OLG Celle - 8 U 165/22
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| OLG Celle - 8 U 165/22 | |
|---|---|
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| Court: | OLG Celle (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 12(5) GDPR Article 15 GDPR |
| Decided: | 15.12.2022 |
| Published: | 30.12.2022 |
| Parties: | |
| National Case Number/Name: | 8 U 165/22 |
| European Case Law Identifier: | |
| Appeal from: | LG Stade (Germany) 3 O 258/21 |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | openJur (in German) |
| Initial Contributor: | n/a |
The Higher Regional Court of Celle overturned the decision of a lower court, holding that the motivation of a data subject's Article 15 GDPR access request is irrelevant to the legitimacy of the request.
English Summary
Facts
The case concerned, among other things, a data subject's Article 15 GDPR access request to acquire supplementary information about their increased insurance premiums from their private health insurance provider. The health insurance provider was the concerned controller in this case.
As, at the time being, had often been the case in Germany, the court of first instance (in this case, the Regional Court Stade), had held that the access request was "excessive" since, contrary to Recital 63 GDPR, the request did not serve to further data protection related matters. Therefore, the lower court had had decided that the controller had a right to refuse the request under Article 12(5)(b) GDPR.
The data subject appealed the decision.
Holding
OLG Celle, a court of second instance, overturned the decision of the lower court in respect to its holding on the excessiveness of the data subject's access request.
Contrary to the Regional Court of Stade, OLG Celle argued that Recital 63 GDPR - which states that the purpose of the right to access is to make data subjects aware of the processing of their personal data and to give them the possibility to verify the lawfulness of the processing - only mandates that the requested information concerns personal data in the sense of Article 4(1) GDPR. Moreover, OLG Celle also held that a singular access request can never be excessive for the purposes of Article 12(5) GDPR as the GDPR only described the case of frequent repetition as a standard example for the assumption of an excessive application.
Moreover, OLG Celle stated that the GDPR does not have any requirements which data subjects have to meet to justify their access requests. "The motivation of the plaintiff is irrelevant because the regulation does not make the right to information dependent on a specific objective of the claimant and accordingly the access request does not have to be substantiated", so the court.
Consequently, OLG Celle overturned the decision in this respect.
Comment
By granting a data subject's access request despite the data subject's lack of motivation to use the access request for data protection related purposes, OLG Celle substantially diverged from the prevailing German case law at the time (see OLG Köln - 20 U 295/21, OLG Dresden - 4 U 1905/21, LG Krefeld - 2 O 448/20).
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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 On the appeal of the plaintiff, the judgment of the single judge of the 3rd civil chamber of the district court of Stade, announced on March 29, 2022, is partially amended and, with the rejection of the further appeal, is worded as follows: 1. It is determined that the following contribution adjustments until December 31 2020 have not become effective: - the increase in the contribution in tariff 342/20 on January 1, 2014 in the amount of €41.92, - the increase in the contribution in tariff 541/20 on January 1, 2015 in the amount of €15.55 € and - the reduction of the contribution in tariff 342/20 on January 1, 2016 by €9.77. 20 from January 1, 2014 in the amount of €41.92 up to December 31, 2018 due to the increase in the contribution in tariff 541/20 from January 1, 2015 in the amount of €15.55 up to December 31, 2020.3. The defendant is ordered to pay the plaintiff €945.60 n as well as interest of 5 percentage points above the respective base interest rate for the period from October 29, 2021.4. The defendant is ordered to pay the plaintiff benefits of €77.59 plus interest of 5 percentage points above the respective base interest rate for the period from October 29, 2021 to provide suitable documents containing at least the following information: • the amount of the contribution adjustments for the years 2012, 2013, naming the respective tariffs in the insurance relationship of the plaintiff, • the information transmitted to the plaintiff for this purpose in the form of Insurance certificates and supplements to the insurance certificate for the years 2012, 2013, and • those of Reasons for the years 2012, 2013.6 provided by the plaintiff for the purpose of adjusting the contribution. Otherwise, the lawsuit is dismissed. The plaintiff bears 69% and the defendant 31% of the costs of the appeal proceedings. The plaintiff bears 80% of the costs of the legal dispute in the first instance and the defendant 20%. The appeal is allowed. The judgment is provisionally enforceable. The defendant can avert the enforcement of the plaintiff because the defendant was ordered to provide information against security of €750.00 if the plaintiff does not provide security of €200.00 before enforcement. In addition, the respective enforcement debtor can avert enforcement against security in the amount of 110% of the total enforceable amount based on the judgment, if the respective enforcement creditor does not provide security in the amount of 110% of the amount to be enforced in each case before enforcement. The amount in dispute is for the Appeal procedure set at up to €6,000.00. The value in dispute for the 1st instance is set at up to €16,000.00, amending the decision of March 29, 2022. reasons I. The plaintiff objects to various premium adjustments made by the defendant as part of a private health insurance contract. Effective December 1, 1990, the parties are linked by an insurance contract for medical expenses including nursing care insurance. With regard to the supplements to the insurance policy for the period from January 1, 2014 to January 1, 2021 inclusive, sheet 57 R - 60 R d. A. Referenced. With effect from January 1, 2014 and thereafter, the defendant increased the contributions for the various tariffs covered by the contract to the extent at issue. The plaintiff claimed that the premium increases at issue were not effective. The content of the justification did not meet the legal requirements. In addition, such premium adjustments are also ineffective which were based on a threshold value being exceeded by 10% or less. It is true that the defendant's corresponding insurance clause allows a premium adjustment in such a constellation. However, this clause was ineffective (page 4 R, 14 - 16 R of the A.). The defendant could not base an adjustment of the contribution on reduced benefit expenditure anyway (P. 16 R - 17 R of the A.). The ineffectiveness of the disputed Contribution adjustments have the consequence that the defendant has to repay the overpaid premiums. The plaintiff first brought an action on a step-by-step basis and requested that the defendant be ordered to provide information about the amount of the triggering factors on which all contribution adjustments have been based since 2014. In a brief dated December 10, 2022, the plaintiff quantified his claims from 2013, filed a new step-by-step lawsuit for the contribution years 2012 and 2013 and also requested information on the amount of the triggering factors (page 51 R - 52 R d. A.). Plaintiff last applied for 1. determine that the following reassessments