiff (Annex ASt 75) and Mr. K. (Annex ASt 76) relate to the question that the links existed at the time the insolvency was opened. The question of completeness (i.e. that each data record was linked to the associated documents) is not addressed here, but merely implied. In other respects, too, the information is ultimately limited to the fact that the links were just available, which one knows from one's own active use of Microsoft NAV. Overall, the information remains flat and generic. The actual deletion by the defendant is certainly not directly asserted, but only implied as a conclusion.
90 The defendant claims, on the other hand, that he did not remove any such links, but rather that around 70% of the supporting documents were stored from the outset without a direct link on a separate drive, sorted by financial year and creditor, but also partly sorted by the clerks of G1. (Response to the application, Vol. I Bl. 165 f. d.A.). As evidence, he referred to the affidavit of his employee (Annex AG 10) and an additional screen shot of the filing structure (Annex AG 22).
91 To the extent that the plaintiff (application, p. 31 of the case) also refers to Annex ASt 38, this only contains a letter drawn up by his own authorized representatives; It is incomprehensible that this letter could also only indirectly prove that the defendant had deleted the links.
92 To the extent that the plaintiff repeatedly claims that the defendant had provided the data to audecon AG in a linked form (application, vol. I p. 21 f., 31 dA, brief of 01/26/2022, vol. II p. 28 dA), must at least temporarily had this at their disposal, this is also not proven. This does not result from the report cited as evidence (Annex ASt 28). The fact that audecon AG had linked posting data and receipts does not follow from Ms.'s affidavit (Annex ASt 77), which is cited as evidence: This only confirms that an examination of the (randomly selected) claims listed there, which were taken into account in the expert opinion and for which audecon AG is said to have had documents available, these documents could not be found by the plaintiff via links in Microsoft Dynamics NAV. The conclusion of the plaintiff (Vol. II Bl. 28), which proves that audecon AG must have had linked documents, is not logically compelling. The plaintiff does not explain why the audecon report could not have been created without links (Vol. II Bl. 28 of the case file). Just as well, audecon AG can have manually assigned booking and supporting documents, which according to the defendant are indeed available in an unlinked form, or - which according to the court's own expertise would be technically feasible - at least a rough assignment (e.g. in list form) created with their own resources.
93 Overall, the Chamber is unable to obtain a predominant or even sufficient conviction that the defendant would have deleted the links. There may be some evidence that the links existed at some point. How complete they were remains an open question. In any case, there is no more evidence that a (deliberate) deletion was carried out by the defendant than that the data was otherwise lost (e.g. as part of the disappearance of the G2 servers) or (which based on the submission of the Defendant by no means resigns from the outset) by employees of G1. have been deleted. This applies all the more as there is no apparent or even proven motive for the Defendant to remove the links. In doing so, the defendant as insolvency administrator would ultimately also be sabotaging his own activities.
94(3) Otherwise, with regard to the accounting data, a risk of an adverse change has not been made credible, in particular this does not follow from the postings that were undisputedly the responsibility of the defendant. Because the subsequent entry of previously unposted business transactions does not constitute an illegal impairment of the database within the meaning of § 1004 BGB: As already explained, the defendant as the insolvency administrator was responsible for the bookkeeping, also with regard to the periods before the opening of insolvency. The plaintiff does not doubt this as a whole when he explains (briefing of January 26, 2022, vol. II p. 7 of the case file) that a “proper” insolvency administrator is definitely allowed to make subsequent bookings.
95 A "manipulation" of the accounting data in the sense of an illegal change is not shown:
96 To the extent that the claim is partly based on the implicit assumption that there is always a "manipulation" of the accounting when materially unjustified claims are included in the accounting, the plaintiff overlooks the fact that the assumption of the entitlement or non-entitlement of claims is not a question of the formally "proper" accounting. The commercial bookkeeping is proper if it allows an informed third party to provide an overview of the business transactions of the company required to keep accounts, in particular its liabilities, within a reasonable period of time (Störk/Lewe in Beck'scher Balance Sheet Commentary, 12th ed. 2020, § 238 HGB paras. 100, 107).
97 A violation of this is not apparent: The posting of a disputed claim together with a later credit is at least a justifiable process that accurately reflects the actual event. Even if one assumes that the person responsible for accounting has a fundamental authority not to enter disputed claims in the accounts (according to the plaintiff, Vol. II Bl. 23 dA), it does not follow that, conversely, accounting in which disputed claims are initially recorded would be incorrect or misleading are. This is all the more true since, according to the plaintiff's own submissions, the accounting under his responsibility in this respect was not carried out uniformly: he himself submits that disputed claims were partly booked (as in the case of Flughafen H. GmbH), but partly also were not booked (as in the case of TC GmbH); According to his brief dated January 26, 2022, this is not an isolated case, but a general principle of the accounting for which he is responsible, when he argues that incorrect invoices were not recorded at all, but that they were written off again after credit notes had been issued (vol II sheet 14 of the A). Such an arbitrary inconsistent handling is not transparent for an outside third party and must necessarily give him an incorrect picture of the business transactions.
