OLG Hamm - 20 U 146/22

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OLG Hamm - 20 U 146/22
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Court: OLG Hamm (Germany)
Jurisdiction: Germany
Relevant Law: Article 12(5)(b) GDPR
Article 15 GDPR
Decided: 03.05.2023
National Case Number/Name: 20 U 146/22
European Case Law Identifier: ECLI:DE:OLGHAM:2023:0503.20U146.22.00
Appeal from:
Appeal to: Unknown
Original Language(s): German
Original Source: Justiz NRW (in German)
Initial Contributor: mg

A German court found an access request excessive as it exclusively served purposes unrelated to data protection. The controller could thus refuse to comply with it pursuant to Article 12(5)(b) GDPR.

English Summary


The data subject and the controller – an insurance company – litigated about the lawfulness of some premium adjustments in the data subject’s insurance policy. In this context, the data subject made an access request with the controller in order to obtain information on the basis of which the adjustments were triggered.

The controller refused to comply with the data subject’s access request. The court of first instance aligned with the controller and declared the data subject’s action inadmissible.


The Higher Regional Court of Hamm (Oberlandesgericht Hamm – OLG Hamm) upheld the court of first instance’s decision.

The court did not exclude that in principle some of the information requested by the data subject were personal data within the meaning of Article 4(1) GDPR. Nevertheless, in this case the controller had the right to disregard the request in light of Article 12(5)(b) GDPR, as the latter was excessive.

To ascertain whether an access request is excessive it is necessary, among others, to verify if the request pursues the goal of Article 15 GDPR, to be read in light of recital 63. In particular, an access request should enable a data subject to be aware of any processing operations concerning their personal data and check the lawfulness of said processing. In the present case, the data subject used instead the access request for a purpose which did not fall within the scope of data protection, namely to check whether premium adjustments were lawful under insurance law.

The court stressed that this does not automatically entail that the data subject shall motivate their access request or distinguish between data protection purposes and other purposes. However, in cases where it is clear that the only purpose of the request is not related to data protection, the controller has a right to refuse to comply with the request.

Finally, the court acknowledged that the issue could be the object of a preliminary reference to the CJEU. However, being the OLG Hamm not a court of last instance, such a preliminary reference is not mandatory pursuant to Article 267 TFEU.

In light of the above, the court rejected the data subject’s claim.


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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.

