OLG Brandenburg – 11 U 19/24

26 January 2026

Avalang: Short summary for some reason wasn’t fully transferred.

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|Date_Decided=03.05.2024
|Date_Published=03.05.2024
|Year=2024

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A court held that an access request under Article 15 GDPR may be repeated and the existence of prior disclosures does not extinguish the right to access further relevant personal data.

== English Summary ==

=== Facts ===
The data subject was in a dispute with a health insurance company (the controller) about premium adjustment issues in their insurance plan, and associated missed explanation obligations.

The data subject repeatedly used their right to access information via [[Article 15 GDPR]] to obtain data about the contribution history of the insurance contract. The data subject’s original access request sought extensive documentation (all correspondence and attachments).

The controller refused such frequent and extensive requests, citing [[Article 12 GDPR#5|Article 12(5) GDPR]], which allows a controller to refuse or charge a reasonable fee for excessive or repetitive requests.

=== Holding ===
The court confirmed that only the personal data of the data subject falls within the scope of [[Article 15 GDPR]]. The mere fact that some documents like formal letters or appended documents in insurance correspondence exist does not mean the entire document collection is personal data if only parts of them relate to the data subject.

The court explicitly stated that an access request may be repeated and the existence of prior disclosures does not extinguish the right to access further relevant personal data, so a controller cannot claim that a prior fulfillment of a request automatically precludes subsequent valid requests under [[Article 15 GDPR]].

The court further held that the broad set of documents originally requested by the data subject was too general and did not meet this requirement. Only specific documents about the data subject’s insurance relationship were treated as identifiable personal information.

The court granted the data subject a more narrowly tailored access right to certain personal data, which requires the controller to provide a copy of specific personal information about the data subject’s contract for the years 2017 to 2019, including the dates and amounts of old and new insurance contributions, the dates of insurance plan changes and the dates when the insurance plans were terminated.

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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.

<pre>
I.

The parties are essentially in dispute over the validity of premium adjustments within the framework of a private health insurance policy and the resulting claims for reimbursement, determination and surrender of benefits, as well as claims for information regarding premium adjustments in the period from 2017 to 2019.

The statement of facts is omitted pursuant to Section 540 Paragraph 2 in conjunction with Section 313a of the German Code of Civil Procedure (ZPO).

II.

The plaintiff’s appeal is only well-founded with respect to the alternative claim, which was added to the complaint during the appeal proceedings. No other grounds for appeal exist; the contested judgment is neither based on an error of law within the meaning of Section 546 of the German Code of Civil Procedure (ZPO) nor do the facts to be considered pursuant to Section 529 of the German Code of Civil Procedure (ZPO) justify a different—more favorable—decision for the plaintiff (Section 513 Paragraph 1 of the German Code of Civil Procedure (ZPO)).

The plaintiff has no claim on the merits, neither for the reimbursement of allegedly wrongfully paid, excessive premiums nor for a declaration that the premium adjustments in question are invalid.

In detail:

The Regional Court correctly determined that the defendant’s premium adjustment in 2020 under tariff BS9 was not subject to any substantive objections regarding its validity.

Based on the facts and arguments presented at the close of the oral proceedings, it must be assumed that the substantive requirements for the premium adjustments in question were met.

However, the completeness of the documents submitted to the trustee by the defendant insurance company does not concern the substantive legality of the respective premium adjustment, but rather the procedure prescribed for its implementation. This legal opinion is consistent with the established case law of the Senate (see, among many others, judgments of November 8, 2023 – 11 U 122/23; of September 27, 2023 – 11 U 65/23; of July 12, 2023 – 11 U 28/23; of July 5, 2023 – 11 U 24/23; decision of May 24, 2023 – 11 U 275/22; see also Higher Regional Court of Nuremberg, decision of September 18, 2023 – 8 U 810/23, para. 10, juris; Higher Regional Court of Cologne, loc. cit., para. 17), which the plaintiff’s arguments in her statement of grounds of appeal cannot alter.

