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FEDERAL CONSTITUTIONAL COURT
(BUNDESVERFASSUNGSGERICHT )
- 1 BvR 3167/08 -
IN THE NAME OF THE PEOPLE
In the proceedings
on
the constitutional complaint
of Ms A(…) |
– authorised representative:
- Rechtsanwältin […] –
against |
a) |
the order of the Nuremberg Higher Regional Court (Oberlandesgericht ) of 2 October 2008 – 8 U 1300/08 –, |
b) |
the final judgment of the Nuremberg-Fürth Regional Court (Landgericht ) of 26 May 2008 – 11 O 9725/07 - |
the Third Chamber of the First Senate of the Federal Constitutional Court with the participation of Justices
Vice-President Kirchhof ,
Masing, and
Baer
unanimously held on 17 July 2013:
- The final judgment of the Nuremberg-Fürth Regional Court of 26 May 2008 – 11 O 9725/07 – and the order of the Nuremberg Higher Regional Court of 2 October 2008 – 8 U 1300/08 – violate the complainant’s fundamental right under Article 2 section 1 in conjunction with Article 1 section 1 of the Basic Law (Grundgesetz – GG).
- The decisions are reversed.
- The matter is remanded to the Nuremberg-Fürth Regional Court.
- The Free State of Bavaria must reimburse the complainant for her necessary expenses incurred in the constitutional complaint proceedings.
- The value of the matter at issue for the lawyers’ activities in the proceedings on the constitutional complaint is set at EUR 25,000 (in words: twenty-five thousand euros).
Reasons:
I.
The constitutional complaint concerns data protection in private insurance law. It is directed against requirements incumbent upon the insured person arising under insurance contracts in the context of a finding as to whether an insured event has occurred.
1. The complainant concluded an occupational disability insurance contract with the defendant in the initial proceedings, a life insurance company. The underlying terms and conditions of the contract included, among other things, the following provision:
Ҥ 5 Cooperation obligations to be observed if insurance benefits are claimed.
(1) […]
(3) If the insured is incapacitated to exercise his or her occupation, the following must be submitted in addition: […]
b) Detailed reports from the physicians who are currently treating, or who have treated or examined the insured person, concerning the cause, beginning, nature, course and expected duration of the condition, as well as the degree of occupational disability or, in the case of occupational disability due to a need for long-term care, the nature and scope of the need for long-term care; […]
(4) We may furthermore – at our own expense, however – request additional medical examinations by physicians engaged by us, as well as necessary documentation – also relating to the financial circumstances and any changes thereof – and in particular, additional information and clarifications.
The insured must authorise physicians, hospitals and other medical institutions, as well as homes for the aged and nursing homes, who have provided or will provide treatment or care for the insured, as well as caregivers, other personal insurers, and authorities, to provide us with information upon request.”
The complainant claimed benefits from the defendant for occupational disability resulting from depression. The complainant crossed out the pre-printed confidentiality release clause on the defendant’s application form, which included an authorisation to obtain relevant information from a broad range of sources, and signed the application form only for the remainder. The defendant and complainant subsequently corresponded on multiple occasions with regard to a confidentiality release. The complainant, through her legal counsel at the time, declared that she was willing to grant individual releases. Thereupon, the defendant sent her the following, pre-formulated declarations to release her health insurance, two physicians, and the Deutsche Rentenversicherung Bund (German Pension Fund) from their respective confidentiality obligations:
“In connection with my application for occupational disability insurance benefits, I expressly give my consent for [the health insurance or relevant physician] to inform [the defendant] comprehensively, on the basis of the available documentation, about my health status, disability times, and treatment data. […]”
The declaration for the Deutsche Rentenversicherung Bund read as follows:
“In connection with my application for occupational disability insurance benefits, I expressly give my consent for the Deutsche Rentenversicherung Bund […] to inform [the defendant] comprehensively about my health status or about my occupational situation.
I authorise the aforementioned social insurance agency, as provided in § 67 b of the Tenth Book of the Code of Social Law (Sozialgesetzbuch – SGB X) to make copies available to [the defendant] of all existing medical assessments and reports. […]” (emphasis in original)
The defendant demanded from the complainant to pay EUR 20 per authorisation to contribute to the additional costs incurred in connection with the individual authorisations. It stated that the application for insurance benefits would be processed further after receiving the authorisations and the full amount. The complainant requested a more detailed specification of the desired information. The defendant did not comply with that request; it stated that the application for insurance benefits could not be processed further until the signed confidentiality releases had been received, together with the requested amount.
