OLG Hamm - 8 U 94/22

OLG Hamm - 8 U 94/22
Court:	OLG Hamm (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 5(1)(a) GDPR Article 6(1)(b) GDPR § 38 BGB § 7(2) UWG
Decided:	26.04.2023
Published:
Parties:
National Case Number/Name:	8 U 94/22
European Case Law Identifier:	ECLI:DE:OLGHAM:2023:0426.8U94.22.00
Appeal from:	LG Dortmund 1 O 15/22
Appeal to:	Unknown
Original Language(s):	German
Original Source:	NRWE - Rechtsprechungsdatenbank der Gerichte in Nordrhein-Westfalen (in German)
Initial Contributor:	Tarmio Frei

A German court found that the a member of an association can obtain from the organisation a list of other members pursuant to Article 6(1)(b) GDPR, in order to organise opposition against a decision proposed by the board of directors.

English Summary

Facts

The plaintiff was a member of the defendant, a registered association with approximately 5,500 members, and requested that the association transferred a list containing the names, addresses and e-mail addresses of the association's members directly to them, i.e. without the involvement of a trustee.

These data were necessary in preparation for the association's general meeting. The plaintiff's concern was to contact other members to organize opposition to the actions of the association's board. Following the general meeting, the plaintiff also intended to contact members in the same manner in order to initiate the calling of an extraordinary general meeting, pursuant to § 37(1) of the German Civil Code.

After the Dortmund Regional Court denied the plaintiff's claim to transmission of the list of members, the plaintiff appealed to the Hamm Higher Regional Court (OLG Hamm).

Holding

The court sustained the appeal. Interestingly, the court examined the dispute first from an association law perspective and then from a data protection perspective.

National law (association law)

First, the court stated that a claim requires a legitimate interest of the association member, which must not be outweighed by any secrecy interests of the association or legitimate interests of the association members in the context of a comprehensive weighing of interests in the individual case.

The basic interest involved in this case, the organization of an opposition to the policy of the defendant's association board, must be considered as legitimate. This interest requires to get in contact with the other members also outside of the meeting of the members, for example in order to motivate these to participate in those meetings in the first place.

In particular, the plaintiff had a legitimate interest in obtaining the e-mail addresses, since e-mail communication enables an almost free, direct, individualized exchange practically without time delay, but at the same time also asynchronous communication with other association members. The publication of an article in an association magazine is not equivalent, since the communication process is largely de-individualized, does not equally invite dialog, and considerations such as the external effect for the association must also be taken into account. The same applies to the use of the members' forum.

Finally, the court denied that a potential annoyance by e-mails could constitute a conflicting interest of the other members. According to the court, the membership relationship establishes a special relationship to which the principles for nuisance advertising (§ 7(2)(2) UWG) do not apply. On the contrary, the independent decision of each member to join the association gives rise to the presumption that he or she is willing to accept the associated communication. Certainly, it could be assumed that no member would want to receive an indefinite number of e-mails on every topic. However, this is not the case when individual members contact each other by e-mail about association matters. In particular, according to common experience, a general assumption of annoyance could not be made. In addition, members can protect themselves from receiving unwanted e-mail by not communicating their address to the defendant, by creating an e-mail address specifically for association purposes, or by defining or blocking certain senders as spam.

On the basis of this assessment of interests, the court came to the conclusion that the plaintiff's interests prevailed.

European law (GDPR)

Under the GDPR, the plaintiff was a controller pursuant to Article 4(7) GDPR.

First, the court noted that data protection law is an "enablement law, not a prevention law". Particularly in the context of Article 6(1)(b) GDPR, data protection law is accessory to civil law: what is necessary under civil law for the performance of the contract, will also be permissible by data protection law.

Accordingly, the court examined whether the transmission of the membership list was permissible on the basis of Article 6(1)(b) GDPR. When examining whether the membership is a contract within the meaning of the GDPR, the court first stated that the term “contract” is to be interpreted in terms of data protection law and autonomously in terms of EU law. Thus, the decisive factor is whether a private autonomous obligation exists as an expression of self-determination. Joining an association is a self-determined accession to a private organization, so that a contract within the meaning of Article 6(1)(b) GDPR exists. The transmission of the members list to the controller was also necessary for the fulfillment of the contract. This is because already § 38 BGB ipso iure gives rise to the obligation to transmit the members list to the plaintiff, as seen above. After all, the justification of this obligation was based precisely on the fact that the membership rights could not be exercised effectively without the duty to provide information and could even be rendered ineffective.

Finally, the principle of Fairness (Article 5(1)(a) GDPR), purpose limitation (Article 5(1)(b) GDPR) and data minimisation (Article 5(1)(c) GDPR) would not prevent the transfer of the membership list. It must be recognized under data protection law that the e-mail addresses are necessary for the effective exercise of membership rights.

