OLG Düsseldorf - 6 U 114/23
From GDPRhub
| OLG Düsseldorf - 6 U 114/23 | |
|---|---|
 | |
| Court: | OLG Düsseldorf (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 12(5)(b) GDPR Article 15(1) GDPR Article 8(1) CFR § 253(2)(2) ZPO § 254 ZPO § 401 BGB |
| Decided: | 21.11.2024 |
| Published: | |
| Parties: | |
| National Case Number/Name: | 6 U 114/23 |
| European Case Law Identifier: | ECLI:DE:OLGD:2024:1121.6U114.23.00 |
| Appeal from: | LG Wuppertal (Germany) 4 O 412/21 |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | Justiz NRW (in German) |
| Initial Contributor: | la |
A court held that the right to access under Article 15 GDPR is strictly personal and non-transferrable. Requesting access for the sole purpose of preparing a lawsuit was considered an "abuse of law".
English Summary
Facts
The plaintiff sued a private health insurance company (the controller) by way of an action by stages (Stufenklage) according to § 254 German Civil Process Order (Zivilprozessordnung – ZPO).
57 clients of the controller had assigned claims to a third party (the plaintiff). The health insurance company had raised their insurance premiums.
On the first stage, the claimant sued for information under Article 15 GDPR to be able to determine the premiums paid by the clients that had assigned their claims. On the second stage, the claimant sought a declaratory judgement that the raises of the insurance premiums by the controller were unlawful and were suing for an amount yet to be determined after having obtained the information from the first stage.
The court of first instance, the Regional Court Wuppertal (Landgericht Wuppertal – LG Wuppertal) dismissed the lawsuit.
Holding
Admissibility of the Claims
The court held that an action by stages was inadmissible because the claimant did not want to determine the exact amount of their claims but rather, if they had any claims at all. This made the claims brought forth on the second stage inadmissible because they were not specified enough under § 253(2)(2) ZPO. The claims for information on the first stage were however admissible.
The admissible claims for information were, however, unfounded. This was due to the fact that the criteria of neither Article 15 GDPR nor other, national legal bases for the claims were matched.
Transfer of Rights
The court held that Article 15 GDPR did not give right to information for two reasons: first, the right under Article 15 GDPR to obtain access to personal data is strictly personal and does not follow the assigned claim (as an exception to § 401 German Civil Code (Bürgerliches Gesetzbuch – BGB)). The court held that the right under Article 15 GDPR does neither follow assigned claims nor can it be transferred to others in itself, citing the German Federal Administrative Court judgement 6 C 10/19. The BVerwG had argued that the right under Article 15 GDPR was the elementary subjective data protection right and followed from Article 8(1) CFR. The reason for this right was to facilitate the data subject’s right to data protection by providing the needed knowledge about the processing of their personal data. This right could not be executed by third parties without entirely changing its nature.
The court referred to a judgement of the Higher Regional Court Berlin (Kammergericht Berlin – KG Berlin) which argued that it could be possible for the assignee to execute the assigning person’s Article 15 GDPR right through the power vested in the assignment (without transferring the Article 15 GDPR right itself). However, this at least had to be reflected in the claims made before the court.
Abuse of Law
However, in this case, the court found that the exercise of the right under Article 15 GDPR amounted to a abuse of law. This followed from Article 12(5)(b) GDPR, because the wording included “in particular because of their repetitive character”, leaving room for other cases in which requests by data subjects could be manifestly unfounded or excessive. The court found that Member States had to refuse applying EU law whenever its norms are only used to achieve aims which do not fall within the aims of the respective legislation.
Comment
This decision contradicts a recent judgement of the Regional Court Ellwangen (6 O 65/24) which held that no reason needs to be given for a request under Article 15 GDPR. The court also found that a specific reason for such a request that is not within the aims of the GDPR is irrelevant to the right.
The reasoning about the abuse of law in the present OLG Düsseldorf judgement seems rather inconsistent. Because it is so clear that no reason for an Article 15 GDPR request needs to be given in general the data subjects could have just requested their data in advance to prepare another lawsuit and, given the case the controller had not replied, sue for the information and afterwards sue for paying back the money. It seems inconsistent and inefficient not to allow data subjects to just pursue both aims in an action by stages. Furthermore, the data subjects would always have the risk of the statute of limitations preventing them from obtaining their money which could incentivise controllers to delay the answers to Article 15 requests.
Further Resources
Share blogs or news articles here!
