OLG Hamburg - 13 U 11/24
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| OLG Hamburg - 13 U 11/24 | |
|---|---|
 | |
| Court: | OLG Hamburg (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 5 GDPR Article 6 GDPR Article 82 GDPR |
| Decided: | 12.02.2025 |
| Published: | 17.02.2025 |
| Parties: | |
| National Case Number/Name: | 13 U 11/24 |
| European Case Law Identifier: | |
| Appeal from: | LG Hamburg (Germany) 302 O 95/23 |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | AdvoAdvice (in German) |
| Initial Contributor: | tjk |
A court awarded €2,500 in non-material damages for the transmission of wrong data on unpaid debt of a data subject by a bank to a credit rating agency.
English Summary
Facts
The case concerns the transmission of a data subject's personal data by Barclays bank (the controller) to a credit rating agency (Schufa). The controller had wrongly notified Schufa about a financial claim of €4,405 existing against the data subject which in fact did not exist. After that, a different bank cancelled the data subject’s private overdraft facility forcing it to refinance €18,000 at short notice.
The court of first instance had granted material damages for the additional interest the data subject had to pay for the refinancing credit, however the main subject of the appeal was non-material damages.
Holding
The court found, that the controller had violated its obligations under Articles 5 and 6 GDPR by notifying Schufa about a claim that does not actually exist against the data subject.
It also found, that in line with BGH, VI ZR 10/24 the notification constituted a loss of control which put the data subject into a bad light in itself constituting a non-material damage.
Moreover, the court held, that the transmission inflicted an organisational burden by forcing the data subject to quickly refinance a substantial amount of money after the cancellation of the overdraft facility based on the negative entry and to pursue the clearing of such entry.
The court found the amount of €2,500 appropriate to compensate those damages pursuant to Article 82 GDPR, taking account in particular the sensitive nature of wrong debt notifications. Those, the court held, could seriously damage the economic capacity of the data subject and forced the data subject to disclose its financial situation to new potential creditors.
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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.
Certified copy Hanseatic Higher Regional Court Ref.: 13 U 11/24 302 O 95/23 LG Hamburg Announced on February 12, 2025 Registry clerk Judgment IN THE NAME OF THE PEOPLE In the matter -Plaintiff and appellant - Legal representatives; Lawyers AdvoAdvice Partnerschaft von Rechtsanwälten mbB, against Barclays Bank Ireland PLC Hamburg Branch, represented by the permanent representative Tobias Grieß, Gasstraße 4 c, 22761 Hamburg -defendant and respondent - the Hanseatic - 13th Civil Senate - by the judge at the Higher Regional Court " Higher Regional Court r, the judge at the Higher Regional Court nd the judge at the Higher Regional Court on the basis of the oral hearing on January 29, 2025 for Law: Upon the appeal of the plaintiff, the judgment of the Hamburg Regional Court, Civil Chamber 2, dated January 15, 2024, case number 302 O 95/23, is partially amended and reformulated as follows, with the appeal otherwise being dismissed: The defendant is convicted, the plaintiff € 2,579.40 plus interest of 5% points above the base interest rate since February 4, 2023 and a further € 221.94 plus interest of 5 % points above the base interest rate since April 28, 2023. 13U11/24 - Page 2 - The rest of the action is dismissed. The plaintiff shall bear 71.5% of the costs of the legal dispute in the first instance and the defendant 28.5%. The plaintiff shall bear 65.5% of the costs of the appeal proceedings and the defendant 34.5%. The judgment is provisionally enforceable without security. Decision The value in dispute for the appeal proceedings is set at € 7,470.00. Reasons I.The facts of the case and the applications made in the first instance are disregarded in accordance with Section 540, Paragraph 313a in conjunction with Section 544, Paragraph 2, No. 1 of the Code of Civil Procedure 88 2. The plaintiff's appeal, which was admissible in particular in terms of form and in part, was lodged on time and was justified in the matter, is only successful. for compensation for non-material damages Art. 82 1.The plaintiff has a claim against the defendant in accordance with Paragraph 1, Paragraph 2 sentence of the GDPR in the amount of € 2,500.00. 