98 Measured against this, the individual bookings specifically criticized by the plaintiff (reason for application, Vol. I Bl. 23 ff. dA) are also not objectionable: It is not objectionable that in one case an unjustified claim (of TC GmbH, Vol. I Bl. 23 dA) was booked together with a later credit and in another case (receivable from Flughafen H. GmbH, Vol. I Bl. 25 dA) the instruction (so-called “trigger”) was removed not to settle the claim or as a liability to consider. In order to enable business transactions to be tracked using accounting, it is generally necessary to first record the transactions. Incidents that are not even shown in the accounting can of course not be deduced from the books. It is also not objectionable that the defendant had a claim posted - aviation tax 2017 - which the plaintiff assessed as "implausible" (application, vol. I, p. 24 of the case file), because the 2017 financial year had already ended. Experience has shown that (additional) tax claims may also arise after the reference period has expired, or at least may still be unfulfilled. The plaintiff himself does not assert any other material objections in relation to this booking.
99Insofar as the plaintiff argumentatively mixes the question of accounting entry with the question of how individual (disputed) liabilities may be valued, in particular whether these justify the company being ready for insolvency or fault within the meaning of Section 64 GmbHG old version, the latter is a question which obviously does not affect the correctness of the accounts. Rather, this will have to be clarified (insofar as it is relevant to the decision at all) in the pending legal proceedings between the parties. The plaintiff also recognizes this when he states (briefing of January 26, 2022, vol. II p. 25 of the case file) that the defendant is at liberty to assess the liabilities differently than he does. Insofar as the plaintiff further complains that the defendant had booking and due dates entered before the insolvency was opened (application, vol. I sheet 20 dA, brief of 26.01.2022, vol. II sheet 23 ff. dA) and thinks, as far as claims would be "reposted", data after the opening of insolvency would have to be entered here, the behavior of the defendant is also not objectionable from this point of view. As the defendant submitted and also made credible through the affidavit submitted by his employee as Annex AG 10 (section 4.2 there), the term "posting date" was used within the accounting of G1. used in the sense of "performance date". This is not disputed by the plaintiff. In terms of uniform accounting that is comprehensible to third parties, it was therefore absolutely necessary to enter the due dates and booking (i.e. service) data in accordance with the previous handling, insofar as this was still technically feasible (cf. the undisputed technical limits Presentation of the response to the application, Vol. I Bl. 163 dA). The plaintiff cannot explain in a comprehensible way why a claim that is (imagined) due before the opening of insolvency should be booked in the books with a due date after the opening of insolvency, just because the booking is only made by the insolvency administrator.
100Insofar as the plaintiff believes that the way the defendant made his booking (in the sense of the damage plan he claims) means that G1. suggests, he also mixes up the question of the material justification or economic evaluation of a claim with its accounting entry. The "deception" he claims is also far-fetched because - as he himself states (application, vol. I p. 20 dA) - it is immediately recognizable from the establishment date when (and consequently: under whose responsibility) a posting in the software was made.
101(4) Even if one wanted to see things differently, a risk of repetition of future changes to the accounting data implied by (assumed) incorrect postings is also refuted:
102The defendant explained in detail that he had completed the subsequent entry of documents in June 2019 (response to the application, Vol. I Bl. 161 f. d.A.). He has also made this credible by means of the affidavits submitted as Annexes AG 10 and AG 14, in which (Annex AG 10, there Section 4.1) the employee employed by the Defendant (Annex AG 14, there Zifund the tax consultant and auditor hired by him fer 3.) confirm in detail that the subsequent entry of previously only parked and not entered documents was ended in June 2019 and since then no more postings have been made in the Microsoft NAV system. Even the plaintiff himself does not specifically claim that the defendant has made specific changes to the accounting data since June 2019 or that he still has specific reasons to do so. The coincidence of the time lapse of two and a half years on the one hand and the absence of the reason to record business transactions on the other hand refutes, to the conviction of the Chamber, any risk of further (assuming: inadmissible) entries in the accounting data.
103 The plaintiff's merely abstract fear (briefing of January 26, 2022, vol. II p. 29 dA), that he could not control which data set the defendant would use in the future, does not justify a necessary concrete risk of repetition any more than the repeated one by the plaintiff (undisputed ) The fact that the so-called subsequent entries have led to over 100,000 (technical) individual postings. When assessing the risk of repetition within the meaning of § 1004 BGB, the number of (assumed) violations may have to be taken into account. In the context of electronic data processing, however, the number of technically affected data sets is obviously not important, because it is known to the court that with electronic data processing it is in the nature of things to change or delete a large number of data sets within a short time or with just a few actions. to process, especially in the case of mass processing of uniform processes such as bookkeeping. However, if the reason for this processing no longer applies, the mere number of previously processed data records as such can no longer be of particular importance.
