OLG Nürnberg - 8 U 2907/21

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OLG Nürnberg - 8 U 2907/21
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Court: OLG Nürnberg (Germany)
Jurisdiction: Germany
Relevant Law: Article 12(5)(b) GDPR
Article 15(1) GDPR
Decided: 14.03.2022
National Case Number/Name: 8 U 2907/21
European Case Law Identifier: DE:OLGNUER:2022:0314.8U2907.21.0A
Appeal from: LG Ansbach (Germany)
3 O 1429/20 Ver
Appeal to: Unknown
Original Language(s): German
Original Source: Bayern.Recht (in German)
Initial Contributor: Fabian Dechent

The Higher Regional Court Nürnberg held that a controller can reject an access request according to Article 12(5)(b) GDPR if the purpose of the request is not to be aware of or verify the lawfulness of the processing.

English Summary[edit | edit source]

Facts[edit | edit source]

The controller is a private health insurance company. The data subject is insured with the controller. The parties are in dispute about the invalidity of several premium increases as well as about the resulting claims for refunds. The data subject filed a lawsuit with the Regional Court of Ansbach (Landgericht Ansbach - LG Ansbach) requesting the refund of overpaid premiums as well as information from the controller on all adjustments to premiums in the form of insurance policies, supplements to these policies and all notification letters sent to the data subject during the contractual relationship.

Holding[edit | edit source]

The Higher Regional Court Nuremberg (Oberlandesgericht Nürnberg - OLG Nürnberg) held that the data subject had no right to access under Article 15 GDPR because the controller was entitled to reject the request pursuant to Article 12(5)(b) GDPR. The court reasoned that this provision merely lists "repetitive character" as an example of an excessive request. However, the use of the word "in particular" makes it clear that the provision also intends to cover other forms of abusive requests. To assess what constitutes an abuse of the right to access, the court referred to the purpose Article 15 GDPR which according to Recital 63 is to enable the data subject to be aware of, and verify, the lawfulness of the processing. The court ruled that the data subject was obviously not interested in verifying the lawfulness of the processing but rather to check whether the adjustments made to the premiums were formally compliant with German insurance law. As a consequence, the court concluded that the request was abusive.

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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.

Appeal, attorney's fees, information, insurance contract, payment, insurance certificate, reimbursement, surrender, invalidity, claim, consent, lawsuit, knowledge, obligation to contribute, good faith, meaning and purpose, provision of information
Appeal, attorney's fees, information, insurance contract, payment, insurance certificate, reimbursement, surrender, invalidity, claim, consent, lawsuit, knowledge, obligation to contribute, good faith, meaning and purpose, provision of information
Lower court:
LG Ansbach, judgment of July 13, 2021 - 3 O 1429/20 Ver
BeckRS 2022, 7415


1. The judgment of the Ansbach Regional Court of July 13, 2021, Az. 3 O 1429/20 Ver, is amended on appeal by the defendant. The lawsuit is dismissed in its entirety.

2. The plaintiff's appeal against the judgment of the Ansbach Regional Court of July 13, 2021, Az. 3 O 1429/20 Ver, is rejected.

3. The plaintiff has to bear the costs of both legal actions.

4. The judgment is provisionally enforceable. The judgment of the District Court of Ansbach referred to in Section 1 is - insofar as it is valid - provisionally enforceable without the provision of security.

The amount in dispute for the appeal proceedings is set at €5,392.84.

Reasons for decision

The parties are arguing about the ineffectiveness of several premium increases in the context of a private health insurance policy that has existed between them since 2002 and about the resulting claims for reimbursement under unjust enrichment law. The insurance relationship is based on the general insurance conditions of the defendant for health insurance and daily hospital allowance insurance, which include the model conditions MB/KK 2009 in Part I (Annex BLD 3).