7 its obligations under Art. The defendant, as a "responsible party" within the meaning of Article 4 No. 4 GDPR, violated Article 5, existing Article 6 in conjunction with Article 4 Paragraph 2 GDPR by reporting a claim against the plaintiff in the amount of € 4,405.00 to Schufa, which was not actually owed. This also caused the plaintiff to suffer immaterial damage that is eligible for compensation. The District Court correctly justified that the plaintiff's immaterial damage lies in the loss of control over his personal data and that the plaintiff was exposed by the transmission of the - objectively incorrect - data to Schufa. In addition, according to the District Court's error-free findings, immaterial damage was also caused by the termination of the overdraft facility at HypoVereinsbank and the associated organizational burden with regard to the short-term procurement financial resources of considerable amount. In order to determine the amount of compensation owed, the ECJ (judgment of 4 May 2023, C-300/21, 54) has determined that the GDPR does not contain any provision that is devoted to the determination of the amount of compensation to which a data subject is entitled, pursuant to Art. 82 GDPR if he or she has suffered damage as a result of a breach of the regulation, and that the determination of the criteria for determining the amount of compensation owed in the absence of relevant provisions of Union law is the task of the law of the individual Member State. The procedural provision of Section 287 of the Code of Civil Procedure is to be applied in particular, although this must be done taking into account the restrictions resulting from Union law, cf. BGH, judgment of 18 November 2024, VIZR 10/24, para. 95-97: - - aa) The modalities for determining damages must not be less favourable in a situation such as the one in dispute that falls under Union law than those that govern similar situations that are subject to domestic law (principle of equivalence). Nor must they make the exercise of the rights conferred by Union law practically impossible or excessively difficult (principle of effectiveness (cf. ECJ, judgments of 4 October 2024 -C-507/23, juris para. 31- Patörötäjutiesibu aizsardzibas centrs; of 20 June 2024 - C-182/22 and C-189/22, NJW 2024, 2599 para. 32 - Scalable Capital; of 4 May 2023 - C-300/21, NJW 2023, 1930 para. 53- Austrian Post). bb) In view of the balancing function of the provisions of Art. 82 GDPR, as expressed in Recital 146, Sentence 6, GDPR, monetary compensation based on Art. 82 GDPR is to be regarded as "full and effective" if it makes it possible to compensate in full for the damage actually suffered as a result of the infringement of this Regulation; the claim under Art. 82 (1) GDPR, on the other hand, is not intended to have a deterrent or punitive function (cf. ECJ, judgment of 20 June 2024 - C-590/22, DB 2024, 1676 para. 42 - PS GbR; also cf. ECJ, judgment of 4 October 2024 - para. 43 f. - tiesibu C-507/23, juris Paterötäju aizsardzibas of 20 June 2024 -C-182/22 and NJW 2599 para. 23 centrs; C-189/22, 2024, Scalable of 11. 2024 - NJW 1561 para. 59 - of Capital; April C-741/21, 2024, juris; 25 January 2024 - CR 160 para. 47 - may C-687/21, 2024, MediaMarktSaturn). Consequently, neither the seriousness of the violation of the General Data Protection Regulation, the damage in question, nor the fact whether a controller has committed several violations against the same person (ECJ, judgment of April 11, 2024 C-741/21, NJW 2024, 1561, paras. 60 and 64 et seq. juris) and whether he has acted intentionally (ECJ, judgment of June 20, 2024 C-182/22 and C-189/22, NJW 2024, 2599, paras. 29 et seq. Scalable Capital).13U 11/24 - Page 4 - As a result, the amount of compensation should not fall short of full compensation for the damage, but it must not be set at a level either. which would go beyond full compensation for the damage (cf. uGH, judgments of April 11, 2024 -C-741/21, NJW 2024, 1561 para. 60 -juris; of January 25, 2024 - C-687/21, CR 2024, 160 para. 48 -MediaMarktSaturn). If the damage is minor, only a small amount of compensation is to be awarded (cf. UGH, judgments of 4 October 2024 - C-507/23, juris para. 35 - Patörötäjutiesibuaizsardzibas centrs; of 20 June 2024 - C-182/22 and C-189/22, NJW 2024, 2599 para. 45 et seq. - Scalable Capital). This also applies taking into account the fact that the non-material damage caused by a breach of the protection of personal data is by its nature no less serious than bodily harm (cf. ECJ, judgments of 4 October 2024 - C-200/23, juris para. 151 - Agentsia po vpisvaniyata; dated June 20, 2024 - C-182/22 and C-189/22, NJW 2024, 2599 para. 39- Scalable Capital). Under these principles, the Senate considers compensation in the present case to be adequate, but also sufficient to compensate the plaintiff for the damage incurred. The data here are appropriate. Their disclosure is not only The sensitivity of the reported disclosure is decisive here but has here been capable of significantly impairing participation in economic activity, since - as the Regional Court found to be free of errors, the HypoVereinsbank had terminated the overdraft facility granted to the plaintiff and his wife and used