104(5) A specific risk of repetition has not been demonstrated with regard to the other electronic business data either:
105In his application, the plaintiff lists a large number of applications in which data known to the court can be generated or maintained. With the exception of the accounting data (more on that below), he never goes into detail as to what these programs were even used for (which, for example, would need to be explained in relation to the legal software RA Micro for an airline), let alone why one is currently being used there would be a concrete risk that any data generated in the process would be destroyed. In particular, such a risk does not arise from the alleged loss of data in connection with the undisputed shutdown of the "Airpas" and "Confluence" applications, because such a shutdown does not result in a final loss of data, cf. above a..
106 To the extent that the plaintiff for the first time submits with the - not remitted - brief of February 8th, 2022 (p. 6 ff. there) that the defendant provided him with incorrect data extracts (pst files), this does not justify any other view. Correct and the court knows from its own expertise that pst files - a common format for exporting e-mails or mailboxes as a whole - are technically error-prone, especially with large data volumes. If a faulty pst file is created when an e-mail mailbox is exported, the error is limited to this exported file. In principle, this does not result in damage to the mailbox content stored on the server, i.e. the actual content data. A renewed export (e.g. in partial files or another format) is generally possible. The conclusion that the defendant did not properly back up the files (ibid., p. 9) does not support the existence of a damaged pst file from a purely technical point of view. Overall, this presentation does not support the concern that the defendant will damage business data.
c (regarding data access at the G1.).
107Insofar as the plaintiff requests with his application under number 2 to oblige the defendant to grant him comprehensive access to IT systems and electronic business documents of G1. the chamber does not need to make a final decision as to whether and to what extent it may be entitled to such a claim.
108aa. Insofar as the defendant grants the plaintiff the opportunity to inspect the electronic business documents (undisputed on the merits, application, vol. I, p. 52 d.A., as well as response to the application, vol. I, p. 181 f. d.A.) via remote access, such a claim would be fulfilled in any case. Whether the defendant in the past - as the plaintiff submits in detail - may have done so only hesitantly or may not have provided the expert opinion he obtained from audecon AG (to which the present application does not refer at all) is obviously irrelevant .
109 The defendant has also made it credible in this respect that the access option offers the option to "actual download" of files requested with the application. In the reply to the application (page 182 ff. of the file), he explained in detail that remote access certainly offers the possibility of downloading the files that can be accessed there by accessing files in a so-called transfer drive and then using a separate access ("data room"). can be called up and saved on your own (local) media. He has documented these circumstances (Annex AG 10, p. 12 there), through an affidavit by his employee who confirms the technical process, by an affidavit by his legal representative (Annex AG 45, there p. 2), who confirms in particular that the The plaintiff's access has been provided again since mid-2020 after it has been blocked in the meantime, and through the e-mail correspondence presented as Annex AG 46, which shows that the plaintiff was aware of the download option (via his authorized representative) at least in October 2021.
110The representations are consistent and also technically plausible. From its own expertise, the court is familiar with the use of so-called transfer drives for the transfer of data from or from secure server landscapes. The (undisputed as such) e-mails contained in Appendix AG 46 from the representative of the injunction plaintiff himself prove that he also assumed the existence of the download option; it says there "via the data room that was set up, our client was actually able to download various data...'".
111The deviating allegations of the plaintiff do not give rise to any significant doubt. Insofar as it is stated in the application (page 26 of the file) that data could not be stored "appropriately" so that he would have to make do with screen shots, there is no specification as to which form of download the plaintiff considers "appropriate" and of any credibility. Insofar as the presentation at this point (page 26 of the middle of the case) refers to the affidavit of the plaintiff (Annex ASt 10), it is not clear whether this refers to the claim about the lack of a download option; In any case, Annex ASt 10 contains no statement at all about the lack of a download option, but only the blanket complaint that remote access is "insufficient" (Annex ASt 10, para. 38 ff.).
112Moreover, the plaintiff only repeatedly claims that he lacks the possibility of a “direct” download (application, vol. I, p. 37, 47, 50), without proving this. As far as this is to be understood as meaning that he desires a download option without the "detour" via the separate data room, this does not need to be deepened, since it is not clear why (below the ban on harassment) there should be a right to a specific technical implementation of the download option , nor did the plaintiff make the granting of a "direct" download option the subject of his application at all, but expressly limited himself to the factual download option.
113bb. There is also no doubt that the defendant is not obliged to provide the plaintiff with data that he himself does not have (possibly also: no longer) has at his disposal. According to Section 275, Paragraph 1 of the German Civil Code, the right to performance is excluded even if the claim is justified at the outset, insofar as this is impossible for the debtor or anyone else. In the present case, these requirements are met insofar as the plaintiff requests access to data or evaluation options beyond the undisputedly existing access.
