BGH - VI ZR 183/22
| BGH - VI ZR 183/22 | |
|---|---|
 | |
| Court: | BGH (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 4(2) GDPR Article 5 GDPR Article 6 GDPR Article 82(1) GDPR |
| Decided: | 28.01.2025 |
| Published: | 28.01.2025 |
| Parties: | |
| National Case Number/Name: | VI ZR 183/22 |
| European Case Law Identifier: | ECLI:DE:BGH:2025:280125UVIZR183.22.0 |
| Appeal from: | LG Koblenz (Germany) 12 O 59/21 |
| Appeal to: | Appealed - Overturned OLG Koblenz (Germany) 5 U 2141/21 |
| Original Language(s): | German |
| Original Source: | Juris.Bundesgerichtshof (in German) |
| Initial Contributor: | Sofia Papadopoulou |
The Federal Court of Justice confirmed the awarding of €500 in non-material damages for reputational harm under Article 82 GDPR to a data subject. However, it held that a court can neither consider the gravity of the GDPR violation nor the question of fault when setting the amount of the damage.
English Summary
Facts
On 25 September 2018, the data subject signed a mobile phone contract with the controller (telecom provider), which allowed an early renewal with a new 24-month term at a lower rate. On 27 December 2018, the data subject renewed the contract under the early renewal option. The data subject later revoked the renewal, claiming withdrawal rights. The controller kept on billing the data subject for contract-related charges, which remained unpaid. On 16 September 2019, the controller reported the alleged unpaid debt to a credit rating agency (SCHUFA), although the debt was disputed and not legally confirmed, meaning that the disclosure should not have been made. Subsequently, on 27 September 2019, the controller requested SCHUFA to delete the entry of the disputed debt. However, the entry remained for nearly two years, negatively impacting the data subject's creditworthiness. As a result, the data subject was even denied a bank loan.
The data subject sued the controller, claiming €6,000 in non-material damages under Article 82 GDPR for reputational harm. The Regional Court (Landgericht Koblenz - LG Koblenz) denied the GDPR-based damages, ruling in favor of the controller.
On first appeal the Higher Regional Court (Oberlandesgericht Koblenz - OLG Koblenz) overturned the first ruling and awarded €500 in non-material damages for reputational harm referring to a punitive function of Article 82 GDPR. That court found that the controller violated Articles 5 and 6 GDPR by arranging the SCHUFA entry and that the data subject had suffered non-material damages as a consequence.
In a further appeal by the controller disputed the amount of the non-material damages.
Holding
The BGH held, that GDPR damages serve only a compensatory, not a punitive function.
Thus it ruled that neither the gravity of the GDPR violation nor the question of fault can be taken into account when setting the amount of the damage.
Therefore it found a legal error in the OLG Koblenz's decision, however the BGH did not critique the amount set by taking into account such inadmissible criteria.
Thus the BGH upheld the OLG's decision awarding €500 in non-material damages.
Comment
In this decision, we can see how the Federal Court of Justice explicitly confirms non-material damages (reputational harm) under GDPR and sets a good precedent for future cases, especially in the areas of credit scoring and financial data processing. This can be perceived as a good step towards enforcement of the GDPR provisions and data subjects' rights.
This judgement further clarifies what amounts are possible for non-material damages after its lead decision in BGH - VI ZR 10/24.
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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.
