A compulsory health insurance breaches the prohibition to exploit the commercial inexperience of young persons (§ 4 Nr.2 UWG), when they collect extensive personal data in connection with a competition from the participants, which are between 15 and 17 years old, to use them (also) for commercial purposes
The plaintiff is the consumer advice center Nordrhein-Westfalen and makes a claim on the sued compulsory health insurance to injunctive relief to refrain from the collection of personal data of minor consumers for commercial purposes in connection with a competition
The subject of injunctive relief is not only the collection of data of minors between 15 and 17 years, but the specific manner in which it happened.
The collection of data by the defendant which has been rejected by the plaintiff, constitutes a commercial activity in the light of § 2 section 1 Nr.1 and 6 UWG. Contrary to the opinion in the appeal, the application of § 2 section1 Nr.1 and 6 UWG is not contrary to the provision of Art. 3 section 1 in connection with Art. 2 letter b and d of the directive 2005/29/EG, even though the defendant is a corporation under public law and fulfills legal duties of health insurances.
- judgment of the Federal Court of Justice (BGH) of 22. January 2014, case I ZR 218/12