OGH - 6Ob127/20z

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OGH - 6Ob127/20z
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Court: OGH (Austria)
Jurisdiction: Austria
Relevant Law: Article 4(1) GDPR
Article 15(1) GDPR
Article 79 GDPR
§ 151 Austrian Trade Regulation Act (Gewerbeordnung 1994 - GewO)
§ 228 Austrian Civil Procedure Act (Zivilprozessordnung - ZPO)
Decided: 18.02.2021
Published: 01.04.2021
Parties: unknown (claimant)
Österreichische Post AG (defendant)
National Case Number/Name: 6Ob127/20z
European Case Law Identifier: ECLI:AT:OGH0002:2021:0060OB00127.20Z.0218.000
Appeal from: OLG Linz
2 R 35/20k-19
Appeal to: Not appealed
Original Language(s): German
Original Source: Rechtsinformationssystem des Bundes (RIS) (in German)
Initial Contributor: n/a

The Austrian Supreme Court held that a court must not issue a declaratory judgement that a controller has to provide access to certain data under Article 15 GDPR to a data subject if the controller had already fulfilled the data subject's requests for access and erasure and refrained from further processing the data subject's data.

English Summary


The controller (defendant) ist the biggest logistics and postal service provider in Austria. Its main business activities include the transport of letters, advertising mail, print media, and parcels. Furthermore, the defendant also conducts business as an address publisher under § 151 Austrian Trade Regulation Act (Gewerbeordnung 1994 - GewO) and sells personal data for third-party marketing purposes.

On 14.01.2019 the data subject (claimant) sent an access request under Article 15 GDPR to the controller on which the controller replied to on 14.02.2019. Besides data like name and phone number the controller stated to process certain "marketing classifications" under § 151(6) GewO. These "marketing classifications" are calculated based on certain sociodemographic circumstances (e.g. age, place of residence, level of education) and express a statistic probabilty of the data subject belonging to a certain deomographic group (e.g. "do-it-yourselfer", "night owl", "affinity for investments").

The data subject was not content with the controller's reply and filed a lawsuit for the provison of access under Article 15 and erasure under Article 17 GDPR. Furthermore, the data subject requested a declaratory judgment that the controller is under the legal obligation to provide access to the data subject regarding certain "marketing classifications" under Article 15 GDPR in the case of further access requests by the data subject.

The first instance court rejected the claim as the controller had already


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The Austrian Supreme Court overturned a decision of the Higher Regional Court Linz and restored the decision of the first instance court:


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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.