OLG Brandenburg - 11 U 9/23

OLG Brandenburg - 11 U 9/23
Court:	OLG Brandenburg (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 2(1) GDPR Article 4(1) GDPR Article 12(5)(b) GDPR Article 15(1) GDPR
Decided:	16.06.2023
Published:
Parties:
National Case Number/Name:	11 U 9/23
European Case Law Identifier:	ECLI:DE:OLGBB:2023:0616.11U9.23.0A
Appeal from:	LG Frankfurt (Oder) 15 O 376/22
Appeal to:	Unknown
Original Language(s):	German
Original Source:	Entscheidungsdatenbank der Gerichte in Brandenburg (in German)
Initial Contributor:	Tarmio Frei

A German court ruled that a controller may refuse to comply with access requests under Article 15 GDPR pursuant to Article 12(5)(b) GDPR if they are aimed exclusively at achieving objectives that are not related to data protection.

English Summary

Facts

The plaintiff (data subject) objected to premium increases by the defendant, a private health insurer (controller). The data subject requested information regarding possible premium adjustments from 2012 in order to demonstrate that the premium increases were invalid. In particular, the data subject brought a claim for access to personal data under Article 15(1) GDPR, which related solely to the value of the triggering factor for the recalculation of the premium in the tariff at issue. The triggering factor is the percentage threshold by which the cost for insurance services or mortality probabilities must have changed in order for the insurer to be able to increase premiums for health insurance policies such as the one at stake. The request for access was therefore aimed solely at being able to examine the legality of the premium increase. According to the data subject, the controller did not fully reply to the access request. After the Frankfurt (Oder) Regional Court dismissed the action as unfounded, the data subject appealed to the Brandenburg Higher Regional Court (OLG Brandenburg).

Holding

(1) The court held that the value of the triggering factor for the recalculation of the insurance premium does not constitute personal data within the meaning of Article 4(1) GDPR as it is a mere calculation parameter without direct reference to the data subject, and hence does not fall within the material scope of the GDPR.

(2) In an obiter dictum, the court also held that, even accepting the idea that the factors at issue constitute "personal data", the controller has a right of refusal under Article 12(5)(b) GDPR for abuse of the right of access if (as here) it pursues an aim outside the scope of data protection law. While Article 12(5)(b) GDPR only lists frequent repetition as an example of "excessive" requests by a data subject for which the right of refusal applies, the wording "insbesondere" (English: "in particular") would show that this list is not exhaustive. In interpreting when a request is abusive, the purpose of the right to access under Article 15 GDPR must be taken into account according to the court. That purpose is to enable the data subject to become aware, easily and at reasonable intervals, of the processing of his or her personal data and to check whether it is being processed in a lawful manner. If the purpose of the requested access is exclusively to check the lawfulness of a premium adjustment, this procedure is not covered by the protective purpose of the GDPR and is therefore an abusive use of Article 15 GDPR.

Comment

The ruling of the OLG Brandenburg must be seen in the context of numerous other German rulings that have also dealt with claims for access to information regarding the value of the triggering factor for premium adjustments in health insurance.

There is agreement among the courts that the amount of the triggering factor does not constitute personal data under Article 4(1) GDPR. This is to be agreed with. Indeed, both the cost of the insurance services and the probability of death as relevant calculation bases (§ 203(2) VVG) refer to an undefined group of persons. While the former refers to the average insurance payments over a period of twelve months for an insured person per age group and gender (§ 6(1) Health Insurance Supervision Regulation (Krankenversicherungsaufsichtsverordnung - KVAV), the mortality probability is determined on the basis of special mortality tables for private health insurance. The amount of change in both calculation bases therefore does not enable any conclusions to be drawn about an identified or identifiable natural person.

However, the holding of the OLG Brandenburg that the data controller has a right of refusal under Article 12(5)(b) GDPR if the right to access under Article 15 GDPR is exclusively directed at objectives unrelated to data protection is controversial in German case law. While the courts predominantly share the legal opinion of the OLG Brandenburg, other courts, in particular the Higher Regional Court of Cologne and the Higher Regional Court Celle have rejected such a teleological limitation of Article 15 GDPR. According to both courts, the function of Article 15 GDPR is not limited to the (internal) use of the acquired information for data protection purposes. This is because the overall purpose of the GDPR is to protect the rights and freedoms of the individual against impairments and threats resulting from the processing of personal data. If the data subject uses his rights under Article 15 GDPR to reduce information asymmetries between himself and the controller in order to protect his rights and freedoms, this is a legitimate and legally recognizable objective. This is also true if the information gathering enabled by Article 15 GDPR merely serves to prepare legal proceedings against the controller in which claims external to data protection are to be asserted. This question is also discussed controversially in the literature.

