LG Magdeburg - 9 O 1571/20: Difference between revisions

Revision as of 07:47, 3 July 2023

BfDI - 9 O 1571/20

Authority:	BfDI (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1) GDPR Article 82(1) GDPR § 276 BGB
Type:	Other
Outcome:	n/a
Started:	04.11.2020
Decided:	24.05.2023
Published:	22.06.2023
Fine:	4000 EUR
Parties:	Energie AG
National Case Number/Name:	9 O 1571/20
European Case Law Identifier:	n/a
Appeal:	Unknown
Original Language(s):	German
Original Source:	openJur (in DE)
Initial Contributor:	Norman Aasma

Regional Court of Magdeburg partially upheld plaintiff's claim for non-material damages under Article 82 GDPR for wrong entry into Schufa credit ranking agency.

English Summary

Facts

Th case entailed a dispute between plaintiff (data subject) and a defendant (controller). In this particular case, the defendant had made an unlawful registration with the Schufa, the German credit ranking system, about the plaintiff. As a result of the registration, the credit score value of the plaintiff was negatively impacted. The plaintiff received a letter informing him about the registration upon which a letter was sent to the defendant to remove the wrong registration. Furthermore, the defendant was ordered to sign a cease-and-desist letter. Consequently the registration at Schufa was deleted. Due to the fact that the plaintiff had still suffered both material and non-material damage, he filed a claim with the court. In the lawsuit, the plaintiff brought a claim against the defendant for damages in the amount of EUR 4000 on the basis of Article 82 (1) & (2) GDPR. The plaintiff also argued that he had suffered non-material damage and sought compensation for that too under Article 82 (1) & (2) GDPR. In total, the plaintiff sought for compensation in the amount of EUR 10,000.

Holding

The court partially upheld the complaint. The court held that the defendant has to pay plaintiff damages in the amount of EUR 4000. The court highlighted that under Article 82 (1) & (2) GDPR, any person who has suffered material or immaterial damage as a result of a violation of this regulation is entitled to compensation for damages from the person responsible or the processor and any controller involved in the processing is liable for the damage caused by the processing, which does not comply with the GDPR. The court noted that the plaintiff was successful in proving that the had suffered non-material damages. The chamber of the court found that the plaintiff had provided convincing arguments for proving that the wrong entry into credit registry on him had affected his health. Furthermore, the court agreed that the wrong entry to the Schufa registry had also made the plaintiff subject to negative impact on his professional and private situation. Moreover, the court was of the opinion, that provided evidence indicates that there was a causal relationship between wrong entry to the credit score system and the mental suffering of the plaintiff. The court consequently found that the plaintiff had indeed suffered non-material damage due to the entry to Schufa having an impact on his anyway weak health. The court disregarded the plaintiff's additional claim for material damages is unfounded. The court highlighted that claim for material damages was too high and it should not be used to enforce claim for non-material damages.

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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.

LG Magdeburg, judgment of May 24th, 2022 - 9 O 1571/20

Source openJur 2023, 6512 Rkr:  AmtlSlg: 

hereinafter: Az. 4 U
Procedure 81/22

Civil Law Data Protection Law

tenor

11. The defendant is sentenced to pay the plaintiff compensation for pain and suffering in the amount of EUR 4,000.00 plus interest in the amount of

5 percentage points above the base interest rate since December 11th, 2020.
2
Moreover, the application is dismissed.

32. The costs of the litigation will be awarded 60% to the plaintiff and 40% to the defendant.

43. The judgment is provisionally enforceable, but for the plaintiff only against security of 110% of the

each amount to be enforced. The plaintiff can enforce the enforcement on the part of the defendant by providing security

in the amount of 110% of the enforceable amount based on the judgment if the defendant does not
Enforcement security of 110% of the amount to be enforced.

5And decided:

6
The value in dispute is set at EUR 10,000.00.

facts
7
With the lawsuit, the plaintiff seeks non-pecuniary damages from the defendant in tort,
specifically because of illegal registration with a credit agency.

8th
The defendant has an open claim from R2 under account number A... on 20.08.2018. Energie AG in the amount of
2,159.00 EUR at the Sch. H. AG registered.

9
The defendant filed a complaint, although the claim had already been settled by the plaintiff in 2013.
The defendant had already registered the same claim in the plaintiff's database in 2012

at the Sch. H. AG, based on a title in 1991. In 2012, the parties had this

settled the claim before the plaintiff eventually settled.
10
The plaintiff found out about the registration on December 1, 2019.

