OLG Nürnberg - 4 U 347/21
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| OLG Nürnberg - 4 U 347/21 | |
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| Court: | OLG Nürnberg (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 12(5) GDPR Article 15 GDPR Article 15(3) GDPR |
| Decided: | 29.11.2023 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 4 U 347/21 |
| European Case Law Identifier: | |
| Appeal from: | |
| Appeal to: | |
| Original Language(s): | German |
| Original Source: | gesetze-bayern.de (in German) |
| Initial Contributor: | co |
The Higher Regional Court of Nürnberg held, on appeal, that the right to access under Article 15 GDPR should be considered sufficiently clear if it basically reflects the wording of this provision, without the need to specify the data requested and the purposes of the request.
English Summary
Facts
A data subject requested a copy of the personal data about him being stored by his former employer under Article 15(1) and (3) GDPR. The data subject believed that the response by his former employer, the controller, was incomplete and filed suit with the Regional Court of Nürnberg-Fürth.
On 29 January 2021, the court dismissed the claim.
Unsatisfied with the decision of the court, the data subject filed an appeal with the Higher Regional Court of Nürnberg (Oberlandesgericht Nürnberg, OLG Nürnberg), claiming again that his right to access to all personal data about him saved by the controller. The data subject, as former employee and board member of the controller requested access to personal data about him from January 2000 until September 2016, including, among others, correspondence, calendar appointments, offsetting of company shares and other information related to his role as board member.
Holding
The OLG Nürnberg held first of all, that the appeal was admissible.
Then, the court considered that the access request was sufficiently clear, as it basically reflected the wording of Article 15(1) GDPR and that it is generally not necessary for access requests to specify the data requested.
Then, the court also considered that personal data about a data subject cover all information that is connected to that person, because of its content, purpose or effects. Further, making reference to C-307/22, the court clarified that the right to access under Article 15 GDPR is “without prerequisites”, meaning that a controller should grant access to personal data that is needed also for purposes other than those included in Recital 63 GDPR. Moreover, the court held that the access request cannot be considered an abuse of the data subject’s rights, since the right to data protection is a fundamental right and having access to one’s personal data is a way of protecting such right. The fact that, because of the long term of employment of the data subject, the personal data about him were many, does not make his access request an abuse of his rights.
In this case, the court also held that the controller was not sufficiently able to justify the refusal of granting access to an “excessive” request under Article 12(5) GDPR. In particular, the court considered that under that Article nothing suggests that an access request which is aimed at other purposes than those foreseen in the GDPR can be considered excessive, even if complying with such a request is rather complex for the controller. Hence, the OLG Nürnberg held that, since the motivation behind an access request is irrelevant for dealing with it, the first instance court failed to recognize that it does not matter that the data subject sought access to certain documents in order to use them as findings in another legal proceeding before a different court for having to comply with an access request.
Further, the court held that the right to obtain a copy under Article 15(3) GDPR, as interpreted by the CJEU in case C-487/21, is part of the right to access of data subjects under Article 15 GDPR, which is a unitary right, hence no further conditions exist for granting access to a copy under Article 15(3) GDPR.
In light of all this, the OLG Nürnberg ordered the controller to grant access to and provide a copy of all of the data subject's personal data being stored by the controller to the data subject.
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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.
