BGH - VI ZR 22/24

BGH - VI ZR 22/24
Court:	BGH (Germany)
Jurisdiction:	Germany
Relevant Law:	§ 3 ZPO
Decided:	10.12.2024
Published:
Parties:
National Case Number/Name:	VI ZR 22/24
European Case Law Identifier:	ECLI:DE:BGH:2024:101224BVIZR22.24.0
Appeal from:	OLG Stuttgart (Germany) 4 U 51/23
Appeal to:
Original Language(s):	German
Original Source:	bundesgerichtshof.de (in German)
Initial Contributor:	n/a

The BGH confirmed a €3,000 case value for a non-material damages, injunctive relief, and information. The Court dismissed a legal representative’s counter-presentation to raise that amount to €6,500.

English Summary

Facts

A data subject brought a lawsuit against a social media platform alleging infringements in connection with a scraping incident. In particular, the data subject sought:

• Non-material damages of at least €1,000 under Article 82 GDPR.
• Injunctive relief, claiming that the platform failed to employ appropriate technical and organisational measures to prevent further unlawful disclosures, and that it relied on invalid or insufficient consent regarding the processing of the data subject’s telephone number.
• Information about the personal data processed by the platform (likely under Article 15 GDPR).

Both the lower court and the appellate court dismissed the claims relevant for the appeal. While the data subject withdrew their appeal on the merits, their legal representative lodged a separate counter-presentation (Gegenvorstellung) challenging only the litigation value set by the court. The legal representative argued that the litigation value should be raised from €3,000 to €6,500, in order to increase recoverable fees.

Holding

The Federal Court of Justice dismissed the legal representative’s counter-presentation and confirmed the total litigation value at €3,000, broken down as follows:

• €1,000 for the non-material damages claim,
• €1,500 for both injunctive relief requests combined, and
• €500 for the claim seeking information.

The Court explained that, although the claims concerned alleged violations, the scope and importance of the injunctive relief did not justify the requested increase to €5,000. The original scraping incident had occurred five years earlier without further substantial harm, and the platform had already disabled the disputed feature. Consequently, the Federal Court of Justice found €3,000 to be an appropriate valuation in light of the circumstances and dismissed the lawyer’s petition for a higher amount.

Comment

The BGH upheld a low litigation value in this case, keeping it under the €5,000 threshold that would place it with higher courts. As a result, most data protection matters in Germany will remain with the local courts (Amtsgerichte), where data subjects may file claims without a mandatory lawyer.

On the downside, this approach often makes it harder to find legal representation, since compensation for lawyers - based on the statutory fee schedule - is generally low in such smaller-scale, but from their perspective complicated, disputes.

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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.

FEDERAL COURT OF JUSTICE
ORDER
VI ZR 22/24
of
December 10, 2024
in the legal dispute

On December 10, 2024, the Sixth Civil Senate of the Federal Court of Justice, composed of Presiding Judge Seiters, Judges Dr. Oehler and Müller, and Judges Dr. Klein and Böhm, ruled:

The objection of the plaintiff's legal representative against the determination of the value in dispute in the order of October 8, 2024, is dismissed.

Reasons:

I.

1 In his appeal, the plaintiff asserted claims for damages, injunctive relief, and disclosure due to a violation of the General Data Protection Regulation (GDPR) by the defendant in connection with a scraping incident (see Senate, judgment of November 18, 2024 - VI ZR 10/24, juris). The action was unsuccessful in both instances, as far as relevant for the appeal proceedings. In his appeal, the plaintiff requested that:

2 1. the defendant be ordered to pay the plaintiff non-pecuniary damages in an appropriate amount, the amount of which shall be left to the court's discretion, but at least €1,000 plus interest from the date of commencement of the action at a rate of five percentage points above the base interest rate;

2. (…);

3 3. the defendant be ordered to refrain from, on pain of a fine of up to €250,000 to be determined by the court for each case of infringement, or alternatively, detention of its legal representative (director), or detention of up to six months, and in the event of a repeat offense, up to two years,

4 a. Making the plaintiff's personal data, namely telephone number, Facebook ID, last name, first name, gender, state, country, city, and relationship status, accessible to unauthorized third parties via contact import software without implementing state-of-the-art security measures to prevent the system from being exploited for purposes other than establishing contact.

5 b. Processing the plaintiff's telephone number based on consent obtained by the defendant due to the confusing and incomplete information, specifically without clear information that the telephone number can still be used by using the contact import tool even when set to "private," unless authorization is explicitly denied for this purpose and, in the case of using the Facebook Messenger app, authorization is also explicitly denied here.

6 4. Ordering the defendant to provide the plaintiff with information about the plaintiff's personal data that the defendant processes, namely which data could be obtained by which recipients and at what time from the defendant through scraping or by using the contact import tool. 7 5. To order the defendant to pay the plaintiff pre-trial legal fees in the amount of €887.03, plus interest from the date of commencement of proceedings at a rate of five percentage points above the base interest rate.