11With a letter from a lawyer dated December 4th, 2019, the defendant was asked to revoke the illegal Schufa entry,

with a deadline of December 9th, 2019, to Sch. H. AG requested, as well as to restore the
Plaintiff's score. In addition, the defendant was requested, setting a deadline of December 9th, 2019, to

Sign the attached cease-and-desist letter and send it back.

12There was no reaction from the defendant, whereupon the letter dated December 4th, 2019, with a deadline of

January 3, 2020, was sent again to the defendant.

13 The defendant then asked, in a letter dated January 6th, 2020, for an extension of the deadline for a statement.

14In a letter dated January 8th, 2020, the defendant then communicated the following in excerpts:

15
,,[...] We already have a request for deletion of the accidental Schufa registration in question
sent to the Schufa. We regret the oversight and sincerely apologize."

16The disputed entry was then made with the Sch. H. AG deleted.

17
In a brief dated November 4th, 2020, the plaintiff brought an action before the M. District Court. This was given to the defendant on
Delivered on December 10th, 2020.

18 The plaintiff claims that due to the illegal entry by the defendant, he suffered damage of far more than

EUR 40,000.00 was incurred. Due to the financing refusal, the plaintiff intended to purchase one

unable to purchase property. Such transactions are for him as a self-employed person in the real estate industry

however, financial support is essential. The damage of more than EUR 40,000.00 was caused by the fact that
the actual value of the targeted property exceeded the purchase price by more than EUR 40,000.00.

The plaintiff further claims that because of the notification he did not have a more favorable energy supply contract for

his apartment building in 3... S.hausen B. was able to be completed. The Schufa entry has this to

rejection of an application for the conclusion of a contract. Because a switch to a new energy supply contract

was also awarded by the company Mediamarkt, the plaintiff received a bonus in the form of a
Shopping vouchers over 180.00 EUR escaped.

20 The plaintiff was massively restricted overall in his freedom of action and discretion. So got - what on

factual level is undisputed - the C.bank AG with inquiries from 22.07.2019 in the plaintiff's database

the sh H. AG requested. The same applies to the company I. AG, which inquired on September 11, 2019. From this it is evident

that false or incorrect data about the plaintiff had been disclosed several times. Also, due to the
unlawful negative entry significantly worsens his score.

21Financing agreements for the purpose of debt restructuring could therefore no longer have been concluded.

22
In addition, according to the plaintiff, who has been unable to work since November 11, 2019, he is
Overall circumstances and the pressure he had to experience through the registration, massively in terms of health

had been affected.

23The claim under Art. 82 Para. 1, 2 GDPR is in addition to the claim for violation of the

Personal rights opened up, says the plaintiff.

24 Following on from this, compensation for pain and suffering in the amount of at least EUR 10,000.00 is to be considered appropriate.

25The plaintiff requests

26 to order the defendant to pay the plaintiff compensation for pain and suffering, which is at the discretion of the court

will, however, be at least EUR 10,000.00, plus interest at a rate of 5 percentage points above that

Base interest rate to be paid since pendency.

27 The defendant requests that

28 to dismiss the lawsuit.

29 With the order of December 2nd, 2020, the court has an appointment for the conciliation hearing and, if necessary, afterwards

at that early first date determined and given to the defendant, by a licensed attorney

submit a response to the complaint to a regional or district court within a period of three weeks,

which began with the service of the order. A statement of defense was served on the court on February 23, 2021.
30
The defendant takes the view that the legal prosecution as a whole was abusive.

31 The claim for damages is also unfounded. Because the necessary causality is missing

of the damage or already on a substantiated explanation and a corresponding proof of such.
32
The plaintiff merely submitted that the unlawful processing and transmission or

publication of the personal data concerning him, immaterial damage had occurred. One
specific impairment of the person was neither described nor proven. An intangible

Damage was not specifically shown. However, this must actually have been suffered.

33Any alleged material losses that are said to be related to the registration would be included

ignorance denied. With a view to the reported amount of the claim, losses in commercial transactions would be considered

considered unlikely.
34
Effects and influence of the registration on the score formula of the Schufa would also be disputed with ignorance.