3The parties are arguing about premium adjustments as part of a private health insurance policy held by the plaintiff with the defendant since July 1, 1989. The plaintiff initially claims the defendant in the appeal proceedings as part of a step-by-step lawsuit for information about all premium adjustments in the years 2014 and 2015 and demands notification of the amounts of the adjustments and the respective tariffs, the transmission of corresponding insurance certificates and supplements as well as the naming of the respective amount the triggering factors. In the second stage, he announces the more detailed specification of applications for determining the ineffectiveness of adjustments, for the repayment of premium shares and for the surrender of benefits.
4In the past, the defendant made use of the option of unilaterally increasing the contributions. She informed the plaintiff of this premium adjustment in each case by sending an adjustment letter, to which a supplementary insurance certificate and other information sheets were attached. The plaintiff regularly paid the premiums in the amount set by the defendant.
5The plaintiff had the defendant requested by his current legal representative to submit documents regarding all contribution adjustments in the years 2014 to 2017. In a letter from a lawyer dated September 8th, 2021, he requested – without numbering – the defendant to repay overpaid portions of the premium due to ineffective premium adjustments, setting a deadline, to surrender benefits derived therefrom and to reduce the premium.
6The defendant raises the objection of the statute of limitations.
7The plaintiff claimed that he no longer had the insurance policies for the years in question. He was of the opinion that all the adjustments were formally ineffective. He draws the basis for this assumption from the documents on the defendant's premium adjustments known to his legal counsel from other proceedings. He is therefore aware that he is basically entitled to a refund of overpaid premiums and the surrender of the benefits derived from them. In order to determine the corresponding applications for assessment and to quantify the applications for payment, however, he was dependent on the documents required.
8The defendant was of the opinion that the action taken by the plaintiff in the context of the step action was inadmissible. There is no entitlement to the provision of information and the documents.
9The district court dismissed the action. It considered the action by steps to be inadmissible, since it was not used to quantify an existing claim, but to find out whether a claim actually existed. The applications for assessment and payment made are inadmissible due to a lack of sufficient certainty. The unconditional request for information was unfounded because the plaintiff could not request the requested information.
10Because of the further details of the first-instance party's submissions and the more detailed justification of the regional court as well as because of the applications made in the first instance, reference is made to the judgment under appeal (page 320 et seq. of the electronic court files of the first instance, hereinafter: eGA-I or eGA-II for the File of the second instance) referenced.
11 The plaintiff's appeal is directed against this. He supplements and deepens his first-instance presentation and is particularly of the opinion that the class action lawsuit does not serve to investigate, because he knows the dates and the respective formal ineffectiveness of the contribution adjustments. He just did not know the extent of the respective contribution increases and could therefore not more specifically request the determination of the ineffectiveness of the individual contribution adjustments and not quantify the resulting repayment claims.
12The plaintiff requests
13 in amendment of the judgment under appeal
15 to order the defendant to provide him with information about all premium adjustments that the defendant made in the contract concluded between the parties in 2014 and 2015 for insurance number N01 and to provide suitable documents for this purpose, which contain at least the following information are:
1617 the amount of the contribution adjustments for the years 2014 and 2015, naming the respective tariffs in the insurance relationship of the plaintiff side,
18 the information transmitted to the plaintiff for this purpose in the form of insurance policies and supplements to the insurance policy for the years 2014 and 2015 and
19 the respective amount of the triggering factors for the recalculation of the premiums in all former and current tariffs of the insurance contract with the insurance number N01 since January 1st, 2014,
21 to determine that after the information has been provided in accordance with the application for 1), the reassessment of the premiums in the existing health insurance between him and the defendant with the insurance number N01 are ineffective and he is not obliged to pay the respective difference and that the monthly due The total amount for the future is to be reduced to an amount that is still to be quantified after the information has been provided in accordance with the application for 1), taking into account the reductions that have taken place,
23 to order the defendant to pay him an amount to be quantified after the information has been provided in accordance with application 1) plus interest therefrom in the amount of five percentage points above the respective base interest rate from lis pendens,
25 to condemn the defendant,
26a) to give him the benefits in the amount still to be quantified after the information has been provided in accordance with the application for 1), which the defendant drew from the premium share up to the time of pendency, which he paid for the premium adjustments still to be listed under 2),
27b) to pay him the interest from the benefits to be surrendered in the amount of five percentage points above the respective base interest rate from lis pendens,
29to order the defendant to indemnify him with regard to the out-of-court legal prosecution costs in the amount of €1,054.10 plus interest in the amount of five percentage points above the respective base interest rate of the ECB since lis pendens.
30 The defendant requests that
31 to dismiss the appeal.