Title: Right to information regarding personal data against employers Norm chains: GDPR Art. 4 No. 1, Art. 12 Para. 5, Art. 15 Para. 1, Para. 3 GRCh Art. 8 Paragraph 1 ZPO § 3, § 253 Para. 2 No. 2, § 519 Para. 2, § 888 BGB § 362 paragraph 1 GKG § 48, § 52 Guiding principles: 1. It does not constitute an abuse within the meaning of Art. 12 Para. 5 GDPR if a data subject uses the right to information in accordance with Art to obtain existing contract information. This also applies if the information in accordance with Art. 15 GDPR causes a lot of effort for the person responsible, since the effort of the person responsible is irrelevant for Art. 15 GDPR, or if the person concerned asserts multiple requests for information, since they only constitute an abuse of law within the scope of the excess. (Rn. 22) (editorial principle) 2. In cases where a right to information is asserted in accordance with Article 15 Paragraph 1 of the GDPR, it is generally sufficient for the claim to be specific if the claim, in accordance with the wording of the provision, is based on the provision of complete information about the personal data processed by the defendant Data is directed to the complaining party; In principle, specification of this data is not necessary (following OLG Cologne BeckRS 2023, 20138 Rn. 16 mwN). (Rn. 14) (editorial principle) 3. The appeal is permissible even if the representation relationships of the defendant party are incorrectly stated (here: representation of the stock corporation vis-à-vis a former board member by the supervisory board) if it is clear from the further information in the appeal and the attached judgment who the defendant is should (following BGH BeckRS 2013, 14246 Rn. 7 f.). (Rn. 9 – 12) (editorial principle) 4. The value of an application for data information is generally calculated at €5,000 (connection to OLG Dresden BeckRS 2022, 25025; OLG Cologne BeckRS 2021, 10843). (Rn. 32) (editorial principle) Tags: Appeal, name of the defendant, right to information, personal data, abuse of law, data information, copies, amount in dispute Lower court: LG Nuremberg-Fürth, final judgment of January 29, 2021 - 11 O 5353/20 Location: BeckRS 2023, 36073 tenor 1. In response to the plaintiff's appeal, the final judgment of the Nuremberg-Fürth Regional Court of January 29, 2021 (in the version of the correction decision of April 23, 2021) is changed and the defendant is sentenced, a. to provide the plaintiff with information about all of the plaintiff's personal data stored by it b. to hand over a copy of all of the plaintiff's personal data stored by it. 2. The defendant must bear the costs of the legal dispute. 3. The judgment is provisionally enforceable in the main case against security in the amount of €100,000.00; with regard to the costs against security in the amount of 110% of the amount to be enforced. 4. The appeal is not permitted. The amount in dispute for the appeal process is set at €5,000. The amount in dispute for the first instance proceedings is changed to €5,000. Reasons for the decision 1 As a former employee, most recently as a board member of the defendant, the plaintiff asserts claims for information and production in accordance with Article 15 Paragraph 1 and Paragraph 3 GDPR against his former employer. 2 To present the facts, reference is made to the actual findings in the judgment of the Nuremberg-Fürth Regional Court of January 29, 2021 (Section 540 Paragraph 1 No. 1 ZPO). 3 The regional court dismissed the lawsuit. 4 With his appeal, the plaintiff continues to pursue his first-instance claim and requests: Modifying the judgment of the Nuremberg-Fürth Regional Court, case number 11 O 5353/210, announced on January 29, 2021, the defendant is sentenced, 1. to provide the plaintiff with information about all of the plaintiff's personal data stored by it, with the exception of the personnel master data and BAV data transmitted in a letter from the defendant's CEO dated August 28, 2018. 2. to hand over a copy of all of the plaintiff's personal data stored with it, with the exception of the personnel master data and BAV data transmitted in the letter dated August 28, 2018. Auxiliary requests for claim 1. If the court considers the application for information in accordance with Article 15 Paragraph 1 of the GDPR to be inadmissible or unfounded, we request the following in the alternative: Modifying the judgment of the Nuremberg-Fürth Regional Court, ref January 2000 to September 30, 2016 in terms of data categories - E-mail correspondence and postal correspondence that is addressed to or comes from one or more of the defendant's executive board or supervisory board members in office at the time of sending, - Calendar entries of the defendant's board of directors and supervisory board members in office from January 1, 2000 to October 30, 2020, - Minutes of board and supervisory board meetings, - Offsets