114Whether and to what extent these requirements - for which the defendant is obliged to explain and prove that it is credible - are met in detail does not need to be decided conclusively in the present case. Insofar as the plaintiff asserts (briefing of January 26, 2022, vol. II p. 27 f. with reference to the presentation of the secondary intervener vol. II p. 54 dA), the defendant made more data available to the plaintiff in May 2020 as the secondary intervener, it does not follow logically from this why the scope of data that now exists in favor of the plaintiff lags behind the actual data stock. In the case of specific documents, which may not have been made available in full, he only named the content of e-mail inboxes in the non-submitted pleading of February 8th, 2022 (p. 6 ff. there).
115In this respect, however, there is in any case no reason for the disposal, cf. below 2. c..
d (Regarding IT systems, documents and data of the G2.).
116Insofar as the plaintiff requests with the application made under number 3. to prohibit the defendant (in his procedural role as defendant to 2., i.e. insolvency administrator over the assets of G2.) from further IT systems of G2. turn off electronic or physical G2 business records. to delete or otherwise change, there is no right of disposal in this regard because the plaintiff does not even specifically explain which IT systems of the G2. of a shutdown and what dates the G2. may be threatened with alteration or deletion.
117The concrete representation of the defendant (response to the application, Vol. I Bl. 172 f. d.A.), the accounting of the G2. was done by an external company (which rules out an immediate change in the "pre-insolvency" accounting, as complained about in G1.), he did not oppose it any further. He also did not explain in more detail to what extent the data stocks actually available at the Defendant would be threatened with a specific change or deletion, but limited himself to rejecting the Defendant's allegations that data from the G2. were before or on the occasion of the handover to the insolvency administrator by the managing directors of G2. partially destroyed (cf. in detail the response to the application, Vol. I Bl. 173 ff. of the case and the brief of January 26, 2022, Vol. II Bl. 36 ff. of the case).
118Other than that, what has been said about number 1 of the motions (above a. to c.) applies here by analogy: Also for the G2. no circumstances have been demonstrated that justify a blanket claim to the continued operation of any and all IT systems, nor circumstances that give rise to concerns about future illegal impairments of the documents and data stocks of the G2. fear. Insofar as the plaintiff only claims a lump sum from the assumed claim in relation to the G1. that also deduces a claim in relation to the G2. exist or the concern of future "manipulations" must exist there accordingly (as most recently written statement of January 26th, 2022, Vol. II Bl. 31 f. of the case), this is without basis.
119For the shutdown of IT systems, this results from the fact that not even the plaintiff claims that the G2. would have specific IT systems that the defendant could still switch off.
120As regards fears of "data manipulation", the defendant has shown that the postings, which are undisputed as such and which the plaintiff complained about as "manipulations", were made to G1. were based on accounting arrears (disputed between the parties); What is undisputed, however, is that there are such backlogs in the G2. failed (response to application, vol. I p. 173 of the case file). With this actual difference, after which every reason for changes or "manipulations" to the data of the G2. is missing, but the plaintiff does not argue.
e (regarding data access at the G2.).
121 To the extent that the plaintiff with number 4. of the applications finally requests that the defendant (in his procedural role as defendant for 2., i.e. insolvency administrator for the assets of G2.) be obliged to grant him comprehensive access to IT systems and electronic business documents of G2. as well as the option to download, the same applies to the corresponding application for the G1. (above c.) Executed as well. It depends on the existence of a right of disposal, including the question, which is widely disputed between the parties, as to whether and in what form this data was actually handed over to the defendant and/or deleted by managing directors (cf. reply to the application, Vol. I Bl. 173 ff., brief dated January 26, 2022, Vol. II Bl. 36 et seq.), because in this respect too there is no reason for the disposal, cf. below 2. e. 2. (reason for disposal)
122The plaintiff lacks a reason for injunction in the sense of urgency justifying the injunction with regard to all pursued requests:
a (with regard to IT systems of G1.).
123In the case of claims for injunctive relief, the "urgency" as a prerequisite for the reason for the disposal does not result from the risk of first inspection or risk of repetition that may be necessary for the claim for disposal (Vollkommer in: Zöller, ZPO, 34th ed. 2022, § 935 ZPO, para. 10). Rather, it is necessary that, in the individual case-related consideration, there is a urgency in the sense that a legal frustration or aggravation to the detriment of the injunction plaintiff already threatens so concretely that the disadvantages of waiting until the main decision justify an intervention in the sphere of the injunction defendant on the basis of a only to carry out summary proceedings (see Higher Regional Court Nuremberg, decision of October 12, 2018 - 3 W 1932/18 -, para. 16, juris). Based on the request, the defendant to switch off further IT systems of G1. to prohibit it is already lacking. Even the plaintiff does not specifically claim that a violation of alleged injunctive relief in the form of the shutdown of IT systems or software applications would be expected before a possible main decision. He also does not make any facts credible from which a concrete corresponding expectation could arise. In contrast, the defendant has specifically stated that he currently does not intend to shut down any more systems or applications.
124As far as the plaintiff states (briefing of January 26, 2022, Vol. II Bl. 33 ff. dA), he needs the functions of "Airpas" for the legal defense in the parallel proceedings, because the DOC invoices can be checked with it, he has not explained why individual DOC invoices are actually important in these proceedings, nor can that help his application to succeed, which is not aimed at restarting the Airpas software at all.