32The defendant defends the contested decision and repeats and deepens its arguments at first instance.
33Regarding the details of the submissions of the parties in this instance, reference is made to the written pleadings exchanged together with the annexes.
35 The plaintiff's appeal is unfounded.
36The Senate adheres to its established case law that if the policyholder in a constellation such as the one at hand here by way of a step-by-step lawsuit first requests information about earlier premium adjustments including the provision of the associated documents and then for a determination of the ineffectiveness of premium adjustments that are still to be specified and payment of an amount still to be quantified, the applications of the as yet undetermined stages are inadmissible and the claim for information pursued independently in the first stage is unfounded (Senate, resolution of November 15, 2021, 20 U 269/21, r+s 2022, 93 f.; Decision of May 23, 2022, 20 U 96/22 n.v.; Judgment of October 26, 2022, 20 U 131/22 n.v., also OLG Dresden, judgment of March 29, 2022, 4 U 1905/21, marginal number 60 ff . - juris; Nuremberg Higher Regional Court, judgment of March 14, 2022, 8 U 2907/21, VersR 2022, 622 ff. Margin 30 ff.; Munich Higher Regional Court, decision of November 24, 2021, 14 U 6205/21, r+s 2022 , 94 f., para. 48 ff.).
38 The district court rightly and with correct reasoning considered the unspecified requests 2) to 4) to be inadmissible.
39These applications do not meet the requirements for the specificity of an application for action arising from Section 253 (2) No. 2 ZPO. According to this, an application for benefits must always be quantified. And an application for a declaratory judgment must describe the legal relationship with sufficient specificity.
40This is lacking.
41Something else does not follow from § 254 ZPO. The unnumbered benefit applications and the as yet undetermined application for a declaration are not admissible by way of a step action according to this provision. A step action is inadmissible if the information does not serve the purpose of determining the entitlement to benefits, but is intended to provide the plaintiff with other information about his legal prosecution that is not related to the determinability as such (Federal Court of Justice, judgments of March 2nd, 2000, III ZR 65/99 , NJW 2000, 1645 under 1 a; from April 18, 2002, VII ZR 260/01, NJW 2002, 2952 under II 1 a; Cologne Higher Regional Court, judgment of July 26, 2019, 20 U 75/18, VersR 2020, 81; Zöller -Greger, ZPO, 34th edition 2022, § 254 marginal note 2; BeckOK ZPO/Bacher, 47th edition [status: 01.12.2022] § 254 marginal note 4.1).
In the case of dispute, the plaintiff is concerned, despite a statement to the contrary in the grounds of appeal that he knows the dates of the adjustments and their ineffectiveness, not the quantification of a claim that easily results from an accounting. Because then the plaintiff would specifically describe the individual contribution adjustments he is objecting to and really only ask for that additional information that he believes is still missing for a more detailed specification of the application for determining the ineffectiveness of the contribution adjustments and for quantifying the alleged payment claims.
However, he has not yet specified the dates of the individual adjustments that he is already claiming to attack in concrete terms. In the first instance, he named numerous data on premium adjustments in the statement of claim - apparently with recourse to the database of his legal counsel, which was fed from other proceedings, but without any recognizable reference to the tariffs existing in his contract. In the reply (there p. 4 ff., eGA-I 273 ff.), the plaintiff then at least described his still "current" tariffs and communicated individual dates of premium adjustments that partially deviated from the dates in the statement of claim, but again backed this up apparently referred to a database of his legal counsel. In the justification for his appeal, he repeatedly refers to the “Rom. I” allegedly designated adjustments (pages 5 and 7 of the grounds for appeal (eGA-II 29 and 31)). Under "I.", however, he only refers in general to the "contribution adjustments made since January 1, 2014 in the contractual relationship with insurance number N01" (page 3 of the grounds for appeal, eGA-II 27). And on page 8 of his reasoning for appeal (eGA-II 32) he again mentions other times for premium adjustments (and other tariffs) than in the first-instance reply.
44The fact that the plaintiff named a large number of differently designated points in time for various contribution adjustments in this way and even cited the reasons for the contribution adjustments to justify the formal ineffectiveness he assumed, but on the other hand, in the appeal application, general information about the points in time and the information about requests the reasons for the adjustments, only allows the conclusion that he does not only want to use the information to be provided to specify and quantify the claims that he considers to be certain on the merits, but that he first wants to clarify the existence of claims on the merits after wants to achieve.
46 The regional court rightly considered the application for action 1) to be admissible but unfounded.
48This motion is allowed.
49 The inadmissibility of the step action means that an unspecified application for benefits has to be rejected as inadmissible. However, it does not have the necessary consequence that the action as brought here must be dismissed as inadmissible in whole or in part. Rather, a reinterpretation into an objective accumulation of lawsuits independent of the classification is possible (BGH, judgment of April 18, 2002, VII ZR 260/01, NJW 2002, 2952 under II 2 a mwN; Becker-Eberhard, in: Munich commentary on the ZPO, 6th edition 2020, § 254 para. 7).
However, the request for information is unfounded.
53The asserted right to information does not result from Art. 15 Para. 1 of Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data, on the free movement of data and on the repeal of the directive 95/46/EG (General Data Protection Regulation – GDPR).