35 The plaintiff complains that the defendant's submission was too late and thus precluded.

36The court took evidence in its original composition in accordance with the evidence resolution of August 24, 2021

unsworn questioning of witness M3., witness K2. and the witness Dr. L.. On top of that, the court has the plaintiff

in accordance with § 141 ZPO. With regard to the result of this taking of evidence, reference is made to
Minutes of 07/13/2021 and 11/16/2021. The single judge who is now responsible has the evidence with him

Evidence decision of March 21, 2022 repeated and the witnesses K2. and dr L. heard. Moreover, the

Plaintiff heard again for information. The court relies on the result of this taking of evidence
the minutes of the meeting from May 10, 2022.

37
Due to the further submissions of the parties, reference is made to the pleadings exchanged between them together with the annexes
as well as their submissions to the minutes of the oral hearing.

reasons

I.38I.

39The action is admissible.

40The court appealed to has local jurisdiction in particular, Section 44 (1) sentence 2 BDSG. After that, lawsuits can

data subject against a controller or processor for breach of
data protection regulations within the scope of the GDPR or the rights contained therein

data subject may also be raised at the court of the place where the data subject has his usual

whereabouts. This is how things are for M. here.
41
In this case, the lawsuit is only partially successful.
42
The defendant has to pay the plaintiff damages in the amount of EUR 4,000.00. As far as the plaintiff beyond that
Claims damages totaling EUR 10,000.00, the lawsuit is unfounded because neither a

recoverable material damage is pursued, nor the ascertainable non-material damage

claim for compensation of more than EUR 4,000.00 is justified.
43
In this context, the court does not preclude or exclude the opponent's submission
from, § 296 ZPO. The determination of a delay in the legal dispute depends solely on whether the process

it would take longer if the late submission were admitted than if it were rejected. Although is after

clearly expressed will of the legislature, the early first appointment is a full appointment for oral
Negotiation, which not only prepares the further proceedings, but in suitable cases already at the - contentious -

to judge. However, such a procedure is only ensured if the parties fulfill their obligations to cooperate
comply and cannot ignore the orders of the court without consequences. § 296 paragraph 1 ZPO

therefore expressly clarifies by referring to Section 275 (1) sentence 1 ZPO that late submissions also

is to be rejected if the deadline set for the preparation of the early first hearing has expired
unexcused and delays the process (Federal Court of Justice, judgment of December 2nd, 1982, case no.: VII ZR 71/82). Something else

only applies if a dispute cannot be settled in this date due to a lack of maturity for a decision. That's how it is

here, since the early first appointment was primarily designed as an appointment for conciliation negotiations, especially at first
no offers of evidence, be it in the sense of procedural measures, were followed up by the judge

became. Last but not least, the specific why was relocated several times for internal court reasons. For the sake of fairness
Procedural design was also to refrain from a rejection according to §§ 296 paragraph 2.282 paragraph 1 ZPO. General

Legal statements, about which the parties are significantly arguing in this case, do not fall under the concept of a

means of attack and defence.
44
A claim by the plaintiff against the defendant for damages in the amount of EUR 4,000.00 is based on Art. 82 Para. 1, 2
GDPR justified.

45According to Art. 82 Para. 1, 2 DSGVO, every person who, because of a violation of this regulation, has a material

or immaterial damage has occurred, claim for damages against the person responsible or against the

processor. Any controller involved in processing is liable for the damage caused by a non-
processing in accordance with this Regulation has been caused. The person responsible is exempted from liability in accordance with

Paragraph 3 exempt only if he proves that he is in no way responsible for the circumstance by which the damage
occurred is responsible.

46The Sch. H. AG represents a credit agency, whereby the report by the defendant on October 20, 2018 to Sch. H AG too

constituted a transfer of personal data.

47The data transfer was based on Art.6 Para. 1 GDPR, which stipulates the legality of

Data processing determined, unlawful. The defendant was in the role of the person responsible, Art. 4 No. 7
GDPR. In particular, the requirements of Art. 6 Para. 1 S.1 f) GDPR are not met. Legally, the

Authorization to transmit data from debtors to credit agencies, according to Art. 6 Para. 1 S. 1 f and Para. 4 DSGVO.

According to this, the perception of a legitimate interest is required for the transmission. In addition, one
to weigh up whether the legitimate interests of the data subject outweigh the interests of the

Data users prevail in individual cases (LG Lüneburg, judgment of July 14, 2020, Az.: 9 O 145/19). At a

Registration of a claim that has already been settled reduces the interest of the data user to zero. The
Inadvertently, the defendant was also undisputedly responsible, § 276 Para. 2 BGB. The defendant would have given the

Can and must recognize with due diligence that the claim no longer existed.