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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.

I.The parties are arguing about the effectiveness of premium adjustments within the framework of private health insurance and, in this context, about claims for information and determination of the ineffectiveness of possible premium increases.According to Section 540 (2) in conjunction with Section 313a ZPO, the facts are not presented.II. The admissible appeal is unfounded. The regional court dismissed the lawsuit with correct reasoning. There are no grounds for appeal; Neither is the contested judgment based on a violation of rights within the meaning of § 546 ZPO, nor do the facts to be taken as a basis under § 529 ZPO justify another - for the plaintiff (more) favorable - decision (§ 513 Para. 1 ZPO). Contrary to the opinion of the The plaintiff is inadmissible to assert the claims by way of a step action pursuant to § 254 ZPO, which he is pursuing in the appeal proceedings. The further presentation of the plaintiff in the appeal proceedings does not change this. In detail: § 254 ZPO regulates a privileged special case of objective accumulation of lawsuits. The step-by-step lawsuit makes it possible to combine an application for information with an as yet unspecified or unspecified application for benefits and/or a declaratory judgment. The initially unnumbered application for a declaratory judgment can - as here - also be an action for an interim declaratory judgment (cf. BGH, ruling of November 27th, 1998 -VZR 180/97, WM 1999, 746). However, the provisional exemption from the obligation to provide figures under Section 253 (2) No. 2 ZPO presupposes that the information requested at the first stage serves as a mere aid (only) for the concrete determination of the entitlement to benefits. It is therefore out of the question if the information is intended to provide other information about the plaintiff's legal prosecution (st. case; cf. BGH, judgment of April 18, 2002 - VII ZR 260/01, NJW 2002, 2952 , 2953 and from 03/29/2011 - VI ZR 117/10, NJW 2011, 1815 para. 17). This is the case here, however: The information requested by the plaintiff serves - contrary to the plaintiff's assertions - for the initial examination of whether and when contributions were adjusted at all in the years from 2012 and, as a result, a possible claim against the defendant could exist . The fact that the plaintiff wants to adopt the defendant's submissions as his own in the first instance and speculates about possible premium adjustments at certain points in time does not change this. This means, however, that in individual years it is about the "whether" of a possible adjustment, which cannot be the subject of the information claim. Even with knowledge of the content of the supplements, the reason for the claim would remain unclear. Because even with the aforementioned knowledge of the amount of the increase, it would not be possible to check the formal legality (cf. Higher Regional Court Nuremberg, loc. cit., para. 18 with further references). Insofar as the plaintiff refers to an alleged material defect of the alleged premium increases, this contract is made without any tangible indications. The inadmissible step action was, however - even in the second instance - to be reinterpreted as a general accumulation of actions according to § 260 ZPO (cf. on this in "Premium increase cases" Nuremberg Higher Regional Court, loc.cit., para. 19; Dresden Higher Regional Court ruling of March 29, 2022 - 4 U 1905/21, BeckRS 2022, 8743 para. . Because the plaintiff cannot be denied from the outset a legitimate interest in the requested information that is sufficient for the granting of legal protection. In addition, the plaintiff's argument does not indicate that the request for information should not be pursued independently of the grading. The plaintiff's request for information is - as correctly recognized by the district court - unfounded. The claim for information, as asserted by the plaintiff, does not follow § 3 para. 3 and 4 VVG. This gives rise to a right to have the supplements to the insurance policy issued again. According to the general opinion, which the Senate agrees with, the regulation covers not only the insurance policy itself, but also the supplements issued for it (cf. OLG Nürnberg, loc. cit.; Prölss/Martin/Rudy, VVG, 31st ed. , § 3 para. 1, 5). To assert the claim, it is sufficient for the policyholder to claim that they are no longer in possession of the originals. The reason for the loss of possession is irrelevant (cf. BeckOK VVG/Filthuth, 17th ed., § 3 marginal note 18, with further references). According to the plaintiff's submissions, it is not