of the premiums in the health/care insurance between the plaintiff and the defendant with the insurance number 4922344839 are ineffective: a) the increase in the contribution in tariff 342/20 on January 1st, 2014 in the amount of €41.92 b ) the increase in the contribution in tariff 541/20 on January 1st, 2015 in the amount of €15.55 c) the reduction in the contribution in tariff 342/20 on January 1st, 2016 by €9.77 and the plaintiff is not obliged to pay the respective difference was,2. to order the defendant to pay the plaintiff €3,423.03 plus interest therefrom in the amount of five percentage points above the respective base interest rate from lis pendens,3. sentence the defendant a) to return to the plaintiff the benefits amounting to €613.05 that the defendant drew from the premium share up to the time of pendency, which the plaintiff paid for the premium adjustments listed under 1),b) the to pay interest from the benefits to be surrendered to the plaintiff in the amount of five percentage points above the respective base interest rate from the pendency,4. order the defendant to provide the plaintiff with information about all premium adjustments made by the defendant in the contract concluded between the parties in the years 2012, 2013 for insurance number 4922344839 and to provide suitable documents for this, in which at least the following Information is included: • the amount of the premium adjustments for the years 2012, 2013, naming the respective tariffs in the insurance relationship of the plaintiff, • the information transmitted to the plaintiff for this purpose in the form of insurance certificates and supplements to the insurance certificate for the years 2012, 2013, as well • the reasoning for the years 2012, 2013,5 sent to the plaintiff for the purpose of adjusting the premium. to order the defendant to provide the plaintiff with information about the respective amount of the triggering factors for the recalculation of the premiums in all former and current tariffs of the insurance contract with the insurance number 4922344839 for the last ten years,6. to determine that the reassessment of the premiums in the health insurance existing between the plaintiff and the defendant with the insurance number 4922344839 after the information was provided in accordance with the application for 4) are ineffective and the plaintiff is not obliged to pay the respective difference, as well as, that the total amount due monthly for the future is to be reduced to an amount that is still to be quantified after the information has been provided in accordance with the application for 4), taking into account the reductions that have taken place,7. to order the defendant to pay the plaintiff an amount to be quantified after the information has been provided in accordance with the application for 4), plus interest therefrom in the amount of five percentage points above the respective base interest rate from lis pendens,8. to order the defendant to hand over to the plaintiff the benefits in the amount still to be quantified after the information has been provided in accordance with the application for 4), which the defendant drew from the premium share up to the time of the lis pendens,9. order the defendant to indemnify the plaintiff with regard to the out-of-court legal prosecution costs of €1,054.10 plus interest at a rate of five percentage points above the respective base interest rate since pendency. The defendant has applied for the action to be dismissed already inadmissible. There is also no right to information in the absence of a basis for a claim. Any formally ineffective contribution adjustments were also cured upon receipt of the pre-court letter from the defendant from November 2020 (Annex B. 10 in the defendant's annex volume). In it, the defendant informed the plaintiff about the basis of calculation for the contribution adjustments made in the past. However, there is no right to information about the amount of the triggering factor. With a judgment of March 29, 2022 (page 85 - 97 of the case file), the regional court dismissed the lawsuit. All possible repayment claims from unjust enrichment of the defendant up to and including 2017 are time-barred. There is also no right to a determination because the premium adjustments were healed by the information provided by the defendant before the court. There are no claims for information due to the lack of a basis for the claim , which limits his payment claim to the premiums paid since January 1, 2018 and to premiums paid after the lawsuit is pending. determine that the following reassessments of the premiums in the health/care insurance between the plaintiff and the defendant with the insurance number 4922344839 are ineffective:a) the increase in the contribution in tariff 342/20 on January 1st, 2014 in the amount of €41.92b ) the increase in the contribution in tariff 541/20 on January 1st, 2015 in the amount of €15.55c) the reduction in the contribution in tariff 342/20 on January 1st, 2016 by €-9.77 and the plaintiff not to pay the respective difference amount was obliged,2. to order the defendant to pay the plaintiff €1,194.40 plus interest therefrom in the amount of five percentage points above the respective base interest rate from lis pendens,3. to order the defendant to provide the plaintiff with information about all premium adjustments made by the defendant in the contract concluded between the parties in the years 2012, 2013 for insurance number 4922344839 and to provide suitable documents for this purpose, in which at least the following information included are: • the amount of the premium adjustments for the years 2012, 2013, naming the respective tariffs in the insurance relationship of the plaintiff, • the information transmitted to the plaintiff for this purpose in the form of insurance certificates and supplements to the insurance certificate for the years 2012, 2013, and • the Reasons from the years 2012, 2013,4 submitted by the plaintiff for the purpose of adjusting the contribution. to state that all unilateral increases in the plaintiff's health insurance tariffs, which the defendant made to the plaintiff's side within the framework of the health insurance relationship between them for insurance number 4922344839 of the years, and to describe them even more precisely after the information was provided in accordance with the application for number 3). are ineffective and the plaintiff is not obliged to pay the respective increase amount, as well as that the total amount due monthly for the future is to be reduced to an amount that can still be precisely quantified after the information has been provided in accordance with claim 3),5. to order the defendant to pay the plaintiff an amount to be quantified after the information has been provided in accordance with claim 3), plus interest therefrom in the amount of five percentage points above the respective base interest rate since lis pendens,6. to order the defendant to return to the plaintiff the benefits in the amount of €613.05 that the defendant had drawn from the premium portion of the premium adjustments listed under 1) up to the time of the pendency, as well as the interest from the benefits to be returned in the amount of five percentage points above to be paid to the plaintiff at the respective base interest rate from the moment of pendency,7. to establish that the defendant a) is obliged by the plaintiff to hand over the benefits that it has drawn from the premium share that the plaintiff has paid for the contribution increases to be specified in more detail after the information has been provided in accordance with the claim to 3), b) the after 7a) has to pay interest on the benefits to be issued in the amount of five percentage points above the