Comment

The decision of the OLG Hamm is instructive and worth reading, but not very surprising in terms of association law. The fact that and under what conditions an association member can have a claim to transmission of the membership list to himself without the involvement of a trustee has already been resolved by the Federal Court of Justice. Therefore, it is also not surprising that numerous courts in comparable cases decided similar to the OLG Hamm. The Karlsruhe Regional Court, for example, granted the member of a golf club with 750 members a right to be provided with the list of members so that he could use the data to gather the quorum of votes required under the club's articles of association to convene an extraordinary general meeting. The Hanover District Court granted a member the right to obtain the list of members of Hannoversche Sportverein von 1986 e.V., which has approximately 20,000 members, because the member wanted to exercise his right to participate in the internal decision-making process of the association prior to an upcoming election of the supervisory board by writing to the members of the association individually to present his views on certain issues relating to the association and to win support for an unnamed candidate.

These and other decisions show that the legitimate interest of the association member is understood quite broadly in case law. The ruling of the Hanover District Court was already criticized in part for this reason: If one thinks the decision further, then each member would have a requirement to inform the other members about, which candidate it intends to support or similar. The publication of the member data and the usually unwanted information, some argue, must therefore be ultima ratio for the avoidance of annoyances by innumerable enamels.

By arguing that - just because such a claim is granted once - according to common experience there is no threat of a flood of e-mails to all members, and that joining an association generally gives rise to the presumption of wanting association-related communication, the OLG Hamm convincingly invalidates this criticism. At the same time, the court leaves open the possibility of denying a claim to the surrender of member data in exceptional cases, if a flood of e-mail is actually to be feared in the individual case.

Finally, it is interesting that the court does not take data protection interests into account in the context of the balancing of interests under association law with the argument that the GDPR is in this respect - in particular because of Article 6(1)(b) GDPR - accessory to civil law and the data protection assessment thus depends on the civil law assessment. In literature however, it is sometimes argued that the GDPR must already be taken into account at the level of association law as conflicting interests of the members or the association. Yet, if one understands the wording "interests under data protection law" used by the OLG Hamm as a reference to only the permissibility of the processing according to the GDPR, one must agree with the court. In order to be able to examine whether the processing of personal data is permissible under Article 6(1)(b), it must already be established whether the claim to transmit the data, for the fulfillment of which the processing could be necessary, exists. The existence of the claim under association law cannot therefore be made dependent on the permissibility of the data processing, as the latter requires the former at least with regards to Article 6(1)(b) GDPR. OLG Hamm thus rightly examined both levels separately. It is also interesting to note that case law and literature predominantly refer to Article 6(1)(f) GDPR rather than Article 6(1)(b) GDPR as the legal basis for the transfer of the membership list. However, this makes no practical difference. If the comprehensive balancing of interests required to justify the claim under association law already leads to the permissibility of the transfer of the membership list, Article 6(1)(f) GDPR, which also stipulates a comprehensive balancing of interests, cannot lead to any other result in terms of data protection law. The consent of the data subject may only be required if personal data as defined in Article 9 GDPR can be derived from the list of members.

Finally, it is questionable how association boards should deal in practice with claims for the transfer of the member list. It should be particularly important here to find an amicable solution with the association member. In particular, the association board should offer to send the letter from the association member to all members on its own initiative. In this way, the discussion desired by the association member would get underway, but the association board could already provide the message with its own statement and thus make its position known. Furthermore, it could be useful for associations to ask members for their consent to share their data with other association members. The association's board of directors could then list the consenting members on a separate list and would therefore know which member data it is permitted to disclose in any case and would only have to check the extent to which their disclosure is permissible with regard to the other members' data. Members of associations, on the other hand, should think carefully about whether they really want to assert the claim for transfer of member data to themselves, or whether they would prefer to engage a trustee in order to avoid being the controller under data protection law. It is more than doubtful whether an association member is able to fulfill the comprehensive obligations arising from the GDPR (e.g. from Article 12-15 GDPR) or whether he wants to take on this effort and the enormous liability risk.

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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.

1Reasons:

2I.3 As its member, the plaintiff requests that the defendant association hand over a list of the members of the association with more detailed information to himself.

41.5 The plaintiff is one of approximately 5,500 members of the defendant, a registered association. The defendant pursues the purpose of representing the interests of its members who hold shares in companies of the Q. group of companies (Section 2 (2) of the Articles of Association, Annex K 1). The purpose of the association is realized in particular by supporting the climate-friendly conversion of the energy supply, especially the promotion of regenerative energies on the basis of cooperative or legally comparable company forms (§ 2 Para. 3 Statutes).

6The defendant's statutes repeatedly refer to the possibility of the defendant communicating with its members by e-mail. The statutes of the defendant do not provide for an express obligation for the members to provide an e-mail address. The defendant also communicates with its members by e-mail (page 6 eGA I). The defendant makes a members' area available to members on the Internet. The association members can set up groups there and publish their concepts or suggestions. The defendant controls the entries in this area insofar as he only allows factual contributions there.

7In preparation for the general meeting of the defendant in 2021, the plaintiff wished to get in touch with the other members of the defendant in order to organize an opposition to the actions of the defendant's board of directors. After the 2021 general meeting, he wanted to get in touch with the other members in order to initiate the convening of an extraordinary general meeting (§ 37 Para. 1 BGB). The plaintiff continues to have an interest in getting in touch with the other members of the association with regard to the current "association policy" in order to influence the current formation of opinion.

8Apart from the plaintiff, according to the information provided by the defendant's board member in the oral hearing, no other members have so far submitted an application for the list of members to be handed over in order to get in touch with members of the group.

