BGH - IV ZR 177/22
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| BGH - IV ZR 177/22 | |
|---|---|
 | |
| Court: | BGH (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 4(1) GDPR Article 15(1) GDPR Article 15(3) GDPR § 242 BGB |
| Decided: | 27.09.2023 |
| Published: | |
| Parties: | |
| National Case Number/Name: | IV ZR 177/22 |
| European Case Law Identifier: | ECLI:DE:BGH:2023:270923UIVZR177.22.0 |
| Appeal from: | OLG Frankfurt 3 U 266/21 |
| Appeal to: | |
| Original Language(s): | German German |
| Original Source: | BGH (in German) rechtsprechung-im-internet.de (in German) |
| Initial Contributor: | n/a |
The Federal Court of Justice ruled that GDPR access rights do not automatically apply to obtain insurance premium history. Instead, access is granted based on good faith and fair dealing, requiring the policyholder to credibly explain the loss of documents and lack of fault.
English Summary
Facts
The data subject is contesting the validity of premium increases in his private health insurance. He has filed a lawsuit demanding that the controller (defendant insurer) provide information about all premium increases from 2013 to 2016. This includes submitting documents that detail the amount of each increase, the specific tariffs involved, the letters sent to him with explanations, the amendments to the insurance policy, and the accompanying leaflets. This request is part of a step-by-step legal action in which he also seeks a declaration that the specified increases are invalid and the payment of an amount to be determined after the information is provided. The LG Gießen dismissed the lawsuit, but the OLG Frankfurt ruled in favor of the plaintiff, ordering the defendant to provide the requested information. The defendant has appealed this decision.
Holding
The appeal is partially successful, resulting in the overturning of the OLG Frankfurt's decision concerning the information claim. According to the principle of good faith and fair dealing, an insurance policyholder may be entitled to information about past premium adjustments. To establish this right, it must first be shown that the policyholder could still have refund claims from previous premium increases if those increases were invalid, forming the basis for the request. Additionally, the policyholder must no longer have the relevant documents and be unable to reasonably obtain the necessary information independently. If these conditions are met, a determination must be made, taking into account the reasons for the loss of documents, whether the policyholder is justifiably uncertain about their rights. The policyholder must present and prove these relevant circumstances. However, a claim to a copy of the entire explanation letters and attachments cannot be derived from Article 15(1), (3) GDPR, as neither the letters themselves nor the attached documents in their entirety are considered personal data of the policyholder. Since the OLG Frankfurt has not yet examined all the conditions for a claim to information based on good faith and fair dealing, the Federal Court of Justice has referred the case back to the OLG Frankfurt for further proceedings to address these issues.
Comment
The decision puts a nail in the tiresome mass of cases flooding German courts regarding data access to tariff changes in private health insurances, clarifying that GDPR access rights do not apply and emphasizing the need for good faith and fair dealing --👨💻 (talk) 09:54, 20 July 2024 (UTC)
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English Machine Translation of the Decision
The decision below is a machine translation of the German original. Please refer to the German original for more details.
**Tenor**
On the appeal of the defendant and under dismissal of the further appeal, the judgment of the 3rd Civil Senate of the Higher Regional Court of Frankfurt am Main from 7 April 2022 is overturned in terms of costs and to the extent that:
1. it has been determined that the premium increases on 1 January 2019 in the tariffs for Karl Heinz H K by €0.42 and S by €0.98 as well as in the tariff S for Andrea H by €0.81 are invalid after 30 April 2021,
that the plaintiff was not obliged to pay the increase amounts from the premium increases on 1 January 2019 in the tariffs for Karl Heinz H K by €0.42 and S by €0.98 after 30 April 2021, and after 31 December 2019 not to pay the increase amount from the premium increase on 1 January 2019 in the tariff S for Andrea H by €0.81,
that the defendant is obliged to return to the plaintiff the benefits derived from the premium portion paid by the plaintiff on the premium increases from 1 January 2019 in the tariffs for Karl Heinz H K by €0.42 and S by €0.98 from 1 May 2021 and from 1 January 2020 on the premium increase from 1 January 2019 in the tariff S for Andrea H by €0.81 until 6 January 2021;
2. the defendant has been ordered to provide the plaintiff with information about all premium adjustments made by the defendant in the contract concluded between the parties in the years 2013, 2014, 2015 and 2016 to the insurance number ... and to provide suitable documents containing at least the following details:
- the amount of premium increases for 2013, 2014, 2015 and 2016 with reference to the respective tariffs in the plaintiff’s insurance relationship,
- the information sent to the plaintiff for this purpose in the form of cover letters and amendments to the insurance policy for the years 2013, 2014, 2015 and 2016,
- the reasons communicated to the plaintiff for the premium increase, as well as enclosures for the years 2013, 2014, 2015 and 2016;
and to pay the plaintiff an amount of €220.27 plus interest at five percentage points above the base rate from 7 January 2021 for the extrajudicial legal prosecution.
To the extent of the annulment mentioned under 1, the plaintiff's appeal is dismissed.