The complainant brought an action for payment of the monthly benefits under her insurance.
2. The Regional Court ruled against the complainant. It held that the complainant had culpably failed to meet the reasonable requirement under which it is incumbent upon her to furnish information, or make it possible to furnish information, concerning the medical documentation of the alleged insured event. Consequently, the defendant was, according to the court, not obliged to provide insurance benefits. The court held that the complainant had the right not to sign the general confidentiality release on the written benefits application form. However, by sending the individual authorisation forms, it became clear that the defendant considered additional information to be necessary. The court further argued that even if the content of the individual authorisations was worded too broadly, it was nevertheless incumbent upon the complainant to comply with the defendant’s interest in information, which she herself had recognised.
3. The Higher Regional Court dismissed the appeal by the order challenged in the present constitutional complaint. It held that the Regional Court had been correct in not addressing the matter of whether the complainant had been obliged to pay the requested amount towards processing costs, and to issue the individual authorisations without restrictions.
The court held that by sending the drafted individual authorisations, the defendant had provided the complainant with a way of safeguarding her informational self-determination while at the same time complying with her duty to cooperate. It further stated that it was reasonable to expect that the complainant would limit, in order to maintain her entitlement to insurance benefits, the individual authorisations appropriately if still deemed too broad – for example by deleting the word “comprehensively” or also with regard to time – and then to sign and return them, or to procure the documentation indicated in the individual authorisations herself and provide it to the respondent to the extent she considered acceptable. In both cases, the defendant would have been obliged to continue its review of insurance benefits even with the documents available to it on this limited basis, and could not have simply invoked a violation of the duty to cooperate. According to the court, the complainant could not expect the defendant to permanently present new versions of authorisations as long as she herself did not specify the points in the requested authorisation she considered to be too extensive. The insurer was not required to specify details in its request for information – at least as long as the insurer did not know what documents were available at the various sources of information.
4. In her constitutional complaint, the complainant claims a violation of her right to informational self-determination under Art. 2(1) in conjunction with Art. 1(1) GG. She argues that the protection of this fundamental right is undermined if an insured individual is obliged to obtain answers to an insurer’s questions that are not known to the insured. As a consequence, the insured individual would sign unconstitutional authorisations presented by the insurer to avoid losing his or her insurance coverage. The complainant argues that an entitlement to a comprehensive confidentiality release is constitutional only if the insured is at least offered a further option that describes in detail the specifically requested information that the confidentiality release would make available. According to the complainant, the four statements presented by the defendant were blanket releases from the confidentiality obligation with no option for the complainant to protect herself.
5. The Bavarian State Ministry of Justice and Consumer Protection refrained from submitting an opinion. The defendant argues that the constitutional complaint is unfounded because it had given the complainant the option of releasing only individual addressees from the confidentiality obligation. To further limit the confidentiality release was not possible because in order to protect against abusive claims for insurance benefits, the defendant must review whether the complainant was already unable to work at the time when the contract was signed, and whether she provided correct answers regarding her health condition.
II.
The Chamber admits the constitutional complaint for decision, and grants it pursuant to § 93c(1) first sentence in conjunction with § 93a(2) letter b of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG). The admission of the constitutional complaint is appropriate to enforce the complainant’s fundamental right under Art. 2(1) in conjunction with Art. 1(1) GG. The constitutional issues concerning the private-law effects of the right to informational self-determination (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 84, 192 et seq.) and the constitutional requirements for reviewing the contents of contracts (cf. BVerfGE 81, 242 et seq.; 89, 214 et seq.; 103, 89 et seq.), which determine the outcome of this case, have already been decided by the Federal Constitutional Court. The admissible constitutional complaint is manifestly well-founded within the meaning of § 93c(1) first sentence BVerfGG.
1. The challenged decisions of the Regional Court and Higher Regional Court violate the complainant’s general right of personality guaranteed under Art. 2(1) in conjunction with Art. 1(1) GG, in its manifestation as the right to informational self-determination.
a) Under private law, fundamental rights unfold their effect as constitutional commitments to values through the medium of the provisions that directly control the particular field of law concerned (cf. BVerfGE 7, 198 <205 and 206>; 42, 143 <148>; 103, 89 <100>). Courts are obliged to ensure this constitutional protection by interpreting and applying ordinary law, and by further specifying the terms of this protection on a case-by-case basis. The Federal Constitutional Court can counter the courts’ assessment and balancing of constitutional rights in relation to one another only if a challenged decision reveals errors of interpretation that are based on a fundamentally incorrect interpretation of the meaning of a fundamental right (cf. BVerfGE 18, 85 <93>; 42, 143 <148 and 149>; 54, 148 <151 and 152>; Decisions of the Chambers of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 9, 353 <357 and 358>; established case-law).