In the first instance, the premium adjustments that took place on April 1, 2017 and 2020 were the subject of the legal dispute, based on the alleged ineffectiveness of which the plaintiff demanded reimbursement of €1,533.16 and payment of pre-trial legal fees of €461.68. He also requested information about the contribution adjustments made in the years 2013 to 2016 by submitting the relevant documents.

For further details on the facts and the dispute, reference is made to the facts of the judgment under appeal.

The regional court upheld this action insofar as it determined the ineffectiveness of the increase in the tariff by €38.69 per month for the period April 1, 2017 to March 31, 2020 and the defendant to pay €1,044.63 (relating to the period January 1, 2018 until March 31, 2020) and pre-trial legal fees of €255.85. In addition, the district court found that the defendant was obliged to surrender the benefits that it had drawn from the wrongly obtained premium shares from January 1, 2018 to March 31, 2020.

This judgment of July 13, 2021 was served on the plaintiff's legal representative on July 13, 2021 and the defendant's legal representative on July 14, 2021. The plaintiff's appeal was received by the Nuremberg Higher Regional Court on August 13, 2021 (BI. 188/189 of the file) and was justified within an extended period with a brief received on October 13, 2021 (BI. 222 ff. of the file). The defendant's appeal was received by the Nuremberg Higher Regional Court on August 12, 2021 (BI. 192/193 of the file) and was justified within an extended period with a brief received on October 7, 2021 (BI. 207 ff. of the file).

On appeal, the plaintiff requests:

1. The defendant is sentenced to pay the plaintiff a further €348.21 plus interest therefrom in the amount of five percentage points above the respective base interest rate from lis pendens on over and above the amount judged in the first instance in application to 2).

2. The defendant is sentenced to provide the plaintiff with information about all premium adjustments that the defendant made to the insurance number in the contract concluded between the parties in the years 2013, 2014, 2015, 2016 and to provide suitable documents for this purpose, in containing at least the following information:

- the amount of the premium adjustments for the years 2013, 2014, 2015, 2016, naming the respective tariffs in the insurance relationship of the plaintiff side,

- 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, 2015, 2016, 2017 and

- the reasons for the years 2013, 2014, 2015, 2016 sent to the plaintiff for the purpose of adjusting the premium.

3. It is established that all unilateral increases in the plaintiff's health insurance tariffs, which the defendant made to the plaintiff's side within the framework of the health insurance relationship between them for the insurance number of the years 2013, 2014, 2015, 2016 and which after the information was provided in accordance with 2) are to be specified more precisely, are invalid and the plaintiff is not obliged to pay the respective increase amount and that the total amount due monthly for the future is still to be precisely quantified after the information has been provided in accordance with the 2) claim Amount is to be reduced in addition to the claim under 1).

4. It is found that the defendant

a) the plaintiff is obliged to surrender the benefits it has derived from the share of the premium that the plaintiff has paid for the premium increases listed under 1),

b) the plaintiff is obliged to hand over the benefits it has derived from the share of the premium that the plaintiff has paid for the premium increases to be specified in more detail after the information has been provided in accordance with the claim 2),

c) has to pay interest on the uses to be issued according to 4 a) and 4 b) in the amount of five percentage points above the respective base interest rate from lis pendens.

The defendant requests

1. The plaintiff's appeal is dismissed, alternatively rejected.

2. The judgment of the Ansbach Regional Court of July 13, 2021, Az. 3 O 1429/20 Ver, is amended and the complaint is dismissed in its entirety.

The plaintiff requests

dismiss the defendant's appeal.

After the consent of the parties, the Senate ordered by resolution of February 1, 2022 that a decision should be made in writing without an oral hearing (BI. 308/309 of the file).

The admissible appeal of the plaintiff is unsuccessful (1.). The admissible appeal of the defendant is successful. It leads to the contested judgment being amended and the complaint being dismissed in its entirety (2.).

Insofar as the regional court dismissed the action, the contested judgment is not based on an infringement of the law and the facts on which the appeal is based do not justify any other decision (Section 513 (1) ZPO).