] Pursuant to Section 155 Paragraph 1 Sentence 2 of the Insurance Supervision Act (VAG) (or Section 12b Paragraph 1 of the former version of the VAG), the trustee is required to verify, with regard to the calculation of premiums, whether these comply with the applicable legal provisions. If this is the case, approval must be granted in accordance with Sentence 5 of this provision. Regarding the use of the (success-independent and success-dependent) funds for the contingency of claims, which is separately regulated in Section 155 Paragraph 2 of the Insurance Supervision Act (VAG) (or Section 12b Paragraph 2 of the former version of the VAG), and which requires the trustee’s approval, it merely states that the trustee must ensure that the requirements stipulated in the articles of association and the insurance terms and conditions are met and that the interests of the insured are adequately protected (Federal Court of Justice judgments of October 4, 2023 – 11 U 62/23; of September 26, 2023 – 11 U 65/23; of July 5, 2023 – 11 U 24/23, BeckRS 2023, 16581, concurring: Günther, FD-VersR 2023, 458602, beck-online; Schleswig-Holstein Higher Regional Court). Decision of February 21, 2023 – 16 U 139/19, para. 69 et seq., juris). The fact that the trustee has been provided with all the necessary documents does not affect the formal or substantive validity of the contribution adjustment as such (Senate, loc. cit.; Schleswig-Holstein Higher Regional Court, loc. cit., para. 71, juris). According to the now established case law of the Senate, this fact and the resulting question of whether the trustee could have granted his actual consent based on the documents submitted – in full or incomplete – does not affect the validity of the contribution adjustment, but is part of the trustee’s supervisory duties. However, reviewing these matters is not the responsibility of the civil courts, but rather of the supervisory authority (see, with convincing reasoning, Higher Regional Court of Nuremberg, Decision of June 5, 2023 – 8 U 3284/22, BeckRS 2023, 12283, para. 44). While Section 203 para. 2 sentence 1 of the German Insurance Contract Act (VVG) makes the insurer’s right to recalculate the premium contingent upon the approving trustee having reviewed the “technical calculation bases,” the mere incompleteness of these bases, as correctly held by the Higher Regional Court of Nuremberg, a view adopted by this Senate, does not, in itself, grant the policyholder the right to successfully challenge the validity of the premium adjustment. The wording of Section 203 VVG provides no clarification as to whether the policyholder can successfully invoke the incompleteness of the trustee’s documents in a premium adjustment dispute. Section 203(2) sentence 1 of the German Insurance Contract Act (VVG) merely requires that the documents enable the trustee to review the premium adjustment in accordance with the procedure prescribed in Section 203(2) sentence 4 VVG in conjunction with Section 155 of the German Insurance Supervision Act (VAG). Section 155(1) sentences 3 and 4 VAG expressly stipulate that the trustee must be provided with “all” calculation bases, which must be “complete” in content (see, among many others, the Senate, loc. cit.). However, it is not clear from the wording whether Section 203 VVG merely refers to the procedure to be followed or whether non-compliance with it—here: concerning the completeness of the documents—can be successfully challenged by the policyholder in a premium adjustment dispute (Higher Regional Court of Nuremberg, loc. cit., para. 45). Legal systematic considerations and the legislative history of the statutory provision do not support the conclusion that the policyholder could challenge the validity of the premium adjustment solely on the grounds of alleged incompleteness of the trustee’s documents (see Higher Regional Court of Nuremberg, loc. cit., referring to Higher Regional Court of Hamm, preliminary ruling of May 12, 2023 – 20 U 7/23). The civil courts are therefore not required to review the trustee process itself (see Senate, loc. cit.).

(See Higher Regional Court, loc. cit.) b)

As far as the plaintiff’s allegedly erroneous limitation by the defendant is concerned, the Federal Court of Justice has since clarified in its judgment of March 20, 2024 (IV ZR 68/22), which this Senate also follows, that the erroneousness of a limitation measure to be assessed under Section 155 Paragraph 2 of the Insurance Supervision Act (VAG) does not affect the substantive validity of a premium adjustment, which is otherwise based on a recalculation that complies with the requirements of Section 155 Paragraph 1 of the VAG (Federal Court of Justice, Judgment of March 20, 2024 – IV ZR 68/22, BeckRS 2024, 7981, para. 42). An allegedly erroneous limitation decision would therefore only lead to an adjustment of the premium payable by the plaintiff policyholder, insofar as the policyholder is individually affected by the erroneous decision and thus has a claim to the allocation of further limitation funds (Federal Court of Justice, loc. cit., para. 60). Apart from the fact that the plaintiff is not seeking such an adjustment in the present case, she has not even presented any factual arguments to that effect, nor has she expressly asserted any individual impact in the aforementioned sense, so that her appeal cannot succeed for this reason alone.

The individual claim to tariff-specific limitation is also not included in the plaintiff’s original application, as this unequivocally refers to the recalculation of the premium and not to the alleged allocation of limitation funds. In any case, the allocation of limitation funds would also have to be limited in time, given the limited scope of the funds available for this purpose.

Notwithstanding the above, the plaintiff’s entire initial submissions regarding the alleged (material) illegality of the contribution adjustments were made abusively and without any basis in fact, rendering them inadmissible in the proceedings. The plaintiff presented no concrete evidence for the alleged legal violations, but merely expressed subjective doubts based on an impression—found on whatever grounds—that the trustee’s approval had been granted without any actual examination of the prerequisites. Even if—contrary to the aforementioned legal opinion—the trustee’s review process were subject to judicial review, this would require, regardless of the burden of proof, at least that the plaintiff present evidence of errors in this regard. This is lacking in the present case, as the plaintiff herself admitted that her submissions were not based on any inconsistencies, but rather on mere speculation, lacking any factual basis.

The plaintiff did not present this evidence, as the plaintiff herself indicated that her submissions were not based on any inconsistencies, but on mere speculation, which was not supported by any factual arguments.

