OLG Dresden - 4 U 1905/21

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OLG Dresden - 4 U 1905/21
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Court: OLG Dresden (Germany)
Jurisdiction: Germany
Relevant Law: Article 12(5)(b) GDPR
Article 15(1) GDPR
Decided: 15.03.2022
Published: 29.03.2022
Parties:
National Case Number/Name: 4 U 1905/21
European Case Law Identifier:
Appeal from: LG Leipzig (Germany)
3 O 3010/20
Appeal to: Unknown
Original Language(s): German
Original Source: OpenJur.de (in German) Sachsen.de OLG Dresden (in )
Initial Contributor: lacrosse

The Higher Regional Court Dresden held that an insurance company can reject a request to access as excessive if the request's purpose is not to be aware of or verify the lawfulness of the processing but to verify the validity of increases to insurance premiums.

English Summary[edit | edit source]

Facts[edit | edit source]

The controller is a private health insurance company. The data subject is a customer of the controller. The parties are in dispute about the validity of several increases to the insurance premiums. The data subject filed a lawsuit with the Regional Court of Leipzig (Landgericht Leipzig - LG Leipzig) requesting the refund of overpaid premiums as well as information on all adjustments to the premiums in the form of notification letters sent to the data subject and supplements to the insurance policy. The controller rejected both claims. The Regional Court of Leipzig dismissed the data subject's claim almost entirely. As a consequence, the data subject appealed this decision to the Higher Regional Court of Dresden (Oberlandesgericht Dresden - OLG Dresden).

Holding[edit | edit source]

The Higher Regional Court of Dresden dismissed the plaintiffs appeal. The court found that the right to access cannot be used to obtain information about premium increases. For its reasoning the court exclusively quoted a decision of the Higher Regional Court of Hamm (Oberlandesgericht Hamm - OLG Hamm) from the 15th November 2021 (case nr. 20 U 269/21). In the quoted decision, the OLG Hamm held that a controller is allowed to reject a request to access under Article 12(5)(b) GDPR as "excessive" if the request's sole purpose is to verify the validity of premium increases instead of verifying the lawfulness of the processing of personal data. In its reasoning the OLG Hamm found that the term "in particular" in Article 12(5)(b) GDPR shows that there can also be other circumstances than the repetitiveness of a request which can render a request "excessive". The court further referred to Recital 63 and established that the purpose of the right to access is to be aware of, and verify, the lawfulness of the processing of personal data. Therefore, the Court considered a request whose sole purpose is to verify the validity of premium increases instead of verifying the lawfulness of the processing of personal data excessive.

Comment[edit | edit source]

The OLG Nürnberg decided a similar case in the same manner, considering an access request excessive because it was only made to verify the lawfulness of the adjustments to the insurance premiums and not to verify the lawfulness of the processing.

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English Machine Translation of the Decision[edit | edit source]

The decision below is a machine translation of the German original. Please refer to the German original for more details.

   OLG Dresden, final judgment of March 29, 2022 - 4 U 1905/21




Source openJur 2022, 8909 Rkr:  AmtlSlg: 

 Civil Law Insurance RecPrivacy Law


  1. A step-by-step lawsuit, with which the policyholder ultimately only sues his private health insurer

  wants to find out whether the contribution increases made to him are for formal reasons
  are ineffective is inadmissible and in an action for information asserted by way of accumulation of actions

  to reinterpret.


  2. Such a right to information cannot be based on the provisions of the General Data Protection Regulation

  (follow-up to OLG Hamm, decision of November 15, 2021 - 20 U 269/21).

  3. A right to information based on good faith requires a presentation as to why

  It is not possible for the policyholder to evaluate the documents he has received himself.

tenor

 1I. The judgment of the Regional Court of Leipzig announced on July 27th, 2021 -3 O 3010/20 -

  partially amended and the action dismissed.

 2II. The plaintiff's appeal is dismissed.

 3III. The plaintiff bears the costs of the legal dispute at both instances.

 4IV. The judgment and the contested judgment are provisionally enforceable. The plaintiff can enforce the

  Avert security in the amount of 110% of the amount to be enforced, if not the defendant before the

  enforcement provides security in the same amount.

 5V The revision is allowed.