In the remaining extent of the annulment, the matter is referred back to the Court of Appeal for a new hearing and decision, including the costs of the appeal procedure.
The dispute value for the appeal procedure is set at up to €1,000.
By law
**Facts**
1. The parties are in dispute over the validity of premium increases and information claims in the plaintiff’s private health insurance.
2. The plaintiff maintains, among other things, the tariffs S and K for himself and the tariffs A and S for his wife in the health insurance with the defendant.
3. By letter of 22 November 2018, including attachments, the defendant informed the plaintiff about a premium increase effective 1 January 2019 concerning the tariffs S (increase by €0.98 monthly) and K (increase by €0.42 monthly) for the plaintiff as well as the tariff S (increase by €0.81 monthly) for his wife. The notification letter contained the following excerpt:
"You have entrusted us with your personal health protection. That’s a good thing because we guarantee you the contractually agreed benefits for life.
To ensure that this promise can be kept permanently, we review annually whether the promised benefits can be financed with the calculated premiums. For this purpose, we compare the benefits provided for all insured persons and those expected in the future with the previously calculated values for each tariff... We have found significant deviations, so the premiums of the affected tariffs must be adjusted accordingly to the changed needs. ...
Your total monthly premium changes from the current €379.78 by €1.13 to €380.91. ... Please also note the information on the following pages and the information in the insurance policy."
4. The tariff names affected by the premium increase were printed in bold in the attached insurance policy. The insurance policy did not contain a comparison of the old and new premiums for the individual tariffs.
5. By letter of 21 November 2019, including attachments, the defendant informed the plaintiff about a premium increase effective 1 January 2020 concerning the tariffs S (increase by €1.02 monthly) and A (increase by €30.03 monthly) for his wife.
6. The plaintiff considers the premium increases to be unlawful. By lawyer’s letter of 3 July 2020, he requested the defendant to refund overpaid premiums and reimburse the benefits derived therefrom as well as to provide information about further premium increases from the year 2013. The defendant only provided the plaintiff with the documents for the years from 2017 onwards.
7. With his complaint served on 6 January 2021, the plaintiff sought the refund of the premium shares paid on the premium increases plus interest and the declaration that the premium increase of 1 January 2019 was invalid and that he was not obliged to pay the respective increase amount. Furthermore, he demanded information about all premium adjustments made by the defendant in the insurance contract in the years 2013 to 2016; to this extent, he applied for the defendant to be ordered to provide documents containing at least the amount of the premium increases with reference to the respective tariffs, the cover letters and amendments to the insurance policy sent to the plaintiff, and the reasons communicated to the plaintiff as well as enclosures. In addition, he requested the declaration that the yet to be specified increases were invalid, that he was not obliged to pay the respective increase amount, and that the total monthly amount due be reduced to an amount to be quantified after the information had been provided. Moreover, he requested the declaration that the defendant was obliged to return the benefits derived from his payments on the premium increases from 1 January 2019 and 1 January 2020 as well as on the further premium increases to be specified after the provision of information, and to pay interest on these benefits from the date of lis pendens. Furthermore, he claimed compensation for extrajudicial attorney fees.
8. The District Court dismissed the complaint. On the plaintiff's appeal, the Higher Regional Court modified the judgment to the effect that the defendant was ordered to pay €48.92 plus interest. It declared the premium increase of 1 January 2019 invalid and the non-existence of an obligation to pay the respective increase amount and ordered the defendant to provide the requested information in accordance with the complaint. Furthermore, it declared that the defendant was obliged to return the benefits derived from the premium share paid by the plaintiff on the premium increase of 1 January 2019 until 6 January 2021. The further complaint was dismissed.
9. With the appeal, the defendant continues to seek complete dismissal of the complaint.
**Reasons for Decision**
10. The appeal is partly successful.
11. I. According to the opinion of the Court of Appeal, the premium increases of 1 January 2020 in the tariffs of the plaintiff's wife A and S are formally valid. However, the premium adjustments of 1 January 2019 are initially formally invalid - until the healing ex nunc at the beginning of the second month after service of the statement of defense of March 2021 in the tariffs K and S for the plaintiff or until the premium increase in the tariff S for the plaintiff's wife became effective on 1 January 2020 - because the documents did not sufficiently clearly show that the increased benefit expenses triggered the premium adjustment, especially with respect to the contested tariff. The mere bold print without an explanation of the significance of this highlighting is not sufficient. The plaintiff has a claim for the refund of the increased amounts paid totaling €48.92. Additionally, he can demand the return of the benefits derived from the overpaid premiums, limited to the time before the obligation to pay interest on the main claim began.