125Moreover, any urgency is also refuted by the fact that the applicant or plaintiff, knowing the circumstances, waits too long before asserting his request for interim legal protection and thus makes it clear that the urgency does not exist from his subjective point of view. There is no fixed deadline for the "urgent behavior"; what is decisive in each case is the extent to which the impression of urgency is dispelled in the individual case, i.e. in particular when weighing the severity of the feared impairment and the duration of waiting (OLG Saarbrücken, decision of December 20, 2019 - 5 W 81/19 -, para. 6, juris, Vollkommer, loc.cit., para. 12). Measured against this, there is no need for urgency here.
126As the plaintiff himself states (application, vol. I, p. 27 of the case file), he claims to have already taken the deactivation of "Airpas" from a status report from 2019. It is not clear why he then waited until December 2021 to assert his claims regarding the maintenance of the IT systems and applications as "urgent"; in particular, he himself does not claim to be aware of further planned shutdowns or similar To have received similar knowledge.
127In the overall view, the court is not able to reach a sufficient conviction that without the requested injunction there would be shutdowns and the plaintiff would suffer disadvantages as a result.
b (regarding documents and data of G1.).
128 Even if the plaintiff requests the omission of any deletion or modification of the business documents and electronic data generated or received before the opening of the insolvency proceedings, there is no corresponding claim and there is no need for urgency.
129As explained, there is a particular need for urgency in the sense that legal frustration or aggravation is to be expected in concrete terms, which necessitates a provisional safeguard even before a main decision is made. However, the plaintiff does not claim any such thing with regard to a possible data deletion or change. In this respect, he only refers in general to the fact that due to the previous (alleged) deletions by the defendant, it must be feared that he will also delete data in the future (application, vol. I, p. 29 dA) or, due to the (alleged) data manipulations further manipulations are to be feared (briefing of January 17th, 2022, vol. I p. 126 of the file). Apart from the fact that neither specific deletions nor "manipulations" in the sense of an illegal data change have been made credible (cf. the above statements on the relevant claim for injunctive relief), this reasoning is exhausted in the conclusion that further infringements of the law are to be expected due to infringements that have already occurred. However, such a risk of repetition within the meaning of § 1004 BGB is not sufficient to justify a reason for disposal (Vollkommer in: Zöller, ZPO, 34th edition 2022, § 935 ZPO, para. 10), the procedural urgent need must go beyond that. On the other hand, he does not allege any concrete circumstances that would have led the defendant to fear a violation of rights in the form of further changes or deletion of documents or data before the plaintiff could assert his request for injunctive relief in the main matter.
130Furthermore, it is also not clear what specific disadvantages the plaintiff would face as a result of an (assumed renewed) change in the accounting data.
Insofar as the defendant would "manipulate" the accounting in the form that he added further business transactions, this would be easily recognizable according to the plaintiff's own submissions based on the creation date and consecutive numbering of the data records, without the entered posting and due date being important . The objection that the defendant is hindering the legal defense of the plaintiff by deriving the insolvency based on accounting data that he has produced himself (so last brief of January 26th, 2022, vol. II sheet 4 dA), again (so) mixes up the Question of a formally correct bookkeeping with the (legal) question of the legitimacy of the claims recorded therein and any consequences under liability law. The conclusion that the entry of unjustified claims from the plaintiff's point of view thwarts his defense with regard to the liability claims, but does not catch on. If, based on the date of establishment - as here - it is readily apparent who is responsible for the entry, the plaintiff is not in a different position with regard to the legal defense in the parallel proceedings than if the plaintiff were to present a case based on the original accounting and would continue to assert it , there would be other transactions not recorded in the bookkeeping.
132Finally, any need for urgency, also with regard to the omission of the data change and deletion, is refuted by the plaintiff's own months of waiting. The Chamber does not overlook the fact that the plaintiff with regard to the alleged "manipulation" of data - in contrast to the shutdown of IT systems - submits (briefing of January 17th, 2022, Vol. I Bl. 127 ff. dA and of January 26th, 2022, Bd. II Bl. 30 dA), he only found out about this shortly before filing the local application for an injunction. However, the Chamber is not able to obtain sufficient conviction from this information, and the presentation cannot be believed. Because with the - not remitted - brief of February 8th, 2022 (there p. 4), the plaintiff himself submits that he had already requested a cease-and-desist declaration from the defendant in mid-August 2021, according to which he should refrain from changing the accounting data. How the plaintiff was able to demand the omission of changes as early as August 2021, which he only found out about after the end of September 2021 and then only wants to have them verified by December 2021 (briefing of January 17th, 2021, vol. I p. 129 dA), he doesn't explain.
c (regarding data access at the G1.).
133Also with regard to the inspection of the business documents and data of the G1. directed desire, there is no reason for disposal. A particular urgent need that could justify the granting of inspection to the extent requested does not result from the undisputed pending parallel disputes, even if one assumes in favor of the plaintiff that inspection is not already fully granted anyway.
