Incorrect SCHUFA entry: how the BGH assesses the damage

The case

In 2018, a customer switched early to a cheaper mobile phone tariff with her provider. Because she regarded this tariff change as a separate distance contract, she withdrew from it shortly afterwards. The provider saw things differently, continued to issue invoices, and when the customer did not pay, it reported a negative entry to SCHUFA in September 2019. Ten days later, the provider itself ordered the entry to be deleted — but according to the findings of the courts, it had disappeared completely in July 2021 at the earliest, almost two years later.

By way of a counterclaim, the customer demanded EUR 6,000 in non-material damages. The Koblenz Regional Court (Landgericht) initially dismissed this; the Koblenz Higher Regional Court (OLG) awarded her EUR 500. With her appeal on points of law (Revision), the customer sought a higher amount. In its judgment of 28 January 2025 – VI ZR 183/22, the BGH (Federal Court of Justice) dismissed the appeal, but in doing so laid down important principles for assessing such claims.

On the basis of the claim

The BGH did not even have to address whether the claim was well founded in principle: the Koblenz Higher Regional Court had already found that the report was unlawful because the provider's claim was disputed and had not been established by a court title, and had therefore awarded the customer EUR 500 in damages. Only the customer had appealed, and only as regards the amount — whether there was liability at all was no longer at issue before the BGH. As damage, the court of appeal had taken into account, first, the loss of control over one's own data, because the entry could be viewed by an indeterminate number of SCHUFA users — on this point, the BGH additionally refers to a decision of the CJEU (Court of Justice of the European Union) of 4 October 2024 on the disclosure of personal data in a public register. Second, it had relied on the damage to reputation, which had already had a specific effect here: the customer's bank had temporarily stopped granting a loan because of it.

On the amount of damages

As regards the amount, the BGH clarifies a principle that is important for many similar cases: damages under Art. 82 GDPR serve exclusively a compensatory function. They are intended to fully compensate the damage actually suffered — not to deter, and certainly not to punish. Therefore, neither the seriousness of the infringement nor any fault on the part of the controller may increase the amount. The Koblenz Higher Regional Court had also justified the amount of EUR 500 with a "function of satisfaction and general prevention" — according to the BGH an error of law, which here, however, can only have operated in the customer's favour, which is why the appeal was nevertheless unsuccessful.

Instead, the amount is determined by circumstances such as the group of persons who actually had access to the data, the duration of the entry and its actual consequences for the data subject. Anyone asserting an unjustified SCHUFA entry should therefore document precisely how long the entry existed, who demonstrably retrieved it and what specific disadvantages resulted from it, for example a refused loan. In the end, this determines the amount of compensation — not how serious the infringement appears from the data subject's point of view.

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