9The plaintiff took the view that he was entitled to the transmission of a list of members with names, addresses and e-mail addresses directly to himself - without the involvement of a trustee - in order to independently contact and discuss with the other members of the association.

10The plaintiff requested in the first instance that

11 to order the defendant to send the plaintiff a list of its members consisting of the first and last names, in the case of legal entities the name of this legal entity, as well as the addresses and e-mail addresses in electronically usable form;

12 alternatively order the defendant to send the plaintiff a list of its members consisting of the first and last names, in the case of legal entities the name of this legal entity and the addresses in the form of a copy.

13 The defendant has requested

14 dismiss the action.

15He was of the opinion that the plaintiff was not entitled to the asserted claim, at least in the form requested. The interests of the plaintiff are opposed to the overriding interests of the defendant and its members. In any case, the plaintiff has no right to the transfer of the e-mail addresses, even according to the case law of the Federal Court of Justice. Otherwise, he could at best claim the transfer of the data to a trustee. Last but not least, objections under data protection law stand in the way of the complaint. In addition, the plaintiff can also contact other members via the online members' area on the defendant's website. The fact that he, the defendant, only releases the entries there if they are limited to factual criticism does not represent a significant restriction.

162.17 The district court dismissed the action. In justification, it essentially stated the following:

18The interests of the plaintiff are opposed to the overriding interests of the defendant and the interests of its members. Members could trust not to be contacted by other Members through any communication channels other than those provided by the Association. You would not have to expect the defendant to pass on your e-mail address. The annoyance by e-mail is particularly high. This also results from the legislative assessment of § 7 Para. 2 No. 2 UWG. This applies in particular to the fact that with the defendant's number of members (still assumed to be 7,000 by the district court), each member would potentially have to reckon with 7,000 e-mails. That was not unfair to the plaintiff. The communication options on the defendant's website were available to him. The possibility of the transmission of the contact details to a trustee - which the plaintiff did not apply for - is also a milder means of taking account of the legitimate interests of the plaintiff. The contrary case-law cited by the plaintiff concerns companies and the situation there is different. The question of whether the plaintiff can also claim the transmission of the e-mail addresses is irrelevant, since the plaintiff has no right to the transmission of member data to himself - which he alone desires. The question of whether the transmission of a list of members is compatible with data protection law can also be left open.

193.20 The plaintiff objects to this with his appeal. He repeats and deepens his first-instance presentation. In particular, he understands the case law (namely: of the BGH) differently than the regional court and the defendant to the effect that he can also claim the transmission of the e-mail addresses, also to himself and not just to a trustee. The claim based on civil law is also compatible with the requirements of the GDPR.

21The plaintiff requests:

22Amending the contested judgment of the Dortmund Regional Court of July 6th, 2022 on file number 1 O 15/22, the defendant is sentenced, the plaintiff is given a list of its members, consisting of the first and last names, in the case of legal entities the name of this legal entity, as well as the addresses and e-mail addresses in electronically usable form;

23Alternatively:

24Amending the contested judgment of the Dortmund Regional Court of July 6th, 2022 on file number 1 O 15/22, the defendant is convicted, the plaintiff is given a list of his members consisting of the first and last names, in the case of legal entities the name of this legal entity and the addresses to be submitted in the form of a copy.

25The defendant requests

26 to reject the appeal.

27He defends the judgment of the district court and repeats and deepens his first-instance presentation.

28II.

29 The plaintiff filed and justified his appeal in a timely manner; the rest of the appeal is also admissible. The appeal is also well-founded, since the action is admissible and well-founded. The plaintiff has a right, arising from the membership relationship, to the transmission of a list of members with the first and last names, in the case of legal entities their names, addresses and e-mail addresses of the members.

301. Principle31 As a member of the defendant's association, the plaintiff has a fundamental right to the requested information arising from membership. It remains to be seen whether the claim can also be substantiated analogously to § 810 BGB. Furthermore, § 810 BGB is not conclusive (see only MünchKommBGB/Habersack, 8th edition 2020, § 810 BGB marginal number 2) and does not conflict with the membership’s right to information.

32According to the literature and case law, a member of the association has the right to inspect the books and documents of the association by virtue of his membership right if and to the extent that he can demonstrate a legitimate interest that does not override the association's overriding interest in secrecy or legitimate interests of the association members oppose BGH, decision of June 21, 2010 - II ZR 219/09 -, juris para. 4 f.; Soergel/Hadding, BGB 13th ed., § 38 para. 17; MünchHdbGesR/Schöpflin, Volume 5: Association/Foundation, 5th edition 2021, Section 34 marginal number 21; Reichert, Handbuch des Vereins- und Verbandsrechtes, 10th edition, para. 1380; 7; ibid., Law on Associations and Associations, 14th edition 2018, para. 1422; Grüneberg/Ellenberger, BGB, 82nd edition 2023, § 38 para. 1a; MünchKommBGB/Leuschner, 9th edition 2021, § 38 marginal number 23 a.E.

33If the information that the member can obtain by inspecting the association's documents is stored in a data processing system, it can request a printout of the required information or its transmission in electronic form for the purpose of information; BGH, decision of June 21, 2010 - II ZR 219/09 -, juris para. 4; MünchKommBGB/Schäfer, 8th edition 2020, Section 716 marginal number 8 (on the company under civil law).