 6Resolution:

 7The amount in dispute is €3,291.42 for the first-instance proceedings and €3,012.92 for the appeal proceedings

  fixed.


reasons
 8I.

 9
  The parties argue about the effectiveness of the contribution increases in the plaintiff's private health insurance.
10
  The plaintiff concluded a contract for private health and long-term care insurance with the defendant. To the

  Insurance contract are the general insurance conditions (AVB) and tariff conditions of the defendant
  (Annex BLD 1). In § 8b of the MB/KK 2009 there is an option to adjust the contributions in the event of a deviation

  for insurance benefits of more than 5%. Article 8b paragraph 2 has the following wording:

11 "A premium adjustment can be waived if, after a consensus of opinion by the

  the insurer and the trustee the change in the insurance benefits is to be regarded as temporary."

12The plaintiff received the following tariff increases:

13Tarif B... increase on April 1, 2017 in the amount of €39.96,

14
  Tariff B... increase on April 1, 2020 in the amount of €74.26,

15Tarif T... increase on April 1, 2017 in the amount of €12.35,

16 Tariff G... (statutory surcharge) increase on April 1, 2017 in the amount of €4.00,

17 Tariff P... (private care insurance) increase on April 1, 2018 in the amount of €0.54,

18 Tariff P... (private care insurance) increase on 07/01/2019 in the amount of €0.77,

19
  Tariff G... (statutory surcharge) increase on April 1, 2020 in the amount of €7.42,

20The tariff increases were accompanied by notifications on the increase in contributions sent in February and May of the year

  advance, the content of which is additionally referred to (cf. Annex BLD 5). Information sheets were attached
  general explanations.




  The plaintiff objects to these contribution increases and also requests information by means of a step action,21The plaintiff objects to these contribution increases and also requests information by way of a step action

  regarding all contribution increases in the years 2011 - 2016, finding that all contribution increases are ineffective

  are and payment of an unspecified amount. He has i.a. submitted that the respective contribution adjustments were
  ineffective. The notifications about the increases are formally invalid because they do not meet the requirement of justification

  according to § 203 para. 5 VVG would suffice. The new assessments of contributions are also materially ineffective insofar as

  the adjustment clause of § 8 b MBKK is ineffective.

22In the statement of defense dated March 29, 2021 (page 91), which was served on the plaintiff on April 8, 2021 (page

  120) reported that the trigger for the contribution adjustments were changes in benefit expenditure. the
  Contribution increases are effective, the step action is unfounded.

23
  The district court dismissed the action with the judgment under appeal, to which reference is made for the details,
  mostly rejected. The following tariff increases have been granted:

24P...: Increase on April 1st (correct: April 7th) 2019 – May 31st, 2021 in the amount of €0.77,

25
  B...: Increase from May 1, 2020 - May 31, 2021 in the amount of €74.26,
26
  Overall, there is a claim for payment in the amount of €607.17. In addition, there is a claim for return
  with regard to the uses related to the contribution increases that the plaintiff from 04/01/2019 - 01/31/2021

  has paid. On the other hand, the plaintiff and the defendant turn with their appeals. The plaintiff, the dismissal

  his lawsuit regarding the demand for premium increases in tariffs P... on April 1, 2018 and GBZ on April 1, 2020

  does not attack, changes its first-instance request for payment as follows:
27
  - in Tariff B...: 36 monthly payments of €39.96 each from April 1st, 2017 to March 1st, 2020, a total of €1,438.56
28
  - in the statutory contribution surcharge G...: 36 monthly payments of €4.00 from April 1st, 2017 to March 1st, 2020,

  a total of €144.00
29
  - in tariff T...: 56 monthly payments of €12.35 each from April 1st, 2017 to November 2nd, 2021, a total of €691.60
30
  The plaintiff disputes the effectiveness of the last-mentioned premium adjustment in material terms

  The legal basis for this premium reassessment, since this is based on insurance benefits
  there was no threshold deviation above the statutory value of 10%. The person in question

  Contribution adjustment is not (only) due to non-compliance with the statutory justification requirement

  ineffective. Rather, I have no substantive legal justification for making the contribution adjustment
  passed. The notification of the relevant reasons through receipt of the statement of defense does not remedy this deficiency

  to heal. Premium overpayments on the mentioned premium adjustment are therefore up to the current month

  taken into account.