The plaintiff has also suffered non-material damage that can be compensated for under Art. 82 (1) and (2) GDPR. Requirement48 The plaintiff has also suffered non-material damage that can be compensated for under Art. 82 Para. 1, 2 DSGVO. Pre-condition
for a claim for damages for immaterial damage according to § 82 para. 1, 2 DSGVO is a nameable and

actual personal injury. The demanded in the previous German case law for compensation for pain and suffering
However, the prerequisite for a serious violation of privacy is not compatible with Art. 82 (1) and (2).

GDPR, it is neither intended nor covered by its goal and history. The claim is hereof

basically independent. Recital 146 p. 6 also supports a broad interpretation of the concept of damage
of the GDPR, according to which the person concerned is entitled to full and effective compensation for the damage suffered

shall receive. Against this background, serious personal injury cannot be taken as the lower limit
an amount of compensation for pain and suffering. Rather, the immaterial damage is to be comprehensively compensated.

A serious personal injury will regularly lead to high compensation for pain and suffering. With this
Restrictions apply to the immaterial damages according to Art. 82 Para. 1, 2 DSGVO within the scope of §253

BGB developed principles. The investigation is the responsibility of the court according to § 287 ZPO. When measuring the
"full and effective compensation for the damage suffered" is also the indemnity and

The deterrent function of the claim from Art. 82 Para. 1, 2 GDPR must be taken into account (LG Mainz, judgment of
November 12, 2021, Ref.: 3 O 12/20). In principle, the disputed data is sensitive and worthy of protection

sensitive data of the plaintiff. They can have a significant negative impact on participation in economic

Intercourse by failing credit or not entering into contracts. This allows indirectly
Fundamental rights such as freedom of occupation and general freedom of action are impaired, so that this circumstance

can already be qualified as a nameable and actual violation of privacy (LG Lüneburg, judgment of
July 14, 2020, Ref.: 9 O 145/19).

49An immaterial damage as an expression of the personal injury of the plaintiff is also in the

Loss of control over their personal data. By transmitting the data to the Schufa, the
Defendant personal data passed on to an uninvolved and unauthorized third party. This will make the

Plaintiff exposed and there is also an indirect threat of potential stigmatization that would result from an entry in the
Schufa can arise (LG Lüneburg, judgment of July 14, 2020, loc.cit.). It is according to general life experience

in addition to assume that the negative initial registration of the defendant to the Sch. H. AG in the there
determined score value has been included. This value is obviously of great importance in economic life,

since "financial reputation and monetary reputation" stand and fall with him.
50
The criteria of Article 83 (2) GDPR can be used to assess the amount of damage. Thereafter
When making a decision, the type, severity and duration of the violation must be taken into account, taking into account the type,

The scope or purpose of the processing in question and the number of people affected by the processing
persons and the extent of the harm suffered by them, willful intent or negligence of the breach,

any measures taken by the controller to mitigate the harm caused to data subjects
damage, degree of responsibility of the person responsible, taking into account the technical made by them

and organizational measures, any relevant previous breaches by the controller, categories

personal data affected by the breach and any other aggravating or mitigating
Circumstances in each case, such as financial benefits obtained directly or indirectly from the violation or

avoided losses, fully appreciated.
51
After taking evidence, the Chamber is convinced that the plaintiff's entry as
professional burden, which also affected him on a health level, § 286 ZPO. The one in charge now

A single judge has namely from the plaintiff in the context of a new informational hearing
creates a personal and direct impression, Sections 128 (1), 355 (1) sentence 1,309 ZPO. The plaintiff could

explain plausibly and impressively that the entry is principally based on his professional and private situation and
subjective perception of its negative influence. That the circumstances are also detrimental to the mental

constitution has also been outlined in a comprehensible manner. The latter is supported by the
Statements from the treating neurologist. This credibly announced that the Schufa entry with the

related problems was a regular topic of conversation in the consultation hours. The statement was solely because of that
extremely rich in content because the witness was able to describe her perceptions in great detail and meticulously. out of it

to derive a sufficiently reliable causal relationship between the entry and mental suffering, albeit
the witness was not authorized in her civil procedural function to provide any diagnoses in a competent manner and

way in correlation with the Schufa entry or to set in relation. The court was aware of this

Clear up. The statements of the plaintiff and the witness finally related to the complex of the psychic
congruent with each other, which underpins the overall impression of the court.