12. Finally, the plaintiff is entitled to a claim for information regarding the premium increases from 2013 to 2016. The step-by-step claim for information and performance is inadmissible because the plaintiff is not seeking the quantification of a claim that results directly from an accounting. The undetermined request for a declaratory judgment and the unquantified payment request are inadmissible due to the lack of a specific claim in accordance with § 253 para. 2 no. 2 ZPO. Nevertheless, the request for information is admissible. The inadmissible step-by-step claim is to be reinterpreted into an admissible joinder of actions in accordance with § 260 ZPO. The plaintiff cannot be denied a legitimate interest in the requested information, at least sufficient for the granting of legal protection. The request for information is also justified, as the plaintiff has a claim to information at least under § 242 BGB. It is irrelevant whether the plaintiff had already received notification letters regarding the premium adjustments from 2013 to 2016, as the insurer is also obliged to provide information if the customer merely credibly states that the documents are no longer available to him. The absence of the documents is excusable even if the defendant had sent the change notifications to the plaintiff. There is still a need for information, as the enforceability of potential refund claims due to these premium adjustments is not barred by the statute of limitations for the premiums paid from the beginning of 2017.
13. II. The appeal against this is admissible, particularly permissible in accordance with § 543 para. 1 no. 1 ZPO due to the total approval by the Court of Appeal. A limitation of the approval
of the appeal cannot be inferred from the judgment of the Court of Appeal. Insofar as the Court of Appeal stated in the reasons for its decision that there were conflicting higher court decisions on the question of whether a claim for information about previous premium increases arose from § 242 BGB, this merely provides a reason for approving the appeal (see the Senate ruling of 29 September 2021 - IV ZR 328/20, NJW 2022, 192 para. 7).
14. III. The appeal is only partially successful insofar as it is directed against the decision of the Court of Appeal that the reasons given by the defendant for the premium adjustments of 1 January 2019 meet the requirements of a notification required under § 203 para. 5 VVG (see 1 below). The appeal is successful regarding the request for information and leads to the annulment of the Court of Appeal’s judgment and the referral of the matter back to the Court of Appeal (see 2 below); this also applies to the claim for reimbursement of legal costs (see 3 below).
15. 1. The Court of Appeal correctly decided that the reasons given by the defendant for the premium adjustments of 1 January 2019 did not meet the requirements of a notification required under § 203 para. 5 VVG (see Senate ruling of 16 December 2020 - IV ZR 294/19, BGHZ 228, 56 para. 26). Whether the notification of a premium adjustment meets the legal requirements of § 203 para. 5 VVG must be decided by the trial court on a case-by-case basis (Senate ruling of 16 December 2020, loc. cit., para. 38). No errors relevant to the revision are apparent here.
16. a) According to the legally unobjectionable assessment of the Court of Appeal, a policyholder could not clearly infer from the notification letter, including attachments, that the increased benefit expenses triggered the premium increases specifically related to the contested tariffs K for the plaintiff and S for the plaintiff and his wife. The policyholder must be able to infer from the notifications that the result of the current review has led to a change in the relevant calculation basis for his specific tariff, triggering the premium adjustment (see Senate rulings of 22 June 2022 - IV ZR 193/20, juris para. 23 [not published in r+s 2022, 462]; of 17 November 2021 - IV ZR 113/20, BGHZ 232, 31 para. 28). Contrary to the appeal’s view, the Court of Appeal rightly concluded that neither the reference in the notification letter to the "affected tariffs" nor the mere bold print of the tariff designation in the attached insurance policy, without a comparison of the old and new premiums related to the individual tariffs, clearly indicate to the policyholder in which tariffs the increased benefit expenses triggered the premium adjustment. The appeal’s reference to the principles in the Senate's case law, that the term "average policyholder" refers to those policyholders who typically take out the specific insurance - here private health insurance - and that the policyholder is expected to carefully review the insurance conditions, is irrelevant because this case does not involve the interpretation of general insurance conditions.
17. b) The Court of Appeal also did not violate the defendant's right to be heard by not indicating that it intended to deviate from the legal opinion of the District Court on this point. The procedural complaint raised by the appeal in this context has been examined by the Senate and found to be unfounded. Further reasoning is waived in accordance with § 564 sentence 1 ZPO.
18. c) The Court of Appeal also correctly assumed that the information on the reasons for the premium adjustment provided in the statement of defense served in March 2021 only led to a healing ex nunc (see Senate ruling of 16 December 2020 - IV ZR 294/19, BGHZ 228, 56 para. 41 f.). Therefore, it rightly assumed that the initially formally invalid premium increases only became effective from 1 May 2021. However, the Court of Appeal wrongly did not take this temporal limitation of the invalidity into account when declaring the invalidity of the increases and - regarding the plaintiff's tariffs S and K - the non-existence of an obligation to pay the increase amount. This leads to the annulment of the declaration of invalidity and the dismissal of the plaintiff's appeal.
19. d) The Court of Appeal also correctly assumed that from the next effective premium adjustment in the tariff S for the plaintiff's wife on 1 January 2020, the defendant had a claim for the premium at the new total amount set by this last adjustment (see Senate ruling of 16 December 2020 - IV ZR 294/19, BGHZ 228, 56 para. 55). Therefore, the increase amount from the premium adjustment in this tariff was only not payable until 31 December 2019. This temporal limitation was wrongly not considered by the Court of Appeal when declaring the non-existence of an obligation to pay the increase amount, leading to the annulment of the declaration of invalidity and the dismissal of the plaintiff's appeal.