31He requests





































       1) It is determined that, in addition to the ineffectiveness established in the first instance judgment, the following,32
       1) It is determined that, in addition to the ineffectiveness established in the first instance judgment, the following
       Reassessment of the premium in the health insurance existing between the plaintiff and the defendant

       Nursing care insurance with insurance number KV000000000 is invalid: in tariff T... the increase to
       April 1, 2017 in the amount of €12.35, and the plaintiff did not pay the respective increase amount

       committed and the total contribution, taking into account the reductions that have taken place, by a total of €12.35
       reduce is.


       2) It is determined that, in addition to the ineffectiveness established in the first instance judgment, the following

       Reassessment of the premiums in the health insurance existing between the plaintiff and the defendant
       Long-term care insurance with the insurance number KV000000000 were ineffective:

       a) in Tariff B... the increase on April 1, 2017 in the amount of €39.96,
       b) in the statutory contribution surcharge G... the increase on April 1, 2017 in the amount of €4.00,

       and the plaintiff was not obliged to pay the respective increase amount.


       3) The defendant is sentenced to pay the plaintiff €2,274.16 plus interest of five percentage points
       to be paid above the respective base interest rate from lis pendens.


       4) The defendant is sentenced to provide the plaintiff with information about all contribution adjustments that the

       Defendant in the contract concluded between the parties in 2011, 2012, 2013, 2014, 2015, 2016
       has made insurance number KV 232311989 and has suitable documents available for this purpose

       ask, in which at least the following information is included: the amount of the contribution increases for the
       Years 2011, 2012, 2013, 2014,2015, 2016, naming the respective tariffs in the insurance relationship

       Plaintiff side, the information transmitted to the plaintiff side for this purpose in the form of letters and
       Supplements to the insurance policy for the years 2011, 2012, 2013, 2014, 2015, 2016 and those of the plaintiffs

       Justifications submitted for the purpose of increasing the contribution as well as supplementary sheets from the years 2011, 2012, 2013,
       2014, 2015, 2016.


       5) It is found that all unilateral increases in the plaintiff's health insurance tariffs, the

       the defendant against the plaintiff within the scope of what exists between them
       Health insurance relationship with insurance number KV000000000 for the years 2011, 2012, 2013, 2014,

       2015, 2016, and even more precisely after the information was provided in accordance with the application for point 3).
       are to be designated, are ineffective and the plaintiff is unable to pay the respective increase amount

       is obliged, as well as that the total amount due monthly for the future on a after issuance of
       Information according to the claim for 3) still to be precisely quantified in addition to the claim for 1).

       reduce is.


       6) The defendant is sentenced to send the plaintiff after the information has been provided in accordance with the claim to 3)
       Amount yet to be quantified plus interest therefrom in the amount of five percentage points above the respective

       Base interest rate to be paid since pendency.


       7) It is established that the defendant a) is obliged to the plaintiff to hand over the uses that she

       has drawn from the share of the premium that the plaintiff side has to the premium increases listed under 1) and 2).
       has paid

       b) the plaintiff is obliged to surrender the benefits it has drawn from the premium share
       the plaintiff's side to the after the information was provided in accordance with the claim for 3) in more detail

       has paid significant premium increases,
       c) the uses to be published according to 7 a) and 7 b) in the amount of five percentage points above the respective

       base interest rate has to bear interest from pendency.


       8) The defendant is sentenced to pay the plaintiff an amount of €994.12 plus interest of five
       Percentage points above the respective base interest rate of the ECB since pendency for the out-of-court

       to pay legal prosecution.


       and dismiss the defendant's appeal.

  The defendant requests,,33The defendant requests,

34 rejecting the plaintiff's appeal, the judgment of the Leipzig Regional Court of July 27, 2021, Az3 O

       3010/20 and dismiss the action.
35
  She considers the respective increases to be formally and substantively lawful.
36
  For further details of the facts and the dispute, reference is made to the pleadings exchanged by the parties
  along with attachments and the minutes of the oral hearings.

37II.

38
  The appeals are admissible. While the plaintiff's appeal is unsuccessful, the defendant's appeal is upheld
  dismiss the complaint in its entirety.