ECLI:DE:BGH:2025:280125UVIZR183.22.0 FEDERAL COURT OF JUSTICE IN THE NAME OF THE PEOPLE JUDGMENT VI ZR 183/22 Announced on: January 28, 2025 Holmes judicial clerk as clerk of the office in the legal dispute Reference work: yes BGHZ: no BGHR: yes JNeu: yes GDPR Art. 82 para. 1 On the question of non-material damage within the meaning of Art. 82 para. 1 GDPR. BGH, judgment of January 28, 2025 - VI ZR 183/22 - OLG Koblenz LG Koblenz - 2 - The VI. In the written procedure pursuant to Section 128 Paragraph 2 of the Code of Civil Procedure, taking into account written submissions received by December 31, 2024, the Civil Senate of the Federal Court of Justice by the presiding judge Seiters, the judge von Pentz, the judges Dr. Klein and Dr. Allgayer, and the judge Dr. Linder ruled: The defendant's appeal against the judgment of the 5th Civil Senate of the Koblenz Higher Regional Court of May 18, 2022 is dismissed at its expense. As a matter of law, the facts of the case: The parties are still arguing in the appeal proceedings about the amount of non-material damages for violation of the General Data Protection Regulation (GDPR). The defendant concluded a mobile phone contract with the plaintiff, a telecommunications company, on September 25, 2018. The contract gave the defendant the option of switching to a cheaper tariff in the event of an early contract extension of 24 months. The defendant exercised this option on December 27, 2018. The plaintiff's order confirmation dated December 27, 2018 states: "Your previous tariff ... with all inclusive services will cease to apply on December 27, 2008." The defendant revoked the "contract dated December 27, 2018" in a letter dated January 6, 2019. The plaintiff invoiced the defendant several times for amounts that the defendant did not pay. She claimed that she had revoked the contract and was not obliged to provide the service. On September 16, 2019, the plaintiff arranged for an entry to be made with SCHUFA to the detriment of the defendant; on September 27, 2019, she ordered the deletion of the entry. The entry was completely deleted in July 2021 at the earliest. With her lawsuit, the plaintiff requested that the defendant be ordered to pay €542 plus interest and additional costs. The defendant opposed the lawsuit and, by way of a counterclaim, requested that the plaintiff be ordered to pay non-material damages in accordance with Art. 82 GDPR in the amount of a partial amount of €6,000 plus interest and to inform SCHUFA that the conditions for reporting personal data and default on payment by the defendant had not been met and that all of the defendant's data provided by the plaintiff had to be deleted. The regional court granted the lawsuit in full and dismissed the counterclaim. On appeal by the defendant, the Higher Regional Court amended the regional court's judgment. It dismissed the action and, rejecting the further appeal, ordered the plaintiff to pay the defendant €500 less an amount of €54.74 recognized by the defendant on the claim as non-material damages plus interest. With the appeal allowed by the appeal court, the defendant is pursuing its claim for payment asserted by way of the counterclaim to the remaining extent. 3 4 - 4 - Reasons for the decision: I. The appeal court (OLG Koblenz, MDR 2022, 962) stated in support of its decision, as far as relevant for the appeal proceedings: The defendant is entitled to payment of non-material damages under Art. 82 (1) GDPR in the amount of €500. The plaintiff had violated her obligations under Articles 5 and 6 in conjunction with Article 4 No. 2 of the GDPR by reporting the defendant's personal data to SCHUFA, although the plaintiff's claims were disputed and had not yet been registered, and a report should therefore not have been made. The defendant had adequately explained the non-material damage she had suffered. She had stated that the data that had been passed on without authorization had been likely to significantly reduce her creditworthiness and make it more difficult for her to participate in economic life. For example, her bank had stopped her from granting a loan, and there was also a fear that she would be denied the right to purchase on account in future online transactions. The defendant had been stigmatized as an insolvent or at least unwilling customer by the illegal passing on of her data to SCHUFA and its publication. This damage to reputation must be compensated in accordance with Article 82 (1) GDPR. An amount of €500 is appropriate and sufficient to satisfy the compensatory and satisfaction function of the non-material damages on the one hand, and to take sufficient account of its general preventive function on the other. In order to determine the amount of the claim for non-material damages under Article 82 GDPR, in addition to the substantive seriousness of the violation, its duration and the context in which the violation occurred, 5 6 7 - 5 - the compensatory, satisfaction and