34Jurisprudence and literature also grant the individual association member a right to inspect or be issued with the list of members in any case if they can assert a legitimate interest; BGH, decision of June 21, 2010 - II ZR 219/09 -, juris para. 5 f.; OLG Saarbrücken NZG 2008, 677 f.; OLG Munich, U. v. 11/15/1990 – 19 U 3483/90; see also BVerfG, B. v. February 18, 1991 – 1 BvR 185/91.

35Under which conditions a legitimate interest of the individual association member is to be assumed to know the names and addresses of the other association members is not accessible to abstract general clarification, but to be assessed on the basis of the specific circumstances of the individual case. In any case, such an interest is given when it comes to achieving the quorum of votes required under the Articles of Association or Section 37 BGB in order to make use of the minority right regulated in this provision to demand the convening of a general meeting; BGH, decision of June 21, 2010 - II ZR 219/09 -, juris para. 6. The BGH also recognized as a legitimate interest to be in contact with the large number of members, of which only a small number regularly take part in the general meeting to resign in order to organize an opposition to the direction taken by the board of directors of the association; BGH, decision of June 21, 2010 - II ZR 219/09 -, juris para. 12. The members requesting information do not have to be referred to the possibility of contacting a club magazine or an internet forum set up by the club; BGH, decision of June 21, 2010 - II ZR 219/09 -, juris para. 13.

36The member requesting information can request information about the list of members from a trustee engaged by him (as in the case of the Federal Court of Justice, decision of June 21, 2010 - II ZR 219/09 -, juris para. 12). However, the member requesting information is not limited to this, but can also inspect the list of members himself and request that the information contained therein be transmitted to himself in electronic form, Federal Court of Justice, decision of October 25, 2010 - II ZR 219/09 -, juris para 6.

372. Balancing interests38According to these principles, the plaintiff has a right to the requested information, since he can assert legitimate interests that are not opposed to any overriding interests of the defendant or his members.

39a) Legitimate interests of the plaintiff40The plaintiff has a legitimate interest in being provided with a list of members, including the e-mail addresses, for himself.

aa) Basic concerns

41 However, the plaintiff no longer claims that he needs the information in order to achieve the quorum required for a call-up request in accordance with Section 37 (1) BGB; cf. BGH, decision of 21 June 2010 - II ZR 219/09 -, juris para. 6. In order to be able to effectively exercise the convocation request as a membership right, the plaintiff must also be able to contact his or her group members outside of the general meeting . For this he needs their names and contact details.

However, a legitimate interest of the plaintiff results from the fact that he would like to organize an opposition to the policy of the defendant's board of directors; BGH, decision of June 21, 2010 – II ZR 219/09 –, juris para. 12. The plaintiff expressed this concern clearly and plausibly during his hearing in the Senate hearing. This also makes it necessary to get in touch with the other members outside of the general meeting. This follows from the fact that it is also a matter of motivating and winning over members to participate in the general meeting.

bb) Interest in receiving the e-mail addresses

43 The plaintiff also has a legitimate interest in receiving the – existing – e-mail addresses of the Kon members. When evaluating interests as legitimate, it is not just a matter of what is the minimum required to establish contact. The legitimacy of an asserted interest must also be assessed in the light of technical possibilities and social customs.

44In this respect, it can be stated at the outset that e-mail has replaced postal letters and faxes in many areas, especially business and official ones. This applies not only to the area of the Internet economy, but also to "stationary" business areas, such as in communication with banks, insurance companies, hotels, doctors or hospitals. Therefore, the e-mail address has at least the same status as the postal address in many areas. In contrast, communication by fax has largely died out.

45E-mail is a communication medium that is widely used according to social practice and is accessible to everyone with minimal effort and practically without (monetary) costs. Communication via e-mail is also largely free of charge when used, because (and to the extent that) the infrastructure required for this (computer, internet access) is typically available or accessible (e.g. in an internet café or in public libraries). It enables direct contact between the explainer and the addressee, with practically no time delay. At the same time, e-mail also enables an asynchronous exchange in the sense that the declarant and the addressee do not have to be involved at the same time. In addition, e-mail communication is environmentally friendly in the sense that it eliminates paper, printing and physical transport; on the other hand, the – of course undeniable – environmental pollution caused by electricity consumption is less significant. Society attaches great importance to this aspect, and communication practices have also changed as a result.

46In contrast, communication by way of the publication of an article in a club magazine is an aliud and insofar not fully commensurable. Such a publication is also a communication process in a broader sense. However, this is largely de-individualized and does not invite dialogue to the same extent. In addition, there is no guarantee that the message will actually reach the desired addressees. In addition, such a publication can also have undesirable effects. Club magazines are often also read by third parties (non-members). Therefore, in this communication, considerations such as the external impact for the association must be taken into account, which the declarant does not have to consider to the same extent in individual communication.