20. e) The refund amount of €48.92 calculated by the Court of Appeal on this basis and its interest (§ 291 BGB) are not challenged by the appeal.
21. f) The appeal rightly complains that the declaration of the obligation to return the benefits derived (§ 818 para. 1 BGB) for the plaintiff's tariffs K and S should be limited to the benefits derived from the increase amounts paid until 30 April 2021, and for the tariff S for the plaintiff's wife to the benefits derived from the increase amounts paid until 31 December 2019.
22. 2. The appeal is successful regarding the request for information and leads to the annulment of the Court of Appeal's judgment and the referral of the matter back to the Court of Appeal.
23. a) The Court of Appeal rightly assumed, contrary to the appeal's view, that the claim is admissible also for the request for information. Although the plaintiff's request for legal protection as a step-by-step claim under § 254 ZPO is inadmissible, the Court of Appeal correctly reinterpreted it into an independent joinder of actions and considered the request for information admissible on this basis.
24. aa) According to § 254 ZPO, the specific indication of the performances claimed can be reserved if the claim for an accounting or the submission of an inventory of assets or the provision of an affidavit is combined with the claim for the delivery of what the defendant owes from the underlying legal relationship. The information sought as part of the step-by-step claim is merely a tool to achieve the (still) missing specificity of the performance claim. The unique connection of an unspecified performance claim and preparatory information claim, characteristic of the step-by-step claim, is not available if the information is not intended to achieve the determinability of the performance claim but to provide the plaintiff with other information not related to the determinability as such (see BGH, judgments of 29 March 2011 - VI ZR 117/10, BGHZ 189, 79 para. 8; of 18 April 2002 - VII ZR 260/01, NJW 2002, 2952 [juris para. 16]; of 2 March 2000 - III ZR 65/99, NJW 2000, 1645 [juris para. 18]). According to these principles, a step-by-step claim is not possible in this case, as the Court of Appeal rightly recognized, because the plaintiff does not seek the quantification of a claim that directly results from an accounting but a check on whether a claim exists at all (see OLG Celle VersR 2023, 429 [juris para. 120-122]; OLG Karlsruhe VersR 2023, 99 [juris para. 35 f.]; OLG Koblenz r+s 2023, 62 para. 8; OLG Naumburg VersR 2023, 436 [juris para. 44]; OLG Dresden r+s 2023, 66 para. 5-7; OLG Hamm r+s 2022, 93 para. 5; OLG Munich, decision of 24 November 2021 - 14 U 6205/21, juris para. 69-71 [not published in r+s 2022, 94]; contrary opinion regarding the specific case decided OLG Schleswig VersR 2022, 1489 [juris para. 68-70]).
25. bb) The reinterpretation into an independent joinder of actions raises no objections. Consequently, as the Court of Appeal rightly assumed, the undetermined request for a declaratory judgment and the unquantified payment request are inadmissible due to the violation of § 253 para. 2 no. 2 ZPO, whereas the request for information is admissible.
26. (1) The reinterpretation presupposes that the plaintiff cannot be denied a legitimate interest in the requested information, at least sufficient for the granting of legal protection (see BGH, judgments of 29 March 2011 - VI ZR 117/10, BGHZ 189, 79 para. 13; of 2 March 2000 - III ZR 65/99, NJW 2000, 1645 [juris para. 22]). This is the case here. According to his submission, the plaintiff needs the information to check whether past premium increases were valid and whether he has refund claims based on this or whether he may reduce his current premium payments.
27. (2) Contrary to the appeal's view
, it is not relevant at this point whether all main claims, the enforcement of which is to be made possible by the requested information, are unenforceable due to the statute of limitations. This rather concerns the question of whether the plaintiff actually has a claim for information, i.e., the merits (see Senate rulings of 4 October 1989 - IVa ZR 198/88, BGHZ 108, 393, 399 [juris para. 16]; of 3 October 1984 - IVa ZR 56/83, NJW 1985, 384 [juris para. 11]).
28. (3) Contrary to the appeal's opinion, the reinterpretation is not precluded by the fact that, according to the plaintiff's legal protection goal, the combination of the information and performance requests should be so closely linked that the entire legal pursuit should "stand and fall" with this staging (see BGH, judgments of 18 April 2002 - VII ZR 260/01, NJW 2002, 2952 [juris para. 21]; of 2 March 2000 - III ZR 65/99, NJW 2000, 1645 [juris para. 23]). Such a close connection cannot be established here. On the contrary, according to the plaintiff's legal protection goal, it is to be assumed that he would pursue the request for information independently of the admissibility of the declaratory and performance requests connected with it by way of the step-by-step claim. The plaintiff's submission, referred to by the appeal, that the request for information "serves merely as an aid... solely to specify the performance claim... and the declaratory claim..." does not contradict this. In its context, this submission serves solely to justify the - not given here - admissibility of the step-by-step claim. After the interest-oriented interpretation of the legal protection goal, a meaningful legal protection goal remains in terms of the request for information even if the declaratory and performance requests are inadmissible, as this continues to serve the preparation of payment claims or a reduction of the currently payable premium. Further indications that the plaintiff would have filed the information claim also in isolation are not required contrary to the appeal's view (see also OLG Celle VersR 2023, 429 [juris para. 123]; OLG Dresden r+s 2023, 66 para. 13; OLG Hamm r+s 2022, 93 para. 6; OLG Koblenz r+s 2023, 62 para. 10; OLG Karlsruhe VersR 2023, 99 [juris para. 37]; OLG Naumburg VersR 2023, 436 [juris para. 45]).