The plaintiff did not present any concrete evidence for the alleged legal violations, but merely on subjective doubts, which were not based on any factual basis. With regard to limitation measures, the policyholder, who bears the burden of proof and presentation in this respect, may generally initially limit himself to the general assertion that the insurer’s limitation decision violates the substantive standards arising from Section 155 Paragraph 2 of the German Insurance Supervision Act (VAG) and that this violation has also had an individually detrimental effect on him (see Federal Court of Justice (BGH), Judgment of March 20, 2024 – IV ZR 68/22, juris para. 73). However, according to the general principles of civil procedure, from which the Federal Court of Justice explicitly stated in its decision that it did not wish to deviate (see Judgment of March 20, 2024 – IV ZR 68/22, juris paras. 68 et seq.), a different rule applies here as well if the plaintiff bases her factual submissions abusively on purely speculative assertions. While the insurer bears the secondary burden of proof to provide further details regarding the parameters underlying the specific limitation decision (Federal Court of Justice, loc. cit.), this does not relieve the plaintiff of the primary (minimum) burden of proof, which cannot simply consist of a general questioning of the legality of limitation measures. The arguments must be tailored to the specific case at hand. Otherwise, following the plaintiff’s interpretation, the burden of proof would be reversed, contrary to established case law. Nevertheless, it suffices for the policyholder, who bears the burden of proof and presentation in this respect, to initially limit himself in civil proceedings to the general assertion that the insurer’s limitation decision violates the substantive standards arising from Section 155 Paragraph 2 of the German Insurance Supervision Act (VAG) and that this violation has also had an individually detrimental effect on him (see Federal Court of Justice (BGH), Judgment of March 20, 2024 – IV ZR 68/22). However, such an assertion cannot be inferred from the plaintiff’s submissions. The mere denial of the legality of the limitation measures is insufficient, as is the assertion that, in the absence of any other indications, the plaintiff must assume that the amount of the disputed premium adjustments should have been limited in full. Thus, it cannot be inferred from the plaintiff’s submissions that limitation measures were implemented, nor has he demonstrated that he is in any way affected by the insurer’s decisions regarding the limitation measures. The requirement that the policyholder must have the opportunity in individual proceedings to challenge errors made by the insurer in relation to other policyholders, or that errors in the limitation decision must have a legal consequence extending to the overall effectiveness of the premium change, does not arise from the guarantee of effective legal protection (BGH a.a.O.).

As a starting point, however, the Senate agrees with the plaintiff’s legal position that the question of whether a private health insurer’s premium increase is materially valid is, in principle, subject to unrestricted judicial review. According to the established case law of the Federal Court of Justice (BGH), which the plaintiff cites and which the Senate also follows, a claim for reimbursement of the increased premiums based on an alleged material invalidity of the premium adjustment requires only that the policyholder is aware of a premium increase and considers it materially unjustified (see BGH, Judgment of June 22, 2022 – IV ZR 193/20, juris para. 51; among many others, see also Senate Judgment of July 12, 2023 – 11 U 28/23). In this context, the Senate also follows the jurisprudence of the Federal Constitutional Court, according to which the parties to the proceedings must have the opportunity to assert themselves in the proceedings with factual and legal arguments (Decision of December 28, 1999 – 1 BvR 2203/98, juris). While the defendant health insurer bears the burden of proof and presentation for the substantive legality of the premium adjustment it is claiming (see Federal Court of Justice, Judgment of June 22, 2022 – IV ZR 193/20, r+s 2022, 462 para. 51 with further references), the plaintiff is therefore correct in assuming that, according to the highest court’s jurisprudence, a statement of claim is already conclusive and relevant if the party presents facts which, in conjunction with a legal principle, are capable of establishing that the asserted right has arisen in favor of the party. This also applies if the party has no direct knowledge of the events. In such cases, it may only introduce presumed facts into legal proceedings if, due to a lack of corresponding sources of information or expertise, it cannot have certain knowledge of specific facts. However, the Senate does not accept the plaintiff’s argument that the Federal Court of Justice intended to deviate from, and did deviate from, the generally applicable principles of civil procedure in cases concerning claims for the reimbursement of premium payments in the area of private health insurance. Accordingly, a party’s factual submissions based on presumptions are inadmissible if the party arbitrarily makes assertions “at random” or “out of the blue” without any tangible evidence for the existence of a particular set of facts, and this is subject to strict scrutiny (established case law of the Federal Court of Justice, e.g., decision of January 10, 2023 – VIII ZR 9/21, para. 14 et seq., juris, with further references). The burden of proof shifts to the health insurer only in the event of a legally valid objection raised by the plaintiff policyholder (see Senate judgments of November 8, 2023 – 11 U 9/22; 11 U 263/21; 11 U 125/18; 11 U 172/19; 11 U 282/21; of October 18, 2023 – 11 U 110/23; September 27, 2023 – 11 U 65/23; Higher Regional Court of Nuremberg, decision of September 18, 2023 – 8 U 810/23, para. 20, juris with further references). This applies all the more so with regard to limitation measures, for which the policyholder bears the burden of proof and presentation (cf. regarding the burden of proof and presentation concerning the effectiveness of limitation measures, Federal Court of Justice, Judgment of March 20, 2024 – IV ZR 68/22, juris para. 69).