from personnel data processing and his personnel file, with the exception of the personnel master data and BAV data transmitted with the defendant's CEO on August 28, 2018, - Set-offs from company affiliates of the defendant, such as the legal, data protection and auditing departments, which are addressed to one or more of the defendant's board members or supervisory board members in office from January 1, 2000 to October 30, 2020, - Statements and reports from Beaten and lawyers addressed to the defendant. If the court considers the first alternative application to be inadmissible or unfounded, we request in the alternative: Modifying the judgment of the Nuremberg-Fürth Regional Court, ref. 11 O 5353/210, announced on January 29, 2021, the defendant is ordered to provide the plaintiff with information about the plaintiff's personal data stored by it regarding his behavior during his activity as Board member of the defendant in the period from August 1, 2012 to September 30, 2016 with regard to the data categories - E-mail correspondence and postal correspondence that is addressed to or comes from one or more of the defendant's executive board or supervisory board members in office at the time of sending, - Calendar entries of the defendant's board of directors and supervisory board members in office from August 1, 2012 to October 30, 2020, - Minutes of board and supervisory board meetings, - Offsets from personnel data processing and his personnel file, with the exception of the personnel master data and BAV data transmitted with the defendant's CEO on August 28, 2018, - Set-offs from employees of the defendant, such as the legal, data protection and auditing departments, which are addressed to one or more of the defendant's board members or supervisory board members in office from August 1, 2012 to October 30, 2020, - Statements and reports from beaters and lawyers addressed to the defendant. To the extent that the court considers the second auxiliary request to be inadmissible or unfounded, we request in the highest, most alternative way: Modifying the judgment of the Nuremberg-Fürth Regional Court announced on January 29, 2021, case number 11 O 5353/210, the defendant is ordered to provide the plaintiff with information about the processing of the plaintiff's personal data in connection with Auxiliary requests for claim 2. To the extent that the court considers the application for the provision of a data copy in accordance with Article 15 Paragraph 3 of the GDPR to be inadmissible or unfounded, we request the following: “By modifying the judgment of the Nuremberg-Fürth Regional Court, ref as of September 30, 2016 with regard to the following data categories: - E-mail correspondence and postal correspondence that is addressed to or comes from one or more of the defendant's executive board or supervisory board members in office at the time of sending, - Calendar entries of the defendant's board of directors and supervisory board members in office from January 1, 2000 to October 30, 2020, - Minutes of board and supervisory board meetings, - Offsets from personnel data processing and his personnel file, with the exception of the personnel master data and BAV data transmitted in a letter from the defendant's CEO dated August 28, 2018, - Set-offs from company employees of the defendant, such as the legal, data protection and auditing departments, which are addressed to one or more of the defendant's board members or supervisory board members in office from January 1, 2000 to October 30, 2020, - Statements and reports from Beaten and lawyers that are addressed to the defendant.” If the court considers the first alternative application to be inadmissible or unfounded, we request in the alternative: Modifying the judgment of the Nümberg-Fürth Regional Court, ref from August 1, 2012 to September 30, 2016 with regard to the following data categories: - E-mail correspondence and postal correspondence that is addressed to or comes from one or more of the defendant's executive board or supervisory board members in office at the time of sending, - Calendar entries of the defendant's board of directors and supervisory board members in office from August 1, 2012 to October 30, 2020, - Minutes of board and supervisory board meetings, - Records from personnel data processing and his personnel file, with the exception of the personnel master data and BAV data transmitted with the defendant's CEO on August 28, 2018, - Set-offs from employees of the defendant, such as the legal, data protection and auditing departments, which are addressed to one or more of the defendant's board members or supervisory boards in office from August 1, 2012 to October 30, 2020, - Statements and reports from consultants and lawyers addressed to the defendant. To the extent that the court considers the second auxiliary request to be inadmissible or unfounded, we request in