391

40The declaratory action is admissible. The Federal Court of Justice ruled that an action for the

  Invalidity of the contribution adjustment directed application for a declaration affirmed (cf. BGH, judgment of 16.12.2020 - IV ZR
  294/19 - juris). Because alone with the performance judgment sought by the plaintiff on repayment of overpaid contributions would be

  not legally established that he will not pay in the future resulting from the disputed

  Contribution adjustments resulting increase amount is obliged (according to BGH, loc.cit.). A legitimate interest
  can also consist of the determination of a past legal relationship if the determination still

  Legal consequences can arise for the present and future (see BGH, loc.cit., para. 19). The declaratory judgment is

  unfounded, however, because the plaintiff has no right to repayment of the amounts based on the increase
  Insurance premiums and thus no entitlement to the desired determination.

412

42 According to the case law of the Federal Court of Justice (judgments of December 16, 2020 - IV ZR 294/19 - and IV ZR 314/19 - juris)

  requires notification of the relevant reasons for the reassessment of the premium in accordance with Section 203 (5) VVG

  Specification of the basis of calculation, the change of which is not only temporary, the reassessment according to § 203 para. 2
  sentence 1 VVG. The wording of the law provides for the indication of the "relevant reasons" and makes

  making it clear that these must relate to the specific premium adjustment in question; a general one
  Notification that only reflects the legal requirements for the contribution increase is not sufficient (according to the Federal Court of Justice,

  Judgment of December 16, 2020 - IV ZR 294/16 - para. 26). At the same time it follows from the wording "relevant" that not all reasons

  must be mentioned, but only the circumstances that are decisive for the premium adjustment. In this sense
  the only decisive factor is whether a change in the required insurance benefits compared to the calculated ones or

  Probabilities of death in § 155 para. 3 and 4 VAG or in the general insurance conditions

  regulated thresholds. If there is no indication that the change exceeds the relevant threshold
  exceeds this requirement is not met. On the other hand, the concrete amount of the changes is this

  Calculation bases or the indication of this threshold value itself are no longer decisive (BGH, judgment
  from July 21, 2021 - IV ZR 191/20). The review of the premium is triggered as soon as the threshold is exceeded

  will; it does not matter to what extent it is exceeded (cf. Senate judgment of December 14, 2021

  - 4 U 1693/21). The notification thus fulfills the purpose of making it clear to the policyholder that neither his
  individual behavior nor a free decision of the insurer was the reason for the premium increase, but

  that a certain change in circumstances has caused this due to legal regulations (according to the Federal Court of Justice,

  a.a.O.). This is achieved by specifying the basis of calculation that triggered the premium adjustment.
  On the other hand, it is not necessary for this purpose to provide the policyholder with the basis of calculation of the applicable

  threshold value or the exact amount of the change in the legal basis (see BGH, loc.cit.). the
  The purpose of the notification obligation is not to provide the policyholder with a plausibility check

  to enable premium adjustment (see BGH, loc.cit.; Senate, loc.cit.).

43According to these principles, the contribution adjustment notifications for the premium adjustments in tariffs T...,

  B... plus G... on April 1st, 2017 and in tariffs B... plus G... on April 1st, 2020 and in tariff P... on July 1st, 2019
  formally effective. The premium increase in Tariff T... on April 1, 2017 is also materially effective.

44a) The premium adjustments as of April 1, 2017 in tariffs T..., B..., G... are formally effective.









  The February 2017 cover letter sent to plaintiff states under the heading "Why are you changing,45" The February 2017 cover letter sent to plaintiff states under the heading "Why are you changing
  Contribution?": "The most important reason is the increased healthcare costs. Diagnostic and therapeutic methods

  are always evolving. These have their price. ... In a year-on-year comparison, in Tariff B... the
  Insurance benefits increased particularly sharply. This applies above all to the inpatient area. Also in

  we registered an increased utilization in the outpatient area. Here are mainly medicines and bandages

  affected. In the dental field, benefits for orthodontics increased in particular. The paid ones
  Services were significantly above those of the previous year. This is the main reason why we have to adjust the posts. ... The

  We also have to adjust the contribution for your daily sickness benefit insurance. Because long-term illnesses are increasing.
  This is particularly the case with mental illnesses such as depression and diseases of the musculoskeletal system

  Case. Longer periods of incapacity to work are the result. This increases the expenses for insurance, the one
  Cover loss of earnings." The attached information sheet says "Modern medical care has its price".

  it in the first paragraph "How are premium adjustments made?" among other things: "The PKV must pay the contributions on the
  Calculate based on current statistics. The basis for this is the current level of costs for healthcare services.