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. 3The plaintiff is demanding, by way of a step-by-step action, information from a total of 57 policyholders of the defendant on the amount of premium income in their respective health insurance tariffs by means of an assigned right, by communicating the tariffs active in the respective year and the premium increases made for these tariffs in the respective year, stating the date of the premium increase, and a further determination of the invalidity of the unilateral increases by the defendant, which are still to be specified after the information is provided, and payment of an amount to be quantified after the information is provided, plus interest. 4Reference is made to the facts of the contested judgment for the factual findings of the first instance. 5The regional court dismissed the action. It justified this by stating that the linking of the request for information and the unquantified claim for benefits or request for a determination made by the plaintiff by way of a step-by-step action under Section 254 of the Code of Civil Procedure was inadmissible. Contrary to the plaintiff's representation, the requested information was clearly intended to provide a more specific check as to whether there were any claims against the defendant for which years and from which "active" tariffs. The requested "notification" was not limited to simply stating the increased premiums. Rather, information was also required about other elements of the insurance contract in the form of the respective tariffs and the individual years. This was also correct insofar as only knowledge of these partial elements makes it possible to examine the claim and file a conclusive claim for benefits. As can be seen from the statement of claim, an effective claim for benefits does not only require the quantification of the asserted claim, but also the factual circumstances for each individual insurance contract that support the claim. The attachments also suggest that the plaintiff wanted to use the first claim to find out for the first time whether there was a premium increase in the specific contract in the year/years for which there were no documents. 6The inadmissible staged action should therefore be reinterpreted as an objective accumulation of claims according to Section 260 of the Code of Civil Procedure. The unquantified claim for benefits and the application for a declaratory judgment are inadmissible due to a violation of the requirement of certainty in Section 253 Paragraph 2 No. 2 of the Code of Civil Procedure because the contested years, tariffs and contributions are not mentioned. 7The requests for information are unfounded. There is no claim under Section 660 of the German Civil Code because the insurance contract is neither a contractual relationship nor a contract for the management of the business. A claim under Section 242 of the German Civil Code is not justified because the plaintiff has not presented any evidence of a lack of knowledge on the part of the claimant - through no fault of his own. The claim for information cannot be based on Art. 15 of the GDPR either, because the enforceability of this claim is contradicted by the objection of abuse of rights arising from Section 242 of the German Civil Code. The information should only serve to pursue material claims, which is a purpose completely alien to the regulation, since Art. 15 GDPR should only enable a legality check of the data processing operations. The request for information should, according to the clearly expressed intention, be limited to examining any monetary claims against the defendant, taking advantage of the formal legal position granted under EU law. The plaintiff's request therefore does not even affect the title of the regulation, namely data protection. In addition, the policyholders know which data the defendant has stored and processed about them because the defendant has informed them of this by sending them the notification. A right to information does not arise from Section 3 VVG either, because the policyholder can only request a replacement copy of the insurance certificate if the original has been destroyed or if he has lost possession of it for another reason. Claims under Section 3 Paragraph 4 VVG and Section 808 BGB are also not justified. 8The plaintiff's appeal, which was filed in due form and within the deadline, is directed against this and with which she is pursuing her first-instance applications. 9The plaintiff is of the opinion that the staged action is admissible. Due to the lack of supplements to the insurance policy, it is not possible for her to determine when the defendant increased which tariff and thus to understand the exact course of the respective insurance relationships during the disputed period. The defendant has this information. Without knowing the specific course of the insurance relationship, it is not possible to formulate a specific application within the meaning of Section 253 Paragraph 2 No. 2 of the Code of Civil Procedure. In case of doubt, she, the plaintiff, would be making an excessive claim if it was unclear whether there was only a premium increase in the compulsory care tariff or due to an expiring tariff bonus (limiting measure). It is undisputed that the defendant increased the tariffs during the disputed period. It was therefore established that premium increases had taken place during a period in which all increase letters used in the specific case had not formally met the legal requirements of Section 203 Paragraph 5 of the Insurance Contracts Act (VVG) and that a claim existed in principle. The notification letters were known to her attorney. Their wording was reproduced and not disputed. 10The plaintiff claims that the information serves only to quantify the benefit claim. Submission of the justification letters is not the subject of the request for information. She is of the opinion that the regional court violated her right to be heard. It did not give any indication that it did not consider the statement regarding the loss of the insurance documents to be sufficient. If it had been given, the following statement could have been made: the assignors had not kept the supplements to the insurance policy for the defendant's premium adjustments. Therefore, it is no longer possible to quantify the repayment claim. As a last resort, there is a claim under Section 3 (3) VVG for the re-issuance of the supplements to the insurance policy in the period in dispute. The plaintiff is also of the opinion that the inadmissibility of the staged action does not arise from the judgment of the Federal Court of Justice of September 27, 2023, because the case is different here. She is only concerned with the quantification of the claim in terms of the amount and not with whether the claim exists at all. She only wants to obtain information about the amount of premium payments made by the assignors due to unlawful premium adjustments that are to be reclaimed. The information claimed serves solely to quantify the claim for benefits. The court can easily determine that a claim exists on the basis of the facts presented. The tariffs and the specific dates of the premium adjustment are part of the applications. It is undisputed between the parties that increases in accordance with Section 203 (2) VVG had taken place for the policyholders during the period of the insurance relationship. Proof of this is not the subject of the request for information. 