the highest, most alternative way: Modifying the judgment of the Nuremberg-Fürth Regional Court, case number 11 O 5353/210, announced on January 29, 2021, the defendant is ordered to release a copy of the plaintiff's personal data in the following documents: In the event that the court assumes that the specific interpretation of EU law is important for the resolution of the dispute, we request instead: 3. The following questions have been submitted to the Court of Justice of the European Union for a preliminary ruling pursuant to Article 267 TFEU: (1.) Is Union law, in particular Article 12 paragraph 5 letter b of Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data, on the free movement of data and repealing Directive 95/46/EC, to be interpreted as meaning that the person responsible may refuse to act on the request even if the person concerned makes the request for information with the intention of using the information provided to enforce others -enable or facilitate data protection claims against the person responsible? (2.) Is Union law, in particular Article 12 paragraph 5 letter b and Article 15 of Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data, on the free movement of data and the repeal of Directive 95/46/EC, against the background of the procedural maxims of German civil procedure law, should be interpreted to the effect that Article 15 GDPR also enables the person concerned to receive information and a copy of their personal data if these personal data could be used as evidence in a parallel proceeding? 4. An application is made to the Court of Justice of the European Union to treat the request for a preliminary ruling in an expedited/accelerated procedure/decide with priority. 5. The proceedings are suspended pending the decision of the European Court of Justice. 5 In the appeal proceedings, the plaintiff has the right to unlawfully gain an advantage or otherwise inadmissible in the “parallel proceedings” before the Oldenburg Regional Court in the event that it is crucial to the dispute or that it is proven that the plaintiff had the sole motivation for pursuing the legal dispute To provide evidence, further evidence is offered to prove the opposite (testimony from Dr. J. F., inspection of the evidence decision of the LG Oldenburg dated February 8, 2021, examination of the plaintiff, p. 290/291 d.A.). 6 The defendant has requested that the appeal be dismissed. 7 The permissible appeal is already justified in the main application. Therefore, the requests for assistance are irrelevant. 8th 1. The appeal is admissible, in particular it was filed within the deadline set by Section 517 ZPO. The final judgment of the Nuremberg-Fürth Regional Court was served on the plaintiff on February 1, 2021; The monthly deadline of Section 517 ZPO ended on March 1st, 2021. The appeal brief was received by the Higher Regional Court on February 5, 2021. 9 a) The admissibility of the appeal is not prevented by the fact that the board of directors was incorrectly named as the defendant's representative in the notice of appeal. According to Section 112 Sentence 1 AktG, the company is correctly represented by the Supervisory Board against members of the Board of Directors in and out of court. 10 b) According to Section 519 Paragraph 2 ZPO, the notice of appeal must contain the name of the contested judgment and the statement that an appeal will be lodged against it. According to case law, it is sufficient if, when filing an appeal, both the plaintiff and the defendant can be identified from the appeal or in conjunction with other documents or circumstances or at least become identifiable by the end of the appeal period (BGH, NJW 1985, 2651). § 518 II ZPO old version). Compliance with these requirements for the content of the notice of appeal serves to ensure an orderly course of the procedure, legal certainty and the interests of the defendant worthy of protection by ensuring that the notice of appeal is served as soon as possible (BGH, NJW 1985, 2651). 11 c) However, this does not mean that the person of the plaintiff or defendant in the appeal can only be effectively stated expressly and only in the notice of appeal itself. Rather, the appeal can be interpreted. The interests of legal certainty are therefore also satisfied if an intelligent assessment and interpretation of the appeal excludes any doubt about the identity of the defendant (cf. BGHZ 21, 168 [173] = NJW 1956, 1600 on the plaintiff). It is therefore sufficient if, with the help of further documents, such as the attached first-instance judgment, it can be clearly identified by the end of the appeal period who should be the appellant and who should be the defendant (BGH, NJW-RR 2013, 1278 Rn. 7, 8 , beck online). 