respective base interest rate from pendency,8. to order the defendant to provide the plaintiff with information about the respective amount of the triggering factors for the recalculation of the premiums in all former and current tariffs of the insurance contract with the insurance number 4922344839 for the last ten years since lis pendens,9. to order the defendant to indemnify the plaintiff with regard to the out-of-court legal prosecution costs of €1,054.10 plus interest of five percentage points above the respective base rate since pendency. The defendant requests that the appeal be dismissed. In particular, this does not result from Art. 15 DS-GVO. Because the scope of this claim must be based on the sense and purpose of the regulation, according to which the person concerned should only be able to check the legality of storage of data concerning him. The defendant also assumes that the plaintiff is still in possession of all the documents to which the right to information relates. In addition, any claims are time-barred up to and including 2017. Because of the further submissions of the parties, moreover and in detail, reference is made to the content of the exchanged pleadings and attachments as well as to the district court judgment. II. The permissible appeal of the plaintiff is justified in the tenored scope . The three disputed contribution adjustments were ineffective. This results in a claim for repayment by the plaintiff as well as a claim for the surrender of benefits. However, the level action brought is inadmissible. Nor can the plaintiff request information about the amount of the triggering factors underlying the contribution adjustments or exemption from the pre-trial attorney's fees. However, the plaintiff is entitled to a claim for information regarding any contribution adjustments in the years 2012 and 2013 to the desired extent instead of the step action.In detail:A. Action for a declaratory judgment (application for 1)1. The action for a declaratory judgment is in any case admissible as an action for an interim declaratory judgment. The action for an interim declaratory judgment enables the plaintiff, in addition to a legally binding decision on his action, to bring about a disputed legal relationship that is not capable of legal force according to Section 322 (1) ZPO, on which the decision of the litigation arrives. However, the requested determination must in principle relate to an object that goes beyond the object of the legal dispute that is capable of legal force. There is therefore basically no room for an interim declaratory action if the legal relationships between the parties are regulated exhaustively with the judgment on the main action (cf. BGH, judgment of September 28, 2006 - VII ZR 247/05). However, an interim declaratory action is admissible if the main action pursues several independent claims from the legal relationship, even if they exhaust the claims that can arise from it in their entirety (cf. BGH, judgment of November 23, 2017 - VII ZR 34/15; BGH, judgment of March 7, 2013 - VII ZR 223/11, BGH, judgment of May 5, 2011 - VII ZR 179/10, BGH, judgment of November 27, 1998 - V ZR 180/97) . Such is the case here. The plaintiff bases his claim for performance on a large number of independently existing claims for repayment. Each premium payment made due to an ineffective premium increase and the claim for repayment based thereon represents an independent claim (cf. BGH, judgment of July 21, 2021 - IV ZR 191/20, para. 33; Grothe in: Munich commentary on the BGB, 9. edition, each on the statute of limitations for claims).2. The declaratory action is also justified. The disputed premium adjustments were ineffective. According to Section 203 (5) VVG, the reassessment of the premium in health insurance and the change in the premium with the exclusion of the ordinary right of termination will take effect at the beginning of the second month following the notification of the reassessment or the changes and the corresponding relevant reasons to the policyholder. The relevant reasons within the meaning of the provision are the calculation basis and the exceeding of the respective relevant threshold value. The decision of the Federal Court of Justice of December 16, 2020 - IV ZR 294/19 - states, among other things, as follows: "At the same time, it follows from the word "relevant" that not all reasons have to be given, but only those that are decisive for the premium adjustment Circumstances In this sense, the only decisive factor is whether a change in the required insurance benefits or the probability of death compared to the calculated insurance benefits or not exceeds the threshold values regulated in § 155 paragraphs 3 and 4 of the Insurance Supervision Act (VAG) or in the general insurance conditions." This is the opinion of the Federal Court of Justice in his judgment of July 21, 2021 - IV ZR 191/20 - confirmed. In addition, the Federal Court of Justice, in its judgment of August 31, 2022 - IV ZR 252/20 - once again expressly clarified that for a premium adjustment to be formally effective, notification is required that the concrete premium increase exceeded a threshold value specified in law or tariff conditions.On the other hand the insurer does not have to report the amount by which this basis for calculation has changed. He also does not have to indicate the change in other factors that have influenced the amount of the premium. This results from the interpretation of Section 203 (5) VVG from the wording of the standard, the legal system, the history of its origin and the meaning and purpose of the provision (cf. BGH, judgment of December 16, 2020 - IV ZR 294/19). The decisive factor here is whether the policyholder can infer the reason for the premium adjustment from the insurer's notifications with the required clarity. Whether the notification of a premium adjustment satisfies the legal requirements of § 203 Para. cf. BGH, loc. cit.).On this basis, all three premium adjustments were ineffective, because the defendant did not argue in the legal dispute and - certainly - did not prove that it had formally and properly informed the plaintiff about the reasons for the premium adjustments on the occasion of the premium adjustments . Even insofar as the plaintiff himself quoted excerpts from the notification letter from the defendant on the occasion of the contribution adjustments in the statement of claim, the passages reproduced cannot be inferred that the defendant informed the plaintiff to a sufficient extent. The following contribution adjustments were therefore ineffective:- the Increase in the contribution in tariff 342/20 on 1. January 2014 in the amount of €41.92, - the increase in the contribution in tariff 541/20 on January 1, 2015 in the amount of €15.55 and - the reduction in the contribution in tariff 342/20 on January 1, 2016 by - €9.77. However, the ineffectiveness was cured with the delivery of Annex B. 10 from November 2020, because in it the defendant duly informed the plaintiff of the reasons for the contribution adjustments made in the past: Based on these statements in conjunction with the following table, the Plaintiffs recognize that the "triggering factor" in the plaintiff's tariffs had "jumped into action" and that the statutory or contractually agreed threshold value had been exceeded in the performance expenditure As a result, the reassessment of the premium in health insurance and the change in the premium with the exclusion of the ordinary right of termination at the beginning of the second month that begins with In the absence of other indications, it can be assumed that the plaintiff received the letter from November 2020 in the same month. Accordingly, the ineffectiveness of the three disputed contribution