apparent that the requested supplements within the meaning of Section 3 (3) VVG were lost. In addition, the defendant is likely to have fulfilled its right to information in this respect. The Senate pointed this out in the oral hearing. Insofar as the plaintiff also requests documents on any changes in tariffs, it is not clear to what extent this part of the request for information goes beyond the transmission of the insurance certificate or the supplements, especially since the plaintiff himself assumes this with his application that this information is contained in the supplements. A right to information, as requested by the plaintiff, does not result from Section 242 of the German Civil Code or from Article 15 (1) of the GDPR obligation to support one another. This can also lead to the obligation of one contractual partner to make documents available to the other party (cf. Senate, resolution of May 4th, 2022 - 11 U 239/21; Schleswig-Holstein Higher Regional Court, ruling of July 18th, 2022 - 16 U 181/21, para. 51 ff., juris, each with further reference). However, it is not sufficient for the claimant to claim that the requested information is important to him or that he relies on it. Rather, the prerequisite is that the claimant is excusably unclear about the content of the requested information, the respondent can easily provide the information (statutory case; cf. BGH, judgment of 08.02.2018 - III ZR 65/ 17, NJW 2018, 2629 para. 23 with further references) and there are sufficient indications that a certain enforceable claim exists (cf. BGH, default judgment of 17.07.2002 - VIII ZR 64/01, para. 9; Schleswig-Holstein Higher Regional Court , judgment of July 18, 2022 - 16 U 181/21, para. 52; juris). These requirements are clearly not met here. The GDPR also does not result in a corresponding right to information for the requested information, since in this case the scope of application of the regulation is not open. It can actually be left open whether the exception in Art. Article 12 (5) GDPR applies here, i.e. whether the defendant has a right to refuse. According to the legal definition in Art. 4 No. 1 GDPR, personal data is only information that relates to an identified or identifiable person. This does not include the right to information, which relates solely to the amount of the triggering factor for the recalculation of the premium in the tariff at issue (OLG Dresden, decision of September 12, 2022 - 4 U 1327/22, para. 9; OLG Nürnberg, Resolution of November 21, 2022 - 8 U 1621/22, para. 46, juris). The level of the triggering factors is an arithmetic variable with no direct relation to the plaintiff. But even if one assumes that the requested information is personal data, this does not help the plaintiff, since in this case the defendant a right of refusal according to Art. 12 Para. 5 Sentence 2 GDPR would apply. In detail: The provision of Art. 12 Para. 5 Sentence 2 GDPR only lists the frequent repetition as an example of an "excessive" application. However, the use of the word "in particular" makes it clear that the provision also intends to cover other abusive applications and is not conclusive in this respect (cf. Heckmann/Paschke, in Ehlmann/Selmayr, General Data Protection Regulation 2nd ed. Art. 12 para. 43 ). When interpreting what is abusive in this sense, the protective purpose of the GDPR must also be taken into account. As can be seen from recital 63 of the regulation, the meaning and purpose of the right to information standardized in Art. 15 GDPR is to enable the data subject to become aware of the processing of personal data concerning them without any problems and at reasonable intervals (also BGH, judgment of June 15, 2021 - VI ZR 576/19, para. 23, juris). The exercise of the right under Art. 15 GDPR should enable the data subject to check whether the data concerning them is correct and also whether it is being processed in a permissible manner (recent ECJ, ruling of May 4th, 2023 - C-487/ 21, paragraph 34, juris). According to the ECJ, this right to information is necessary to enable the data subject to exercise their right to rectification, their right to erasure (“right to be forgotten”) and their right to restriction of processing, which they are entitled to pursuant to Art. 16, 17 or 18 GDPR, as well as their right under Art. 21 GDPR to object to the processing of their personal data or, in the event of damage, to exercise their right under Art. 79 and 82 GDPR to lodge a judicial remedy (ECJ, loc.cit., Rn According to his own submissions, however, the plaintiff is not concerned with becoming aware of this for the purpose of checking the permissibility of the processing of personal data under data protection