11There is also a right to information under Article 15 (1) GDPR from assigned rights. Insofar as the Senate believes that the claim is not assignable, it will be asserted by way of voluntary legal representation. The annexes each contain an express power of attorney from the assignors. It is requested that the proceedings be suspended until the BGH has decided in case IV ZR 90/24, which also concerns the assignability of the claim under Article 15 (1) GDPR. Alternatively, it is suggested that the proceedings be suspended in accordance with Section 148 of the Code of Civil Procedure and submitted to the Court of Justice of the European Union by way of a preliminary ruling procedure in accordance with Article 267 TFEU. In particular, the question to be formulated would be whether the claim under Article 15 GDPR is assignable or can be asserted by way of legal representation. 12The plaintiff requests (in essence), 13 1. 14the defendant be ordered to provide it with information on the amount of premium income in the respective health insurance tariffs in accordance with Section 259 of the German Civil Code (BGB), with the exception of premium income from compulsory long-term care insurance tariffs, by communicating the tariffs active in the respective year and the premium increases made for these tariffs in the respective year, stating the date of the premium increase: 15a. for the assignor A., insurance number 001, the information for 2010, 2011, 2013, 2014, 2015, 2016, 16b. for the assignor B., insurance number 002, the information for 2014, 2017, 17c. for the assignor C., insurance number 003, the information for 2010, 2011, 2014, 18d. for the assignor D., insurance number 004, the information for 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 19e. for the assignor E., insurance number 005, the information for 2010, 2011, 2012, 2013, 2015, 2016, 2017, 2018,f. for the assignor F., insurance number 006, the information for 2017, 20g. for the assignor G., insurance number 007, the information for 2014, 2017, 21h. for the assignor H., insurance number 008, the information for 2010, 2011, 2012, 2013, 2014, 2015, 2017, 2018, 22i. for the assignor J., insurance number 009, the information for 2018, 23j. for the assignor K., insurance number 010, the information for 2010, 2011, 2012, 2014, 2015, 2018, 24k. for the assignor L., insurance number 011, information for 2010, 2011, 2012, 2013, 2014, 25l. for the assignor M., insurance number 012, information for 2010, 2015, 26m. for the assignor N., insurance number 013, information for 2010, 2012, 2013, 2014, 2015, 2017, 2018, 27n. for the assignor O., insurance number 014, information for 2018, 28o. for the assignor P., insurance number 015, information for 2010, 2013, 2014, 2016, 29p.for the assignor Q., insurance number 016, the information for 2018, 30q. for the assignor R., insurance number 017, information for 2010, 2011, 2012, 2013, 2014, 2015, 2016, 31r. for the assignor S., insurance number 018, the information for 2010, 2011, 2012, 2013, 2014, 2017, 2018, 32s. for the assignor T., insurance number 019, the information for 2012, 2013, 2014, 2016, 2018, 33t. for the assignor U., insurance number 020, the information for 2010, 34u. for the assignor V., insurance number 021, the information for 2010, 35v. for the assignor W., insurance number 022, the information for 2010, 2011, 2012, 2013, 2014, 2017, 36w. for the assignor X., insurance number 023, the information for 2017, 37x. for the assignor Y., insurance number 024, the information for 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 38y. for the assignor Z., insurance number 025, the information for 2010, 2011, 2012, 2015, 2016, 2017, 2018, 39z. for the assignor AA., insurance number 026, the information for 2010, 2011, 2012, 2013, 2018, 40aa. for the assignor BB., insurance number 027, the information for 2010, 2011, 2012, 2013, 2018, 41bb. for the assignor CC., insurance number 028, the information for 2018, 42cc. for the assignor DD., insurance number 029, the information for 2018, 43dd. for the assignor EE., insurance number 030, information for 2010, 2014, 44ee. for the assignor FF., insurance number 031, information for 2010, 2012, 2013, 2014, 2016, 2017, 2018, 45ff. for the assignor GG., insurance number 032, information for 2010, 2014, 2018, 46gg. for the assignor HH., insurance number 033, information for 2012, 2015, 2016, 2017, 2018, 47hh. for the assignor JJ., insurance number 034, information for 2010, 2011, 2017, 2018, 48ii. for the assignor KK., insurance number 035, information for 2018, 49jj. for the assignor LL., insurance number 036, information for 2010, 2011, 2012, 2014, 50kk. for the assignor MM., insurance number 037, information for 2013, 2014, 2016, 2018, 51ll. for the assignor NN., insurance number 038, information for 2012, 2013, 2014, 2016, 2018, 52mm. for the assignor OO., insurance number 039, information for 2010, 2014, 2018, 53nn. for the assignor PP., insurance number 040, information for 2018, 54oo. for the assignor QQ., insurance number 041, information for 2010, 2013, 2014, 2015, 2017, 2018, 55pp. for the assignor RR., insurance number 042, information for 2011, 2017, 2018, 56qq. for the assignor SS., insurance number 043, information for 2018, 57rr. for the assignor TT., insurance number 044, information for 2018, 58ss. for the assignor UU., insurance number 045, information for 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 59tt. for the assignor VV., insurance number 046, information for 2010, 2011, 2012, 2013, 2014, 2016, 2017, 2018, 60uu. for the assignor WW., insurance number 047, information for 2018, 61vv. for the assignor XX., insurance number 048, information for 2010, 2011, 2013, 2014, 2015, 2018, 62ww. for the assignor YY., insurance number 049, the information for 2014, 2018, 63xx. for the assignor ZZ., insurance number 050, the information for 2010, 2018, 64yy. for the assignor AAA., insurance number 051, the information for 2013, 2014, 2015, 2018, 65zz. for the assignor BBB., insurance number 052, the information for 2010, 2011, 2012, 2014, 2016; 662. 67to establish that the unilateral increases by the defendant in the assignors’ health insurance rates in the contract periods, which have yet to be specified after the information was provided in accordance with 1. 