adjustments has been healed with effect from January 1, 2021. Contrary to the view taken by the plaintiff, healing of the ineffectiveness does not fail because the disputed contribution adjustments were also materially ineffective. The corresponding clause reproduced by the plaintiff in the statement of claim (page 14, 14 R of the A.) is effective (cf. BGH, judgment of June 22, 2022 - IV ZR 253/20). The contribution adjustments are therefore not material ineffective if they are based on reduced service expenditure. Because even if benefit expenditure has fallen, the threshold value can be exceeded with the need for an adjustment of contributions (cf. BGH, judgment of October 20, 2021 - IV ZR 148/20). This premium adjustment can result in both a premium increase and a premium reduction. This is because the calculation of the amount of the premium has to be carried out using the calculation bases described in more detail in §§ 2 and 4 to 8 KVAV and the aging provisions in accordance with §§ 3, 10, 11, 13, 14 and 18 KVAV. The benefit expenditure is only one factor to be included in the calculation, so that even if the benefit expenditure has fallen, the premium can increase. The lack of legal basis ceases to exist with effect ex nunc if the insurer makes an effective premium adjustment in the same tariff (cf. BGH, judgment of April 14, 2021 - IV ZR 36/20 - para. 43). This is due to the fact that when the premium is adjusted, not only is an increase determined, but a complete new determination for the newly calculated period (see BGH, judgment of December 16, 2020 - IV ZR 314/19). In tariff 342/ 20, the defendant made a contribution adjustment effective January 1, 2019, the effectiveness of which the plaintiff does not question. In tariff 541/20, on the other hand, no further premium adjustments can be inferred from the supplements to the insurance certificate submitted by the plaintiff after January 1, 2015. In this respect, the premium adjustment remains ineffective until December 31, 2020.B. Action for payment (application for 2) On the basis of the above statements, the plaintiff has a claim against the defendant pursuant to Section 812 Paragraph 1 Clause 1, Section 818 Paragraph 1 and Paragraph 2 of the German Civil Code. This is calculated on the basis of both the first-instance disputed performance period (page 52 R of the case) and taking into account the contribution reduction used by the plaintiff himself when calculating his claims as follows: Tariff from to monthly. (€) Months total 342/20 01/2014 12/2017 41.92 48 2,012.16 342/20 01/2018 12/2018 32.15 (41.92 ./. 9.77) 12 385.80 541/20 01/2015 12/2020 15.55 72 1,119.60 3,517.56 However, some of these claims are statute-barred. The defendant did not expressly raise the objection of the statute of limitations with regard to the claim for payment. Rather, it only raised this objection in connection with the initially asserted right to information (page 40 R of the case). However, this is also an objection to the statute of limitations related to the claim for benefits. Because it is recognized that a claim for information raised as part of a step action lawsuit cannot become time-barred before the main claim that it serves (cf. BGH, judgment of September 3, 2020 - III ZR 136/18; BGH, judgment of July 25, 2017 - VI ZR 222/16). According to § 199 paragraph 1 BGB, the limitation period begins at the end of the year in which the claim arose and the creditor became aware of the circumstances giving rise to the claim and the person of the debtor or should have become aware of them without gross negligence .The creditor of a claim for enrichment from Section 812, Paragraph 1, Sentence 1, Alt. 1 of the German Civil Code is aware of the circumstances giving rise to the claim if he knows about the performance and the facts from which the lack of a legal basis arises. For reasons of legal certainty and equity, the start of the limitation period only requires knowledge of the circumstances on which the claim is based. As a rule, it is not necessary for the creditor to draw the correct legal conclusions from the facts known to him. On this basis, the plaintiff was aware of the claim and the person of the debtor with the announcement of the contribution adjustment and the opportunity to take note of the information provided by the defendant to justify it and there is a dubious legal situation which even a legally qualified third party cannot reliably assess. In these cases, it is not reasonable to bring an action as an overarching requirement for the start of the limitation period (Federal Court of Justice, judgment of February 21, 2018 - IV ZR 385/16; Spindler in: BeckOK BGB, as of February 1, 2021, § 199, para. 26 ).In January 2011 and thereafter, a legally qualified third party was also unable to reliably assess the exact scope of the requirement to state reasons to be derived from Section 203 (5) VVG. Because at least initially it was unclear what the legislature wanted to understand exactly under the relevant reasons within the meaning of § 203 Para. 5 VVG and which requirements were to be linked to this. The explanatory memorandum to § 203 Para. 5 VVG contains the following statements (BT -Print 16/3945, page 114): "The provision essentially corresponds to the previous § 178g paragraph 4 VVG. However, deviating agreements on the effective date of the contract amendment are excluded insofar as they are disadvantageous for the policyholder (cf. § 208 VVG-E). For adjustments to ineffective insurance conditions according to paragraph 4, the effectiveness is determined according to § 164 paragraph 2 VVG-E."Insofar as the provision corresponds to the previous standard, a third party with legal experience could fall back on the existing case law. However, with regard to the notification of the relevant reasons provided for in sec. 203 para. 5 Insurance Contract Act, there is no equivalent in the previous standard. Accordingly, it also remained unclear what the legislature meant by this. After the reform of insurance contract law, different opinions on the issue at issue here developed only slowly, without, however, a uniform line having emerged (cf. BGH, judgment of 16. December 2020 - IV ZR 294/19). However, regardless of the exact scope of the notification obligations associated with a premium adjustment, it was at least clear on the basis of the legal regulation that the notification of the basis of calculation within the meaning of § 203 para. 2 Sentence 3 VVG and exceeding the relevant threshold value within the meaning of § 155 Para. 3 and 4 VAG or within the meaning of the insurance conditions (cf. BGH, loc regardless of whether there are any further requirements for the notification in the sense of § 203 Para. 5 VVG are to be provided. In addition, a not inconsiderable proportion of the information letters issued by insurers in the past do not even meet the minimum legal requirements. Under these circumstances, however, it was not unreasonable to bring an action before the legal statute of limitations was reached. Based on the above statements, at the time the action was filed in 2021, the claims that had arisen up to December 31, 2017 were statute-barred. The plaintiff's claim against the defendant is calculated as follows: Tariff from to monthly. (€) Months total 342/20 01/2014 12/2017 41.92 48 0 342/20 01/2018 12/2018 32.15 12 385.80 541/20 01/2018 12/2020 15.55 36 559.80 945.60 The extension of the lawsuit in the appeal proceedings to include the premiums paid according to the pendency does not lead to a further claim by the plaintiff against the defendant, because the defendant had already cured the ineffectiveness of the disputed contribution adjustments before the lawsuit was pending (see above). The interest claim is based on § 291, § 