47E-mail also differs qualitatively from communication via an internet-based member forum provided by the association. This, too, is de-individualized to a greater extent, comparable to a publication. In addition, it is usually - and also in the present case - curated to a certain extent, for example by checking whether posts comply with certain standards or by channeling answers to a comment function. When it comes to e-mail communication, of course, the user will generally be required to observe certain communication standards. However, since the form of communication is different, namely not aimed at publication, these can differ in terms of content from those used in communication via a member forum. In addition, the sanction mechanism is different: In the case of a members' forum, the curation is carried out by the association, in the case of e-mail communication, compliance with the communication standards is initially left to the user's own responsibility (and possibly sanctioned by personal liability). Such a communication channel is therefore also an alias for e-mail communication, which is completely individualized and direct, or at least can be done. E-mail communication leaves the degree of customization in the hands of the user. The BGH has also recognized that "the internal forums available to the members of the association (...) do not offer an opportunity - equivalent to contacting the other members of the association via a trustee" - to exercise their membership rights; BGH, decision of October 25, 2010 - II ZR 219/09 -, juris para. 4.

cc) Interest in own preservation without the involvement of an intermediary (trustee)

48 The plaintiff also has a legitimate interest in receiving a list of members himself and not only in being able to have an intermediary inspect it or dispose of it (e-mail dispatch). The plaintiff has plausibly explained that he may not want to contact all but only some members of the association. In doing so, he may also have an interest in selecting the members to be contacted according to certain aspects that can be seen from the list of members. For example, he may select addressees according to regional aspects that are important for (presence) participation in the general assembly. Depending on the object of the association, he may also have an interest in making selections based on aspects such as age, origin and gender that can be seen from the name. Assessing this is neither a matter for the association nor for the court, but rather a private, autonomous decision by the member. The involvement of an intermediary can also cause not inconsiderable costs, which can conflict with exercising the right of membership to participate in opinion-forming.

49b) Conflicting interestsaa) interests of the defendant

The defendant has not presented any conflicting interests of its own.

In this respect, one can charge for the expenses incurred for the (electronic) transmission of the list of members. In the case of an association of the size of the defendant, however, it can be assumed that the list of members is kept up-to-date in a professional manner for reasons of association law and is therefore easily available. Given the possibilities of data processing, the transmission is therefore associated with only a minimal amount of work, time and money. This also applies if one considers that the list of members could still have to be prepared insofar as it contains information about the members that is not to be transmitted (such as the dates of birth or account numbers). The necessary deletion of individual columns in a table also requires only minimal effort. Finally, the effort required to check the list of members before it is passed on, which is probably necessary, is also justifiable.

bb) interests of Kon members

52The defendant invokes the interests of its other members. In this respect, the regional court based it on the "trust" of not receiving any emails from the other members. In another wording, his judgment states that the members should not have "expected" their data to be passed on. However, there is a petitio principii in this, since it is precisely the question of whether such trust is justified.

53 Correctly, it can only be about members not wanting to receive emails from other members. To justify that the (other) members of the association did not want to be "harassed", the district court used the assessment of § 7 Para. 2 No. 2 UWG. According to this provision, "[a]unreasonable harassment is always to be assumed (...) 2. in the case of advertising using (...) electronic mail without the prior express consent of the addressee". However, this justification does not work. Firstly, the behavior that is being horrified there is outside of the special connection. However, the membership relationship establishes one; Lutter, AcP 180 (1980), 84, 97 ff., 123 ff.; Riesenhuber, The legal relationships between secondary parties (1997), p. 31 ff. The BGH also pointed this out: "By joining the defendant, who is pursuing a specific purpose (...), the members of the association are in a desired legal community with the others, them kicked on largely unknown members of the defendant (...); BGH, decision of June 21, 2010 - II ZR 219/09 -, juris para. 14. And secondly, what is to be clarified is presupposed there, namely that a form of consensus is missing.

54This is about the question of whether the (other) members wish not to be contacted by Kon members in association matters. There is no actual indication that this could be the case for a larger number of members. The defendant did not present this (just his own assessment of interests). And contrary to what the regional court thinks, this cannot be assumed normatively either. On the contrary, the independent decision of each member to join an association justifies the assumption that they are also willing to communicate with it. Insofar as the chairman of the defendant's board of directors declared in the Senate meeting that a few members had spoken out against the disclosure of their e-mail addresses and threatened lawsuits in the event of violation, this is the legitimate interest of the plaintiff in the transmission of the e-mail Otherwise, we do not accept addresses (see below).

55However, one can assume that nobody wants to receive unlimited e-mails on every topic. It is well known in court that the deluge of unsolicited email is a plague of our time. However, that is not the point. The only thing in question is contact by e-mail by individual members in association matters.

56In particular, the extent of the threat of harassment - contrary to the view of the district court and also the AG Itzehoe v. 23.1.2019 - 92 C 10/19 (Annex KE 4, Bl. 78 eGA I) - not by simply using the number of members and assuming that if the request for action were granted, all members would in future have the corresponding right Make use of it and then send each member an e-mail to each other at short notice. That contradicts all life experience. In fact, the chairman of the defendant's board of directors also stated in the oral hearing before the Senate that there was no further application for the transmission of the list of members. Of course, it cannot be ruled out that a practice, once it becomes known, can lead to a problem in the future. However, that cannot determine the interests in the present case. If email were to become excessive, things would be different and interests would be determined differently. At the moment there is no evidence of this – or of a realistic probability that such a threatening scenario would materialize.