law. Rather, the meaning and purpose of the information requested by him is exclusively the review of any premium adjustments made by the defendant due to possible formal deficiencies according to § 203 para. 5 VVG. Such a procedure is not covered by the protective purpose of the GDPR (cf. Senate, judgment of 03/17/2023 - 11 U 208/22; decision of 05/04/2022 - 11 U 239/21, para. 9; OLG Hamm, decision of November 15, 2021 - 20 U 269/21, paragraph 8ff.; Munich Higher Regional Court, decision of November 24, 2021 - 14 U 6205/21, para. 55 f.; Higher Regional Court Nuremberg, judgment of March 14, 2022 - 8 U 2907/21, para. 43; OLG Dresden, judgment of March 29, 2022 - 4 U 1905/21, para. 64 et seq.; Schleswig-Holstein Higher Regional Court, judgment of July 18, 2022 - 16 U 181/21, paragraph 45 et seq.; Karlsruhe Higher Regional Court, judgment of November 29, 2022 - 12 U 305/21, paragraph 52 f.; a.A. Higher Regional Court Cologne, judgment of May 13, 2022 - 20 U 295/21, paragraph 48 et seq.; OLG Celle, judgment of December 15, 2022 - 8 U 165/22, paragraph 125 et seq.; juris). The Senate does not ignore the fact that the plaintiff's knowledge of the documents to which the asserted claim relates does not in itself exclude the right to information under data protection law, since this allows the data subject to review the legality of the data processing, such as an examination of the correctness of the data (Federal Court of Justice, judgment of June 15, 2021 - VI ZR 576/19, para. 25, juris, with further references). However, as stated, the plaintiff does not pursue such a data protection objective with his disputed request for information. In particular, his request is not aimed at information as to whether the defendant is currently processing the information contained in the letters known to him, in particular storing them (cf. BGH, loc. cit); Rather, his sole request is to obtain information about the content of these letters already available to him in order to enforce any payment claims against the defendant (applicable to a similar case: OLG Karlsruhe, judgment of November 29, 2022 - 12 U 305/21 , Rn. 55 f.). In this context, the ECJ submission of the BGH of March 29, 2022 (VI ZR 1352/20, juris Rn. 12 ff) does not justify a suspension of the proceedings within the meaning of § 148 ZPO (analog), since the questions submitted by the Federal Court of Justice to the European Court of Justice, namely - insofar as they are of interest here - including those regarding the possibility of restricting the right to information in terms of content when pursuing other - non-data protection but legitimate - purposes, are irrelevant due to a lack of anticipation. Because the request for information at issue is based neither on a data protection objective nor on any other legitimate purpose, so that it is to be regarded as abusive of the law, and therefore not legitimate (also: OLG Hamm, decision of November 15, 2021 - 20 U 269/21 8 ff.; Nuremberg Higher Regional Court, judgment of March 14, 2022 - 8 U 2907/21, marginal number 43; Dresden Higher Regional Court, judgment of March 29, 2022 - 4 U 1905/21, marginal number 64 ff. ; Karlsruhe Higher Regional Court, judgment of November 29, 2022 - 12 U 305/21, para. 52 f., juris). For this very reason, the decision on the more recent submission by the Koblenz Higher Regional Court of October 19, 2022 - 10 U 603/22 (pending: ECJ, C-672/22) is irrelevant, since the Koblenz Higher Regional Court, according to its preliminary question on 1 Also assumes non-data protection, but legitimate purposes when asserting a right to information under the GDPR and the other questions submitted for answering by the ECJ are posed depending on the fact that a right to information is affirmed for a merely legitimate purpose The application for payment also has no chance of success. The application for payment lacks the required figure for the amount to be paid. It therefore does not meet the mandatory requirement of certainty according to § 256 Para. 2 No. 2 ZPO. The secondary claims share the fate of the main claim. Insofar as the plaintiff seeks the determination of the ineffectiveness of alleged premium increases in tariffs KB20 and KB30 on January 1st, 2020 and January 1st, 2021 and corresponding claims for repayment, these fail - as the district court correctly recognized - for that reason alone , because there were no premium increases in these tariffs in the aforementioned years. The district court also correctly dismissed the lawsuit with regard to the claims for determination and payment asserted in connection with the premium increase on January 1, 2022. This premium adjustment meets the legal requirements of § 203 para 5 VVG; in