68a. for the assignor A. 01.01.2015 - 31.12.2018 69b. for the assignor B. 01.01.2008 - 31.12.2018 70c. for the assignor C. 01.01.2012 - 31.12.2018 71d. for the assignor D. 01.01.2008 - 31.12.2018 72e. for the assignor E. 01.01.2014 - 31.12.2018 73f. for the assignor F. 01.01.2010 - 31.12.2018 74g. for the assignor G. 01.01.2010 - 31.12.2018 75h. for the assignor H. 01.01.2008 - 31.12.2018 76i. for the assignor J. 31.12.2009 - 31.12.2018 77j. for the assignor K. 01.01.2008 - 31.12.2018 78k. for the assignor L. 01.01.2008 - 31.12.2018 79l. for the assignor M. 31.12.2014 - 31.12.2018 80m. for the assignor N. 01.01.2008 - 31.12.2018 81n. for the assignor O. 23.11.2017 - 31.12.2018 82o. for the assignor P. 19.05.2011 - 31.12.2018 83p. for the assignor Q. 01.01.2008 - 31.12.2018 84q. for the assignor R. 31.03.2017 - 31.12.2018 85r. for the assignor S. 30.11.2014 - 31.12.2018 86s. for the assignor T. 31.12.2008 - 31.12.2018t. for the assignor U. 31.12.2009 - 31.12.2018 87u. for the assignor V. 31.01.2011 - 31.12.2018 88v. for the assignor W. 01.01.2008 - 31.12.2018 89w. for the assignor X. 01.01.2008 - 31.12.2018 90x. for the assignor Y. 31.12.2016 - 31.12.2018 91y. for the assignor Z. 30.11.2013 - 31.12.2018 92z. for the assignor AA. 08.01.2014 - 31.12.2018 93aa. for the assignor BB. 01.01.2008 - 31.12.2018 94bb. for the assignor CC. 01.01.2009 - 31.12.2018 95cc. for the assignor DD. 01.11.2009 - 31.12.2018 96dd. for the assignor EE. 01.01.2008 - 31.12.2018 97ee. for the assignor FF. 01.11.2010 - 31.12.2018 98ff. for the assignor GG. 01.06.2010 - 31.12.2018 99gg. for the assignor HH. 01.02.2010 - 31.12.2018 100hh. for the assignor JJ. 01.01.2011 - 31.12.2018 101ii. for the assignor KK. 01.11.2009 - 31.12.2018 102jj. for the assignor LL. 26.11.2012 - 31.12.2018 103kk. for the assignor MM. 01.11.2009 - 31.12.2018 104ll. for the assignor NN. 01.01.2010 - 31.12.2018 105mm. for the assignor OO. 01.01.2010 - 31.12.2018 106nn. for the assignor PP. 01.01.2010 - 31.12.2018 107oo. for the assignor QQ. 01.01.2011 - 31.12.2018 108pp. for the assignor RR. 01.01.2010 - 31.12.2018 109qq. for the assignor SS. 01.01.2010 - 31.12.2018 110rr. for the assignor TT. 01.01.2010 - 31.12.2018 111ss. for the assignor UU. 01.01.2008 - 31.12.2018 112tt. for the assignor VV. 01.01.2010 - 31.12.2018 113uu. for the assignor WW. 01.01.2008 - 31.12.2018 114vv. for the assignor XX. 01.01.2012 - 31.12.2018 115ww. for the assignor YY. 01.01.2009 - 31.12.2018 116xx. for the assignor ZZ. 01.01.2011 - 31.12.2018 117yy. for the assignor AAA. 01.01.2009 - 31.12.2018 118zz. for the assignor BBB. 01.01.2013 -31.12.2018 119are invalid, whereby all tariffs of compulsory long-term care insurance are excluded from this determination; 1203. 121to order the defendant to pay to it, from assigned rights, an amount to be determined after the information has been provided in accordance with the claim under 1., which results from the unlawful payments made by the assignors to the defendant in the period from 01.01.2018 - 31.12.2018 due to the invalidity determined under 2., plus interest thereon in the amount of 5 percentage points above the respective base interest rate since the action was filed; 1224. 123to order the defendant to provide it with information on the amount of premium income in the respective health insurance tariffs in accordance with Section 259 of the German Civil Code (BGB), with the exception of premium income from compulsory long-term care insurance tariffs, by communicating the tariffs active in the respective year and the premium increases made for these tariffs in the respective year, stating the date of the premium increase: 124a) for the assignor CCC., insurance number 053, the information for 2014, 2018, 125b) for the assignor DDD., insurance number 054, the information for 2010, 2018, 126c) for the assignor EEE., insurance number 055, the information for 2010, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 127d) for the assignor FFF., insurance number 056, the information for 2010, 2011, 2012, 2013, 128e) for the assignor GGG., insurance number 057, the information for 2010, 1295. to determine that the unilateral increases by the defendant in the assignors' health insurance rates, which have yet to be specified after the information was provided in accordance with 1., in the contract periods 130a) for the assignor CCC. 01/01/2010 - 12/31/2018 131b) for the assignor DDD. 01/01/2010 - 12/31/2018 132c) for the assignor EEE. 01.01.2010 – 31.12.2018 133d) for the assignor FFF. 01.01.2010 – 31.12.2018 134e) for the assignor GGG. 01.01.2010 – 31.12.2018 135are invalid, whereby all tariffs of the compulsory long-term care insurance are excluded from this determination, 1366. 137the defendant is to be ordered to pay to it from assigned rights an amount to be determined after the information has been provided in accordance with claim 4, which results from the unlawful payments made by the assignors to the defendant in the period from 01.01.2018 – 31.12.2018 due to the invalidity determined in accordance with claim 5, plus interest thereon in the amount of 5 percentage points above the respective base interest rate since the case was filed. 138The defendant requests that 139the appeal be dismissed. 140The defendant is of the opinion that the grounds for appeal hardly meet the minimum substantive requirements. 141It was expressly denied that the alleged assignors no longer had the information claimed. The plaintiff did not comment on this. Insofar as the plaintiff is now offering the assignors' testimony for the first time, this cannot be pursued due to a lack of substantiated evidence. In addition, this submission of evidence should have taken place in the first instance. In this respect, reference is made, among other things, to a decision of the 13th Civil Senate of the Düsseldorf Higher Regional Court in a parallel case. It is also not true that the plaintiff presented the content of the notification letters in the first instance and that this was not disputed. Rather, the defendant had expressly pointed out that the rudimentary extracts submitted by the opposing party were not the complete adjustment notifications and had further stated that the court knew what the defendant's complete notification letters looked like. With regard to these notifications, there is established case law from the Düsseldorf Higher Regional Court that they satisfy the substantive requirements of Section 203 Paragraph 5 of the Insurance Contracts Act, which the plaintiff's representatives are also aware of. Reference is made to two recent decisions of the 13th Civil Senate of the Düsseldorf Higher Regional Court in this regard. Since the alleged inadequacy of the adjustment notifications is the only thing on which the plaintiff wants to base her alleged claims for reimbursement, it is clear that she will under no circumstances be able to achieve the ultimately desired result, namely to enforce claims. The entire procedure therefore constitutes an abuse of law.142The defendant is of the opinion that the plaintiff has no right to the requested