Credit data storage: BGH overturns ruling against Schufa

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How long can Schufa know that someone has not paid invoices on time in the past? The Higher Regional Court of Cologne (OLG) must deal with this again, after the Federal Court of Justice (BGH) overturned an earlier ruling by the OLG. Contrary to the OLG's view, it depends on the source of this information, as well as, if applicable, "special circumstances". The BGH's finding is a partial victory for the credit rating agency Schufa.

The plaintiff is a person who did not pay a rightfully existing debt on time in the years 2019, 2020, and 2021 respectively: two enforcement orders and an invoice that was repeatedly reminded. The creditors reported this to Schufa. The debtor finally settled the invoices with a delay of up to 21 months. Nevertheless, Schufa continued to store the reported data; it informed inquiring companies that it classified the risk of default as "very critical".

How the OLG was mistaken

The affected person did not want to accept this. An unsuccessful warning was followed by a lawsuit for damages. This failed at the Regional Court of Bonn (File No. 20 O 10/24), but on appeal, the OLG Cologne awarded 500 Euros in damages (File No. 15 U 249/24).

It referred to a preliminary ruling by the CJEU in Case C26/22: If data from insolvency notices are deleted, credit bureaus must also delete their copies of such data. Otherwise, the deletion rule would be rendered ineffective.

In this case, it is not about insolvency notices, but about simple debts. However, the system is the same. Because the public debtor register would delete such entries after payment, Schufa must also immediately delete information about poor payment behavior after payment. Since it did not do so, it is liable for damages.

BGH: It depends on the source

Schufa appealed this to the BGH. As at the OLG, it argued that it had received the specific data not from a public register, but directly from the creditors. This distinction convinced the BGH Senate I. "The consideration (of the CJEU) that the deletion period applicable to the original data storage should not be circumvented by longer storage elsewhere therefore does not apply in the case at issue," summarizes the press release of the court. It overturns the OLG ruling and sends the case back there.

So it depends on the data source. Credit bureaus must delete information from public registers as soon as the data is deleted from the registers. The question remains how long Schufa may store data that it receives from other sources. The BGH does not answer this specifically, but it gives the OLG a hint.

The BGH Senate considers it "possible to establish certain storage periods as the result of a generalized balancing of interests, provided that the specific circumstances of the individual case are sufficiently considered." And on this, according to the BGH judges, the Hessian Commissioner for Data Protection and Freedom of Information has issued new rules of conduct for German credit bureaus, which have been in effect since the beginning of the year. The BGH Senate praises their provisions as a "generally appropriate balance of interests".

According to this, personal data relating to settled claims may be stored for three years. Since it can happen that even good debtors overlook an invoice, there is an individual case regulation: If it is only a single unpaid claim and its payment is reported within 100 days, the storage period is halved to 18 months, provided that no other information from the debtor register or insolvency notices is available.

It's not that simple

However, even this regulation is not enough for the BGH: Affected individuals must also be able to present "special circumstances". If this indicates a "significantly above-average" interest in deletion, it can "exceptionally" lead to "an even shorter storage period" being appropriate. If the storage was unlawful for at least part of the period, this can trigger a claim for damages (BGH I ZR 97/25, the full text is not yet available).

The OLG Cologne must now deal with whether and, if so, when the plaintiff has presented "special circumstances" that necessitate an exceptionally shorter storage period. Otherwise, Schufa will probably not have to pay damages.

Naturally, the company is pleased about this. However, the decision has significance beyond the individual case, especially since the BGH has confirmed the rules of conduct. Furthermore, data storage helps other consumers, emphasizes Schufa: "If this data were not available for checking creditworthiness, it would lead to fewer loans and higher interest rates for consumers when taking them out."

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