The opposite conclusion cannot be inferred from the jurisprudence of the Federal Constitutional Court (Federal Constitutional Court, Decision of December 28, 1999 – 1 BvR 2203/98, r + s 2000, 167), which considers a substantive review necessary for reasons of the rule of law when premiums are adjusted in private health insurance. This principle is also consistent with the established jurisprudence of the Federal Court of Justice and is followed by this Senate (cf. Senate Judgment of September 27, 2023 – 11 U 65/23). The insured’s interest in a comprehensive factual and legal review of the premium increase calculation must be balanced against the health insurer’s legitimate interest in maintaining the confidentiality of the calculation basis. Therefore, from a constitutional perspective, a substantive review of the premium increase calculation cannot be entirely denied solely on the grounds of the insurer’s confidentiality interests. Civil courts must therefore examine to what extent the health insurer’s interest in confidentiality can be accommodated by applying Sections 172 No. 2, 173 Paragraph 2, and 174 Paragraph 3 Sentence 1 of the Courts Constitution Act (GVG) (see also Section 353d No. 2 of the Criminal Code (StGB)). They must also clarify the specific nature of this interest (Federal Constitutional Court, loc. cit.). Neither the Federal Constitutional Court nor the Federal Court of Justice, however, requires that this suspend the rules of the burden of proof and substantiation applicable in civil proceedings (see, among many others, the Senate judgments of November 8, 2023 – 11 U 9/22; 11 U 263/21; 11 U 125/18; 11 U 172/19; 11 U 282/21; of October 18, 2023 – 11 U 110/23; of September 27, 2023 – 11 U 65/23). The notion that the Federal Court of Justice could have abandoned its established case law in a subordinate clause when examining the commencement of the limitation period is entirely far-fetched.

[The text abruptly ends here, so the translation stops as well.] Measured against this standard, the plaintiff’s denial of the materially correct contribution adjustment and the assertion of a flawed limitation in the present case were clearly unfounded and therefore procedurally inadmissible (cf. in this regard the Senate’s judgments of October 4, 2023 – 11 U 62/23; of September 27, 2023 – 11 U 65/23; decision of May 24, 2023 – 11 U 275/22; judgment of June 21, 2023 – 11 U 336/22; see also Higher Regional Court of Zweibrücken, decision of May 22, 2023 – 1 U 218/22, para. 11 et seq. juris; ibid., decision of May 22, 2023 – 1 U 222/22, para. 9 et seq., juris; see also Munich Regional Court, judgment of June 1, 2023 – 12 O 1228/19). The plaintiff has presented no facts, either in the first instance or in the grounds of appeal (which are decisive pursuant to Section 520 para. 3 of the German Code of Civil Procedure), as to why she assumes the respective tariff is materially invalid; rather, she has consistently limited herself to the mere (general) denial of the adjustment requirements specified in the law. Based on the plaintiff’s submissions, there is no indication whatsoever in the present case that one or more of the tariffs that are the subject of this legal dispute are materially invalid. A reference to allegedly non-compliance with legal regulations does not constitute a statement of facts, but rather is the result of evaluating the – here lacking – statement of facts (see Senate judgment loc. cit.; and judgment of September 27, 2023 – 11 U 65/23). Accordingly, the equally general statement is purely speculative. The plaintiff fails to provide any tangible evidence or even any argument to support its plausibility (see also Regional Court of Wuppertal, judgment of July 4, 2023 – 4 O 276/22, BeckRS 2023, 17390 para. 27). However, the mere existence of requirements does not provide any basis for assuming that these requirements might not be met (Federal Court of Justice judgments of November 8, 2023 – 11 U 9/22; 11 U 263/21; 11 U 125/18; 11 U 172/19; 11 U 282/21; of October 18, 2023 – 11 U 110/23; Higher Regional Court of Düsseldorf, decision of March 24, 2023, I-13 U 125/22, cited in Regional Court of Duisburg, judgment of May 23, 2023 – 6 O 281/22, BeckRS 2023, 16631 para. 21).

] The plaintiff has also failed to present any concrete facts that could provide any indication that, and for what reason, the defendant’s contribution adjustments regarding the use of limiting measures might not have been carried out correctly (see also Higher Regional Court of Nuremberg, Decision of September 18, 2023 – 8 U 810/23, para. 22, juris). Finally, she has not even begun to address the defendant’s submissions in its statement of defense. Although the plaintiff elaborates in detail in the statement of claim which legal requirements must be observed, she then fails to specify, with regard to the concrete case at hand, which of these requirements she believes have not been met (for a similar situation, see the Senate judgments of November 8, 2023 – 11 U 9/22; 11 U 263/21; 11 U 125/18; 11 U 172/19; 11 U 282/21; of October 18, 2023 – 11 U 110/23; of September 27, 2023 – 11 U 65/23; see also Regional Court of Wuppertal, judgment of July 4, 2023 – 4 O 276/22, BeckRS 2023, 17390 para. 23).