information, which in particular cannot be asserted by the plaintiff. In this respect, there is already a lack of standing. In addition, the request for information is an abuse of law and the defendant is entitled to a right of refusal under Art. 12 Paragraph 5 Sentence 2 Letter b of GDPR. According to the wording of the regulation, the information pursuant to Art. 15 GDPR is only to be provided to the data subject. This is a highly personal right. The right to information pursuant to Art. 15 GDPR is therefore not transferable and assignment is not possible. In addition, the further requirement under the GDPR is not met. If - as is the case here - information is not to be provided to the data subject but to a third party, the information is not governed by Art. 15 GDPR but by the provisions on the admissibility of data transfer pursuant to Art. 5 et seq. GDPR. The processing of this data requires an "express consent" from the data subject in accordance with Art. 9 (2a) GDPR. However, such consent from the alleged "cedents" is sought in vain in this case. Even against the background of Section 203 of the German Criminal Code, the requested information cannot be provided because there is no consent to this effect or a declaration of release. 143Even if active legitimacy is assumed, the right to information cannot be based on Art. 15 GDPR. In its judgment of September 27, 2023 (IV ZR 100 7422), the Federal Court of Justice left open the question of whether and to what extent the defendant insurer is entitled to a right of refusal under Art. 12 (5) sentence 2 lit. b GDPR. In any case, it is entitled to this right in cases such as the present one, since it is an obviously excessive request within the meaning of Art. 12 (5) sentence 2 GDPR. The plaintiff is not interested in checking the legality of the processing, but only in obtaining bundled information in the simplest and most convenient way possible, which she needs in order to prepare a quantified claim for repayment of premiums paid and to be able to check the existence of claims. It is undisputed that the documents were available to the alleged assignors and she assumes that this is still the case. The fact that the plaintiff's request for information is not covered by the protective purpose of Art. 15 GDPR is in any case a first indication of an abuse of rights. In the present case, there are other objective and subjective circumstances, such as the complete availability of the documents to the policyholders, the circumvention of the principle of presentation and the facilitation of the litigation, which overall do not indicate any interest in the assertion worthy of protection. This is therefore a manifestly excessive request. The question decided by the ECJ in its judgment of October 26, 2023 (C-307/22) as to whether the application should be regarded as "excessive" because the applicant is pursuing (exclusively or predominantly) interests other than data protection law is not relevant here. In this respect, reference is also made to the decision of the 13th Civil Senate of the Düsseldorf Higher Regional Court of February 28, 2024 (Annex BLD 10). 144In the meantime, the Munich Higher Regional Court has also ruled in parallel proceedings that the plaintiff's actions were unlawful and that the alleged transfer of claims was therefore ineffective (Annexes BLD 12 and 13). It should also be added that the requested information on the amount of the premium adjustment and the adjustment data in the tariffs cannot be based on Art. 15 GDPR because the amount and timing of any premium adjustments do not constitute personal data within the meaning of the GDPR. According to Article 4 No. 1, first sentence of the GDPR, personal data is all information relating to an identified or identifiable person. It is information about the person in question if the information is linked to a specific person due to its content, purpose or effects. However, the amount of a premium increase does not reflect the individualized insurance cover, but only provides information about the monthly difference by which the price for a policyholder's provision covered by the insurance contract or the tariff in question has changed in relation to an observation unit. 145For further details of the parties' submissions, reference is made to the mutual written submissions and annexes. 146II. 147The appeal is admissible but unfounded. 1481. Staged action 149The regional court rightly assumed that the plaintiff's claim for legal protection cannot be pursued by way of a staged action within the meaning of Section 254 of the Code of Civil Procedure. 150An inadmissible staged action exists if the plaintiff is not concerned with quantifying a claim that arises automatically from an accounting, but rather with examining whether a claim exists at all (cf. BGH, judgment of September 27, 2023 - IV ZR 177/22, juris para. 24 with further references), i.e. the plaintiff wants to find out through the staged action whether he is entitled to any claims against the defendant at all due to the premium adjustment. This is the case here because the plaintiff is not concerned with quantifying a claim by the assignors that is immediately apparent from the accounting, but rather with examining whether and when any premium adjustments were made in the assignors' tariffs in the years mentioned and whether a possible claim against the defendant could therefore exist. If the plaintiff knew exactly when and in which tariffs of the 57 assignors premium increases were made, it would specifically identify the individual premium adjustments it is complaining about by tariff and date and only request the additional information that it believes is still missing in order to further specify the application to establish the invalidity of the premium adjustments and to quantify the alleged payment claims. However, the plaintiff is requesting information about the active tariffs and has not limited the unquantified payment application to individual tariffs, even though many assignors have several tariffs. 151To the extent that the plaintiff claims that it is undisputed that the increases "in the periods mentioned" were formally unlawful, this is incorrect because the defendant has always denied this, even in the first instance. The plaintiff has also not made any statements on the matter. Formal invalidity cannot be inferred from the information letters it has submitted to date, of which it has not even been shown whether they were sent in the same way for all tariffs in which increases were made, and which, moreover, would only allow a comprehensive examination of formal legality in connection with the respective letters to the policyholders, which the plaintiff allegedly does not have in its possession, because only through these letters can the specific reference to the respective tariff increase be made. Rather, both the Senate and the 13th Civil Senate of the Düsseldorf Higher Regional Court have already determined in a large number of proceedings, insofar as they concerned part of the tariffs in question here, on the basis of submitted supplements and information letters that the increases in these tariffs were formally lawful at least as of October 1, 2017 and January 1, 2018, which would have remedied any formal ineffectiveness of increases made previously (see, for example, “T42” - I-6 U 132/23, I-13 U 168/21; “VC2” - I-6 U 103/23, I-13 U 266/21; “VC3”, I-6 U 152/23; “VCH2C” - I-6 U 132/22). Contrary to the plaintiff's assumption, however, the Senate is not aware of all information letters on all tariff increases in the periods mentioned. 