  ... However, if the actual benefits deviate from the calculated ones by more than 10%, the insurer must
  customize posts. ...".

46The plaintiff has thus received the information required under Section 203 (5) VVG. In a synopsis of

  With the documents sent, the premium will be increased in a way that the policyholder can understand
  justifies that in relation to the specifically mentioned tariffs a change in the basis of calculation

  insurance benefits, the premium adjustment is required due to the threshold being exceeded

  has made. On the other hand, the necessary information must be contained in the notification letter itself
  according to § 203 Abs.5 VVG not required. He could see from the cover letter that the triggering

  Calculation basis "increased insurance benefits" and not his individual behavior or a free one
  decision of the insurer are the decisive reason for the specific premium adjustment. The required

  Reference to the threshold value that triggers the review of the adjustment can be found in the attached
  Information.

47b) The same applies to the notice of increase on July 1, 2019 in tariff PT3. The notification letter from May 2019 states

  es: "Why is the contribution increasing? When checking contributions, we always have to keep up with the latest developments in the
  Consider performance expenses. We found that our spending on

  Insurance benefits have not only changed temporarily." In the attachments to the letter, under the
  Heading "Supplement to the insurance from May 2019" the specific tariffs in which the contribution change by the

  the amount mentioned there is stated. In addition, in another annex "Relevant reasons for the
  Contribution adjustment" under the heading "Why do we adjust contributions?" on the threshold mechanism

  pointed out. It is also stated that the triggering factor is damage for all tariffs listed in the table
  had jumped. The table on page 2 shows the average for tariff PT3

  Change in the insurance benefit executed. The attached information makes this clear

  Policyholders are therefore sufficiently clear that the threshold is due to the increased benefit expenditure
  is exceeded.

48In a synopsis of the documents sent, the contribution increase is therefore in one for the

  In a way that is understandable to policyholders, it is justified by the fact that, based on the specifically mentioned tariff, a
  Change in the calculation basis for insurance benefits, the premium adjustment due to an overrun

  of the threshold required. That the necessary notices are, however, in the
  Section 203 (5) Insurance Contract Act does not require that you have to find the notification letter yourself. In addition, it follows from

  Table with sufficient clarity that the "essential reason" for the premium adjustment increased
  insurance benefits are.

49c) The notice of increase dated April 1, 2020 regarding tariff B... together with G... also satisfies the above

  Requirements. The letter of communication from February 2020 states: "Why do we have to post and
  Adjust deductibles? When calculating the premium, we are bound by legal requirements. Since the

  performance expenses e.g. B. due to cost increases in healthcare, we have to change the contributions
  check regularly. For this purpose, the legislator stipulates that we must at least annually carry out the necessary

  Compare calculated insurance benefits. If necessary, we have to adjust the posts. We can
  also change a defined deductible. The same applies to an insurance medical contribution surcharge

  ..."



  In the annexes to the letter, under the heading "Supplement to the insurance from February 2020", the50In the annexes to the letter, under the heading "Supplement to the insurance from February 2020", the
  concrete tariffs, in which the contribution change is made by the amount specified there. In addition, in

  a further annex "Principal reasons for the premium adjustment" under the heading "Why are we adjusting the

  Contributions to?" referred to the threshold mechanism by explaining, among other things:
  "The decisive calculation bases are the insurance benefits and the probability of death. This is in §

  203 para. 2 VVG. These bases of calculation change over time. Reasons for this are
  for example the cost development in health care or a change in life expectancy. …" will continue

  stated that the triggering factor "damage" had started for all tariffs listed, while the
  triggering factor "mortality" in the quoted tariffs had not jumped. In the one listed on page 3

  The table relates to tariff B... together with G... the average change in insurance benefits and
  the triggering factor percent damage done. The attached information clarifies in the

  Overall, the policyholder sufficient that the threshold has increased because of

  Benefit expenditure exceeded and the triggering factor of probability of death has not jumped.
51
  d) Contrary to the plaintiff's view, the tariff increase in tariff T... on April 1, 2017 is also materially effective despite the
  Legal ineffectiveness of § 8 clause 2 of the GTC agreed between the parties (according to § 8 b paragraph 2