57It should also be taken into account that the annoyance caused by unsolicited e-mails has only relatively little weight in this case. A not inconsiderable part of the annoyance caused by unwanted e-mails outside of the special connection is due to the fact that the addressee does not want to have anything to do with the topic (as in the case of § 7 Para. 2 No. 2 UWG: advertising), that he feels harassed due to lack of connection to the sender and that he has to worry about unfair or even hostile motives and actions (fraud, phishing, viruses, etc.). However, the plaintiff is only concerned with establishing contact within the framework of the association's special connection and in association matters. Here there is the (normative) assumption based on joining the association that the Kon members are interested in the content. The concern of the threat does not arise. And last but not least, the addressee also has the option of ending the harassment they perceive with a click of the mouse, namely by deleting the e-mail.

58Moreover, the members have the possibility to protect themselves against perceived harassment by simple means. Unless there is an obligation to provide information in individual cases, you can do this simply by not giving the defendant an e-mail address. If you want to use the advantages of e-mail correspondence (only) in relation to the association, you can combine the communication of the e-mail address with a ban on disclosure. And finally, they can set up a special e-mail address for the purposes of the association relationship or define or block certain senders as "spam". The fact that a self-protection burden is imposed on the individual member is appropriate and appropriate to the system, since joining the association has fundamentally opened up communication with the Kon members. However, it is also not objectionable from the point of view of proportionality in the narrower sense, since the burden is really minimal.

59Finally, the general danger of abuse does not give rise to any weighty counter-interests on the part of the Kon-Members. The BGH has already pointed this out: "The (...) possibility of misuse of the transmitted information, which cannot be completely ruled out but is rather hypothetical, is not sufficient to deny the plaintiffs the information they need to exercise their right to membership under association law and to actively participate in the association's politics"; BGH, decision of October 25, 2010 - II ZR 219/09 -, juris para. 5; also BVerfG, chamber resolution of February 18, 1991 - 1 BvR 185/91 -, juris.

60It should also be pointed out that the obligation to provide information based on the idea of loyalty for the purpose of enforcing membership rights is also correspondingly limited. Insofar as the plaintiff uses them for the purposes justifying the claim, he is acting within the framework of the special connection based on membership, so that he has a duty of care in accordance with Section 241 (2) of the German Civil Code. If the member can only claim the list of members for a legitimate interest, it is understood that he/she may only use it for the purposes of this legitimate interest and not for other purposes such as advertising. It is also understood that it may not pass the list of members on to other association members or third parties. If the member sends an e-mail to a number of members at the same time, they are required to hide the e-mail addresses (e.g. using the "bcc function"). If it no longer needs the list of members for the purposes justifying the claim, it must dispose of them carefully and reliably.

61No aspect that should be taken into account at this point is the interest of members in data protection. The data protection assessment can only be made on the basis of the civil law assessment, as it depends on this; more on that below, 4.

62c) Consideration63 The weighting explanation of the interests presented by the parties and resulting from the purpose of the association already indicates the result of the consideration. The legitimate interests of the plaintiff are not opposed by any significant, at least not overriding, self-interests of the defendant, and conflicting interests of the members of the association, to which the defendant refers, have only minor and not overriding weight.

aa) Basically legitimate interest

64 This applies first to the plaintiff's fundamental interest in receiving a list of members, which, as explained, is recognized by the Federal Court of Justice and is also not disputed by the defendant.

bb) Receipt of e-mail addresses

65 The plaintiff also has an overriding interest in receiving the e-mail addresses of the Kon members; As a result, the same applies to Munich Higher Regional Court, judgment of March 15, 2017 - 7 U 4184/16 -, juris. This is supported by the advantages of the direct, individualized and cost-effective form of communication that have been shown. The defendant's own interests do not conflict with this. This is also supported by the plaintiff's interest in costs. If he were to have to rely on the postal dispatch of declarations, this would largely make it economically impossible to make direct contact with the (here: around 5,500) Kon members. The - possible - conflicting interest of individual members in non-harassment does not weigh heavily in itself and does not outweigh the interest of the plaintiff.

In contrast, the defendant does not need to be referred to other forms of communication, such as an Internet members' forum made available by the defendant. As explained above, these represent an aliud to the plaintiff's request and are therefore not completely commensurable. In all other respects, the stated advantages of e-mail communication outweigh any conflicting interests of the defendant and the other members.

cc) Immediate transmission, not to a trustee

67The same applies to the transmission of the list of members to the plaintiff - and not to a trustee. This, too, is ultimately a reference to another form of communication that is only comparable to a limited extent and does not have the advantages of e-mail communication.

68 This was also recognized by the BGH: “[E] The plaintiffs, as members of an association, are in principle not prevented from inspecting the list of members themselves or requesting the transmission of the information contained there in electronic form to themselves (...) , provided they - as here - demonstrate a legitimate interest and their interest does not conflict with overriding interests of the association or legitimate interests of the association members"; BGH, decision of October 25, 2010 - II ZR 219/09 -, juris para. 6 (emphasis added). This is also constitutionally unobjectionable; cf. also BVerfG, decision of February 18, 1991 – 1 BvR 185/91, legal margin no. 3. The Senate agrees with this case law.