152Due to the inadmissibility of the staged action, the corresponding declaratory claims that are "dependent" on the information (claims 2 and 5) and unquantified claims for benefits (claims 3 and 6) are inadmissible because there is no specific claim within the meaning of Section 253 Paragraph 2 No. 2 of the Code of Civil Procedure. 1532. Claims for information 154The claims for information (claims 1 and 4) can, however, be reinterpreted as a claim that is independent of the staged action. However, these claims, which the plaintiff is pursuing further, are, as the Regional Court correctly decided, unfounded. 155a)A policyholder may indeed be entitled to a claim for information from the insurer about past premium adjustments on the basis of good faith (Section 242 of the German Civil Code). However, this requires in particular that the policyholder no longer has the relevant documents, that he cannot reasonably obtain the necessary information himself and that he is justifiably uncertain about his rights (BGH, judgment of September 27, 2023 - IV ZR 177/22, juris para. 38 ff.). The policyholder must explain and prove the relevant circumstances. In the present case, it cannot be established that the policyholders are no longer in possession of the documents in question. In this respect, the regional court correctly denied a claim to information under Section 242 of the German Civil Code, since the plaintiff had merely argued - without substance and disputed by the defendant - that the policyholders no longer had the notifications and that the plaintiff was also unable to provide evidence. In its letters of demand and also in the lawsuit, the plaintiff merely made a blanket claim that the assignors "no longer had" the documents. However, there is no individualized explanation as to why the documents are no longer available. 156To the extent that the plaintiff claims for the first time in the appeal proceedings - still not individualized - that the assignors did not keep the supplements to the insurance policy for the defendant's premium adjustments, this - disputed - argument is irrelevant under Section 531 of the Code of Civil Procedure. There was no need to point out that Section 242 of the German Civil Code only gives rise to a claim in the event of a loss that was not the fault of the defendant, because it has been recognised in case law and literature for years that, in good faith, claims to information can (only) exist if the legal relationships between the parties mean that the entitled party is justifiably uncertain about the existing scope of his rights and the obligated party can easily provide the information required to eliminate the uncertainty without the granting of substantive claims to information being allowed to impermissibly change the presentation and evidence situation in the proceedings (see, for example, BAG, judgment of 27 May 2020 - 5 AZR 387/19, BAGE 170, 327-339, marginal no. 31 with further references). 157In any case, it can ultimately remain open whether the failure to retain insurance certificates is not the plaintiff's fault at all. The plaintiff restricts itself to a blanket claim that the assignors did not retain the supplements and gave her an affidavit that the supplements no longer exist, although this blanket claim is clearly false. Even a sample of the attachments from individual assignors sent by the plaintiff herself shows that the assignors provided the plaintiff with a number of supplements and/or information letters about specific premium increases, so that the plaintiff's claim that all assignors did not retain the supplements is not comprehensible, especially if only a few are allegedly missing. Rather, it is clear from some of the documents that there was no increase in the rates mentioned in the years for which information is requested, which shows that the plaintiff did not even bother to examine the attachments to see whether they show when contributions were increased or not and whether there is no addendum due to the lack of an increase in contributions in a year (see details below under c) bb)). Rather, the plaintiff should have stated for each individual assignor why they allegedly no longer have which addendums and whether and if so which ones they have lost and whether this is because they have not kept them or what other reason there is for this. Since the defendant denies that there are no addendums, new arguments on this would not be admissible under Section 531 of the Code of Civil Procedure. 158b)To the extent that the plaintiff believes that she may be entitled to a claim under Section 3 Paragraph 3 of the Insurance Contract Act (VVG) to the submission of the supplements, the argument regarding the supplements that are allegedly no longer available is inconclusive due to the circumstances mentioned above. She has also not explained which supplements should be submitted in relation to which assignor. Irrespective of this, this provision only provides for a right to a replacement issue of a current insurance certificate, including those supplements that reflect the currently valid contract content; however, supplements that are already out of date are not included (BGH, ibid., juris Rn. 42). 159c)There is also no right to information under Art. 15 GDPR, because this is a highly personal claim (aa) and the assertion of this claim by the plaintiff is also an abuse of law (bb). 160aa) According to Art. 15 (1) GDPR, the data subject has the right to obtain confirmation from the controller as to whether personal data concerning him or her are being processed and, if so, the right to information about these personal data and the information specified in the provision. According to Art. 15 (3) sentence 1 GDPR, the controller shall provide a copy of the personal data that are the subject of the processing. 