8 Following the plaintiff's withdrawal of the appeal, the Senate declared the plaintiff forfeited this right of appeal by order of October 8, 2024, and ordered the plaintiff to pay the costs of the appeal (Section 565 of the Code of Civil Procedure (ZPO) old version, Section 516 (3) of the Code of Civil Procedure (ZPO)). The Senate set the value in dispute for the appeal proceedings at €3,000. The plaintiff's legal representative contests this with his counter-presentation, requesting a higher assessment of €6,500.

II.

9 The admissible counter-presentation of the plaintiff's legal representative is unfounded.

10 1. The objection lodged by the plaintiff's legal representative in his own right pursuant to Section 32 (2) Sentence 1 RVG is admissible by analogy with Section 68 (1) Sentence 1 GKG (cf. Senate, decision of 16 January 2023 - VI ZR 68/21, juris marginal no. 3; Federal Court of Justice, decisions of 16 August 2017 - XII ZR 81/16, juris marginal no. 1; of 16 April 2014 - XI ZR 38/13, juris marginal no. 1) and is also otherwise admissible. The plaintiff's attorney explained that his remuneration is value-based and that the requested increase in the value in dispute would result in an increase in his fee income of more than €200 (Section 68 (1) Sentence 1 of the German Court of Appeal Act (GKG)) (cf. Toussaint, Kostenrecht, 54th ed., Section 32 RVG, marginal no. 55). The six-month deadline for filing a counter-presentation (analogous to Section 68 (1) Sentence 3, Section 63 (3) Sentence 2 of the German Court of Appeal Act (GKG)) has been observed. The plaintiff, as the party liable for costs, and the defendant were given the opportunity to submit their comments.

11 2. The counter-presentation is unsuccessful on the merits.

12 The Senate set the value in dispute for the appeal proceedings at €3,000 and assessed the claims as follows: €1,000 (payment claim) + €1,500 (injunction claims) + €500 (information claim) = €3,000. The plaintiff's attorney objects solely to the assessment of the value for the injunction claims, which he—like the appeal court previously—wants to have assessed at a total of €5,000.

13 There is no reason to increase the value in dispute for the injunction claims. The value in dispute is to be determined at the discretion of the court according to general rules, taking into account all the circumstances of the individual case, in particular the scope and significance of the matter and the assets and income of the parties (Section 48 (2) Sentence 1, (1) of the German Civil Code (GKG), Section 3 of the Code of Civil Procedure). The decisive factor in an injunction application following an infringement that has already occurred—as asserted in the dispute—is the claimant's interest in preventing further similar infringements, which is largely determined by the nature of the infringement, in particular its dangerousness and harmfulness to the owner of the infringed right. However, other factors independent of the infringement that has already occurred—such as the degree of probability of future infringements—may also be taken into account (cf. Federal Court of Justice, judgment of May 12, 2016 - I ZR 1/15, NJW 2017, 814, para. 33 et seq. with further references). The risk potential must be determined solely with regard to the specific dispute. There is just as little room for general preventive considerations in the assessment of a civil law claim for injunctive relief (Federal Court of Justice, judgment of 12 May 2016 - I ZR 1/15, NJW 2017, 814 para. 42 with further references) as there is for an orientation towards any (total) damages including other affected parties (cf. Senate, decision of 30 November 2004 - VI ZR 65/04, juris para. 2; Higher Regional Court of Hamm, judgment of 15 August 2023 - 7 U 19/23, juris para. 277; Higher Regional Court of Frankfurt/M., K&R 2024, 673). Finally, the overall structure of the valuation of non-pecuniary disputes must not be lost sight of (Federal Court of Justice, decision of November 26, 2020 - III ZR 124/20, K&R 2021, 127, para. 11).

14 According to these principles, the determination of the value of the injunction applications at a total of €1,500 (2 x €750) is appropriate (see also OLG Hamm, judgment of August 15, 2023 - 7 U 19/23, juris paras. 279 et seq.; OLG Frankfurt/M., K&R 2024, 673: each a total of €1,000). The plaintiff himself has quantified his claim for compensation for the damages already incurred at €1,000. In another parallel proceeding, the Senate further explained that it would not, as a matter of law, object to an assessment in the order of €100 for the mere loss of control (judgment of November 18, 2024 - VI ZR 10/24, juris para. 100). The appeal court assessed the plaintiff's application for a declaration regarding possible future damages (application under item 2), which was finally granted in the second instance, at €500; this also appears appropriate given the foreseeable difficulties in proving the causality of future damages. The infringement occurred five years ago, without any demonstrable damages or further infringement occurring beyond the mere loss of control; rather, the defendant has since deactivated the search function in the form central to the dispute. Both applications for injunctive relief stem from the same infringement and are closely related in substance.

Seiters Oehler Müller
Klein Böhm

Lower courts:

Heilbronn Regional Court, decision of March 3, 2023 - Bö 1 O 27/22 -

Stuttgart Higher Regional Court, decision of December 13, 2023 - 4 U 51/23 -