69 Insofar as the defendant is otherwise concerned with data protection interests, this must be addressed separately, below 4.

Furthermore, it does not follow from the case law of the Federal Court of Justice that the association member only has a right to the transmission of the list of members to a trustee. The Federal Court of Justice merely considered the plaintiff's application to that effect - to be judged in the specific case - to be well-founded, but did not explain that the further right of transmission to the member himself did not exist; BGH, decision of June 21, 2010 - II ZR 219/09 -, juris; BGH, decision of October 25, 2010 - II ZR 219/09 -, juris.

71When the BGH says in a phrase - repeatedly quoted by the defendant - that "[a]further-reaching interest in secrecy of the defendant or its members that is worthy of protection is not to be recognized either generally or from the point of view of data protection law", this is only saying unambiguously that in any case the release to a trustee who sufficiently safeguards the interest in confidentiality. The evidence given by the Federal Court of Justice for its statement through the decision of the Federal Constitutional Court, Chamber decision of February 18, 1991 - 1 BvR 185/91 -, juris makes it perfectly clear that the Federal Court of Justice did not want to express that the association's and members' interests in secrecy were only valid when the List of members preserved in a trustee. Because the BVerfG had to decide on a case in which the member himself requested access - and moreover did not object to this from a constitutional point of view.

723. No Statutory Restriction73 The defendant's statutes do not result in any restrictions on the member's right to information such that (a) the e-mail addresses could not be transmitted or (b) information could only be given to a trustee. It can therefore remain open here whether such restrictions would be permissible at all. On the other hand, it is generally assumed that the members' right to information cannot be restricted; MünchKommBGB/Leuschner, 9th edition 2021, § 38 BGB marginal number 24.

74 The defendant's articles of incorporation do not expressly exclude the defendant's right to require its members to provide e-mail addresses. On the contrary, communication by e-mail is provided for in several places in the articles of association. It is undisputedly also used by the defendant. There are no apparent indications for the assumption of an implied restriction of the right to information (§ 133 BGB).

75It is also a matter of course that the plaintiff can only demand that the defendant transmit the e-mail addresses that he (the defendant) also has.

764. Compatibility with data protection77The transmission of the list of members with the requested data is also compatible with the General Data Protection Regulation.

78a) Applicability of the GDPR79The General Data Protection Regulation is applicable to this process. The list of members requested by the plaintiff contains address and e-mail address information that relates to the persons identified by name, i.S.v. Art. 4 No. 1 DSGVO. The electronic dispatch requested by the plaintiff also opens up the material scope of Article 2 (1) GDPR, since the dispatch to and storage by the plaintiff is already associated with automated processing within the meaning of Article 2 No. 2 GDPR. The territorial scope of Art. 3 Para. 1 and 2 GDPR is also open, since the defendant as the person responsible (Art. 4 No. 7 GDPR) processes the data of data subjects (Art. 4 No. 1 GDPR) in Germany (Art 4 No. 2 GDPR).

80b) Permission of Art. 6 Para. 1 lit. b) GDPR.81The transmission of the member lists with the desired content is covered by the permission of Art. 6 Para. 1 lit. whose party the data subjects are, is required.

aa) Principles

82Data protection law is a right to enable, not a right to prevent. As Art. 6 Para. 1 GDPR shows, it is accessory to the respective substantive law and does not conflict with what the substantive law requires, but only limits it to what is required according to the teleology of the respective substantive area. For the present context, this means that data protection law is ancillary to civil law in this sense, as Art. 6 (1) lit. b) and c) GDPR also indicate; cf. BGH, ruling of October 25, 2010 – II ZR 219/09 –, juris para. 6. What is required under civil law for the fulfillment of the contract is also made possible by data protection law.

83 In particular, in the present case, which is about the data protection assessment of a statutory obligation to provide ancillary services, the controversial question of the interaction between civil law and data protection law does not arise. It arises when there is a risk that the parties will design a contract in a certain way in order to justify the necessity of data processing for the fulfillment (and thus the permission according to Art. 6 Para. 1 lit. b) DSGVO). and thus to undermine the requirements for consent according to Art. 6 Para. 1 lit. a), 7 GDPR; Fundamentally Wendehorst/Graf von Westphalen, NJW 2016, 3745 ff.; also BeckOK data protection law/Albers/Veit, Art. 6 GDPR para. 44. This risk does not exist from the outset when assessing the teleologically justified secondary obligations to achieve the purpose of the contract (purpose of the association; rights of membership).

bb) Purpose of the permit

84Article 6(1)(b) GDPR allows processing “for the performance of a contract to which the data subject is a party”. The purpose of the permit is to enable and not restrict the privately autonomous design of those involved. This is easily compatible with the data protection concern of informational self-determination because the contractual obligation is legitimized by way of self-determination; BeckOK data protection law/Albers/Veit, Art. 6 GDPR marginal number 41 ("results of private autonomous decisions"). This means that permission is systematically a subset of the data protection consent of Art. 6 (1) (a) GDPR.

cc) Contract within the meaning of Article 6 (1) (b) GDPR

85 The term “contract” is not to be interpreted under civil law, but under data protection law and autonomously within the Union; BeckOK data protection law/Albers/Veit, Art. 6 GDPR marginal number 42. It does not depend on whether the legal relationship, for the fulfillment of which the processing is necessary, is a contract in the sense of the German Civil Code, but whether the data protection telos of the legal basis has been fulfilled. In other words, the decisive factor is whether the legal relationship is based on private autonomy and the relevant obligation is therefore legitimate as an expression of self-determination; BeckOK data protection law/Albers/Veit, Art. 6 GDPR para. 41. It is therefore rightly emphasized that the facts of lit. b) apply "to all those contract-like constellations that are based equally on voluntary decisions by the person affected by the processing". is; BeckOK data protection law/Albers/Veit, Art. 6 GDPR para. 42.