288 paragraph 1 sentence 2 BGB. The complaint was served on the defendant on October 28, 2021. This justifies a claim to interest even in the case of a (unquantified) claim that was initially only asserted by means of a step-by-step lawsuit (cf. BGH, judgment of May 6, 1981, - IVa ZR 170/80).C. Payment claim regarding benefits (application for 6) The plaintiff is also entitled to the defendant for the return of the benefits obtained in accordance with Section 818 (1) BGB Occurrence and amount of actual uses subject to presentation and evidence (cf. BGH, judgment of April 29, 2020 - IV ZR 5/19; BGH, judgment of December 19, 2018 - IV ZR 255/17). This requires him to present a factual statement, which cannot be based on an actual assumption of a certain amount of profit without reference to the earnings situation of the respective insurer (cf. BGH, judgment of December 19, 2018 - IV ZR 255/17). The starting point is correct When calculating the interest claim, the plaintiff based the undisputed net or net interest achieved by the defendant (cf. OLG Rostock, decision of November 9, 2021- 4 U 51/21; OLG Karlsruhe, decision of September 10, 2021 - 12 U 222/20). Contrary to the view taken by the defendant, the calculation of the claim for return of use can also be based on the full amount of the premium portion obtained without legal reason. The premium essentially consists of the savings portion, the risk portion and the administration costs. According to the defendant, however, the savings portion is also available for unrestricted use. The benefits obtained with the administrative costs are only to be surrendered if the insurer saved the use of other financial resources in this way, which he could use to obtain benefits (cf. BGH, judgment of April 29, 2020 - IV ZR 5/19). However, in the present case there are no indications that the administrative costs incurred by the defendant would have been lower without the ineffective premium adjustments. On the contrary, it must be assumed that the defendant had administrative costs to the same extent even without the illegally obtained premium shares and that - if the defendant should have used the illegally obtained premium shares to cover them - by using the illegally obtained premium shares only the stake other financial resources. The same applies to the risk component. The risk portion covers damage caused by illness. This is basic head damage within the meaning of Section 15 (2) KVAV. These relate to the necessary insurance benefits and are available for fruition if the insurer thereby saves other expenses. The latter is the case without any problems, because the defendant of the community of policyholders is obliged to make the payment in accordance with the conditions, regardless of the amount of the premiums owed. Even if the defendant had refrained from making the ineffective premium adjustments, this would not have had any impact on the scope of the insurance benefits to be paid by it, because it would have been unconditionally obliged to pay within the scope of the insured events that had occurred. Any use of the premium shares obtained without legal reason would accordingly only result in the defendant saving the use of other financial resources. However, based on the regulation pursuant to § 217 BGB, a use of the right to use is only possible with regard to the premium shares paid without legal reason from January 1, 2018 and also only up to the point at which the lis pendens occurred on October 28, 2021. The fact that the plaintiff initially only filed a step action with an unspecified application for performance with the statement of claim does not prevent the pendency of the payment claim. The amount of the benefits to be surrendered is calculated as follows: Month Balance previous month Inpayments (+) Payments (-) at the beginning of the month Interest rate Interest Interest payment at the end of the month New balance at the end of the month 01 / 2018 0.00 +47.70 3.200 % 0.127 0.00 47.70 02 / 2018 47.70 +47.70 3.200% 0.254 0.00 95.40 03 / 2018 95.40 +47.70 3.200% 0.382 0.00 143.10 04 / 2018 143.10 +47.70 3.200% 0.509 0.00 190.80 05 / 2018 190.80 +47.70 3.200% 0.636 0.00 238.50 06 / 2018 238.50 +47.70 3.200% 0.763 0.00 286.20 07 / 2018 286.20 +47.70 3.200% 0.890 0.00 333.90 08 / 2018 333.90 +47.70 3.200% 1.018 0.00 381.60 09 / 2018 381.60 +47.70 3.200% 1.145 0.00 429.30 10 / 2018 429.30 +47.70 3.200% 1.272 0.00 477.00 11 / 2018 477.00 +47.70 3.200% 1.399 0.00 524.70 12 / 2018 524.70 +47.70 3.200% 1.526 9.92 572.40 Totals year 2018 0.00 +572.40 0.00 9.92 572.40 01 / 2019 572.40 +15.55 2.900% 1.421 0.00 587.95 02 / 2019 587.95 +15.55 2.900% 1.458 0.00 603.50 03 / 2019 603.50 +15.55 2.900% 1.496 0.00 619.05 04 / 2019 619.05 +15.55 2.900% 1.534 0.00 634.60 05 / 2019 634.60 +15.55 2.900% 1.571 0.00 650.15 06 / 2019 650.15 +15.55 2.900% 1.609 0.00 665.70 07 / 2019 665.70 +15.55 2.900% 1.646 0.00 681.25 08 / 2019 681.25 +15.55 2.900% 1.684 0.00 696.80 09 / 2019 696.80 +15.55 2.900% 1.722 0.00 712.35 10 / 2019 712.35 +15.55 2.900% 1.759 0.00 727.90 11 / 2019 727.90 +15.55 2.900% 1.797 0.00 743.45 12 / 2019 743.45 +15.55 2.900% 1.834 19.53 759.00 Totals year 2019 572.40 +186.60 0.00 19.53 759.00 01 / 2020 759.00 +15.55 2.800 % 1.807 0.00 774.55 02 / 2020 774.55 +15.55 2.800% 1.844 0.00 790.10 03 / 2020 790.10 +15.55 2.800% 1.880 0.00 805.65 04 / 2020 805.65 +15.55 2.800% 1.916 0.00 821.20 05 / 2020 821.20 +15.55 2.800% 1.952 0.00 836.75 06 / 2020 836.75 +15.55 2.800% 1.989 0.00 852.30 07 / 2020 852.30 +15.55 2.800% 2.025 0.00 867.85 08 / 2020 867.85 +15.55 2.800% 2.061 0.00 883.40 09 / 2020 883.40 +15.55 2.800% 2.098 0.00 898.95 10 / 2020 898.95 +15.55 2.800% 2.134 0.00 914.50 11 / 2020 914.50 +15.55 2.800% 2.170 0.00 930.05 12 / 2020 930.05 +15.55 2.800% 2.206 24.08 945.60 Totals year 2020 759.00 +186.60 0.00 24.08 945.60 01 / 2021 945.60 +15.55 2.800% 2.243 0.00 961.15 02 / 2021 961.15 +15.55 2.800% 2.279 0.00 976.70 03 / 2021 976.70 +15.55 2.800% 2.315 0.00 992.25 04 / 2021 992.25 +15.55 2.800% 2.352 0.00 1,007.80 05 / 2021 1,007.80 +15.55 2.800% 2.388 0.00 1,023.35 06 / 2021 1,023.35 +15.55 2.800% 2.424 0.00 1,038.90 07 / 2021 1,038.90 +15.55 2.800 % 2.460 0.00 1,054.45 08 / 2021 1,054.45 +15.55 2.800 % 2.497 0.00 1,070.00 09 / 2021 1,070.00 +15.55 2.800 % 2.533 0.00 1,085.55 10 / 2021 1,085.55 +15.55 2.800% 2.569 24.06 1,101.10 Totals 0.00 +1,101.10 0.00 77.59 1,101.10 This results in a claim by the plaintiff against the defendant in the amount of €77.59. The interest claim is based on § 291, § 288 paragraph 1 sentence 2 BGB.D. Step action regarding the premium adjustments in the years 2012 and 2013 (applications for 3, 4, 5, 7a) and b)).1. The step action is inadmissible. Already from the wording of the law as well as from the systematic position of § 254 ZPO it is clear that the special feature of the step action does not lie in the admission of a claim connection in an action, but primarily in the admission of an indefinite application contrary to § 253 Paragraph 2 No. 2 ZPO. It follows that in the context of a step action, the information is merely an aid to bring about the (still) lacking certainty of the entitlement to benefits. On the other hand, the combination of an indefinite entitlement to benefits and a preparatory entitlement to information, which is characteristic of a step action, is not available if the information is not intended to serve the purpose of determining the entitlement to benefits at all, but is intended to provide the plaintiff with other information about his legal prosecution that is not related to the determinability as such ( cf. Federal Court of Justice, judgment of March 2, 2000 - III ZR 65/99). should enable the examination of any claim against the defendant. Such a constellation is also given