b) The challenged decisions must be reviewed with regard to the state authority’s obligation arising under Art. 2(1) in conjunction with Art. 1(1) GG to ensure that individuals can exercise their right to informational self-determination in relation to third parties.
aa) The general right of personality includes the individual’s power to decide about the disclosure and use of his or her personal data – in the present case, health data - by her- or himself (cf. BVerfGE 65, 1 <43>; 84, 192 <194>). As an objective legal norm, this right also takes legal effect in the area of private law, and thereby affects the interpretation and application of private law provisions (BVerfGE 84, 192 <194 and 195>). If a court deciding a private-law dispute fundamentally fails to recognise the protective element of the general right of personality, its judgment violates the citizen’s fundamental right in its function as a protective norm (cf. BVerfGE 84, 192 <195>).
The protection obligation ensuing from the right to informational self-determination requires that informational self-protection is in fact available to the individual. An individual is indeed free to disclose data to others or to undertake contractually to do so. However, if, in a contractual relationship, one party has so much influence that it is de facto able to determine the contents of the contract unilaterally, the law must act to preserve the fundamental rights of the participating parties in such a way as to keep one party’s self-determination from being subverted into a determination by others (cf. BVerfGE 103, 89 <100 and 101>; 114, 1 <34>; BVerfGK 9, 353 <358 and 359>).
bb) The Basic Law does not prescribe a specific design of the protection of informational self-determination. In the Act Reforming Insurance Contract Law (Gesetz zur Reform des Versicherungsvertragsrechts ) of 23 November 2007 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 2631), the legislature provided for the protection of informational self-determination of insured individuals under § 213 of the Insurance Contract Act (Versicherungsvertragsgesetz – VVG). According to Art. 1(2) of the Introductory Act to the Insurance Contract Act (Einführungsgesetz zum Versicherungsvertragsgesetz – EGVVG), this provision does, however, not apply if an insurance claim arose – as in the present case – before 31 December 2008. In these cases it is upon the courts alone to interpret the law and the contract in a way that an effective protection of informational self-determination is ensured. To this end, they must examine how the insured party’s interest in effective informational self-protection can be appropriately balanced with the insurance company’s interest in disclosure inherent in the freedom of contract which is protected under Art. 12 GG.
In this context such balancing is required in particular with regard to the question of how to limit the information the insurance company needs to assess its liability to provide insurance benefits. On the one hand, the insurance company must be able to establish whether the insured event has occurred, while on the other hand, transmission of personal data must be limited to what is absolutely indispensable for this purpose. However, it is often not possible for an insurer to specify in advance all information it may need to assess the case. Even if the information needed for a review can be limited, what is needed can in part only be determined after the insurer has gained an overview of all potentially relevant sources of information and thereby obtained more extensive information. In such a situation, the constitutionally required level of protection is not met if the courts interpret the insurance contract in such a way that it is incumbent upon the insured parties to furnish a comprehensive confidentiality release that enables the insurance company to obtain “relevant information” from an unspecified group of physicians, hospitals, health insurance companies, insurance companies, social insurance agencies, authorities, and employers (cf. BVerfGK 9, 353 <362 et seq.>). If, as in the present case, there are no express provisions of law concerning informational self-protection, it may be necessary to seek a solution through procedural law in order to ensure a careful balancing of the differing fundamental rights positions. In this vein, it would be conceivable to recognise duties to cooperate which ensure that the insured party and the insurer determine in dialogue which data are necessary in order to process the insurance claim. Defining the requirements for this dialogue and specifying its structure are among the tasks of the civil courts.
c) The challenged decisions do not meet these constitutional requirements for the protection of informational self-determination.
aa) At the time the complainant and the defendant concluded the insurance contract, there was an imbalance of negotiating power between them that prevented the complainant from ensuring her own informational self-protection independently and on her own responsibility.