particular, the letter of increase issued by the defendant for the aforementioned year is not objectionable. According to the case law of the Federal Court of Justice (cf. only BGH, judgment of December 16, 2020, IV ZR 294/19 - juris), the notification of the relevant reasons for the reassessment of the premium according to § 203 para. 5 VVG the specification of the calculation basis, the not only temporary change of which has caused the reassessment according to § 203 para. 2 sentence 1 VVG. The insurer does not have to report the amount by which this basis for calculation has changed. He also does not have to indicate the change in other factors that have influenced the amount of the premium, such as the discount rate. However, the policyholder must be able to see from the notifications with the required clarity that a change in the calculation bases mentioned above the applicable threshold has triggered the specific increase in premiums (cf. BGH, judgment of 09.02.2022 - IV ZR 337/20; judgment of July 21, 2021 - IV ZR 191/20; judgment of October 20, 2021 - IV ZR 148/20; judgment of November 17, 2021 - IV ZR 113/20 - each cited according to juris). In principle, it must be made clear to him that there is a predetermined threshold value for a change in the relevant basis of calculation, the exceeding of which has triggered the premium adjustment in question (cf. in particular BGH, ruling of November 30th, 2022 - IV ZR 294/20, BeckRS 2022, 36909 para. 17; BGH, judgment of 02/09/2022 - IV ZR 337/20; judgment of 07/21/2021 - IV ZR 191/20 - each cited according to juris). On the other hand, it is not necessary to inform the policyholder of the legal basis of the applicable threshold value or the exact amount of the change in the calculation basis (BGH, judgment of June 22, 2022 - IV ZR 253/20, NJW 2022, 3358 para. 22; judgment of December 16, 2020 - IV ZR 314/19, loc.cit., para. 95 and IV ZR 294/19, VersR 2021, 240; OLG Hamm, decision of June 23, 2022 - 20 U 128/22). The Senate follows this case law in consistent case law (cf. instead of many recent judgments of March 1, 2023 - 11 U 198/22 and 11 U 139/22; of January 25, 2023 - 11 U 125/22; of January 18, 2023 – 154/22; December 21, 2022 – 11 U 133/21; judgment of November 14, 2022 – 11 U 54/22). Whether the notification of a premium adjustment satisfies the legal requirements of Section 203 (5) Insurance Contract Act must be decided by the judge on a case-by-case basis (Federal Court of Justice, judgment of November 30, 2022 - IV ZR 294/20, BeckRS 2022, 36909 marginal number 16; Senate, loc.cit.). Measured against this, the defendant's contribution adjustment, which was challenged with the appeal - at least in the context of an overall view - as of January 1, 2022 satisfies the requirements of Section 203 (5) VVG. In this respect, reference can be made to the statements of the District Court. In the context of this overall view carried out by the district court, it is found that the intended contribution increase is formally effective, since - as just explained - in addition to the relevant calculation bases within the meaning of Section 203 (2) sentence 3 VVG, it establishes the specific reference to tariffs and shows the relevance of a specified threshold value has. The information provided by the defendant makes it clear that the adjustment is based on a legal obligation - and not on a free decision of the insurer or even on the individual claims history of the policyholder (cf. only OLG Hamm, decision of 23.06 .2022 - 20 U 128/22, BeckRS 2022, 15948). The plaintiff's appeals with regard to an alleged substantive illegality of the premium increase do not go through. The incompleteness of the documents submitted to the trustee by the defendant is not a circumstance , which is subject to isolated factual and legal scrutiny by the civil courts. The question of whether the Trustee has been provided with the necessary documentation following the insurer's decision and whether the Trustee, on the basis of those provided, in full or not However, the question of the effectiveness of the contribution adjustment does not affect the actual approval of the documents, but is part of the supervisory tasks of the trustee. It is up to the supervisory authority to check this (cf. the entirety in detail OLG Nuremberg, decision of June 5, 2023 - 8 U 3284/22 -, juris). III. The procedural ancillary decisions are based on §§ 97 Para. 1, 708 No 10, 711, 713 ZPO.The revision was not allowed because the requirements of § 543 paragraph 2 ZPO for this are not met. The case is of no fundamental importance. The further development of the law or the safeguarding of uniform case law do not require a decision by the Court of Appeal.