preventive function of the claim for damages as well as impending consequences must also be taken into account. In the end, however, the specific circumstances of the individual case are essential. II. The defendant's admissible appeal is unsuccessful. The considerations on which the appeal court assessed the non-material damages under Article 82 (1) GDPR at €500 are legally incorrect. Contrary to the view of the appeal, the appeal court should not have given greater weight to a deterrent effect when assessing the damages. Rather, it should not have taken this into account at all, but should have taken into account only a compensatory function of the damages. However, it is not apparent that this legal error would have had an effect to the detriment of the defendant. 1. In the absence of a reference in Article 82 (1) GDPR to the domestic law of the Member States within the meaning of this provision, the term "non-material damage" is to be defined autonomously under Union law (established case law, ECJ, judgment of June 20, 2024 - C-590/22, DB 2024, 1676 para. 31 - PS GbR; Senate judgment of November 18, 2024 - VI ZR 10/24, DB 2024, 3091 para. 28; each with further references). According to Recital 146, sentence 3 of the GDPR, the concept of damage should be interpreted broadly, in a manner that fully corresponds to the objectives of this Regulation (Senate judgment of 18 November 2024 - VI ZR 10/24, DB 2024, 3091 para. 28). 8 9 - 6 - According to the case law of the Court of Justice of the European Union, the claim for damages laid down in Article 82 (1) of the GDPR has an exclusively compensatory function. Contrary to the opinion of the appellate court and the appeal, it does not fulfil a deterrent or even a punitive function (ECJ, judgment of June 20, 2024 - C-182/22 and C-189/22, NJW 2024, 2599 para. 23 - Scalable Capital; Senate judgment of November 18, 2024 - VI ZR 10/24, DB 2024, 3091 para. 18; each with further references). In view of the compensatory function of the claim for damages provided for in Article 82 GDPR, as expressed in Recital 146, sentence 6 GDPR, monetary compensation based on Article 82 GDPR is to be regarded as "full and effective" if it makes it possible to fully compensate for the damage actually suffered as a result of the violation of this regulation (cf. ECJ, judgment of 20 June 2024 - C-182/22 and C-189/22, NJW 2024, 2599 para. 24 - Scalable Capital; Senate judgment of 18 November 2024 - VI ZR 10/24, DB 2024, 3091 para. 96 with further references). Since the claim under Article 82 (1) GDPR has neither a deterrent nor a punitive function, neither the severity of the violation of the General Data Protection Regulation that caused the damage in question may be taken into account, nor the fact of whether the action was culpable (see Senate judgment of November 18, 2024 - VI ZR 10/24, DB 2024, 3091 para. 96 with further references). 2. As non-material damage, the appeal court took into account, on the one hand, the passing on of the defendant's personal data to SCHUFA, which in the context of any SCHUFA queries led to an entry at SCHUFA that was visible to an unknown number of third parties to the detriment of the defendant (see on the loss of control over personal data as non-material damage ECJ, judgment of 4 October 2024 - C-200/23, juris 10 11 12 - 7 - paras. 145, 156 in conjunction with 137 - Agentsia po vpisvaniyata; Senate judgment of 18 November 2024 - VI ZR 10/24, DB 2024, 3091 para. 30 with further references). On the other hand, it took into account that the entry in the SCHUFA affected the defendant's creditworthiness and that, according to the unchallenged findings of the appeal court, this had already had a detrimental effect on the defendant, as her main bank had temporarily stopped granting loans. Any material damage resulting from this is not, however, the subject of the action. 3. The appeal has neither claimed nor is it apparent that the amount of €500 awarded by the appeal court was insufficient to compensate for the defendant's non-material damage. When assessing the amount of damages, the appeal court took into account not only the group of those who had access to the plaintiff's personal data in the SCHUFA, but also the duration of the entry and its consequences for the defendant. To the extent that the appeal court wrongly justified the amount of the damages awarded with a compensatory and general preventive function of the damages, it is not apparent that this legal error had a detrimental effect on the defendant. Because these considerations have at most led to the appeal court awarding the defendant higher damages than it would have considered appropriate 13 14 - 8 - if it had only taken into account the compensatory function of the non-material damages according to Art. 82 Para. 1 GDPR. Seiters von Pentz Klein Allgayer Linder Lower courts: LG Koblenz, decision of October 29, 2021 - 12 O 59/21 - OLG Koblenz, decision of May 18, 2022 - 5 U 2141/21 -
