After the conclusion of a personal bankruptcy, consumers have a great interest in being able to participate in economic life again without a blemish.

A permanently documented insolvency can not only deter companies as possible contractual partners, but also other private individuals.

Since 2002, anyone has been able to find out about consumer insolvencies reported by the insolvency courts via an Internet portal.

Marcus Young

Editor in Business.

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Credit agencies such as Schufa can also access this data for their score calculation.

According to a judgment that has now been published by the Higher Regional Court (OLG) in Schleswig, credit agencies such as Schufa may only use and process this data for as long as it is published on the Internet portal "Insolvenzanzeigeen.de".

According to the decision of the 17th Civil Senate on June 3, 2022, with reference to the European General Data Protection Regulation (GDPR), Schufa no longer has a legitimate interest in storage six months after the insolvency proceedings have been lifted or legally terminated.

The court is thus sticking to its case law from last year.

No new apartment

In the specific case, a man whose insolvency proceedings had been lifted by the district court at the end of March 2020 demanded a deletion by the Schufa at the end of the year. He could only order against payment in advance and could not rent a new apartment.

Schufa referred to the position of the Association of Credit Agencies, according to which the data would only have to be deleted after three years.

The company from Wiesbaden justified this with the legitimate interest of its users in the creditworthiness information of the debtor.

In a weighing process, the civil senate came to the conclusion that the interests of the plaintiff have priority.

According to the reasoning, there are no special circumstances that are recognizable in his person or in the insolvency proceedings that could justify "data retention at Schufa" beyond the period of publication in the insolvency announcement portal.

According to the OLG ruling, Schufa cannot refer to the rules of conduct of the association if it does not want to have a legal effect at the expense of the plaintiff (Az.: 17 U 5/22).

The Senate in Schleswig allowed the appeal to the Federal Court of Justice.

So far there has been no uniform line from the courts on the disputed issue.

The higher courts in Berlin and Oldenburg rejected appeals, arguing, among other things, that the plaintiffs had no right to be put on an equal footing with consumers without insolvency proceedings.

In addition, the shorter period applies to public announcements, but when making provision for paying customers, Schufa can refer to a longer period of time.

The European Court of Justice could also provide clarity.

Since October 2021, the Luxembourg judges have had questions from the Administrative Court of Wiesbaden as to the extent to which the creator of their score values ​​is covered by the GDPR.