  MB/KK).
52
  § 8 b para. 2 MB/KK violates §203 sentence 2 VVG and is therefore ineffective according to §307 para. 2 BGB (also
  Boetius in Munich commentary on the VVG, 2017, § 203 para. 940), because § 8 b para. 2 MB/KK contains a deviation

  to the detriment of the policyholder, after which a premium adjustment can be waived if the
  change in the insurance benefit is to be regarded as temporary. In this case, however, according to § 203

  Paragraph 2, a premium adjustment can be refrained from (cf. Boetius, loc. cit.; also Cologne Higher Regional Court, judgment of September 22, 2020
  - 9 U 237/19 in VersR 2021, pages 95 f.). In this respect, the insurer has no discretion. § 8 paragraph 3 MB/KK becomes the

  average policyholders without special insurance contract knowledge but to that effect

  understand that the insurer is entitled to a temporary change in the insurance benefit
  Discretionary leeway is granted when deciding whether or not to adjust the premium

  not (according to Cologne Higher Regional Court, loc.cit.). This contradicts § 203 paragraph 2 VVG. After that, a premium adjustment is only permissible
  is when the change is not just temporary. According to the semi-mandatory provision of Section 208 (1).

  VVG cannot deviate from the statutory regulation to the detriment of the policyholder (according to OLG
  Cologne, loc.cit.).

53Unlike the Cologne Higher Regional Court in its judgment of September 22, 2020 (9 U 237/19), the Senate is the

  Believes that the regulations in paragraphs 1 and 2 are not inextricably linked and
  isolated consideration of § 8 b paragraph 1 MB / KK a contribution adjustment can only be made if the relevant

  threshold is permanently exceeded. The wording of § 8 b para. 1 MB/KK does mention the criterion of
  Durability is not, but this results from the mandatory legal regulation.

54The Senate agrees with the opinion of the Stuttgart Higher Regional Court in its judgment of November 18, 2021 (U 244/21 -

  juris) in this respect (also Senate, judgment of February 8th, 2022, 4 U 1728/21 and February 22nd, 2022, 4 U 1712/21). There it has

  performed the following:


























       According to Section 306 (1) BGB, the contract remains ineffective if general terms and conditions are partially ineffective.55 According to Section 306 (1) BGB, the contract remains ineffective if general terms and conditions are partially ineffective

       are otherwise legally valid. According to established case law of the Federal Court of Justice,
       separable, individually understandable regulations in general terms and conditions

       also be the subject of a separate effectiveness test if they are in an external linguistic
       are related to other - ineffective - regulations. Only if the part to be considered effective in

       The overall structure of the contract no longer makes sense, in particular that part of the clause which was objected to as being ineffective

       of far-reaching importance is that it is a completely new one, completely different from the previous one
       If the drafting of the contract has to be discussed, the invalidity of the partial clause affects the overall clause. the

       separability of a clause in terms of content and thus its decomposition into one that is permissible in terms of content and one that is permissible in terms of content

       inadmissible part is always present if the ineffective part of the clause can be deleted without
       that the meaning of the other part suffers (blue pencel test). Whether both provisions are the same

       The object of the regulation is irrelevant (e.g. BGH, judgments of March 31, 2021 - IV ZR 221/19 para.
       64 and from February 13, 2020 - IX ZR 140/19 para. 26). Based on this, the regulation in § 8 b paragraph 1 MB/KK

       continue to exist without further ado, even if Section 8 (2) MB/KK is deleted. The meaning of paragraph 1 does not suffer

       including, the regulation in paragraph 1 does not violate the regulation in § 155 paragraph 3 if it remains in place in isolation
       Sentence 2 VAG, § 203 Para. 2 VVG stipulated requirement of a change that is not just temporary.

       ...
       If you look at § 8 b Para. 1 MB/KK in isolation and without the regulation in Para. 2, there is already no indication of the

       Prerequisite for a change that is not just temporary. Such a conclusion can at best be made by looking at

       paragraph 2. § 8 b paragraph 1 MB/KK is - considered in itself - no reference to the requirement of durability
       refer to. The legal regulations that continue to apply also ensure that only one

       The contributions may not only be adjusted for temporary changes in the calculation bases. That
       Understanding of § 8 b para. 1 MB/KK is therefore based on the mandatory

       Statutory provisions from which it is evident that no deviation should be made. A repetition

       of all the requirements for a contribution adjustment in the MB/KK - also with a view to the
       average policyholder trying to understand - not necessary.