12 d) The notice of appeal dated February 5, 2021 is sufficient. There is no doubt that the defendant is... It is irrelevant that the power of representation (in accordance with the final judgment of the regional court, which has since been corrected) was not stated correctly, because in the final judgment of the regional court the representation of the stock corporation was also incorrectly stated as “represented by the board of directors”. The fact that the plaintiff also assumed that the supervisory board would represent him in this case can be seen from the statement of claim itself, in which he correctly saw the authority to represent members of the board of directors in accordance with Section 112 AktG with the supervisory board of the stock corporation, so that the statement in the Notice of appeal was clearly an accidental misnomer, which was corrected in the grounds of appeal. The plaintiff and the defendant were already aware of the information from the Hamburg-St. District Court. Georg dated April 26, 2019 (Appendix BB 1) aware that the defendant is represented by the supervisory board. Accordingly, the plaintiff has already provided representation in the disputed lawsuit dated October 7, 2019. 13 2. The appeal is justified. 14 a) As the regional court correctly states, the request for information is sufficiently specific (Section 253 Para. 2 No. 2 ZPO). If you wish to assert a right to information, please do so. In accordance with Article 15 (1) of the GDPR, it is generally sufficient if the application for action is aimed at providing complete information about the plaintiff's personal data processed by the defendant, in accordance with the wording of the provision; In principle, specification of this data is not necessary (as most recently OLG Cologne, NZA-RR 2023, 515 Rn. 16, beck-online). 15 b) To the extent that the plaintiff has already limited his application due to personal master data and BAV data transmitted before the court and has submitted partial settlement declarations with reference to these documents because of two documents that were made available to him as part of the proceedings pending at the Oldenburg Regional Court, this does not change this that “open” can be tenored. Because - as with other claims for information that are still partially "unfinished" in the sense of not yet fully fulfilled - it can simply be openly condemned to the information owed (as the owed "final result") (OLG Cologne, NZA-RR 2023, 515 Rn. 17, beck online). The restriction in the original application or the reference to partial settlements only takes into account the fact that the defendant has already provided certain information; The restriction merely makes it clear that, in the plaintiff's opinion, the defendant no longer has to repeat the information that has already been provided, but that the plaintiff otherwise (rightly) regards the information as incomplete and therefore continues to sue for "complete" information (also OLG Cologne, NZA-RR 2023, 515 Rn. 17, beck-online). 16 As the Cologne Higher Regional Court further explained, “a restriction based on reference to partial information already provided before or during the procedure and/or other clarifications is not necessarily included in the application and tenor from a procedural point of view, because what has been said above is simply a broadly worded application based on the wording of the law and everything else is then only - as is otherwise - a question of the fulfillment objection (§ 362 Para. 1 BGB) in the court proceedings or, if appropriately titled, later in the compulsory enforcement proceedings according to § 888 ZPO" (OLG Cologne, NZA-RR 2023, 515 Rn. 17, beck-online). The Senate agrees with this. In the opinion of this Senate, a plaintiff cannot be expected to include the information already provided in detail in the application for information when requesting information. It is only necessary in the context of the merits of the lawsuit that, at the relevant time of the last oral hearing, complete fulfillment of the right to information within the meaning of Section 362 Paragraph 1 of the German Civil Code (BGB) cannot actually be determined. Complete fulfillment did not occur. The defendant is currently asserting that the claim is excessive within the meaning of Article 12 Paragraph 5 Sentence 2 of the GDPR due to the extent of the disproportionately high compliance costs associated with it. This statement implies that the defendant has extensive additional data to be provided - as would be expected given the plaintiff's many years of work in the company there. 17 c) Art. 15 GDPR provides a comprehensive right to information about personal data. 18 aa) Article 4 No. 1 GDPR defines the term “personal data” as all information that relates to an identified or identifiable natural person (hereinafter “data subject”); A natural person is considered to be identifiable if he or she can be identified directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more special characteristics that express the physical, physiological, genetic, psychological, economic, cultural or social identity of that natural person. 