134aa. The court does not overlook the fact that the business documents and data in insolvency-related disputes in general and indisputably also in the disputes concerned here are of particular importance insofar as they are regularly the primary or even the only source of knowledge for the insolvency administrator and possibly also the party claimed against are as far as the economic situation of the insolvency debtor and any fault of the acting managing directors are concerned. Just as little does the court overlook - as the plaintiff repeatedly argues - that in such proceedings deadlines must regularly be observed, failure to which can result in procedural disadvantages in individual cases.
135 However, this does not mean that it is necessary to demand any necessary information in a separate procedure for interim legal protection, nor is there a need to assert the information or inspection claims sought here.
136The defendant rightly stated that in the parallel rescission or liability disputes, the burden of presentation and proof for the economic situation of the insolvent company (insolvency maturity within the meaning of §§ 15b Para. 1 InsO or § 64 GmbHG old version and within the framework of creditor disadvantage and intent §§ 129 para. 1, 133 para. 1 InsO) hits the insolvency administrator, is even irrelevant in the context of § 135 InsO (response to the application, vol. I Bl. 194 fdA). This also applies to the claim for payment of shareholder contributions asserted in the proceedings relating to file number 97 O 6/22. The plaintiff is therefore at liberty to deny the relevant representations in the parallel proceedings by "simply" denying them. If he does not have sufficient documents to make a substantiated declaration, this does not violate the obligation to make a complete and truthful declaration, § 138 Para. 1 ZPO. This only requires to explain oneself according to the knowledge actually available (subjective truthfulness) and in particular does not prohibit the presentation or the denial on the basis of assumptions, as long as there is no present possibility of gaining corresponding knowledge (cf. Greger in: Zöller, ZPO, 34th edition 2022, § 138 ZPO, paras. 2, 13 ff.). There is no risk of missing procedural deadlines.
137Even if, in individual cases, the plaintiff here relied on specific documents to provide evidence in a parallel legal dispute, which, due to the insolvency, are only accessible to the defendant (this has not been shown), there would not be a need for the separate assertion of claims for information and inspection by way of interim legal protection :
138Because an order under Section 142 (1) ZPO can also be worked towards the respective opponent within the process for which the document is required. This is also not inconsistent with the fact that the order is at the discretion of the court: if the document can be specifically named, there is a right to inspect it and it is clearly relevant to the decision (i.e. the requirements for the injunction sought here are met), it would be through Section 142 (1) ZPO reduces the discretion of the court to zero.
139The same results from the judgment of the Federal Court of Justice of November 4, 2002 - II ZR 224/00 -, BGHZ 152, 280-290, to which the plaintiff himself pointed out: There the Federal Court of Justice stated that the retired managing director, which is claimed by the company due to a possible breach of duty (there: cash deficit), even insofar as it is burdened with presentation and evidence for exculpatory circumstances (there: obligatory use of the funds) is procedurally protected from unfulfillable presentation requirements by the fact that according to the principles the secondary burden of proof, the plaintiff company must first specify the breaches of duty and then - to the extent necessary for the defense - has to grant access to the relevant documents (loc. cit., juris paras. 8 and 9). With regard to the claim by the insolvency administrator, however, nothing else can apply: In the context of contesting insolvency, the assertion of liability claims or shareholder contributions, the administrator must first describe the circumstances giving rise to the claim in a substantiated manner, whether due to an original or as part of the secondary burden of proof. The managing director (here the plaintiff) can - as the Federal Court of Justice correctly assumes - either comment on this specific presentation based on his own expertise or view the specific documents relating to the presentation in order to be able to explain himself. Procedural disadvantages do not threaten him beforehand. However, the decision of the Federal Court of Justice does not indicate that the right to inspect could not be asserted in the proceedings for the (payment) action concerned, but clearly assumes the opposite, nor that there could be procedural disadvantages before fulfillment by the person obliged to provide information (hence there would be reason to assert a temporary legal protection).
140Furthermore, it has not been shown or apparent that the plaintiff had access to all of the information contained in his application, i.e. to all of the data from G1. from the period before April 1st, 2019, in order to be able to adequately defend yourself in the parallel proceedings. According to the list in the application, which is only intended as an example (cf. the wording: "in particular"), his request is aimed at any documents and data per se (also brief of January 17th, 2022, vol. I sheet 119 ff. dA) . A specific connection, due to which the plaintiff would have to rely on these all-encompassing documents, why he may also need invoices for his defense, for example, which are completely undisputed between him and the defendant or for which he needs the annual financial statements from times for which not even the defendant in a bankruptcy of the G1. assumes is not recognizable. Such a request, which obviously only serves to investigate the previously unproven allegations of criminal bookkeeping manipulation by the defendant, would have to be rejected in the parallel proceedings as a mere investigation, and is also not obviously urgent.