Therefore, it was incumbent upon the courts to ensure effective protection of informational self-determination. At least as far as their conditions on data protection are concerned, insurance companies’ contract terms are virtually not negotiable (BVerfGK 9, 353 <360>; cf. – for life insurance – BVerfGE 114, 73 <95>). Policy holders of occupational disability insurance cannot be referred to the option of forgoing a contract for the sake of informational self-protection, or of accepting that the insurer is not liable to pay insurance benefits. Employed persons must often provide for the eventuality of occupational disability by entering into an appropriate insurance contract to secure their subsistence.
bb) The challenged decisions do not meet the resulting constitutional requirements for an adequate balance between the fundamental rights concerned, i.e. the interest in informational self-protection, on the one hand, and the interest in the disclosure of information which is inherent in the freedom to practice an occupation, on the other hand. The decisions do not take adequate account of the complainant’s interests.
(1) The release from the obligation of confidentiality intended by the pre-formulated individual authorisations would also enable the defendant to obtain a broad range of sensitive information about the complainant that goes beyond what is required for processing the insured event. This significantly affects the complainant’s interests because the data relate to detailed information about her health and medical treatment, and therefore to information of a highly personal nature. Although four sources of information are named in the individual authorisations, they did not in the least indicate what specific information the defendant needs in order to review the insurance claim. The mentioned items of information – such as “health status, periods of incapacity to work, and treatment data” – are worded very generally and hardly lead to a limitation of the scope of information. They cover virtually all information that the indicated sources of information have about the complainant. The wide range of items of information included is underscored by use of the word “comprehensively” in the pre-formulated releases. Thus, the wording of the individual authorisations also includes information that is not relevant for the processing of the insurance claim. For example, the health insurance is a source that generally possesses information about practically every visit to a physician and every hospital stay of an insured individual, so that almost all information about a person’s health status and treatment data is recorded by this one source. It is self-evident that these are not needed in their entirety in order to process the insurance claim.
(2) The complainant cannot be referred, as the challenged decisions deem adequate, to the possibility of modifying the pre-formulated individual authorisations herself, or presenting the necessary documents on her own initiative. While the adjudicating courts thereby accorded the complainant an option for cooperation, they concomitantly impose on her the burden of fathoming the other party’s interests and, in the event that the submitted documents or modified authorisations are considered inadequate, they unacceptably impose on her the risk of losing her claim to insurance benefits. This is not a suitable way of ensuring the complainant’s informational self-protection in dialogue with the insurance company. The fact that the complainant was represented by legal counsel prior to the court proceedings is irrelevant in this context because even access to legal advice does not eliminate the risk to which the complainant is exposed.
(3) When trying to balance the opposing fundamental right positions, the challenged decisions do not take account of the fact that it might substantially serve the complainant’s protection, yet would not necessarily impose a disproportionate burden on the defendant, if the defendant were required to further limit the requested individual authorisations. It is true that the scope of the individual authorisations cannot be limited a priori to the information relevant to reviewing the claim for benefits, because the insurer does not know right away what that information might entail. However, it could be taken into account that the information covered by the individual authorisations might initially be limited to less extensive and personally relevant advance information that suffices to determine which information is in fact relevant to reviewing the benefits claim. Thus, an at least rough specification of the items of information might limit the substantial scope of the excessive information made available by the individual authorisations, and thereby take due account of the complainant’s right to informational self-determination. Such a specification of items of information would only minimally impair procedural efficiency. Considering the scope of the documentation held by the complainant’s health insurance fund and the Deutsche Rentenversicherung Bund (German Pension Fund), it is in any case probable that the respondent would have to formulate the informational subject matter more precisely in an enquiry to these entities than in the individual authorisations.
2. The challenged decisions are based on a violation of the Constitution. It cannot be ruled out that the courts would have arrived at a different decision had they taken due account of the general right of personality guaranteed by Art. 2(1) in conjunction with Art. 1(1) GG, in its manifestation as the right to informational self-determination, when interpreting and applying the provisions of private law that were decisive for the dispute.
3. The constitutional complaint shall therefore be granted and a violation of fundamental rights be declared (§ 95(1) first sentence 1 BVerfGG). The challenged decisions are reversed (§ 95(2) BVerfGG) and the matter must be remanded to the Regional Court.
4. The Free State of Bavaria must reimburse the complainant for her necessary expenses in the constitutional complaint proceedings, pursuant to § 34a(2) BVerfGG.
5. The value of the claim for the activity of a legal counsel in the constitutional complaint proceedings is set on the basis of § 37(2) second sentence in conjunction with § 14(1) Lawyers’ Compensation Act (Rechtanwaltsvergütungsgesetz – RVG) (cf. BVerfGE 79, 365 <366 et seq.>).
Kirchhof | Masing | Baer | |||||||||