[Regarding a similar situation, see the Senate judgments of November 8, 2023 – 11 U 9/22; 11 U 263/21; 11 U 125/18; 11 U 172/19; 11 U 282/21; of October 18, 2023 – 11 U 110/23; of September 27, 2023 – 11 U 65/23; and also Regional Court of Wuppertal, judgment of July 4, 2023 – 4 O 276/22, BeckRS 2023, 17390 para. 23.] With this subsumption, the Senate is also in line with the Federal Court of Justice’s line of reasoning in comparable cases. In a decision concerning premium adjustments (Federal Court of Justice, Judgment of February 9, 2022, IV ZR 337/20, para. 21), the Federal Court of Justice stated in a similar case that the plaintiff in that proceeding could essentially have contested the existence of the prerequisites for the premium adjustments, a deviation of the actuarial bases above the threshold, and the accuracy of the premium calculation without any basis whatsoever. In this respect, the Federal Court of Justice – even though it was ultimately able to leave this question open in the aforementioned case – expressly considered the possibility of a denial “without any basis whatsoever.” In the present case, there are significant (further) considerations supporting the inadmissibility of objections in premium adjustment proceedings, particularly since an increase in premiums is only possible with the consent of the supervisory trustee, who, according to the Federal Court of Justice’s line of reasoning, represents the interests of all policyholders and is therefore not on the insurer’s side (cf., regarding a similar line of reasoning, the Senate’s judgments of October 4, 2023 – 11 U 62/23; and of September 27, 2023 – 11 U 65/23). This trustee has taken the place of the financial supervisory authority as the control body. All the arguments put forward by the German Federal Court of Justice (BGH) against the lack of verifiability of the trustee’s independence (see, in this regard, the fundamental decision of the BGH, judgment of December 19, 2018 – IV ZR 255/17, NJW 2019, 919, paras. 48, 53, 55, 71) can also be applied against judicial review based solely on a generalized presentation of facts:

If the civil courts in unjust enrichment proceedings were required to conduct a comprehensive, unfounded substantive review of the prerequisites and scope of the premium increase “out of the blue,” the stability of the premiums would obviously be jeopardized (see, for example, the decision of the BGH, judgment of December 19, 2018 – IV ZR 255/17, NJW 2019, 919, paras. 48, 53, 55, 71).See BGH, loc. cit., para. 48; see also Senate, judgment of October 4, 2023 – 11 U 62/23; of September 27, 2023 – 11 U 65/23). Furthermore, this routine review would entail the risk that verifying its accuracy would undermine compliance with the principle of equivalence and the long-term fulfillment of insurance benefits (cf. BGH, loc. cit., para. 49). A temporary disruption of equivalence must also be avoided in the interest of premium stability (BGH, loc. cit., para. 49). Moreover, the purpose of involving the premium trustee in this task must not require the individual policyholder to have the opportunity to review the substantive legality in legal disputes concerning premium adjustments (BGH, loc. cit., para. 50), because the trustee is precisely assuming the state’s responsibilities in this instance. The introduction of the trustee for conditions also aimed to develop a new contractual instrument to replace the existing supervisory instrument of condition approval. This instrument was intended to replace the previous supervisory quality control. This meant that the effectiveness of the condition amendment would be contingent upon the trustee’s review and approval (see in detail the Senate’s decision, loc. cit.; Langheid/Wandt/Boetius, MüKo VVG/Boetius; 3rd ed. 2024, § 203 para. 597 with further references). The close interrelationship between contract law and supervisory law, as expressed in Section 203 Paragraph 2 Sentence 4 of the German Insurance Contract Act (VVG), also implies that the purpose of the adjustment right under Section 155 of the German Insurance Supervision Act (VAG), namely to ensure the insurer’s continued fulfillment of its contractual obligations and thus to safeguard the interests of the insured, must not be undermined by unjust enrichment (Langheid/Rixecker/Muschner, VVG, 7th ed. 2022, Section 203, marginal note 37). While the trustee is not an organ of the insurance supervisory authority (Langheid/Wandt/Boetius, ibid., Section 203, marginal note 603). However, Section 155 Paragraph 3 Sentence 5 of the German Insurance Supervision Act (VAG) obligates the trustee to inform the supervisory authority immediately if they cannot reach a consensus with the insurance company regarding a necessary premium adjustment (Langheid/Wandt/Boetius, op. cit., Section 203, marginal note 606). Furthermore, the German Federal Court of Justice (BGH) emphasizes the entrepreneurial decision underlying the premium increase (BGH, op. cit., marginal note 52). Moreover, the BGH is also correct in asserting that the limits of the insurer’s discretionary powers must, in principle, be ensured within the framework of the substantive review of the insurer’s entitlement to adjust premiums (BGH, op. cit., marginal note 53).