29. b) The assumption of the Court of Appeal that the plaintiff has a claim for information regarding possible premium increases from 2013 to 2016 based on good faith under § 242 BGB is not free of legal errors.
30. aa) According to § 242 BGB, the debtor in the context of a legal relationship exceptionally has a duty to provide information if the entitled party is excusably uncertain about the existence and scope of his right and the obligor can easily provide the information required to eliminate the uncertainty. The granting of the information claim must be made taking into account the circumstances of the individual case and observing the principle of proportionality (see Senate decision of 1 June 2016 - IV ZR 507/15, VersR 2016, 1236 [juris para. 7]; Senate judgments of 2 December 2015 - IV ZR 28/15, VersR 2016, 173 [juris para. 15]; of 26 June 2013 - IV ZR 39/10, VersR 2013, 1381 [juris para. 24 f.]).
31. Whether the policyholder in private health insurance can demand information about past premium increases from the insurer according to these principles is judged differently in higher court case law - partly based on special circumstances in individual cases (affirmative OLG Naumburg VersR 2023, 436 [juris para. 47 ff.]; generally also OLG Karlsruhe VersR 2023, 99 [juris para. 43 ff.]; OLG Stuttgart, judgment of 18 November 2021 - 7 U 244/21, juris para. 80 ff. [not published in MDR 2022, 370]; negative OLG Dresden r+s 2023, 66 para. 17-20; OLG Hamm r+s 2022, 93 para. 13-15; OLG Koblenz, decision of 19 October 2022 - 10 U 603/22, juris para. 20 [not published in r+s 2023, 62]; OLG Cologne, judgment of 13 May 2022 - 20 U 198/21, juris para. 65 ff.; OLG Munich r+s 2022, 94 para. 44 f.; see also OLG Schleswig VersR 2022, 1489 [juris para. 50 ff.]). Such a claim is generally conceivable.
32. bb) Within contractual relationships - as here - the information claim can also function to provide the entitled party with information about the existence of the claim in principle (see MünchKomm-BGB/Krüger, 9th ed., § 260 para. 16; Haeffs, Der Auskunftsanspruch im Zivilrecht 2010, p. 131). There must then be sufficient indications of the existence of a main claim that is to be asserted with the help of the information (see Senate judgments of 26 June 2013 - IV ZR 39/10, VersR 2013, 1381 para. 24; of 26 February 1986 - IVa ZR 87/84, BGHZ 97, 188 [juris para. 16]). This is the case here.
33. Contrary to the view of the appeal, the claim at issue is a statutory claim, so that according to the general rules developed in case law, a performance claim must be established in principle (see BGH, judgments of 17 May 1994 - X ZR 82/92, BGHZ 126, 109 [juris para. 25]; of 14 July 1987 - IX ZR 57/86, NJW-RR 1987, 1296 under II 1 d and 2; of 6 June 1979 - VIII ZR 255/78, BGHZ 74, 379 [juris para. 10] with further references; Grüneberg/Grüneberg, BGB 82nd ed., § 260 para. 6; MünchKomm-BGB/Krüger, 9th ed., § 260 para. 15 f.), this perspective does not convince. This view overlooks that there is an insurance contract relationship between the parties, which is particularly governed by good faith (see Senate judgment of 11 September 2019 - IV ZR 20/18, VersR 2019, 1412 para. 23 with further references), and that the claim based on performance recovery is the counterpart to the policyholder's contractual premium payment obligation.
34. cc) The plaintiff may have refund claims due to invalid premium increases from 2013 to 2016 as a basis for a claim for information. Although, contrary to the Court of Appeal's view, the current action would not have suspended the statute of limitations for these claims under § 204 para. 1 no. 1 BGB, because the conditions of a step-by-step claim under § 254 ZPO were not met as explained, and the declaratory and performance requests remaining after reinterpretation did not sufficiently individualize the subject of the dispute in violation of § 253 para. 2 no. 2 ZPO (see BGH, judgment of 21 February 2013 - IX ZR 92/12, WM 2013, 574 para. 30 with further references). This does not imply that no enforceable refund claims can still be considered, because in the tariffs S and K held for the plaintiff, the defendant had a claim for the premium at the new total amount set by the adjustment of 22 November 2018 only from 1 May 2021. Furthermore, the claim for information also relates to tariffs in the plaintiff's insurance contract that are not introduced into the legal dispute in the remaining parts of the payment and declaratory requests. Since no subsequent effective premium increases in these tariffs have been determined, it cannot be ruled out that premium increases from 2013 to 2016 still affect the current situation and trigger newly arising refund claims.