19 According to the jurisprudence of the ECJ, the concept of personal data should be given a wide meaning: “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 assessments, provided that it is information “about” the person in question. The latter requirement is met if the information is linked to a specific person due to its content, purpose or effects” (ECJ BeckRS 2017, 136145). 20 bb) To the extent that restrictions on the comprehensive right to information are to be based on recital 63 of the regulation, these considerations have not been reflected in the regulation. The right to data information is rather unconditional. The ECJ (judgment of October 26, 2023 - C-307/22, BeckRS 2023, 29132, beck-online) stated in the first guiding principle that Article 12 Paragraph 5 and Article 15 Paragraph 1 and 3 GDPR should be interpreted as follows are that the obligation of the controller to provide the data subject, free of charge, with a first copy of his or her personal data that are the subject of processing applies even if the request in question is based on a request other than that referred to in the first sentence of recital 63 the purposes stated in the regulation. 21 cc) Contrary to the defendant's opinion, the plaintiff's claim is not excluded according to Art. 12 Para. 5 Sentence 2 GDPR. According to this provision, in the case of manifestly unfounded or - in particular in the case of frequent repetition - excessive requests from a data subject, the controller may either charge a reasonable fee, taking into account the administrative costs of informing or communicating or carrying out the requested measure, or himself refuse to act on the request. According to Article 12 Paragraph 5 Sentence 3 of the GDPR, the person responsible must provide evidence of the obviously unfounded or excessive nature of the request. 22 According to the wording and purpose of Art. 12 Paragraph 5 Sentence 1, Art. 15 GDPR, there is no abuse if a data subject uses the right to information (also) for reasons that are not related to data protection, such as information for settlement negotiations or contract information that they no longer have (e.g. information about accounts, insurance conditions, etc.), as such a restriction to a specific motive is not found in Art. 15 GDPR. This also applies if the information in accordance with Art. 15 GDPR causes a lot of effort for the person responsible, since the effort of the person responsible is irrelevant for Art constitute an abuse of law (BeckOK DatenschuteR/Schmidt-Wudy, 45th Ed. August 1, 2023, GDPR Art. 15 Rn. 48). 23 Since the plaintiff's motivation plays no role in the justification of the request for information, it is also irrelevant whether he - at least originally - hoped to obtain information for his lawsuit pending before the Oldenburg Regional Court through the data information. Likewise, it does not matter whether providing the data requires a lot of effort or time for the defendant, because the effort is insignificant. The data information is not excessive because it is the first application. 24 dd) The assertion of the claim is also not an abuse of law. The protection of natural persons when processing personal data is a fundamental right. Pursuant to Article 8(1) of the Charter of Fundamental Rights of the European Union (OJ C 326, 26.10.2012, p. 391), everyone has the right to the protection of personal data concerning them. The corresponding right to information was regulated in order to enforce this fundamental right. His assertion cannot therefore be an abuse of law beyond the legally regulated circumstances (not relevant here). The fact that the plaintiff has accumulated a lot of data due to the duration and nature of his work does not prevent him from asserting his rights. 25 ee) Since the data information must be provided without any conditions, the defendant has no right of retention due to the expected costs, as the defendant cannot demand these. The information is to be provided free of charge. 26 ff) The application at issue also expressly covers the right to “copies”. According to the decision of the ECJ of May 4, 2023 (C-487/21, NJW 2023, 2253 Rn. 45), Article 15 Para. 3 GDPR is to be interpreted as meaning “that the right to receive a copy of the personal data from the person responsible for processing Obtaining the data that is the subject of the processing means that the data subject is provided with a faithful and understandable reproduction of all such data. This right presupposes the right to obtain a copy of extracts from documents or even entire documents or extracts from databases which, among other things, that data contains, if the provision of such a copy is essential to enable the data subject to effectively exercise the rights conferred on him by this Regulation, taking into account the rights and freedoms of others." This is the controversial issue clarified what is meant by “copy”. 