in the case at issue. The plaintiff initially only wants to be able to use the requested information to be able to assess the prerequisites for any further claims for unjust enrichment.2. However, subject to a statement to the contrary by the policyholder, the inadmissible step action can be reinterpreted as a permissible accumulation of actions. Because even if the right to information does not primarily serve to quantify the entitlement to benefits, the plaintiff can still be entitled to an isolated right to information as a minus of the step action (cf. BGH, loc. cit.). The action for information is also justified. Contrary to the view taken by the district court and the defendant, the plaintiff has a right to information against the defendant in accordance with Art. aware of the processing (for the term cf. Art. 4 No. 2 DS-GVO; for the area of processing covered by the material scope of application of the regulation cf. Art. 2 Para. 1, Art. 4 No. 6 DS-GVO). and to be able to check their legality (cf. BGH, judgment of June 15, 2021 - VI ZR 576/19). The decisive factor for the existence of a right to information is therefore whether the supplements to the insurance policy sent by the defendant to the plaintiff on the occasion of the premium adjustments contain information according to these criteria (cf. BGH, loc. cit.). According to Art. 4 No. 1 Clause 1 DS-GVO, personal data is all information that relates to an identified or identifiable are natural persons. This definition has a wide scope. It is not limited to sensitive or private information, but potentially includes all types of information, both objective and subjective, in the form of opinions or judgements, if they concern only the person in question. The latter is the case if the information is linked to a specific person due to its content, its purpose or its effects (cf. ECJ, judgment of December 20, 2017 - C-434/16 on Art. 2 letter a of Directive 95 /46/EG of the European Parliament and Council of October 24th, 1995; BGH, judgment of June 15th, 2021 - VI ZR 576/19). No. 1 DS-GVO. The personal information already consists in the fact that the defendant made a statement in accordance with the letter (cf. BGH, loc. cit.). In the present case, too, personal data within the meaning of Art. 4 No. 1 half-sentence 1 DS-GVO are the subject of the right to information. The supplements to the insurance certificate sent by the defendant to the plaintiff on the occasion of the premium adjustments dealt with the specific contract concluded between the parties and partially redesigned its content. The notification letters sent on the occasion of the premium adjustment also come under the term personal data in their entirety (cf. BGH, loc. cit.). The plaintiff's request for information is also not an obviously unfounded or excessive request within the meaning of Art. 12 (5). Sentence 2 GDPR. In the regulation, the case of frequent repetition is found as a standard example for the acceptance of an excessive application. There can be no question of this in the present case, because the plaintiff's action is asking for a copy of the relevant documents to be issued for the first time. The motivation of the plaintiff is also irrelevant, because the regulation does not make the right to information dependent on a specific objective of the claimant and accordingly the request for information does not have to be justified (cf. BGH, ECJ proposal of March 29, 2022 - VI ZR 1352 /20; Cologne Higher Regional Court, judgment of May 13, 2022 - 20 U 198/21; juris Simitis/Hornung/Spiecker, DS-GVO with BDSG, Article 15 DS-GVO, marginal number 11; Schmidt-Wudy in: BeckOK data protection law , Status: 01.08.2022; DS-GVO Art. 15, para. 85). To the extent that the defendant claims in the appeal proceedings that the plaintiff is still in possession of the information that was originally sent to him and is now the subject of the dispute (page 143 of the case), this does not preclude a right to information pursuant to Art. 15 GDPR. The defendant has not yet offered any evidence for the objection raised by it. Irrespective of this, the right to information based on Art. 15 DS-GVO also exists if the person concerned already has the required information (cf. BGH, judgment of June 15, 2021 - VI ZR 576/19; VG Schwerin, judgment of June 29. April 2021 - 1 A 1343/19 SN; Schmidt-Wudy in: BeckOK data protection law, as of August 1, 2022; GDPR Art. 15, para. 52.3). that the corresponding regulation according to Art. 99 Para. 2 DS-GVO only came into force on May 25, 2018, while the plaintiff's right to information relates to information that was collected and stored at an earlier point in time. In this respect, there is no express time limit for the right to information in the regulation, which speaks for an unlimited right to information, also with regard to information that was collected and/or stored before May 25, 2018. In addition, the regulation serves to protect the fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data in accordance with Art. 1 Para. 2 DS-GVO. However, such protection would be largely ineffective if it only extended to information collected after May 25, 2018. This is also supported by the fact that the previous regulation 95/46/EG was repealed with effect from May 25, 2018 and any claims for information can no longer be based on it. In any case, the act of data storage is ongoing data processing, which, provided that it has not been deleted beforehand, also lasts beyond May 25, 2018 and thus falls within the scope of Art. 15 DS-GVO from this point in time at the latest (cf. Kühling/Buchner; General Data Protection Regulation/BDSG, 2nd edition, Art. 15, para. 8). The claimant's right to information against the defendant is not time-barred. In the present case, no decision is required as to whether a statute of limitations for the supplementary contractual right to information or the right according to Art. 15 GDPR is possible at all and which regulations it may be based on. Because even if the right to information, like the right to information based on § 242 BGB, should independently and independently expire after the general period of § 195 BGB (cf. BGH, judgment of September 3, 2020 - III ZR 136/18; BGH, judgment of September 25. July 2017 - VI ZR 222/16), but in any case it could not become time-barred before the main claim that it serves (cf. BGH, judgment of September 3, 2020, loc. cit.; BGH, judgment of July 25, 2017, loc. cit.). In the present case, a statute of limitations for all benefit claims based on a possibly ineffective contribution adjustment, for example in 2013, cannot be determined for the period after January 1, 2018. GVO aimed at sending a copy of the data. The right is not limited to the transmission of information to which the person affected by the data storage is entitled pursuant to Art. 15 Para. 1 DS-GVO. In this respect, the Senate follows the extensive interpretation of Art. 15 DS-GVO represented in case law and literature (cf. Higher Regional Court Munich, judgment of October 4, 2021 - 3 U 2906/20; OVG Munster, judgment of June 8, 2021 - 16 A 1582/20; LAG Baden-Württemberg, judgments of March 17, 2021 - 21 Sa 43/20 - and of December 20, 2018 - 17 Sa 11/18; Schmidt-Wudy in: BeckOK data protection law, status: 01.08. 