35. dd) In the present case, the Court of Appeal could not assume that the plaintiff was excusably uncertain about the existence and scope of his right - here possible refund claims due to invalid premium increases in the above period - based on the above principles under § 242 BGB. The Court of Appeal's assumption that the plaintiff was excusably uncertain about the existence and scope of his right is not free of legal errors.
36. (1) The Court of Appeal should not have based its decision on the assumption that, under § 242 BGB, an insurer is obliged to provide information about the content of already sent notifications even if the policyholder merely credibly states that the relevant documents are no longer available to him. This obligation does not only apply to cases where the documents have been lost without the policyholder's fault. If the policyholder's request does not appear particularly
frivolous or abusive, it is not decisively important how and why the policyholder came to ask the insurer for help in supplementing his documents.
37. The cited decision relates - like the other judgments of the Federal Court of Justice of 30 January 2001 (XI ZR 183/00, NJW 2001, 1486 [juris para. 12, 22]), of 28 February 1989 (XI ZR 91/88, BGHZ 107, 104 [juris para. 11, 13]) and of 4 July 1985 (III ZR 144/84, NJW 1985, 2699 [juris para. 13 f.]) - to the relationship between bank customers and credit institutions and the question of to what extent the customer, who in principle has a claim for information and an account according to §§ 675, 666 BGB, can request the documents again. Another judgment of the Federal Court of Justice of 28 April 1992 (XI ZR 193/91, NJW-RR 1992, 1072 [juris para. 12 f.]) deals with the claim for inspection of the (credit) contract copy under § 810 BGB. Contrary to the Court of Appeal's view and some other higher courts (OLG Naumburg VersR 2023, 436 [juris para. 52]; OLG Stuttgart, judgment of 18 November 2021 - 7 U 244/21, juris para. 83 [not published in MDR 2022, 370]), the principles established there cannot be transferred to the request of a policyholder to the insurer to resend notification letters regarding past premium increases in private health insurance. Because a duty to account arising from mandate or management of the affairs of another does not exist between the insurer and the policyholder. Nor does the particularly good faith-governed insurance relationship according to the Senate's case law (see Senate judgment of 11 September 2019 - IV ZR 20/18, VersR 2019, 1412 para. 23 with further references) imply that the insurer would have to make documents in its possession available again to the policyholder almost without conditions so that the latter can check claims against it (contra OLG Naumburg, loc. cit.).
38. (2) Instead, the Court of Appeal should have first made findings on whether the plaintiff no longer has the documents specified in the information request. Only then can it be determined that he is uncertain about the existence and scope of his right and cannot obtain the necessary information himself in a reasonable manner (see MünchKomm-BGB/Krüger, 9th ed., § 260 para. 18). Good faith does not require sparing the person seeking information efforts at the expense of the person obliged to provide information (see OLG Cologne, judgment of 13 May 2022 - 20 U 198/21, juris para. 68).
39. The Court of Appeal did not sufficiently address this issue. If its statements should be understood as assuming non-possession as uncontested, the defendant rightly complains about a violation of its right to be heard (Art. 103 para. 1 GG). Because the Court of Appeal did not take into account that the defendant disputed the plaintiff's claim that he no longer had the documents in the statement of defense and in its brief of 3 January 2022 with a lack of knowledge. The Court of Appeal will have to make findings on this.
40. (3) Furthermore, assuming non-possession, there are no findings on the reasons for the loss. The policyholder is not excusably uncertain about his rights if he no longer has the documents about the premium adjustments and does not provide further information on the reasons for the loss (see OLG Dresden r+s 2023, 66 para. 19 f.; OLG Hamm r+s 2022, 93 para. 15; OLG Koblenz, decision of 19 October 2022 - 10 U 603/22, juris para. 20 [not published in r+s 2023, 62]; OLG Munich r+s 2022, 94 para. 46; Boetius, r+s 2023, 193, 201). It may currently be left open whether - as the appeal claims - the preservation of premium adjustment letters from previous years by the policyholder is customary (see OLG Munich, loc. cit., para. 48; contra OLG Karlsruhe r+s 2023, 68 para. 36; BeckOGK/Kähler, BGB § 242 para. 716.1 [as of 1 July 2023]). Only the presentation of the reasons for the loss by the policyholder enables the assessment of whether the policyholder is excusably uncertain about his rights considering the circumstances of the individual case and observing the principle of proportionality (see Senate judgments of 1 June 2016 - IV ZR 507/15, VersR 2016, 1236 [juris para. 7]; of 2 December 2015 - IV ZR 28/15, VersR 2016, 173 [juris para. 15]).
41. c) The decision on the information request is not correct for other reasons (§ 561 ZPO).