The lower court correctly decided that any claims of the plaintiff due to the contribution payments made up to and including December 2017 are time-barred (§ 214 Para. 1 BGB; LGU 12-14). This decision is in line with the view of the sentencing Senate known to the party representatives and with the case law of the highest court (cf. BGH, judgment of November 17, 2021 - IV ZR 113/20, NJW 2022, 389 para. 39 ff.). The rambling, abstract explanations in the reasoning for the appeal (pages 12 to 33) were noted and examined, but were not considered to be definitive. They justify no other point of view and require no in-depth assessment.

With regard to the payments made in 2017, the statute of limitations expired on December 31, 2020. The statement of claim was received by the district court on December 14, 2020. However, it was not served on the defendant until January 15, 2021 (Section 204 (1) No. 1 BGB, Section 253 (1) ZPO). Insofar as the district court has determined that the requirements of Section 167 ZPO are not met (LGU 14), there is no appeal that satisfies the requirements of Section 520 (3) sentence 2 nos. 2 and 3 ZPO.

The payment of €348.21 made with the appeal motion for 1), which relates to the period from April to December 2017, is therefore subject to the statute of limitations. Accordingly, the defendant does not owe any surrender of benefits and interest from this premium share (appeals to 4 a) and 4 c).

aa) The lower court also correctly decided that the assertion of the complaints to 3) to 5) by way of a step action is inadmissible (LGU 9). The plaintiff pursues this request further with the appeal as requests 2) and 3).

§ 254 ZPO regulates a privileged special case of objective accumulation of lawsuits. The step-by-step lawsuit makes it possible to combine an application for information with an as yet unspecified or unspecified application for benefits and/or a declaratory judgment. The initially unnumbered application for a declaratory judgment can - as here - also be an action for an interim declaratory judgment (cf. BGH, judgment of November 27, 1998 - VZR 180/97, WM 1999, 746).

However, the provisional exemption from the obligation to provide figures under Section 253 (2) No. 2 ZPO presupposes that the information requested at the first stage serves as a mere aid (only) for the concrete determination of the entitlement to benefits. It is therefore out of the question if the information is intended to provide other information about the prosecution of the plaintiff (st. case; cf. BGH, judgments of April 18, 2002 - VII ZR 260/01, NJW 2002, 2952, 2953 and from 29.03.2011 - VI ZR 117/10, NJW 2011, 1815 para. 8 each with further reference; OLG Köln, VersR 2020, 81, 86).

This is also the case here. The information requested by the plaintiff is obviously used for the first examination of whether and when there were any premium adjustments in the years 2013 to 2016 and, as a result, a possible claim against the defendant could exist. The fact that the amount of the adjustments and the naming of the tariffs is required as an individual element of the request for information cannot change this. In this respect, it is a dependent part of the application, which becomes clear from the fact that even if the amount is known, the reason for the claim would remain unclear. Because even if the amount of the increase were known, it would not be possible to check the formal legality (cf. LG Wuppertal, r+s 2021, 696 para. 24; LG Detmold, BeckRS 2021, 34230 para. 24).

bb) The subsequent inadmissible step action is to be reinterpreted as a general accumulation of actions according to § 260 ZPO (cf. BGH, judgment of 29.03.2011 -VI ZR 117/10, NJW 2011,1815 para. 13). Because the plaintiff cannot be denied from the outset a legitimate interest in the requested information that is sufficient for the granting of legal protection. In addition, it can be assumed that the request for information should also be pursued independently of the grading.

However, the claim made in the third appeal proves to be inadmissible. The application for a declaratory judgment lacks a sufficiently specific designation of a legal relationship within the meaning of Section 256 (1) ZPO and, in its negative component (lack of obligation to pay the increase amount), the required quantification. The latter also applies to the application for payment made under point 3) at the end (§ 253 Para. 2 No. 2 ZPO).

cc) The application for appeal to 2), which is to be regarded as an independent request for information, is unfounded and was rightly rejected by the district court (LGU 10).

