DE: Schufa - Data processing after termination of insolvency proceedings

Jul 1, 2022 Benn-Ibler Rechtsanwälte

The German Higher Regional Court (Oberlandesgericht, OLG) of Schleswig-Holstein ruled: Schufa is allowed to process the data of an insolvency debtor for a maximum of six months after the insolvency proceedings have been cancelled.

In March 2020, the insolvency proceedings opened against the plaintiff's assets were cancelled by court order. This information was published in the official internet portal. Schufa, which operates a creditworthiness information system based on the collection, storage, processing and forwarding of economic data of natural and legal persons, maintained the obtained data in its inventory and forwarded it to its contractual partners. In 2020, the plaintiff requested the deletion of the data in order to be able to participate fully in economic life again. According to Schufa, however, it had acted in accordance with the rules of the association "Die Wirtschaftsauskunfteien e.V.". According to these rules, the deletion of stored data was only required after three years.

According to the OLG, however, a balancing of the diverging interests of Schufa and those of the plaintiff in the data processing and the fundamental rights and plaintiff's interests affected thereby had to be carried out. The plaintiff's interest here lies in his unhindered participation in economic life after all information from his insolvency proceedings has been deleted.

The OLG stated that the more abstract a weighing process is, the more overriding the interests in the data processing must be in order to justify the encroachment on the fundamental rights of the person concerned. This applies all the more if data is collected without a specific reason and thus, to a certain extent, "in advance". At any rate, the plaintiff could demand the cessation of further storage and processing of data obtained from the insolvency notice portal after the expiry of a corresponding six-month period. After the expiry of this period, the interests of Schufa in the processing of data relevant to creditworthiness are secondary to those of the plaintiff. Processing can then no longer be lawful under Art 6 para 1 lit f of the General Data Protection Regulation.

Schufa's interests also do not take precedence because special circumstances are discernible in the insolvency proceedings or the plaintiff's person that would justify data retention.

OLG Schleswig-Holstein, 17 U 5/22 (03.06.2022)