141The plaintiff overlooks this connection when he complains with the - unresolved - brief of February 8th, 2022 (there p. 12), his rights to information should not be understood as limited to the defense against the (civil) lawsuits that are already pending: Even if the plaintiff has a comprehensive and unconditional right to information, and even if this includes the requested information in the requested form, this is to be asserted in principle in the main proceedings. The sought-after urgent legal protection, on the other hand, requires separate justification. However, if the plaintiff himself refers to the impending procedural disadvantages in the pending proceedings to justify the urgency, the requirement of a special urgency cannot be ignored with the consideration that the claims for information (assumed) also exist independently of the parallel proceedings .
142Regarding the disputed question as to which specific dates and deadlines may currently be determined in the parallel proceedings, as well as the detailed submission of the defendant (response to the request, Vol. I Bl. 194 dA), the plaintiff could anyway based on the documents available to him in the parallel proceedings If you defend yourself properly, then it no longer matters.
143bb. Only if the plaintiff submits (briefing of January 26th, 2022, vol. II p. 5 dA), without being able to substantiate the insight that individual payments were compatible with the diligence of a prudent businessman (§ 64 sentence 2 GmbHG old version) , this would be different insofar as the plaintiff would have the burden of proof (of course only in the context of the proceedings relating to file number 94 O 82/21; apart from that, this objection would obviously not be relevant). In this respect, too, he does not state which payments for which he is responsible are the subject of the liability claim there, nor which specific documents he needs to present them as due diligence (or why he would need all the business documents of G1. as requested), nor , why the inspection would be urgent in this respect: Also in this respect applies in favor of the plaintiff that submissions cannot be rejected as late if the delay is excused, § 296 paragraph 1 old ZPO. This would be the case if there was no opportunity to present a presentation due to the lack of the relevant documents.
144cc. Insofar as the plaintiff wants to derive an additional reason for the injunction from the fact that he bases his claims on Art. 15 GDPR (application, vol. I p. 71 dA), the Chamber does not agree with the defendant's opinion (reply to the application, vol. I p. 196 dA), according to which the GDPR does not apply to the insolvency administrator. A claim of the plaintiff appears doubtful on this basis, however, as the plaintiff in no way limits his request to documents or data that have a personal reference (Art. 4 No. 1 DSGVO) to him (which he probably also recognizes himself). , cf. Vol. II Bl. 42 dA). The chamber does not share the - possibly - underlying view that data created or received under his management would in any case be personal data concerning him, regardless of their detailed content. In any case, however, this does not result in any particular urgency in the sense of a reason for disposal. There is no legal rule that the assertion of the right to information under data protection law is always urgent or that the claimant should not be referred to the assertion in the main proceedings.
145dd. Insofar as the plaintiff submits with the application (Vol. I Bl. 47 dA) and in more detail with the unresolved brief of February 8th, 2022 (there p. 13 ff.), he needs the requested information to examine registered claims, § 176 InsO, this does not justify any particular urgency. In this respect, too, it is not clear which specific document the plaintiff urgently needs to examine the present claims or why he - as requested - all the documents of G1. absolutely needed and also not why the examination of registered claims would be urgent at all.
146ee. It then no longer needs to be discussed whether the plaintiff himself refutes an urgent need regarding the request for inspection (cf. above a.) by only now seeking interim legal protection, although according to his own submissions (application, vol. I p. 47 , 69 fdA) for several years unsuccessfully or without complete success for corresponding possibilities of insight.
d (with regard to IT systems, documents and data of the G2.).
147There is no urgent need for the failure to shut down G2 systems. nor in relation to the omission of data changes or deletions concerning the G2. demonstrated:
148In this respect, reference can be made to the above for G1. The following are referenced (above a., b.): That the defendant has specific IT systems G2. and would intend to shut it down or have specific documents or data from the G2. that there would be a threat of alteration or destruction before claims in this regard could be pursued by way of legal protection in the main thing, not even the plaintiff himself claims specifically.
e (regarding data access at the G2.).
149Also with regard to the requested access to G2 data. if an urgent need is not apparent, the same applies to the corresponding application regarding the G1. Executed (above c.). With regard to the assertion that the plaintiff needs insight for legal defense in the parallel proceedings, what was said there applies all the more than with regard to the G2. In the legal dispute in question (30 O 14/20) it is not at all apparent what legal significance the economic or other entrepreneurial circumstances of the G2. could have. As the defendant (response to the request, Vol. I Bl. 176 fdA) has explained in a legally conclusive manner, the claim asserted there according to § 135 InsO (unlike a claim based on § 133 InsO) is in principle not, not even indirectly, to the Linked to insolvency at the time of payment. In any case, the plaintiff would be entitled to the above under c. defense options presented.
f (other).
150 To the extent that the plaintiff referred to the duration of a possible main proceedings (briefing of January 17, 2022, vol. I p. 132 dA) and repeatedly complained that it was "unreasonable" to be referred to a legal prosecution in the main issue (most recently with the unresolved brief dated February 8th, 2022, p. 27 there), this does not in itself justify a claim for interim legal protection.
