SCHUFA notice in dunning letter impermissible

The Federal Court of Justice (BGH) had to decide whether and under what circumstances a notice contained in a dunning letter from a company to its customers indicating an impending notification to the SCHUFA is impermissible.

The Consumer Centre Hamburg e.V. had sued a mobile telecommunications company for an injunction because the dunning letters sent to defaulting mobile telephone customers on behalf of the company contained, among other things, the following notice:

"As a partner of the Schutzgemeinschaft für allgemeine Kreditsicherung (SCHUFA), the V. GmbH is obliged to notify the SCHUFA of the undisputed claim, unless an interest assessment still to be carried out in your case produces a different result. A SCHUFA entry can significantly hinder you in your financial matters, for example when taking out a loan. You may also then be unable to use or only be able to use certain services from other companies in a limited manner."

The Consumer Centre objected to this SCHUFA notice in the dunning letter as an inappropriate impairment of consumers' freedom of decision.

The Regional Court (LG) initially dismissed the action; the Higher Regional Court (OLG) then ordered the mobile telecommunications company to comply as requested and found a violation of § 4 Nr. 1 UWG.

Decision of the court

The Federal Court of Justice (BGH) rejected the mobile telecommunications company's appeal by means ofJudgment of 19.03.2015 – Az.: I ZR 157/13 and thereby upheld the decision of the Higher Regional Court (OLG).

The Higher Regional Court (OLG) had – according to the Federal Court of Justice (BGH) – correctly assumed that the challenged dunning letter gives the recipient the impression that he must expect his data to be transmitted to the SCHUFA if he does not satisfy the claimed demand within the prescribed period.

Given the grave consequences of a SCHUFA entry, there is a concrete risk that consumers will pay the mobile telecommunications company's invoice out of fear of a SCHUFA entry even though they believe it is not justified.

In the opinion of the Federal Court of Justice (BGH), the challenged notice of impending data transmission to the SCHUFA is also not covered by the statutory notice obligation under the Federal Data Protection Act (BDSG).

According to the BDSG, a prerequisite for the transmission of personal data is, among other things, that the person affected has not disputed the claim. A notice of impending data transmission therefore only complies with the BDSG if it is not obscured that a disputation of the claim by the debtor himself is sufficient to prevent transmission of the debtor's data to the SCHUFA. The Federal Court of Justice (BGH) rightly denied that the challenged notice of the mobile telecommunications company meets these requirements.

Conclusion

The transmission of customer data to the SCHUFA requires, among other things, that the affected customer has not disputed the claim asserted against him. In the context of a SCHUFA threat by a company, it is therefore not sufficient to speak of "undisputed claims" in order to make clear to the – usually legally inexperienced – customer that he can avert the SCHUFA entry by simply disputing it. Rather, expressly worded formulations such as "the claim you have not disputed" or "the claim which you have not disputed" are required.