86Founding and joining an association establish a “contract” within the meaning of Article 6(1)(b) GDPR, since this is a self-determined declaration of joining a private association; so i.Erg. also Kühling/Buchner/Buchner/Petri, DSGVO BDSG, 3rd edition 2020, Art. 6 DSGVO marginal number 29 f.; Gola/Heckmann/Schulz, DSGVO BDSG, 3rd edition 2022, Art. 6 DSGVO marginal number 33. This is also well justified under civil law. For example, Lutter, AcP 180 (1980), 84, 97 formulates: “The membership of a person in an association is a legal relationship, a special connection between two or more subjects based on private autonomous decisions. It is justified by the organizational contract of the founding or by the accession contract of the new member, be it with the board itself or with the previous member. See nur Neuner, General Part, 13th edition 2023, § 17 marginal number 80 et seq. For the concept of contract in Art. 6 (1) lit - consent to each other's accession (as in a partnership); BGH, decision of November 19, 2019 - II ZR 263/18 -, juris para. 27; BGH, judgment of January 11, 2011 – II ZR 187/09 –, juris para. 17. It is sufficient for the members to declare their consent in relation to the association as the central office – in a star pattern, so to speak.

dd) Necessity for fulfilment

87What is necessary for the performance of the contract is determined by the rights and obligations of the contract. A distinction between main and secondary obligations is not to be made; BeckOK data protection law/Albers/Veit, Art. 6 GDPR para. 43; Ehmann/Selmayer/Heberlein, GDPR, 2nd edition 2018, Art. 6 GDPR para. 13; Gola/Heckmann/Schulz, GDPR BDSG, 3rd edition 2022, Art. 6 GDPR para. 30. In the case of the assessment as "necessary" - unlike in the relationship between citizens and the state - no objective standard is to be applied, but that of based on a balance of interests chosen by the parties privately and autonomously. In the present case, there is no risk of misuse of private autonomy. The right to information arising from the membership relationship is also based on the contract (in the sense of Art. 6 Para. 1 lit. b) GDPR; i.e. accession and statutes). However, the information obligations are legally justified as – to a large extent even mandatory – secondary obligations.

88The obligation of the association, based here, to provide the member with a list of members with names, addresses and e-mail addresses, is already justified as necessary for the purpose of exercising membership rights by way of the balancing of interests. The justification is based precisely on the fact that the membership rights could not be exercised effectively without the information obligation or would even be ineffective; BGH, decision of November 19, 2019 - II ZR 263/18 -, juris para. 27.

89In the context of the data protection check, the principles of data processing according to Art. 5 GDPR must also be taken into account. In particular, the aspects of processing in good faith (Art. 5 Para. 1 lit. a) GDPR), purpose limitation (lit. b) and data minimization, which the parties have also addressed in the matter. Since the obligation to provide information as a legally justified secondary obligation is itself the result of good faith, this merely emphasizes an aspect that is already justified under civil law and which needs to be specified with regard to data processing. The earmarking of the data processing is already justified as a secondary civil law obligation of the membership relationship. It arises from the fact that the plaintiff can only claim the information for "legitimate interests". At the same time, this results in a factually justified limitation of the processing by the plaintiff. As the person responsible for data processing, he may only use the list of members for the purposes for which he can initially claim it, in this case the organization of an opposition to the "policy" of the board, if necessary for the convening of an extraordinary general meeting with a minority quorum. Data minimization is also already taken into account in the civil law obligation justification. The principle should not be misunderstood to mean that it would be better to process less data (e.g. not the e-mail addresses). Rather, data minimization must also be determined with regard to the respective purpose ("appropriate for the purpose"). For example, it must also be recognized under data protection law that the plaintiff needs the e-mail addresses to effectively exercise his membership rights. In the terminology of European law, this is the idea of the effet utile, which can also be used for membership rights. The member could also contact the Kon members by post. However, that would not ensure the “practical effectiveness” of the membership rights because of the prohibitive costs involved and the delay that is unreasonable in current social conditions.

90Of course, if the member uses the list of members for his or her membership purposes, the member is not only subject to the civil law restrictions already highlighted, as they result in particular from § 241 Para. 2 BGB. At the same time, he is the "responsible person" within the meaning of Article 4 No. 7 GDPR with corresponding obligations up to (severe) liability according to Article 82 GDPR.

915. Costs92The ancillary decisions are based on §§ 91, 708 No. 10, 713 ZPO.

936. Revision94 Approval of the revision is not necessary, § 543 ZPO.