563.

57The claims for information,

  Determination and payment claims for the premium increases in the years 2011 - 2016 remain unaffected
  Success.

58
  a)
59
  The declaratory application for 4., which has not yet been specified for specific contribution adjustments, and the unnumbered one
  Payment requests for 5. are inadmissible.

60Basically, the admissibility of an action according to §253 Abs. 2 Nr. 2 ZPO presupposes a specific application,

  which is missing here. Nothing else follows from § 254 ZPO. According to this provision, a
  Class action admissible if the applications serve the purpose of determining a benefit entitlement; it is sufficient

  not that they have other information not related to the identifiability as such

  legal prosecution (BGHZ 189, 79 - 87, para. 10; OLG Hamm, decision of November 15, 2021, 20 U 269/21,
  Paragraph 5 - juris; OLG Naumburg, judgment of October 2, 2013 - 12 U 76/13, paragraphs 78-81 - juris). The request for information in

  Claim 3 did not only serve to determine the claims pursued with claims 4 and 5
  Determination and payment requests, but also the clarification of whether such a main claim exists at all. the

  information requested by the plaintiff about possible premium adjustments and related to him

  Contribution adjustments are only intended to enable him to assess whether he is due to
  formal ineffectiveness of the contribution adjustment letter, a right to a refund of premiums according to the

  principles of unjust enrichment.
61
  b)

62The then inadmissible step action is to be reinterpreted as an accumulation of actions (§260 ZPO) (BGHZ 189, 79 - 87, para. 13). Of the
  The claim for information that was made independently and admissibly thereafter (claim for action to 3.) is unfounded.

63 In this respect, the Senate agrees with the convincing statements of the OLG Hamm in the decision of November 15, 2021

  - 20 U 269/21 - (loc.





       "The asserted right to information does not result from Art. 15 Para. 1 of Regulation (EU) 2016/679 of,64
       "The asserted right to information does not result from Article 15 (1) of Regulation (EU) 2016/679 of the
       European Parliament and Council of April 27, 2016 on the protection of natural persons in the

       Processing of personal data, free movement of data and repeal of Directive 95/46/EC
       (General Data Protection Regulation - GDPR).

       The defendant has a right of refusal under Art. 12 Para. 5 Sentence 2 Letter b)
       GDPR to. The provision only lists the frequent repetition as an example of an "excessive" application

       on. However, the use of the word "in particular" makes it clear that the provision also includes other
       wants to record abusive applications (cf. Heckmann/Paschke, in Ehlmann/Selmayr, data protection

       Basic Regulation 2nd edition Art. 12 para. 43).
       When interpreting what is abusive in this sense, the protective purpose of the GDPR must also be taken into account

       consider. As can be seen from recital 63 of the regulation, the meaning and purpose of Art. 15
       DS-GVO standardized right to information, it to the data subject easily and at reasonable intervals

       enable them to become aware of the processing of their personal data and the
       To be able to check the lawfulness of this processing (also BGH, judgment of June 15, 2021 - VI ZR 576/19,

       VersR 2021, 1019 para. 23).
       In order to become aware of this for the purpose of checking the admissibility of the data protection law

       However, the plaintiff's processing of personal data is based on his own claims
       not at all. Rather, the meaning and purpose of the information he requests is - as can be seen from the

       coupling with the inadmissible lawsuits for determination and payment results without a doubt - exclusively
       the review of any premium adjustments made by the defendant due to possible formal

       Defects according to § 203 paragraph 5 VVG. However, such an approach is not part of the protective purpose of the GDPR
       includes (as here LG Wuppertal, judgment of July 29, 2021 - 4 O 409/20, BeckRS 2021, 25249 para. 31 ff.).

       On the other hand, at least in the case of standardized justifications, which - for example as a uniform supplementary sheet -
       sent to all policyholders in an identical form, including personal data

       acts within the meaning of the GDPR, it is not relevant here in view of this.
       b)

       Also a right to information from §§241 Abs. 2, 242 BGB in connection with that between the parties
       existing insurance contract does not exist.

