OLG Dresden - 4 U 1905/21
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| OLG Dresden - 4 U 1905/21 | |
|---|---|
 | |
| 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 German |
| Original Source: | OpenJur.de (in German) Sachsen.de OLG Dresden (in German) |
| Initial Contributor: | lacrosse |
Right to Access can't be used to optain information about contribution increases of a healthcare insurance contract. The motivation was to verify, if the increases were legally effective. The health insurance company can refuse to act on the request.
English Summary
Facts
The defendant is an health insurance company. The plantiff is a customer with a private healthcare insurance contract. The parties dispute about the effectiveness of contribution increases. In the course of the legal dispute the plaintiff submitted a Right of Access request with the aim to verify the contribution increases.
Holding
The court dismissed the plaintiffs appeal. The right to access can't be used to optain information about contribution increases. OLG Dresden did refer to a decision of the OLG Hamm from 15 November 2021 – case number 20 U 269/21 – (a.a.O. Rn. 8 - 17, - juris). OLG Hamm referenced to Recital 63 in their decision. The purpose of the Right of Access is to be aware of, and verify, the lawfulness of the processing of personal data. It is not the purpose of Article 15(1) GDPR to obtain information of contribution increases. The motivation behind the request was to verify, if the increases were legally effective. Therefore the Court considered it a excessive request. Article 15(1) GDPR stated that, in particular repetitive requests may considered excessive. OLG Hamm interpreted the term "in particular", that other types of requests could also be viewed as excessive. The health insurance company (defendant) can refuse to act on the request (Article 12(5)(b) GDPR).
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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.
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).