Furthermore, the BGH’s position is also correct in asserting that the limits of the insurer’s discretionary powers must be guaranteed within the framework of the substantive review of the insurer’s entitlement to adjust premiums. In principle, without any objective evidence justifying suspicion of a materially flawed contribution adjustment or limitation, the proceedings would amount to an investigative approach, which is contrary to the very nature of the German Code of Civil Procedure (ZPO) (see the explanatory memorandum to the ZPO reform of January 1, 2002: BT-Drs. 14/6036, p. 120, col. 2).

Finally, the outcome would be no different even if the plaintiff’s entire argument regarding the substantive legality were interpreted not as a “simple denial” but as a denial based on “lack of knowledge” within the meaning of Section 138 Paragraph 4 of the ZPO. In this case, too, the limit of permissible denial based on lack of knowledge is an “abusive” assertion, which the Federal Court of Justice equates with a denial “out of the blue” (established case law, cf. Federal Court of Justice, Judgment of April 4, 2014 – V ZR 275/12, NJW 2015, 468 para. 12) and considers to be the case, at least in the case of arbitrary assertions without tangible evidence (Federal Court of Justice, Judgment of June 15, 2000 – I ZR 55/98, NJW-RR 2000, 1635, 1638; Federal Court of Justice, Judgment of September 17, 1998 – III ZR 174/97, NJW-RR 1999, 361; Judgment of July 7, 1988). – III 111/87, juris para. 34 with further references; see in detail the Senate judgments of November 8, 2023 – 11 U 9/22; 11 U 263/21; 11 U 125/18; 11 U 172/19; 11 U 282/21; and of October 18, 2023 – 11 U 110/23).

Contrary to the plaintiff’s assertion, she is not without protection as the policyholder. Suitable grounds for finding that a contribution adjustment is materially unlawful (the threshold of materiality for which, in the interest of effective legal protection, must not be set too high) can arise, for example, from an exceptionally large contribution adjustment within the framework of a comprehensive assessment of the circumstances of the individual case, as the Senate recently clarified (see decision of November 8, 2023 – 11 U 93/19).

Since there is no claim on the merits, there is also no claim to the interest and profits asserted as ancillary claims.

The request for information, which is still being pursued in the appeal under point 4, is also unfounded.

The plaintiff cannot demand information regarding the amount of the premium adjustments for the years 2017 to 2019, specifying the respective tariffs and the information provided to her for this purpose in the form of insurance policies and policy amendments, as requested in point 4 of the grounds of appeal, pursuant to Section 242 of the German Civil Code (BGB) (see the Senate’s judgment of February 28, 2024 – 11 U 161/23, concerning a very similar case).

In the context of a legal relationship, a debtor is exceptionally obligated to provide information in accordance with the principles of good faith if the entitled party is justifiably uncertain about the existence and extent of their right and the obligated party can easily provide the information necessary to eliminate this uncertainty. The granting of the right to information must be made taking into account the specific circumstances of the individual case and in compliance with the principle of proportionality (Federal Court of Justice, Judgment of September 27, 2023 – IV ZR 177/22 with further references, juris). Within contractual relationships – as here – the right to information can also serve the function of providing the entitled party with information about the existence of the claim in principle. However, there must then be sufficient indications of the existence of a principal claim that is to be asserted with the help of the information (Federal Court of Justice, ibid., with further references). The plaintiff incorrectly asserts that the aforementioned principles were only specified by the Federal Court of Justice’s ruling of September 27, 2023 (see above; see also Federal Court of Justice, Judgment of February 6, 2024 – VI ZR 15/23 and VI ZR 61/23). Rather, the aforementioned decision merely summarized the long-standing case law of the Federal Court of Justice (BGH) regarding claims for information under Section 242 of the German Civil Code (BGB), which the Senate had already consistently followed (as the plaintiffs’ representatives are aware, see, for example, the judgment of September 8, 2023 – 11 U 54/23), in its essential principles.

No such indications are apparent, as the plaintiff has failed to present any corresponding factual arguments. Furthermore, no other factors are discernible that could support the affirmation of this claim.

Against this background, it must first be noted that the plaintiff did not provide any substantiated arguments in this regard in the first instance, but merely limited herself to the entirely inadequate assertion that the documents were no longer in her possession.

The “declaration of loss” now submitted as part of the grounds of appeal did not alter this fact. Notwithstanding the fact that this constitutes new evidence that could easily have been presented in the first instance and is therefore subject to rejection under Sections 529 and 531 of the German Code of Civil Procedure (ZPO), it is clearly not a statement by the plaintiff, but rather by her husband. Furthermore, the declaration of loss fails to specify which documents are allegedly missing, nor does it establish any justification for the supposed loss. Moreover, the general assumption that an insured party is not required to retain correspondence from the insurer is insufficient (see Federal Court of Justice (BGH), Judgment of February 21, 2024 – IV ZR 311/22, juris para. 14).