2022, DS-GVO Article 15, paragraph 85; Schaffland/Holthaus, General Data Protection Regulation (GDPR)/Federal Data Protection Act (BDSG), status: 11th supplementary delivery 2022; Article 15, paragraph 44b; a. A. Franzen in: Franzen/Gallner/Oetker, Commentary on European Labor Law, 4th edition, EU (VO) 2016/679 Article 15; Margin 5; Paal in: Paal/Pauly, DS-GVO BDSG, 3rd edition, GDPR Art. 15, para. 33a). According to this, the person obliged to provide information must always transmit the personal data in the raw version in which they are stored. Because Art. 15 Para. 3 Sentence 1 DS-GVO represents an independent basis for claims that is independent of Art. 20 DS-GVO (cf. Schmidt-Wudy in: BeckOK data protection law, as of August 1st, 2022, DS-GVO Art. 15 , para. 85). It also follows from this that the plaintiff can also request a copy of insurance policies and supplements to the insurance policy if they are stored as such (and not just their pure informational content) by the defendant. Should the content of an insurance policy, for example be stored both in the form of the insurance policy and in the form of just the information contained in the insurance policy, the defendant must in principle release both data sets in the form of a data copy. Otherwise, the plaintiff cannot meaningfully carry out the purpose of checking that (all!) the personal data stored by the defendant is being processed properly, which is the purpose of the right to information. to additionally prepare the transmitted raw data so that it can be used by the data subject. This already follows from the objective of the right to information, to inform the authorized person of the processing of data concerning him and give him the opportunity to check the processing for its legality (cf. VG Schwerin, judgment of April 29, 2021 - 1 A 1343 /19 SN; Schmidt-Wudy in: BeckOK data protection law, as of August 1st, 2022, DS-GVO Art. 15, para. 2). However, this need for information can only be met by sending the files in the form in which they are also stored by the person obliged to provide information. The situation is different only if the person entitled to information could only take note of the content of the stored information through appropriate processing (cf. Schaffland/Holthaus, loc.cit.; Schmidt-Wudy, loc.cit., para. 85). Contrary to the view of the defendant speaks Neither does the judgment of the European Court of Justice of July 17, 2014 - C-141/12 and C-372/12, against the extensive interpretation of Art. 15 GDPR. It is true that the court ruled that the data subject has no right to a copy of a document or an original file if the objective pursued by the right of access can be fully achieved by another form of communication. However, the court's decision does not refer to Art. 15 GDPR, but to Art. 12 lit. a) of Directive 95/46/EC. In contrast to Art. 15 Para. 3 DS-GVO, this did not provide for a right to a copy of the data, but only a right to, among other things, a "communication in an understandable form about data" (cf. also Schmidt-Wudy in: BeckOK data protection law, stand : 01.08.2022, DS-GVO Art. 15, Rn. 85).E. Right to information about the amount of the triggering factor (application for 8) The plaintiff has no claim against the defendant to notification of the (possible) contribution adjustments in 2012 and 2013 or further adjustments of the last 10 years underlying triggering factors according to § 242 BGB. According to Section 242 of the German Civil Code, the debtor is exceptionally obliged to provide information if the entitled party is excusably uncertain about the existence and scope of his right and the obligated party can easily provide the information required to eliminate the uncertainty. The scope and content of the information to be provided depend on what information the entitled person needs in order to be able to assert his claim, insofar as this does not conflict with reasonableness aspects or other limits. The granting of the right to information must take into account the respective circumstances of the individual case and in compliance with the principle of proportionality (cf. BGH, judgment of December 2, 2015 - IV ZR 28/15). The amount of the triggering factor is decisive for the question the material effectiveness of the contribution adjustment made. A premium adjustment made by the insurer is only effective if the statutory or contractually agreed threshold is exceeded. On the other hand, falling below the relevant threshold value would mean that the benefits paid for the then ineffective premium adjustment would have been made without justification. Accordingly, the policyholder also has a right to information from the insurer if he needs this information in order to assert claims for reimbursement against the insurer to a greater extent (see OLG Stuttgart, judgment of November 18, 2021 - 7 U 244/ 21). In the present case, however, there is the special feature that the plaintiff requests information, according to his own statements, to clarify the question of exceeding the threshold by more than or less than 10%, because in his opinion the corresponding contribution adjustment clause is ineffective (page 6, 6 R d .a). Accordingly, there would be no interest in the provision of information if the parties had effectively agreed on the possibility of a premium adjustment even if the threshold value was exceeded by less than 10% and the filing of a corresponding action for information would therefore fail due to legal protection interests. That is the case here. The corresponding clause reproduced by the plaintiff in the statement of claim (page 14, 14 R d. A.) is effective (cf. BGH, judgment of June 22, 2022 - IV ZR 253/20). wants to investigate the question of any reduced service expenditure (page 16 R - 18 of the case file) with the requested information, this also does not justify an interest in the provision of information that is worthy of protection. Because even if benefit expenditure has fallen, the threshold value can be exceeded with the need for an adjustment of contributions (cf. BGH, judgment of October 20, 2021 - IV ZR 148/20). This premium adjustment can result in both a premium increase and a premium reduction. This is because the calculation of the amount of the premium has to be carried out using the calculation bases described in more detail in §§ 2 and 4 to 8 KVAV and the aging provisions in accordance with §§ 3, 10, 11, 13, 14 and 18 KVAV. The benefit expenditure is only one factor to be included in the calculation, so that the premium can also increase if the benefit expenditure has fallen.F. Claim for reimbursement of pre-court attorney's fees (application for 9) This claim is unfounded. The claim for reimbursement of a business fee within the meaning of No. 2300 VV RVG requires a basis for a claim that is outside of tortious claims, usually from default according to §§ 280, 286 BGB results. In addition, the reimbursement of the lawyer's fees as material damage requires that the lawyer's pre-trial activity was necessary and expedient (cf. BGH, judgment of December 13, 2011 - VI ZR 274/10). In the present case there are no indications that the defendant was already in arrears with the performance owed when the plaintiff's representatives were first mandated and that the legal fees incurred before the courts are therefore damage causally based on this delay. However, the plaintiff also has no claim against the defendant under § 280 para. 1 BGB. It is true that the assertion of unjustified premium claims represents a breach of duty within the meaning of Section 280 (1) BGB, which can in principle result in a claim for reimbursement of pre-trial legal fees (cf. BGH, judgment of February 9, 2022 - IV ZR 291/20). However, pre-trial legal fees are only to be reimbursed from the point of view of compensation if the use of legal assistance to protect and enforce the rights is necessary and expedient under the circumstances of the case (cf. BGH, judgment of May 12, 2016 - IX ZR 208/ 15; BGH, judgment of November 25, 2015 - IV ZR 169/14; BGH, judgment of January 23, 2014 - III ZR 37/13; BGH, judgment of May 8, 2012 - XI ZR 262/10; BGH NJW 2004 , 444; BGH, judgment of October 23, 2003 - IX ZR 249/02). If the debtor is insolvent or there is a serious and definitive