54At least some of the information requested by the plaintiff with the request for information may be personal data within the meaning of Art. 4 (1) GDPR. However, the defendant has a right of refusal under Art. 12 (5) sentence 2 letter b) GDPR. The provision 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 (cf. Heckmann/Paschke, in Ehmann/Selmayr, General Data Protection Regulation 2nd edition 2018, Art. 12 para. 43).
55 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 DS-GVO is to enable the data subject to become aware of the processing of personal data concerning them without any problems and at reasonable intervals to be able to check the lawfulness of this processing (also BGH, judgment of June 15, 2021, VI ZR 576/19, VersR 2021, 1019 ff. Rn. 23).
56 However, according to his own submissions, the plaintiff is not concerned at all with such awareness for the purpose of checking the admissibility of the processing of personal data under data protection law. Rather, the sense and purpose of the information requested by him - as can be seen without a doubt from the link with the inadmissible application for payment - is exclusively to check any premium adjustments made by the defendant due to possible formal deficiencies according to Section 203 (5) VVG. However, such an approach is not covered by the protective purpose of the GDPR (also OLG Nuremberg, judgment of March 14, 2022, 8 U 2907/21, VersR 2022, 622 ff., para. 43; see also OLG Munich, decision of November 24 .2021, 14 U 6205/21, r+s 2022, 94 f., para. 55 f.).
57It is also not possible to object to a right of refusal under Art. 12 (5) sentence 2 letter b) GDPR that it may sometimes be difficult to distinguish between the protected interest in checking data security and an interest that is being pursued alongside it (according to Cologne Higher Regional Court, Judgment of May 13, 2022, 20 U 198/21, Rn. 85 f. - quoted from juris) and that a reason for the request for information does not have to be given either (according to OLG Celle, judgment of December 15, 2022, 8 U 165/22 , VersR 2023, 429 ff., Rn. 124 ff.). The plaintiff does not even deal with the interest protected by Art. 15 DS-GVO in his reasoning of appeal. He cites the - correct - considerations of the regional court, which, based on recital 63 of the regulation, derive a right of refusal. However, the plaintiff does not even indicate an interest in wanting to check the legality of the data processing. His explanations are limited to the explanation that the requested information is personal data. He does not say that he requests information about this data in order to pursue the interests protected by the GDPR, which he does not have to do. What is clearly recognizable, however, is his goal of being able to check some of the premium adjustments that were initially accepted after a long time and to have the information that was originally no longer considered relevant replaced. If a plaintiff is also concerned with the interests protected by Art. 15 Para. 1, 3 DS-GVO, the purposes pursued may not stand in the way of a claim. However, if the data protection interest is clearly not being pursued at all or is only being pretended, the difficulties of differentiation assumed by the Cologne Higher Regional Court do not exist. And the argument put forward by the Higher Regional Court of Celle that the reason for a request for information does not have to be disclosed in order to assert a right to information is not convincing if - as here - it is recognizable that the information specified in Art. 15 Para. 1, 3 DS-GVO granted right is exercised exclusively for purposes that are not protected by the European legislator. The right of refusal in Art. 12 (5) sentence 2 letter b) GDPR serves precisely to defend against such requests for information that are clearly not covered by the protective purpose of the regulation.
58Whether this question requires a preliminary ruling in accordance with Art. 267 letter b) of the Treaty on the Functioning of the European Union in the event of a final decision (according to OLG Koblenz, decision of October 19, 2022, 10 U 603/22, r+s 2023, 62 ff .), the Senate leaves open; in any event, he is not obliged to make such a submission to the Court of Justice because his decision is contestable.
59In view of this, the fact that standardized justifications, which are sent to all policyholders in an identical form – for example as a uniform supplementary sheet – are not personal data within the meaning of the GDPR is not relevant here in view of this.
61There is also no right to information from §§ 241 Para. 2, 242 BGB in connection with the insurance contract existing between the parties.
62Admittedly, an obligation to provide mutual support can also result from an obligation in accordance with Section 241 (2) BGB. This can also lead to an obligation on the part of the creditor to provide the contractual partner with documents for obtaining credit (BGH, judgment of June 1st, 1973, V ZR 134/72, NJW 1973, 1793 under II 2) or for the perception of his tax interests (Senate judgment dated July 5th, 1974, 20 U 227/73, MDR 1975, 401).
63Even within the framework of a special connection existing between the parties, such a right to information requires, according to the established case law of the Federal Court of Justice, that the debtor is in an excusable manner uncertain about the existence or the scope of his right (cf. BGH, judgment of August 1, 2013, VII ZR 268/11, NJW 2014, 155 ff., para. 20). The plaintiff is burdened with the burden of proof and explanation for all the requirements of the asserted right to information. Here the plaintiff could easily see for himself which premium adjustments were made from the documents sent to him during the term of the contract. The general reference to the fact that he no longer has the supplements to the insurance policy "no longer available" (eGA-II 36) cannot justify the requirements for a right to information according to § 242 BGB. In this context, he would have to explain, for example, how he regularly dealt with the undisputedly received documents over the years. It would in turn depend on this, for example on the storage of the documents, which presentation one would have to demand from the plaintiff regarding the efforts made by the plaintiff to find the documents again (cf. also OLG Nürnberg, judgment of March 14, 2022, 8 U 2907/21, VersR 2022, 622 ff., para. 39 f.). In any case, without such a presentation, it is not certain that the plaintiff is in an excusable manner uncertain about the content of the documents.