42. aa) A claim for information does not arise from § 3 para. 3 VVG. According to this provision, the policyholder can demand the issuance of a new insurance policy if an insurance policy has been lost or destroyed. The cover letters, reasons, and enclosures requested by the information request are not covered (see Brandenburg Higher Regional Court, decision of 4 May 2022 - 11 U 239/21, juris para. 8; OLG Nuremberg VersR 2022, 622 [juris para. 41]). However, even if the plaintiff requested the provision of the amendments to the insurance policy from 2013 to 2016, this cannot be based on § 3 para. 3 VVG. The insurance policy has an informational, legitimizing, and evidentiary function (see BT-Drs. 16/3945, p. 57; MünchKomm-VVG/Armbrüster, 3rd ed., § 3 para. 2; Bruck/Möller/Knops, VVG 10th ed., § 3 para. 3). To inform the policyholder about the rights and obligations under the contract and to prove them, § 3 para. 3 VVG gives him a claim to the issuance of a replacement insurance policy. This only covers the insurance policy, including amendments that reflect the current contractual content, not outdated amendments (see OLG Dresden r+s 2023, 66 para. 21; contra OLG Schleswig VersR 2022, 1489 [juris para. 31]; Boetius, r+s 2023, 193, 201).
43. bb) § 3 para. 4 sentence 1 VVG only applies to the policyholder's own declarations, not those of the insurer, and therefore does not constitute a basis for the claim (see OLG Koblenz r+s 2023, 62 para. 13; MünchKomm-VVG/Armbrüster, 3rd ed., § 3 para. 51).
44. cc) The claim cannot be based on § 810 BGB either, as this only allows for the inspection of a document in foreign possession (see OLG Hamm r+s 2022, 93 para. 17; OLG Koblenz, decision of 19 October 2022 - 10 U 603/22, juris para. 18 [not published in r+s 2023, 62]; OLG Munich, decision of 24 November 2011 - 14 U 6205/21, juris para. 62 f. [not published in r+s 2022, 94]; OLG Schleswig VersR 2022, 1489 [juris para. 39 f.]; Boetius, r+s 2023, 193, 201).
45. dd) Finally, the claim cannot be based on Art. 15 para. 1, para. 3 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (hereinafter GDPR).
46. (1) A claim for a copy of the entire explanatory letters with attachments - as the plaintiff's request aims at - does not follow from Art. 15 para. 1 GDPR. Neither the letters themselves nor the attached documents (enclosures, amendments to the insurance policy) are each in their entirety personal data of the policyholder.
47. (a) According to Art. 4 no. 1 GDPR, personal data is any information relating to an identified or identifiable natural person ("data subject"). According to the case law of the Court of Justice of the European Union, the term is to be understood broadly. It is not limited to sensitive or private information but potentially encompasses all kinds of information of both objective and subjective nature, provided that it concerns the person in question. This requirement is met if the information, by its content, purpose, or effect, is linked to a specific person (see CJEU, judgment of 4 May 2023 - C-487/21, EU:C:2023:369 = VersR 2023, 1176 para.
23 f.; see also BGH, judgment of 15 June 2021 - VI ZR 576/19, r+s 2021, 525 para. 22 with further references).
48. (b) According to these principles, the VI Civil Senate of the Federal Court of Justice's case law has established that letters from the data subject to the controller are classified as personal data in their entirety, as the personal information lies in the fact that the data subject has expressed himself in the letter. Conversely, letters from the controller to the data subject are only considered personal data insofar as they contain information about the data subject (see BGH, judgment of 15 June 2021 - VI ZR 576/19, r+s 2021, 525 para. 25). Accordingly, only the personal data of an insurance policy is not categorically excluded from the scope of Art. 15 para. 1 GDPR (see BGH, judgment of 15 June 2021, loc. cit., para. 24). This aligns with the case law of the Court of Justice of the European Union, which, concerning the predecessor regulation of Art. 4 no. 1 GDPR (Art. 2 lit. a of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals concerning the processing of personal data and on the free movement of such data), has ruled that the data about the person requesting a residence permit and the data that may be included in this legal analysis contained in the draft document are personal data, but not the analysis itself (see CJEU, judgment of 17 July 2014 - C-141/12 and C-372/12, ZD 2014, 515 para. 48).
49. (c) Therefore, the entire explanatory letters with attachments do not constitute personal data of the policyholder. Rather, the individual parts (letter, enclosure, amendment to the insurance policy) each contain individual personal data of both the policyholder and his wife. The plaintiff has not limited his asserted claim and request to this extent.
50. (d) The term personal data is sufficiently clarified by the case law of the Court of Justice of the European Union. Therefore, there is no need for a preliminary ruling request under Art. 267 para. 3 TFEU or a suspension of the proceedings in accordance with § 148 ZPO (see BGH, decisions of 21 February 2023 - VI ZR 330/21, juris para. 10 [not published in ZD 2023, 352]; of 10 May 2022 - VIII ZR 149/21, VRS 142, 281 [juris para. 14]).
51. (2) Also, the plaintiff cannot derive a claim from Art. 15 para. 1, para. 3 GDPR.