In conclusion, the plaintiff’s presentation of the facts remains inadequate and plausible.

In summary, the plaintiff’s case still lacks sufficient and plausible evidence.

The right to information also does not arise from Section 3 Paragraph 3 of the German Insurance Contract Act (VVG), as the Senate had occasionally granted in other proceedings in the past when its prerequisites were met. According to this provision, the policyholder can indeed demand that the insurer issue a new insurance policy if one has been lost or destroyed. However, the cover letters, justifications, and supplementary documents also requested with the information request are not covered by this provision (see Senate Decision of May 4, 2022 – 11 U 239/21, juris). Furthermore, even insofar as the plaintiff requested that the policy amendments from 2017 to 2019 be made available to her, this cannot be based on Section 3 Paragraph 3 of the VVG. The insurance policy serves an informational, legitimizing, and evidentiary function (see Bundestag Printed Matter 16/3945, p. 57). To enable the policyholder to be informed about and prove their rights and obligations under the contract, Section 3 Paragraph 3 of the German Insurance Contract Act (VVG) grants them a right to a replacement insurance policy. This right only covers the insurance policy including amendments that reflect the currently valid contract terms, but not – as in this case – amendments that are already outdated (Federal Court of Justice, Judgment of September 27, 2023, IV ZR 177/22).

Finally, the claim under point 4 of the grounds of appeal does not arise from Article 15 Paragraphs 1 and 3 of the GDPR, since the requirement under Article 15 Paragraph 1 GDPR that the letters themselves and the attached documents (supplements, amendments to the insurance policy) constitute personal data of the policyholder in their entirety is not met. The modalities for fulfilling the obligation under Article 15 Paragraph 3 GDPR are therefore irrelevant. According to Article 4(1) of the GDPR, personal data is any information relating to an identified or identifiable natural person (“data subject”). According to the case law of the Court of Justice of the European Union, this term is to be interpreted broadly. It is not limited to sensitive or private information, but potentially encompasses all types of information, both objective and subjective, provided that it relates to the person in question. This latter requirement is met if the information, by virtue of its content, purpose, or effects, is linked to a specific person (see CJEU, Judgment of 4 May 2023, – C-487/21; German Federal Court of Justice, loc. cit.). Accordingly, the complete letters of explanation, including the attachments, do not constitute personal data. Rather, the individual components (cover letter, attachment, addendum to the insurance policy) each contain individual pieces of personal data relating to the plaintiff as the policyholder. However, the plaintiff did not make such a limitation of his asserted claim and application in the first instance (see BGH, judgment of 06.02.2024 – VI ZR 15/23 and VI ZR 61/23).

Relying on Section 7 Paragraph 4 of the German Insurance Contract Act (VVG) and citing a decision of the Higher Regional Court of Saarland is also unhelpful. In its decision of September 27, 2023, the Federal Court of Justice (BGH) addressed a comprehensive claim for information—such as the one asserted here—and discussed it in light of all relevant legal bases. Section 7 Paragraph 4 of the VVG was not even mentioned. It is highly unlikely that the provision was overlooked by the highest court. Moreover, a claim under Section 7 Paragraph 4 of the VVG only extends to currently valid contractual terms, not to those that have long since been superseded, and is not directed at the reproduction of specific documents (as convincingly explained with detailed reasoning by the Higher Regional Court of Braunschweig, decision of January 12, 2024, 2 U 106/22, juris). Moreover, the Federal Court of Justice, whose view the Senate also follows in this respect, has since expressly clarified that it does not consider the opinion of the Higher Regional Court of Saarland to be tenable (see Federal Court of Justice, Judgment of February 21, 2024 – IV ZR 311/22, juris para. 18).

Only with the alternative claim no. 5 has the plaintiff now specified the personal data she is seeking (see in this regard the Senate’s judgment of February 28, 2024 – 11 U 161/23).

The submission of the alternative claim in the sense of claim no. 5 only in the statement of grounds of appeal constitutes a privileged amendment to the claim pursuant to Section 264 No. 2 of the German Code of Civil Procedure. It would be admissible in any case pursuant to Section 533 of the German Code of Civil Procedure because it is expedient and a decision based on the facts that must be considered in any case is possible. The expediency of the amendment stems from the fact that it allows for dispute resolution without new proceedings, particularly since the plaintiff already asserted a claim under Article 15(1) and (3) GDPR in the first instance with a clearly overly broad application.