(1) Such a claim does not follow from §§ 241 Para. 2, 242 BGB in connection with the insurance contract existing between the parties. It is true that a good faith obligation can also result in the obligation to provide mutual support. This can also lead to the obligation of one contractual partner to make documents available to the other party (cf. Senate resolution of July 29, 2020 - 8 U 1096/20, BeckRS 2020, 37534 marginal number 10 with further references).

However, it is not sufficient for the claimant to claim that the requested information is important to him or that he relies on it. Rather, the prerequisite is that the claimant is excusably unclear about the content of the requested information, the respondent can easily provide the information (st. case; cf. BGH, judgment of 08.02.2018 - III ZR 65/17, NJW 2018, 2629 para. 23 with further references) and there are sufficient indications that a certain enforceable claim exists (cf. BGH, judgment of November 16, 2011 -VIII ZR 106/11, NJW 2012, 303 para. 11).

This is what is missing in the case at hand. The plaintiff has not specifically stated the reasons why he does not (or no longer) have information about any increases in contributions and the documents associated with them. The Senate is unable to identify any comprehensible reasons why the plaintiff lost the documents sent in the course of the contract. The plaintiff has also not presented any tangible indications that a specific claim - going beyond the amount awarded in the first instance - exists against the defendant under §§ 812 paragraph 1 sentence 1, 818 paragraphs 1 and 2 BGB.

(2) A right to information from Section 3 (3) and (4) WG is also ruled out. This relates only to lost or destroyed insurance policies and to the plaintiff's own declarations that he made as the policyholder in relation to the contract. However, that is not the issue here and this is not required by the complaint. The letters and supplementary sheets requested with the request for information are not covered by Section 3 WG from the outset (cf. Munich Higher Regional Court, r+s 2022, 94 para. 36). In addition, corresponding supplements to the insurance certificate are issued with any premium increases. Such would fall under § 3 WG (cf. BGH, judgment of April 10, 2004 - IV ZR 75/03, r+s 2004, 404, 405; OLG Hamm, r+s 1992, 390 each on § 5 WG old version). However, the plaintiff did not provide any specific information about their loss. He only made a blanket statement that the insurance certificates were "no longer to be found". This seems insufficient.

(3) § 810 BGB also does not help the action to succeed. On the one hand, this provision only grants a right to inspect certain documents. The claim asserted here for the provision of information or for the transmission of documents is not covered by this (cf. OLG Hamm, BeckRS 2021, 40312 para. 17). In addition, Section 810 of the German Civil Code requires the claimant to have a legal interest that is worthy of protection. This is not excluded solely by the fact that the contractual partner has culpably lost his own copy (cf. BGH, judgment of April 28, 1992 - XI ZR 193/91, NJW-RR 1992, 1072, 1073 f.). However, the insight must not be used for "research" in order to gain clues for later legal action against the owner of the document (cf. BGH, judgment of May 27th, 2014 -XI ZR 264/13, NJW 2014, 3312 para. 24 m.w.N.). However, the latter is clearly the plaintiff's aim here.

(4) Finally, the asserted right to information does not arise from Art. 15 (1) GDPR. Because the defendant has a right of refusal under Art. 12 (5) sentence 2 lit. b) GDPR. The provision only lists the frequent repetition as an example of an "excessive" application. The use of the word "in particular" makes it clear, however, that the provision also intends to cover other abusive applications (cf. Heckmann/Paschke in: Ehmann/Selmayr, Data Protection Basic Regulation, 2nd ed., Art. 12 para. 43; Paal/ Hennemann in: Paal/Pauly, DS-GVO BDSG, 3rd edition, Art. 12 DS-GVO marginal number 66 with further references).