refusal to perform, out-of-court requests for payment by the lawyer may not be promising and therefore not appropriate (see BGH, judgment of September 17, 2015 - IX ZR 280/14; BGH, judgment of May 28, 2013 - XI ZR 148/11; BGH, judgment of February 1, 1974 - IV ZR 2/72). In the present case, the pre-court activity of the plaintiff's representatives was clearly not promising from the outset, because a large number of the (standardized) letters of formal notice to the defendant were unsuccessful and the need to bring an action was therefore recognizable from the outset. The plaintiffs' representatives are conducting a large number of parallel proceedings against various private health insurance companies nationwide, of which in none of the cases would pre-court payment requests or pre-court correspondence with the defendant insurance companies have been successful. In order to avoid damage with regard to the out-of-court attorney's fees, court proceedings should have been instituted immediately.III.1. The decision on costs is based on Section 92 (1) sentence 1 ZPO. The Senate took into account that the plaintiff in the first instance reduced the amount in dispute before the date for the oral hearing by switching from the right to information to the right to benefits, with corresponding effects on the amount of the appointment fee and thus also the cost ratio. Furthermore, when distributing the costs, the Senate took into account that the plaintiff was unsuccessful with the staged action brought by him in the first instance and in the appeal proceedings, but that he was instead entitled to information, the value of which the Senate rated at 1/ 4 of the economic interest associated with the step action (see below).2. The decision on the provisional enforceability is based on § 708 No. 10, § 711 ZPO. The basis for the assessment of the security to ward off an enforcement of the plaintiff's right to information is the potential loss damage. The Senate assessed this as 1/4 of the economic interest associated with the step action plus any impending damage caused by delay (cf. Ulrici in: BeckOK ZPO, status: July 1st, 2022, § 711, marginal note 6). The amount of the security to be provided by the plaintiff is based on the threat of damage caused by the defendant. This, in turn, is identical to the costs associated with providing information, which the Senate estimated at €150.00 and increased moderately when assessing the security due to any further impending enforcement damages (cf. Ulrici, loc. cit., § 709, marginal number 5). 3. The Senate has to D.2. the revision is permitted both because of its fundamental importance pursuant to Section 543 (2) sentence 1 No. 1 and to ensure uniform case law pursuant to Section 543 (2) sentence 1 No. 2 ZPO. Whether a right to information pursuant to Art. 15 DS-GVO is earmarked or can be raised independently of the associated objective is not uniformly assessed in case law. In some cases, the opinion is held that the aim of the information requested by the policyholder pursuant to Art. 15 DS-GVO should only be to become aware of the processing of personal data concerning him and to be able to check the legality of this processing (cf. OLG Dresden, Judgment of March 29, 2022 - 4 U 1905/21; Nuremberg Higher Regional Court, judgment of March 14, 2022 - 8 U 2907/21; Hamm Higher Regional Court, decision of November 15, 2021 - 20 U 269/21). The question of whether the right to information is earmarked according to Art. 15 DS-GVO is also of fundamental importance, because it can arise (or already arises) in an indefinite number of cases beyond the individual case and is therefore of particular importance for the general public (cf. BVerfG, decision of July 5, 2022 - 1 BvR 832/21, 1 BvR 1258/21). Also of fundamental importance is the question of the scope of the right to information under Art. 15 GDPR and whether the right to the transmission of a copy of the data includes the transmission of all data stored by the insurer.4. The value in dispute, which is decisive for the court fees in the 1st instance, amounts to €13,437.50: When evaluating the step action, only the highest claim is decisive according to § 44 GKG. This is usually a performance entitlement. It is irrelevant that the plaintiff has not yet quantified this entitlement to benefits. Rather, the expectation of the plaintiff is decisive (cf. BGH, judgment of January 8, 1997 - XII ZR 307/95). The plaintiff put his expectation at €10,750.00 (page 23 of the case file). The fact that the plaintiff switched from the step action to the claim for performance in the further course of the first-instance legal dispute and put his claim for payment at €3,423.03 is the reason does not lead to a reduction in the value in dispute, which is relevant for the court fees already incurred. In addition, there is the value of the step action for the years 2012 and 2013, which was additionally raised after switching to the performance level. He did not state what economic interest the plaintiff associates with this. However, the Senate, exercising its discretion in accordance with § 3 ZPO, assumes that the plaintiff's economic interest is identical for each contribution year. The original lawsuit relating to the period from 2014 to 2021 (eight years) was based on an economic interest of 10,750.00, which the plaintiff estimated, which corresponds to €1,343.75 for each contribution year. The Senate estimates the value of the lawsuit filed in the course of the legal dispute for two more years (2012 and 2013) at €2,687.50 (€1,343.75 x 2). The other claims asserted relate to ancillary claims within the meaning of Section 43 para 1 GKG.The amendment to the determination of the amount in dispute in the decision of March 29, 2022 (page 98 of the case file) is based on Section 63 (3) sentence 1 no. The amount in dispute relevant to the appeal procedure is €5,194.08. The value of the payment application is €1,194.40. The value of the declaratory action is €653.10 (42 months x €15.55, §§ 3, 9 ZPO), because the plaintiff for Tariff 541/20 is not only seeking a statement relating to the past, but rather a statement to the effect that the contribution adjustment is still ineffective. This follows from a comparison with the entitlement to benefits, which the plaintiff - in contrast to tariff 342/20 - calculated up to the time of the appeal and thus assumes permanent ineffectiveness €2,687.50 (see above). The value of the right to information relating to the amount of the triggering factors is €659.08. With the help of this right to information, the plaintiff wants to find out whether the disputed contribution adjustments are also materially ineffective and whether there are claims for reimbursement regardless of any healing of the formal ineffectiveness or the cessation of the lack of legal basis due to subsequent formally correct contribution adjustments. With regard to Tariff 541/20, this interest is already covered by the action for performance (for the past) and the action for a declaratory judgment (for the future). However, the situation is different with any claims due to the premium adjustment in tariff 342/20 and the monthly premium payments of €32.15 (€41.92 - €9.77). For the period from January 2019 to April 2022, this interest amounts to €1,286.00 (€32.15 x 40 months). For the subsequent period, the interest amounts to €1,350.30 (€32.15 x 42 months, §§ 3, 9 ZPO). However, because the value of the right to information is only a fraction of the interest in performance based on it (cf. BGH, decision of February 4, 2014 - III ZB 75/13) and the Senate considers it appropriate to limit the right to information to 1/ 4 of the economic interest, the value in dispute for the right to information amounts to €659.08 (1/4 x €2,636.30).