The application is also well-founded. Contrary to the plaintiff’s assertion, however, the Regional Court did not violate its duty to provide guidance pursuant to Section 139(1) of the German Code of Civil Procedure (ZPO). While the court is obligated to encourage relevant applications, this is only permissible to the extent that the guidance remains within the scope of the party’s claim (Federal Court of Justice, Judgment of June 21, 2022 – VI ZR 395/19, juris; Zöller/Greger, ZPO, 35th ed., Section 139, para. 15). This includes, among other things, clarifying the relationship between the main and alternative claims and adjusting the claim following changes in the procedural situation (Zöller/Greger, loc. cit.). By submitting its alternative claim, based solely on Article 15 GDPR, the plaintiff has changed its objective in the proceedings, specifically with regard to certain personal data. However, Section 139 of the German Code of Civil Procedure (ZPO) does not require the court to provide information regarding such changes to a party’s objective (Federal Court of Justice, loc. cit.).

The information requested by the plaintiff, concerning the date and amount of the old and new premiums for each premium adjustment pursuant to Section 203 Paragraph 2 of the German Insurance Contract Act (VVG), as well as the date of tariff changes, specifying the original and target tariffs, and tariff terminations, all constitutes personal data within the meaning of the above definition, as it is linked to the plaintiff as the policyholder. Even if the information in question does not readily allow for the identification of a specific individual, it falls within the scope of Article 15 of the GDPR. The term “personal data” is to be interpreted broadly and encompasses—as explained above—not only sensitive or private information, but all types of information that are linked to a person in a specific way. Unlike the triggering factor, a change in tariff or a policy termination is substantive information that is tailored specifically to the policyholder. The same applies to the amount of the individually calculated premium. Here, too, there is a direct link to the policyholder.

Finally, the plaintiff’s claim for access to information is not precluded by Article 12(5), second sentence, of the GDPR. Although the legislator makes it clear by using the phrase “particularly in the case of frequent repetition” that the provision is intended to cover not only frequent requests but also other abusive requests and is therefore not exhaustive (see Heckmann/Paschke, in Ehlmann/Selmayr, Datenschutz-Grundverordnung [General Data Protection Regulation], 2nd ed., Art. 12 para. 43), the purpose of the GDPR must be taken into account when interpreting what constitutes an abuse of rights in this sense. As is evident from Recital 63 of the Regulation, the purpose of the right of access enshrined in Art. 15 GDPR is to enable data subjects to easily and at reasonable intervals become aware of the processing of their personal data (see also German Federal Court of Justice [BGH], Judgment of 15 June 2021 – VI ZR 576/19, juris). The exercise of the right under Article 15 GDPR is intended to enable the data subject to verify whether data concerning them is correct and also whether it is being processed lawfully (ECJ, Judgment of 4 May 2023 – C-487/21, juris). Based on these principles, unlike in some previous cases decided by the Senate concerning requests for access, the exercise of the right to access cannot be considered an abuse of rights in this particular case.

It follows that the defendant’s argument that it had already satisfied the request through out-of-court correspondence (see Statement of Defense, p. 2) is not persuasive, at least with regard to the right of access under Article 15 GDPR. A request for access can therefore be made repeatedly.

III.

The decision on costs is based on Section 92(2) of the German Code of Civil Procedure (ZPO).

The decision regarding provisional enforceability is based on Sections 708 No. 10, 711, and 713 of the German Code of Civil Procedure (ZPO).

The appeal on points of law was inadmissible due to the lack of the statutory requirements pursuant to Section 543 Paragraph 2 Sentence 1 of the German Code of Civil Procedure (ZPO) in conjunction with Section 133 of the Courts Constitution Act (GVG). The decisive legal questions have been clarified by the Federal Court of Justice; the Senate does not deviate from this—as explained above—but rather subsumes the facts and legal arguments of the present case in light of this jurisprudence. The Senate also does not deviate from legal principles established by the jurisprudence of other Higher Regional Courts, because the decisive factor is the factual presentation in each case with regard to the specific contribution adjustment at issue. None of the decisions cited by the plaintiff, which the Senate reviewed again and included in its assessment, concerned an allegedly abusive denial, but rather the application of standard rules of evidence, which the Senate also adopts. The case is also not of fundamental importance. Neither the development of the law nor the safeguarding of uniform jurisprudence requires a decision by the Federal Court of Justice (see in detail the Senate’s judgments of November 8, 2023 – 11 U 263/21; 11 U 125/18; 11 U 172/19; 11 U 282/21).

The value in dispute for the appeal proceedings was to be set at up to EUR 7,000.00. The first relevant claim was the second appeal, which seeks repayment of EUR 3,551.52. For the determination of the future non-performance obligation, a period of 3.5 years from the filing of the declaratory judgment action on March 3, 2023, is to be applied analogously to Section 9 of the German Code of Civil Procedure (ZPO). A reduction must be made to the extent that the declaratory judgment claim overlaps with the claim for reimbursement of the premium portions (see Federal Court of Justice, Judgment of March 10, 2021 – IV ZR 353/19, juris para. 37). In this case, this concerns the months of March 2023 to March 2024 (= 13 months). The amount in dispute is therefore increased by EUR 2,435.71.

The individual amount in dispute for the request for information was assessed at EUR 1,000.00.
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ANSPDCP (Romania) – 19.01.2026

HDPA (Greece) – 45/2025