52. (a) According to Art. 15 para. 3 GDPR, the controller provides a copy of the personal data undergoing processing. According to one view, Art. 15 para. 3 sentence 1 GDPR constitutes an independent basis for a claim, according to which the data subject is entitled to receive from the controller a copy of all processed personal data in their "raw form" as held by the controller (see for the right to information regarding premium adjustments in private health insurance OLG Cologne, judgment of 13 May 2022 - 20 U 198/21, juris para. 79 with further references; OLG Celle r+s 2023, 160 para. 81 with further references; see also OLG Munich ZD 2022, 39 para. 19 f. with further references; Engeler/Quiel, NJW 2019, 2201 ff.; with numerous further references regarding the related preliminary ruling requests to the CJEU: BGH, decision of 29 March 2022 - VI ZR 1352/20, VersR 2022, 954 para. 40 as well as OLG Koblenz r+s 2023, 62 para. 43; open in BVerwG NVwZ 2023, 346 para. 23-28). According to the opposing view, Art. 15 para. 3 GDPR provides a claim for a copy of the data to be provided under Art. 15 para. 1 GDPR, but generally not for copies of specific documents. The right to a copy can be fulfilled by providing a structured summary of the processed data. Art. 15 para. 3 sentence 1 GDPR merely regulates a special form of the information to be provided under Art. 15 para. 1 GDPR (see OLG Stuttgart ZD 2022, 45 para. 43, 45 with further references; again with numerous further references BGH, decision of 29 March 2022 - VI ZR 1352/20, VersR 2022, 954 para. 38 f. and OLG Koblenz r+s 2023, 62 para. 45).
53. (b) This question, which is the subject of a preliminary ruling request to the Court of Justice of the European Union under Art. 267 TFEU by the VI Civil Senate of the Federal Court of Justice (decision of 29 March 2022 - VI ZR 1352/20, VersR 2022, 954), has now been clarified by the Court of Justice of the European Union's judgment of 4 May 2023 VersR 2023, 1176 ("acte éclairé"). Therefore, suspending the present proceedings under § 148 ZPO (see BGH, decisions of 21 February 2023 - VI ZR 330/21, juris para. 10 [not published in ZD 2023, 352]; of 10 May 2022 - VIII ZR 149/21, VRS 142, 281 [juris para. 14]) or a separate preliminary ruling request is no longer appropriate.
54. The Court of Justice of the European Union has now ruled that Art. 15 para. 1 GDPR defines the subject and scope of the right to information, while Art. 15 para. 3 GDPR sets out the practical arrangements for fulfilling the obligation (CJEU, judgment of 4 May 2023 - C-487/21, EU:C:2023:369 = VersR 2023, 1176 para. 30 f.). Therefore, Art. 15 GDPR cannot be interpreted as providing a different right in its para. 3 sentence 1 than in its para. 1. The term "copy" does not refer to a document as such but to the personal data it contains. Therefore, the copy must contain all the personal data that are the subject of the processing (CJEU, loc. cit., para. 32). Reproducing extracts from documents or entire documents or even extracts from databases may be necessary when contextualizing the processed data is required to ensure their understanding (CJEU, loc. cit., para. 41).
55. (c) Accordingly, the plaintiff cannot derive a claim for the provision of a copy of the explanatory letters with attachments from Art. 15 para. 1, para. 3 GDPR. The exception opened by the Court of Justice of the European Union in the aforementioned decision does not apply here. The plaintiff has neither argued nor is it otherwise apparent that contextualizing the processed data is necessary to ensure their understanding, so that the provision of a copy of the entire explanatory letter with attachments would be exceptionally necessary.
56. (3) It can therefore be left open to what extent the plaintiff - for example, under Art. 12 para. 5 sentence 2 lit. b GDPR and recital 63 sentence 1 to the GDPR - would be excluded from his claim because he is pursuing purposes unrelated to data protection (see BGH, decision of 29 March 2022 - VI ZR 1352/20, VersR 2022, 954 para. 15 with further references; regarding premium adjustments in private health insurance see OLG Koblenz r+s 2023, 62 para. 23 ff.; OLG Hamm r+s 2022, 93 para. 9-11; OLG Schleswig VersR 2022, 1489 [juris para. 43 f.]; OLG Celle r+s 2023, 160 para. 77; OLG Cologne, judgment of 13 May 2022 - 20 U 198/21, juris para. 86).
57. 3. In the result, the Court of Appeal rightly assumed a claim for damages for the extrajudicial attorney fees. Although such a claim cannot be asserted here as default damages, since the legal activity already took place before the delay assumed by the Court of Appeal, the unjustified assertion of the amounts not owed from the invalid premium adjustment in the premium accounting constitutes a breach of duty by the defendant, justifying a claim for damages under § 280 BGB (see Senate ruling of 21 September 2022 - IV ZR 2/21, VersR 2022, 1414 para. 35 with further references). The amount of the claim for reimbursement of attorney fees depends on the justified claims of the plaintiff in the main matter, so the legal dispute is not yet ready for a decision in this regard either.
58. IV. According to § 563 para. 1 sentence 1 ZPO, the legal dispute is to be referred back to the Court of Appeal for a new hearing and decision regarding the claim for information and attorney fees so that the required findings can be made as to whether the plaintiff is excusably uncertain about the existence