161The assignment agreement submitted by the plaintiff did not assign the right to information as such, but only all claims for reimbursement and payment that arose in connection with amounts paid to the insurance company in excess; however, ancillary rights are also transferred according to Section 401 BGB if they are not personal. In addition, the plaintiff has been authorized to assert all information or data transfer claims necessary for enforcement and, upon assignment, becomes the sole owner of the designated rights and claims (see assignment agreement eGA LG 80). As a purely alternative measure, the assignor authorizes the company to enforce the designated claims in its own name. 162It is irrelevant whether these assignment agreements were signed by the individual assignors, which the defendant disputes, since the right to information was not effectively transferred to the plaintiff because it is a highly personal right and cannot be asserted by a commercial debt buyer such as the plaintiff. 163The Senate follows the opinion of the KG Berlin, according to which the right to information under Art. 15 GDPR is not assignable against this background (cf. KG Berlin, judgment of November 22, 2023 - 28 U 5/23, juris para. 3). The Federal Administrative Court has also ruled that the right to information under Art. 15 GDPR is a highly personal right and therefore neither passes to the insolvency administrator under Section 80 InSO nor is transferable under Section 399 BGB (BVerwG, judgment of September 16, 2020 - 6 C 10/19, juris paras. 23, 25). The Federal Administrative Court correctly justified this as follows (BVerwG, loc. cit., juris para. 25): 164(…) The right to information represents the elementary subjective right to data protection and is an expression of the protection of personal data guaranteed by the fundamental rights in Article 8(1) of the Charter. It serves to provide the data subject with the knowledge necessary to enforce his right to protection of the personal data concerning him and is, by its nature, an instrument for asserting the rights of the data subject. It cannot therefore be exercised by third parties without the nature of the service being changed. (…) 165This is also the case here, because the fulfilment of the right to information is solely intended to serve the realisation of the property rights assigned to the plaintiff. In this respect, the subject matter and aim of the claim is no longer the control over the data available about one's own person guaranteed by the fundamental rights, but the acquisition of economically usable knowledge. If the right to information were transferred to a third party, it would lose its ideal character as a right of transparency and as a foundation for enforcing other rights of those affected, as provided for by the Union legislature. 166To the extent that it is supported that the assignors' right to information can be asserted as a third-party right by third parties in their own name based on the authorization contained in the declaration of assignment, this would at least have to be reflected in the application (KG Berlin, judgment of November 22, 2023 - 28 U 5/23, juris para. 3). However, the plaintiff did not take this into account, since she requested information per se, but could at most request information from the assignors. 167bb) Ultimately, this may even be left aside because even if the plaintiff were in principle entitled to the information requested by her, this claim would be contrary to Art. 12 Paragraph 5 Sentence 2 Letter b of GDPR because the exercise of the right to information in the case in dispute is an abuse of law (see also OLG Düsseldorf, order of 28 February 2024 - I-13 U 210/22, Annex BLD 10). 168As the 13th Civil Senate of the Higher Regional Court correctly stated, in the case of manifestly unfounded or - in particular in the case of frequent repetition - excessive requests from a data subject, the controller may, under Art. 15 GDPR, either demand a reasonable fee taking into account the administrative costs of informing or communicating or implementing the requested measure (letter a), or refuse to act on the basis of the order (letter b). According to its wording, Article 12 (5) GDPR only lists frequent repetition as an example of an "excessive" request. However, the use of the word "in particular" makes it clear that the provision also intends to cover other abusive requests (OLG Hamm, decision of November 15, 2021 - 20 U 269/21). It follows from the prohibition of abuse of rights, which also applies in EU law (ECJ, judgments of 9 March 1999, - C-212/97, juris, para. 24; of 21 February 2006, C-255/02, juris, para. 68, and of 22 November 2017, C-251/16, juris, para. 27) that a Member State must refuse to apply provisions of EU law if they are not invoked in order to achieve the objectives of the provisions, but in order to benefit from an advantage provided for by EU law, even though the corresponding conditions are only formally met. This general principle is mandatory. The application of Union rules cannot extend so far as to protect operations carried out for the purpose of improperly obtaining advantages provided for by Union law (ECJ, judgment of 26 February 2019, C-115/16, C-118/16, C-119/16 and C-229/16 – juris, para. 96). 169The decision of the Court of Justice of the European Union of 26 October 2023 (C-307/22) does not lead to a different conclusion. In it, the Court ruled that the controller is obliged to provide the data subject with a first copy of his or her personal data which are the subject of processing free of charge, even if the request in question is justified by purposes other than those mentioned in the first sentence of recital 63 of the Regulation. However, the defendant had long since provided the plaintiff's assignors with a "first copy" of the data they requested by sending them the supplements. The plaintiff simply claims - in a way that is (as explained above) irrelevant to the proceedings and at least partially clearly wrong - that these are no longer available to all assignors. 170(1) The plaintiff's claim here, even if it were covered by the scope of protection of Art. 15(1) GDPR, is in any case contrary to Art. 12(5) sentence 2(b) GDPR, because the exercise of the right to information in the case in dispute is an abuse of law. This is because the requirements of the right to information under data protection law would at best be formally met. The plaintiff wants to obtain information from the defendant that is already available to the assignors in full in an understandable form, or at least was available to them. Insofar as in its letters to the defendant it made a blanket claim on behalf of the respective assignors that the assignors had sworn that they did not have any evidence of when and to what extent the contributions of the respective private health insurance had been increased in the last ten years (see, for example, the letter of demand in the matter of "B." dated November 11, 2021, Annex 1, eGA LG 120), which was repeated in the lawyers' letters asserting claims for reimbursement (see, for example, "B.", undated letter Annex 1, eGA LG 122), even a random examination shows that this cannot be correct. It can be seen from the completely disorganised documents submitted for the individual assignors that a large number of assignors have submitted to the plaintiff supplements to their insurance policies from previous