64 Contrary to the plaintiff's view, it is not unreasonable, but rather obvious in order to protect one's own interests, to keep the contractual documents provided at least as long as one might (even) possibly want to derive rights against one's contractual partner from these documents.
65And also the fact that the policyholder from § 3 para. 3 sentence 1 VVG under certain conditions the issuance of a new insurance certificate including the supplements, from § 3 para. 4 VVG copies of his own contractual declarations and from § 7 para. 4 VVG the contractual provisions including the AVB (see this below), does not justify a claim for information of the type asserted from § 242 BGB (however, OLG Naumburg, judgment of October 13, 2022, 1 U 171/21, VersR 2023, 436 ff., Rn. 52 f.). Because the legislature has not codified a comprehensive right of the policyholder to information about the existence and development of the insurance relationship, but left it in individual regulations with the design of specific claims to the issue of copies or copies of certain documents. Any further right to information from Section 242 of the German Civil Code must be measured against the prerequisites that have been developed by the supreme court in this regard. And for the reasons mentioned, it is not sufficient for the policyholder to merely declare that the information requested is not (or no longer) available.
66The Senate was not required to separately point out these aspects to the plaintiff in accordance with § 139 ZPO. Because the district court has already rejected a right to information from § 242 BGB precisely because the plaintiff has not presented any comprehensible reasons why he could not see for himself from the documents sent to him which premium adjustments had been made (page 6 of the judgment, eGA-II 9).
68A right to information from Section 3 (3) VVG is ruled out.
According to this provision, the policyholder can request the insurer to issue a new insurance certificate if the insurance certificate has been lost or destroyed. This does not result in a right to information, because providing information involves a not inconsiderable amount of additional work compared to issuing a replacement copy (cf. BeckOK VVG-Filthuth 18th edition (as of February 1st, 2023), § 3 marginal note 21 with further references).
70The plaintiff is not to be awarded a claim for the issuance of replacement insurance certificates or supplements in response to his request for information, even if such a claim is contained as a "minus" in his comprehensively worded request for information. Because the insurance certificate should inform the insurer about the essential contents of the concluded contract, provide evidence of them and, under certain conditions, legitimize the owner to claim benefits from the insurer (Langheid/Rixecker-Rixecker, VVG, 7th edition 2022, § 3 marginal no. 1). According to § 3 Para. 3 VVG, these functions should also be possible for the policyholder in the event of loss or destruction. Due to this purpose, § 3 para. 3 VVG gives the policyholder, in the opinion of the Senate (without further justification further OLG Schleswig, judgment of 18.07.2022 - 16 U 181/21, VersR 2022, 1489), but only a claim to a replacement issue of the last valid one Insurance policy or supplement. However, the plaintiff does not request this. He asserts claims for information for the years 2014 and 2015. Since the defendant made further adjustments in the following years and issued addenda in each case, the addenda for the years up to and including 2015 no longer document the content of the insurance contract.
72 The claim asserted by the plaintiff cannot be derived from § 810 BGB either. This provision does not entitle you to the provision of information or the sending of documents. Whether - as the plaintiff believes - a right of inspection is included as a minus in the request for information, which continues to be submitted alone, seems doubtful. In any case, there is no right of inspection under § 810 BGB if it is intended to "explore", i.e. to use the information obtained to obtain clues for later legal prosecution (OLG Nuremberg, judgment of March 14, 2022, 8 U 2907/21 , VersR 2022, 622 et seq., para. 42). That is evidently the case here.
74A right to information does not result from §§ 666, 675 BGB. The plaintiff's reasoning on this is a circular argument: Because the insurer can also owe information and advice during the contractual relationship under §§ 6, 6a VVG, every insurance contract is also an agency agreement with the comprehensive information and advice resulting from §§ 666, 675 BGB accountability. The plaintiff concludes from an expressly limited provision in §§ 6, 6a VVG that there is a comprehensive obligation to provide information.
76 Finally, a right to information does not result from the defendant's obligation to keep documents under § 257 HGB. Because only certain of the documents to be kept are to be presented in a legal dispute pursuant to §§ 258 et seq. HGB, and only by order of the court. It follows that the legislator has not created a right to information with the merchant's obligation to retain information (OLG Munich, decision of November 24th, 2021, 14 U 6205/21, r+s 2022, 94 f., para. 65 ff.; OLG Koblenz, decision of October 19, 2022, 10 U 603/22, r+s 2023, 62 et seq., para. 21).
78 If the claims asserted do not exist, the plaintiff cannot demand exemption from the lawyer's fees incurred before the court.
80The ancillary decisions follow from Section 97 Paragraph 1, Section 708 No. 10, Section 711 ZPO.
81The revision is - limited to the non-existence of an independent right to information (II. 2 of the reasons) - permitted in accordance with Section 543 (2) sentence 1 no. 2 alternative 2 ZPO to ensure uniform case law. By denying the asserted right to information, the Senate deviates from the judgments of the Higher Regional Court of Naumburg (of October 13, 2022, 1 U 171/21), the Higher Regional Court of Cologne (of May 13, 2022, 20 U 198/21), the Higher Regional Court of Celle (of December 15, 2022, 8 U 165/22) and the Higher Regional Court of Schleswig (dated July 18, 2022, 16 U 181/21).
82Value in dispute for the appeal procedure: €10,750.00