OGH: Members of a cooperative have right of inspection under the GDPR

May 13, 2022 Benn-Ibler Rechtsanwälte

Article 6 of the General Data Protection Regulation (GDPR) regulates the facts that justify the processing of data, whereby several standards of permission exist side by side. All facts are equivalent and consent does not necessarily have to be fulfilled in addition to other facts of the activity.

The Austrian Supreme Court (Oberster Gerichtshof, OGH) examined the question of the extent to which a member of a cooperative has the right to inspect the addresses of his fellow cooperative members in order to protect minority rights.

The respondent is a registered commercial and business cooperative with limited liability. The articles of association do not contain any provisions on the inspection of the cooperative's books. The applicant requested that he be granted full access (including member numbers and addresses) to the register of members. This was essential for the assertion of minority rights. The respondent objected that according to Section 14 of the Law on Cooperatives (Genossenschaftsgesetz, GenG) it was not obligatory to keep addresses in the register. Moreover, contractual obligations would not justify the specific data processing.

While the court of first instance granted the application in its entirety, the court of appeal restricted the decision to the addresses. The appeal is admissible because there is no Supreme Court case law on the right to inspect addresses. The OGH stated:

In principle, Sec. 14 GenG provides for keeping a register. If addresses are included in this register, the right of inspection extends to the address data. This is also provided for in older case law. However, in the case at hand, the addresses were not entered, which is why there is no general availability of the data according to Sec. 1 paragraph 1 of the Data Protection Act (Datenschutzgesetz, DSG). The analogous application of Section 1194 para 1 sentence 2 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) shows however, that not only property-related records can be inspected. The right to inspect is also necessary according to Sec. 1194 para 1 sentence 2 in conjunction with Sec. 1175 para 4 ABGB, as the cooperative must guarantee an effective exercise of minority rights. A balancing of interests according to Art 6 para 1 lit f GDPR is also not necessary here, as the inspection is justified according to Art 6 para 1 lit b GDPR, where a balancing of interests according to the fulfilment of the contract, necessity for the fulfilment of legal obligations and for the protection of legitimate interests without encroaching on fundamental rights or freedoms is not required.

OGH 6 Ob 214/21w (22.12.2021)