The court took the position that the plaintiff's filing abstractly constituted a professional threat52The court took the position that the plaintiff's filing abstractedly constituted a professional threat

was perceived, which also burdened the already poor health. This fails at the
Consideration of Art. 82 Para. 1, 2 GDPR significantly.

53 When assessing the overall circumstances, the material losses objected to by the plaintiff had to be specifically

Senses, however, are disregarded as possible parameters for the claim for compensation for pain and suffering, simply because the plaintiff
has not asserted any substantive claims with its lawsuit. Another sign of impairment

of personality rights they already have - insofar as they are assumed to be true for a legal second - in that

Just said impact found and would be covered by the considerations already made, so it depends on the
concrete material losses did not arrive further and accordingly neither did the further offers of evidence

was more to pursue. This applies in particular to the allegation of refusal to finance a property. It is
namely the data transfer to the Schufa immanent that it has a restrictive influence on the participation in the

economic transactions, in particular when concluding credit or banking transactions and other contracts,
comes along. These considerations are thus per se already included in the overall assessment and consideration of a

immaterial damage, due to data protection violations from a previous, illegal Schufa

Register Entry. The same applies to the question of rejecting a cheaper energy contract, especially since the statement
of the witness K2. was not fruitful here, since in the specific case there was no reliable connection between

contract refusal and Schufa entry. With regard to further material losses
The plaintiff has not conclusively and substantiated the spillover effect on the immaterial damages

submitted, to which he was also informed by decision of December 14, 2021, § 139 para. 1, 4 ZPO. The

In any case, compensation for immaterial damage items must not be used to compensate for material losses
to sue behind the scenes and, if necessary, to enforce.

54 The court was also guided by the following considerations on the question of the amount of compensation for pain and suffering:

55In favor of the defendant, it was to be weighed that it was a slightly to moderately high level

claim amount that was entered.
56
However, it is particularly disadvantageous that the parties have a common
The past connects and that the defendant once again makes clear a claim that has already been paid off

has registered negligently, although at this point it can be left open whether the first registration was illegal

was. The registration period of just over a year is also to be regarded as a not inconsiderable time window. The
The fact that the strict regulatory regime of the GDPR has long since claimed validity is also negative

appreciate.
57
However, it also had to be taken into account that the non-pecuniary damages should not be so high
that in the future no registrations will be made at all because the risk for the registering company

organizational or human misconduct no longer bears any relation to the economic importance of the
thing stands. The registration serves not only the registering and the information services

companies, but also to protect consumers from excessive indebtedness. So can high

immaterial compensation for pain and suffering in individual cases may be suitable for the preventive protection of consumers as a whole
to endanger (OLG Koblenz, decision of March 23, 2022, Az.: 5 U 2141/21). Finally, must not be ignored

that the plaintiff was also the debtor of the claim at any time.

58 For the violation of the plaintiff's general personality rights, the Chamber considers a
Claim for damages in the total amount of EUR 4,000.00 as appropriate, but also sufficient.

The defendant does not get through with the objection of abusive legal prosecution. The court can

there are no indications of the legal prosecution involved in determining the amount of compensation for pain and suffering

could have a detrimental effect.
60
Further claims for damages by the plaintiff are not justified on any other legal grounds. A
Claim from § 823 paragraph 1 BGB in conjunction with the principles of the right to informational self-determination as

Manifestation of the general right of personality, Article 2 Paragraph 1 GG in conjunction with Article 1 Paragraph 1 GG, or from Section 823 Paragraph 2
BGB in connection with data protection regulations would not cover any further damage than

the one that the plaintiff can demand from Art. 82 GDPR replaced. The same applies to a claim under §824

Civil Code.
61
Insofar as the plaintiff's claim for damages is justified, it is, according to the application, 5 percentage points above the
The base interest rate has been subject to interest since December 11, 2020, §§ 291, 288 Paragraph 1, 187 Paragraph 1 BGB in conjunction with §§ 253 Paragraph 1, 261 Paragraph 1,

222 para. 1 ZPO.

II.62
II.

63 The decision on costs is based on Sections 91 (1) sentence 1, 92 (1) sentence 1 ZPO. Due to a deviation from the

There was no room for the plaintiff's idea of the amount of the compensation for pain and suffering being down by more than 20%

more for Section 92 Paragraph 2 No. 1 ZPO.

64 III.

65
The statement on provisional enforceability is based on §§708 No. 11,711, 709 S. 2,108 ZPO.

66 IV.

67 The decision on the determination of the amount in dispute is justified by §3 ZPO in conjunction with §§48, 63 GKG.