151 Even to the extent that the plaintiff finally refers to his reputation being damaged by the use of the (in his opinion: manipulated) data (cf. application, vol. I Bl. 49 fdA, brief of 17.01.2022, vol. I Bl. 9 dA), this does not justify a reason for disposal either. Because the request for an injunction with regard to the further change of documents and data is not suitable, logically enough, to prevent or reduce adverse public effects that emanate from the ongoing use. Furthermore, it is not apparent or demonstrated that further "public relations work" based on further manipulations is imminent or that the defendant even intends to do so. The disputed question between the parties as to whether the defendant may have passed on the claims or underlying information to the press (cf. reply to the application, vol. I p. 188 ff. dA) therefore does not arise at.
1523. The other allegations by the plaintiff that the defendant exceeded his responsibilities during the preliminary insolvency proceedings (Vol. I Bl. 7 ff., 15 fd A.), passed on personal information without authorization (Vol. I Bl. 32 fdA), check the invoices placed in the accounting department in general and the DOC invoices in particular not properly (last brief dated January 26, 2022, Vol. II Bl. 10 ff., 20 f.) and the defendant lies in his status reports (brief dated February 8th 2022, p. 23 ff. there) and grant Erik B., who is associated with the group (for reasons only indicated), illegal "privileges" (briefing of 26.01.2022, vol. II p. 35 ff. dA), do not justify the disputed request in any further way.
153How this should give the plaintiff any form of further claims to the sought-after injunctive relief or insight or make such claims urgent is not at all apparent.
III.
154A decision on the auxiliary request of the defendant was no longer required due to the fact that the defendant was not unsuccessful in the main request, the admissible internal procedural condition of his request did not occur.
IV
155The procedural ancillary decisions result from Sections 91, 101 Paragraph 1 2nd Hs., 708 No. 6, 711 ZPO.
V
156The determination of the amount in dispute is based on Sections 63 (2) sentence 1, 48 (1) sentence 1 GKG in conjunction with Section 3 ZPO. The value of the request for injunctive relief (numbers 1 and 3 of the request) is determined by the value of the impairment that - from the plaintiff's perspective - is to be feared from the behavior complained about; With regard to the request for inspection (numbers 2 and 4 of the requests), the interest of the plaintiff in the requested or hoped-for information is to be assessed in accordance with the case law developed on claims for information (cf. Herget in: Zöller, ZPO, 34th ed. 2022, § 3 ZPO, paras. 16.28 and 16.172, each with further references). Insofar as the costs of fulfillment are sometimes used as a factor in determining the amount in dispute for claims for information, this only applies if the interest of the party claimed in defending the claims is to be assessed, i.e. in particular when determining the appeal after conviction (Herget, loc.cit., marginal number 16.28 ).
157Based on these criteria, it had to be taken into account that both the request for injunctive relief and the request for inspection from the relevant plaintiff's point of view each serve a common interest, namely the preservation of the business documents and data in their current state in order to prevent claims being made on the basis of "manipulated" documents or to be able to effectively defend themselves against the claims that have already been made. The plaintiff himself also emphasizes this uniform interest when he submits (briefing of January 26, 2022, Vol. II Bl. 3 of the case file) that the right to information should also serve to check compliance with the right to injunctive relief. Against this background, the value in dispute of the related applications, which were intertwined with regard to the interests pursued, had to be determined uniformly.
158In terms of amount, the value in dispute for the interest pursued by the plaintiff in being able to organize his legal defense more effectively in the parallel proceedings with the requests sought at present is measured at a fraction of the amount by which he hereby hopes to defend himself; the fraction is to be set all the higher, the more important the requests being pursued are for the intended defense there (cf. on the corresponding problems of evaluating requests for information in preparation for active legal prosecution: BGH, decision of April 19, 2018 - IX ZB 62/17 -, legal).
159 Therefore, the Chamber had to take into account that the plaintiff is supporting his legal defense with the present applications in three further proceedings in which he is being claimed for payment in the following amount:
in proceedings 30 O 14/20, see Annex AG 32: EUR 1.57 million
in the procedure 97 O 6/22, see appendix ASt 55: EUR 10.10 million
in the procedure 94 O 82/21, see appendix ASt 72: EUR 20.00 million
Total: EUR 31.67 million
160The chamber also had to take into account that the requests being pursued here are - essentially - aimed at improving the financial circumstances of G1. and G2. to be able to present or prove, i.e. essentially relate to conditions for which - insofar as they are relevant to the decision at all - the insolvency administrator bears the burden of proof in the parallel proceedings. This reduces the importance of the requests pursued here for the intended legal defence. The same applies to the fact that the plaintiff is not striving for a final but only a provisional regulation and the fact that the requests pursued here do not concern the only or sole possibility of defense in the parallel proceedings (cf. also the response to the application, Vol. I sheet 36 of the file). All in all, this justifies the board's conviction that the interest pursued in the present case should only be assessed with a small fraction of the claims to be defended against, namely one fifth of this, which corresponds to the recognized amount.