27 In the above-mentioned decision, the ECJ also stated that Article 15 Paragraph 3 GDPR “only sets out the practical modalities for fulfilling the obligation to provide information resulting from Article 15 Paragraph 1 GDPR. Art. 15 GDPR cannot therefore be interpreted in such a way that it grants a right in paragraph 3 sentence 1 other than that provided for in paragraph 1” (cf. ECJ, judgment of May 4, 2023 - C-487/21 , NJW 2023, 2253 Rn. 31 f.). This decision also clarifies the question of whether an application for a copy of data in accordance with Article 15 (3) GDPR must indicate which personal data a copy is requested. A claimant who is unable to provide a more precise description is therefore not obliged to first request information about which personal data the defendant processes by way of a step-by-step action in order to then, on this basis, submit an application for a copy of the data to be provided to be able to provide the resulting data (as the Federal Labor Court did before the ECJ decision, cf. BAG, judgment of December 16, 2021 - 2 AZR 235/21, NZA 2022, 362 Rn. 33; judgment of April 27, 2021 - 2 AZR 342 /20, BAGE 174, 351 Rn. 20 f. = NZA 2021, 1053; already critical of this is Lembke/Fischels, NZA 2022, 513 (519 f.)). According to the most recent case law of the ECJ, Article 15 GDPR contains a uniform right to information (OLG Cologne, NZA-RR 2023, 515 Rn. 18, beck-online). The plaintiff had also already invoked his right to have a copy made available in the first instance. In principle, this uniform claim must be able to be asserted uniformly without specifying the personal data - as here - (OLG Cologne, NZA-RR 2023, 515 Rn. 18, beck-online). Since the claim is directed to an unreasonable act, it must be enforced in accordance with Section 888 ZPO (see Lembke/Fischels, NZA 2022, 513 (520)). If a debtor sentenced to provide information provides (further) information and makes copies of data available to the creditor, it may be necessary to check in the enforcement proceedings whether the stated right to information has been finally fulfilled. Difficulties that may arise from this are not a peculiarity of data protection law, but can also arise in a similar form with other requests for information (OLG Cologne, NZA-RR 2023, 515 Rn. 18, beck-online). 28 The cost decision follows from Section 91 Paragraph 1 ZPO. The Senate refrained from imposing the additional costs in accordance with Section 281 Paragraph 3 Sentence 2 ZPO due to the initial appeal to the Nuremberg District Court and referral of the legal dispute to the Nuremberg-Fürth Regional Court, because the amount in dispute would have correctly established the subject matter jurisdiction of the District Court and the plaintiff had only submitted the request for referral as an alternative. 29 The decision on provisional enforceability results from Section 709 Sentence 1 ZPO, since the action for information pursuant to Section 15 GDPR is a non-pecuniary dispute. The security had to be measured in such a way that, on the one hand, the plaintiff's interests in provisional enforcement were met, but on the other hand, the defendant would not suffer any permanent damage in the event of a changing decision. Since the defendant estimated its security interest at €400,000, but did not justify this convincingly and also stated in the Senate hearing that the effort could be lower because data had been deleted in the meantime, the Senate estimates the possible amount Damage to €100,000. 30 An appeal against this judgment was not permitted. There are no reasons for admission within the meaning of Section 543 Paragraph 2 Sentence 1 ZPO. 31 The amount in dispute was set at €5,000. The first instance determination of the value in dispute also had to be changed accordingly (Section 63 Paragraph 3 Sentence 1 No. 2 GKG). 32 The starting point for determining the amount in dispute is the plaintiff's economic interest without any upper limit on the value (§ 48 para. 2 sentence 1 GKG with teleological reduction of sentence 2 and § 52 para. 1 GKG); In case of doubt, the amount in dispute is EUR 5,000 in accordance with Section 52 Paragraph 2 GKG (BeckOK Data ProtectionR/Schmidt-Wudy, 45th Ed. August 1, 2023, GDPR Art. 15 Rn. 31.1; OLG Dresden, judgment of July 26, 2022 - 18 U 24/22 -, juris; OLG Cologne, judgment of April 28, 2021 - I-5 U 151/18 -, juris; Zöller, ZPO, 34th ed., § 3 Rn. 16.28). In recent times, the amounts in dispute in the regional courts have often been set at just €500. Reference is made to the overview by Leibold on ZD-Beck (see https://content.beck.de/ZD/Streitwerte_beim_Auskunftsclaim according to Art.15_DS-GVO.pdf). 33 Since the applications are a uniform claim according to the case law of the ECJ, only a uniform amount in dispute had to be set.