       It is true that a contractual relationship can also result in the obligation to
       give mutual support. This may also result in an obligation on the part of the creditor to whom

       Contractual partners such as documents for obtaining credit (Federal Court of Justice, judgment of June 1, 1973 - V ZR 134/72, NJW
       1973, 1793 under II 2) or for the management of tax matters (Senate judgment of July 5, 1974

       - 20 U 227/73, MDR 1975, 401).
       Such a connection also applies within the framework of a special connection existing between the parties

       However, according to the settled case law of the Federal Court of Justice, the right to information requires that the debtor in
       is in an excusable way uncertain about the existence or scope of his right (cf. BGH, judgment of

       1 August 2013 - VII ZR 268/11, NJW 2014, 155 para. 20). The plaintiff has the existence of these conditions
       not stated. From the documents sent to him during the term of the contract, he can easily

       see what premium adjustments have been made. Understandable reasons why and

       why this should exceptionally no longer be possible for him is not stated. When asked whether and in
       The extent to which the plaintiff's claims from § 812 Para. 1 BGB are statute-barred is therefore sufficient

       legal reasons.
       c)

       A right to information from § 3 para. 3 and 4 VVG is also ruled out. This only refers to missing
       come or destroyed insurance policies as well as the own declarations of the

       policyholder that he has given in relation to the contract. But that is not the point here (see also
       LG Wuppertal, judgment of July 29, 2021 - 4 O 409/20, BeckRS 2021, 25249 para. 35 f.).

       dd)
       Finally, the claim asserted by the plaintiff cannot be derived from §810 BGB. This

       The regulation does not give any right to information or to the transmission of documents.
65c)






  Also to the extent that the plaintiff asserts his right to information on other bases such as Section 241 of the German Civil Code in conjunction with the

  insurance contract or good faith (§ 242 BGB), the request is - regardless of whether the
  respective prerequisites for entitlement are already not considered to be given (according to OLG Munich, decision of

  24.11.2021 - 14 U 6205/21, BeckRS 2021, 40311, beck-online, and OLG Hamm, loc. cit., para. 15 - juris) - at least in
  Result unfounded. Because claims for repayment based on contribution payments from the period up to

  as of December 31, 2016 are statute-barred at the end of 2016, so that no claims can be made according to the information provided

  more are conceivable from the premium increases. The existence of a right to information is therefore also confirmed by the Higher Regional Court
  Stuttgart with judgment of November 18, 2021 - 7 U 244/21 -, para. 78 ff, with further reference - juris, negated.

67III.

68The decision on costs is based on Sections 91 (1), 97 (1) ZPO. The decision on provisional enforceability

  follows from §§ 708 No. 10.711 ZPO.
69
  The determination of the amount in dispute, which changes with regard to the determination of the first instance, is based on §§3, 9 ZPO. Next
  the claim for 2, the repayment of the premium paid from April 1, 2017 to April 1, 2020 in the amount

  of €3,159.83, increases the economically identical claim to 1 for a declaration of ineffectiveness
  of the premium increases and the non-obligation to bear the increased amounts does not affect the amount in dispute, since it

  relates to the same period as the payment request. Added to this is the value of the declaratory judgment application

  the determination of compensation for use in the amount of 1% of the payment request, i.e. €31.59 and the value of the
  entitlement to information, which the Senate sets at EUR 100. For the appeal procedure is according to the increased

  A total amount in dispute of €3,012.92 (€2,881.33 plus €31.59 + €100) is to be assumed.
70
  The revision was limited in accordance with Section 543 Paragraph 2 Sentence 1 No. 1 ZPO to ensure uniform jurisdiction
  to allow the question of whether § 8 b paragraph 1 MB / KK is ineffective according to § 307 paragraph 2 BGB. This question will be in the

  judged differently by higher court case law. The Higher Regional Court of Cologne ruled in its judgment of

  09/22/2020 - 9 U 237/19 - assumed that § 8 b paragraphs 1 and 2 MB/KK are ineffective. The Senate has the
  contrary opinion of the Stuttgart Higher Regional Court in its judgment of November 18, 2021 (7 U 244/21 - juris) and

  of the Schleswig Higher Regional Court (judgment of December 13, 2021 16 U 94/21 - juris).