years, some from 2010 onwards (e.g. "B.", Annex 1, eGA 87 ff., "C.", Annex 1, eGA LG 126 ff.; "J.", Annex 1, 2, eGA LG 206 ff.; "K.", Annex 2, 3, eGA LG 270 ff.; "O.", Annex 4, eGA 498 ff.). Notwithstanding this, the plaintiff initially claimed the information (at the earliest since January 1, 2008) from the date of conclusion of the contract specified in the table for the respective assignor, although the documents submitted already documented some of the type and amount of premium adjustments within the period claimed and in any event no information was required in this respect (see, for example, “C.”, among others, submitted supplements for 2013, eGA LG 128, and 2015, eGA LG130).171In the amended application, the plaintiff limited the information requested to certain years, although it can be assumed that she wants to claim that there were no supplements for these years. Here too, however, a random check shows that it would have been easy to see from the documents available - had they been organized - that there were no increases in premiums in some of the years for which information is requested. This is the case, for example, with the assignor C., for whom the supplement for 2012 (eGA LG 128) for 2013 shows which amounts were to be paid in 2013, and the supplement for 2014 for 2015, which also lists the tariffs in 2014 (eGA LG 130 f.), shows that there were no increases in tariffs in 2014, for which the information is requested. Since the assignor C., according to the previous claim (eGA LG 3), has taken out the main tariff VHV2A alongside other tariffs, and the plaintiff also claims information for the year 2014 for the assignor GG., who according to this claim only has the tariff VHV2A, it also follows that no tariff change took place for the assignor GG. in 2014. This is because the increase in a tariff is the result of a price calculation by the insurance company for this tariff, taking into account specified parameters, and is carried out in the same way for all policyholders who are grouped together in an observation unit as a result of certain abstract parameters. With regard to the assignor J., from whom the plaintiff is requesting information for 2018, the addendum from 2017 for 2018 is available (eGA LG 260, 243), from which it is clear that there was no increase in tariffs in 2018, although the present addendum from 2019 also proves (eGA 223, 235) that there were no further changes in 2018. 172There is also no apparent exceptional case in which renewed information gathering is necessary to ensure that the personal data is fully understandable and to check the legality of the data processing as a whole. There is no reasonable interest in providing such (renewed) information. The plaintiff, who has not been able to plausibly explain her alleged ignorance of the information asserted in the action, is left with the only identifiable reason for asserting the claims for information in the chosen form in order to relieve herself of any effort to provide, organize and examine the documents and thus to rid herself of her obligation to provide them out of convenience and to circumvent procedural principles, as the examples mentioned above demonstrate. 173(2) The request for information is also an abuse of law because the plaintiff's declared aim is to use the requested information to prepare claims for payments (only) for the year 2018. However, such claims are - as the defendant rightly stated in the first instance - in any case time-barred and therefore no longer enforceable, on which the plaintiff (also) made no further statements during the discussion held on October 24, 2024. 174Since the staged action brought by the plaintiff is inadmissible for the reasons set out under point 1, it could not suspend the limitation period with regard to the claims for performance because there was no specific application within the meaning of Section 253 Paragraph 2 No. 2 of the Code of Civil Procedure, and the subject matter of the dispute was therefore not sufficiently individualised (cf. BGH, judgment of 27 September 2023 - IV ZR 177/22, juris marginal no. 34 with further references; judgment of 21 February 2013 - IX ZR 92/12, juris marginal no. 30; OLG Cologne, judgment of 17 January 2023 - I-9 U 115/22, juris marginal no. 12). Since the plaintiff has not yet submitted any quantified benefit claims and no other grounds for suspension are apparent, any unjust enrichment claims for reimbursement of premium payments that were made in 2018 as a result of (allegedly) ineffective premium increases are at least time-barred at the end of 2021 (§§ 195, 199 para. 1 BGB). The same would now even apply to any claims relating to payments for the years 2019 (limitation period begins at the end of 2022) and 2020 (limitation period begins at the end of 2023). The defendant has already raised the limitation objection in the first instance; moreover, the Senate is aware from a large number of parallel proceedings that the defendant always raises the limitation objection. However, if the aim pursued with the request for information can no longer be achieved - as is the case here - the request for information constitutes an abuse of law. 1753. 176The decision on costs follows from Section 97 Paragraph 1 of the Code of Civil Procedure, the decisions on provisional enforceability from Sections 708 No. 10 and 711 of the Code of Civil Procedure. 177There is no justified reason to allow the appeal (Section 543 of the Code of Civil Procedure). The fact that the Higher Regional Court of Hamm allowed the appeal in the legal dispute I-20 U 337/22 because the highest court had not yet decided whether a commercial debt buyer could assert the claim under Art. 15 of the GDPR does not change this. Because this legal question can ultimately be left aside here - as explained - because the claim is also not valid due to an abuse of law. The application for suspension was therefore rejected. 178Contrary to the plaintiff's opinion, a suspension of the proceedings in accordance with Section 148 of the Code of Civil Procedure combined with a referral to the Court of Justice of the European Union is also not necessary, since the Court - as also stated - has already ruled several times that the prohibition of abuse of rights must also be observed in Union law. 179Amount in dispute for the appeal proceedings: up to €125,000.00. 180In the case of a staged action, the value in dispute is determined by the claim that has the highest value. The Senate generally sets a value in dispute of €500.00 per plaintiff and asserted year for the right to information, which leads to the value mentioned above. Since it is not apparent that the (inadmissible) declaratory and performance claims (for the year 2018) that are still asserted exceed the stated value in dispute, the stated value in dispute remains. 181...Presiding Judge at the Higher Regional Court ...Judge at the Higher Regional Court ...Judge at the Higher Regional Court