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 (cf. also BGH, judgment of June 15, 2021 - VI ZR 576/19, VersR 2021, 1019 para. 23). However, the plaintiff is obviously not concerned with such awareness for the purpose of checking the data protection law admissibility of the processing of personal data. Rather, the sense and purpose of the information requested by him - as can be seen without a doubt from the connection with the inadmissible claims for assessment and payment - is exclusively to check any premium adjustments made by the defendant due to possible formal deficiencies according to Section 203 (5) WG. However, such a procedure is not covered by the protective purpose of the GDPR (cf. OLG Hamm, BeckRS 2021, 40312 para. 11; LG Wuppertal, r+s 2021, 696 para. 33).

(5) Even if the defendant, as the insurer, is legally obliged to store documents, the plaintiff has no right to information. Because the legislature does not pursue the policyholder's concern with the storage obligation, in particular it should not enable the respective business opponent to later enforce their own rights (cf. OLG Munich, r+s 2022, 94 para. 52).

2. Defendants' Appeal

Insofar as the lawsuit was successful in the first instance, the contested judgment is based on a legal error and the relevant facts justify a different decision (§ 513 Para. 1 ZPO).

Contrary to the opinion of the regional court (LGU 10/11), the increase in contributions made on April 1, 2017 was effective. Accordingly, the plaintiff has no claim based on this under §§ 812 paragraph 1 sentence 1, 818 paragraph 1 and 2 BGB and the defendant owes neither the surrender of uses nor the reimbursement of pre-court attorney's fees. The lawsuit is, insofar as it was upheld by the district court, also unfounded and thus completely dismissed.

a) With an undated letter from February 2017 and an attached addendum to the insurance certificate, the defendant had declared an increase in the premium in tariff "H" by €38.69 per month with effect from April 1, 2017 (enclosure bundle BLD 6).

b) The substantive requirements for the reasons for the increase in contributions required under Section 203 (5) WG have now been largely clarified by the highest court (cf. in particular BGH, judgments of December 16, 2020 - IV ZR 294/19, NJW 2021, 378 and of July 21, 2021 - IV ZR 191/20, NJW-RR 2021, 1260). According to this, it is necessary to state the basis of calculation, the not only temporary change of which caused the reassessment according to § 203 para. 2 sentence 1 WG. It must also be stated that the change has exceeded the relevant threshold. On the other hand, the insurer does not have to report the amount by which this basis for calculation has changed. He also does not have to indicate the change in other factors that have influenced the amount of the premium, such as the discount rate. Overall, it is not the purpose of the justification to enable the policyholder to check the plausibility of the premium adjustment.

The aforementioned letter itself mentions increased healthcare costs as the "most important reason" and also refers to the supplement "A practical example from DKV". In this attached information sheet, the regularly necessary comparison of the calculated with the actual service expenditure is clearly explained. The same applies to the need to adjust premiums if the above thresholds are exceeded. The main reasons for the increased service expenditure are then described in detail. From a formal point of view, this is to be regarded as sufficient. The justification for the premium increase on April 1, 2017 was clear and understandable for a recipient without any special knowledge of insurance law.

c) Whether an earlier premium increase may have been incorrect is irrelevant for the effectiveness of the reassessment and the resulting increased contribution obligation of the policyholder (cf. BGH, judgment of December 16, 2020 - IV ZR 294/19, NJW 2021, 378 para. 55 ). Because the later premium adjustment represents a complete redefinition for the newly calculated period and from now on forms the legal basis for the premium claim in its entirety.

3. The decision on costs follows from §§ 91 Paragraph 1, 97 Paragraph 1 ZPO.

4. The decision on provisional enforceability is based on §§ 708 No. 10, 713 ZPO.

5. There are no reasons for admitting the revision (§ 543 Para. 2 ZPO).

6. The amount in dispute for the appeal procedure was determined in accordance with Sections 47 (1) and (2), 48 (1) and 45 (2) GKG. In the process, the Senate estimated the value of the application for information to be EUR 4,000 for lack of other indications (§ 3 ZPO).