in full by the couple due to the negative Schufa entry, with the result that the plaintiff and his wife had to endeavour to raise the not inconsiderable amount of € 18,000.00 to settle the HypoVereinsbank claim within the one-month period set by HypoVereinsbank. In this context, it is not only the time involved in these efforts that must be taken into account, but also the fact that the plaintiff and his wife inevitably had to disclose their financial situation to other people (namely their potential lenders). In this case, this affected not only the plaintiff's parents-in-law, but also the employees of Sparkasse 1, whom the plaintiff, as the district court correctly established, had initially turned to in order to open a new account and to obtain a loan. As a result of this inquiry, as the district court also correctly established, the negative Schufa entry also became known to the Sparkasse, which made the plaintiff appear to be an unreliable debtor there too. Furthermore, the efforts - which also involve time - to re-issue the plaintiff's overdraft facility and to remove the negative Schufa entry by HypoVereinsbank - in this respect, the defendant even had to appeal for an interim order for the purpose of issuing a court order - must also be taken into account. The order finally also includes the psychological effects of the unjustified report on the plaintiff. Even if the Schufa entry only existed for two months and the overdraft facility from HypoVereinsbank was only unavailable to the plaintiff and his wife for one and a half months, it seems to the Senate to be readily understandable that the plaintiff felt significantly burdened by the situation brought about by the defendant and also had fears regarding the continued existence of the couple's real estate financing, as described by the plaintiff at his hearing by the Regional Court and by the plaintiff's wife during her first instance witness examination. Overall, the Senate considers compensation of € 2,500.00 to be appropriate, but also sufficient. 2. With regard to the material damage claimed, the appeal remains unsuccessful. In the end, the regional court rightly awarded the plaintiff damages only in the amount of the difference between the interest that would have accrued for using the overdraft facility from HypoVereinsbank and the interest to be paid under the private loan for the period from November 19, 2022 to April 7, 2023. The objections raised by the plaintiff in this regard in the appeal are not valid. However, the plaintiff rightly claims that the conditions for terminating the private loan according to Section 488 Paragraph 3 Sentence 2 of the German Civil Code were not met, since according to the content of the loan agreement according to Appendix K 5, a time limit was set for the repayment of the loan (repayment after 18 months). However, not only on the basis of the statements made by the plaintiff's wife during her questioning by the regional court, but also on the basis of the plaintiff's own statements to the Senate, it can be assumed that the plaintiff's parents-in-law would have been willing to accept early repayment of the loan regardless of the contractual provisions. The plaintiff would have been obliged to make this early repayment as part of his obligation to mitigate damages after the overdraft facility was re-granted by HypoVereinsbank due to its lower interest rate 13U11/24 - Page 6 -. The fact that, as the plaintiff further explained at his hearing before the Senate, he and his wife were not in a position to repay the loan before its maturity due to their financial situation does not contradict this, as this was no longer a consequence of the defendant's violation of the GDPR; rather, with the re-granting of the overdraft facility by HypoVereinsbankHypo, the situation was restored that existed before the loan was terminated due to the incorrect Schufa report. In view of the plaintiff's own statements at the Senate hearing that he and his wife were unable to repay the in-laws' loan early due to their financial situation even after the overdraft facility was reinstated, the plaintiff cannot successfully claim that an earlier repayment of the overdraft facility would have been possible in a timely manner due to his and his wife's high income. 3. With regard to the claim for reimbursement of out-of-court legal costs, reference is first made to the relevant statements made by the regional court in the contested decision. The 0.75 fee plus taxes and expenses for the justified claim totaling €2,579.40 amounts to €221.94. The decision on costs is based on Section 92 Paragraph 1 of the Code of Civil Procedure, the decision on provisional enforceability on Sections 55 708 No. 10, 711, 713 of the Code of Civil Procedure. The requirements for admission of the appeal are not met. Judge Judge Judge at the Higher Regional Court at the Higher Regional Court at the Higher Regional Court
