Judgment;Summary — ECLI:EU:C:2024:738
Date: 2024-09-12
Language of the case: German
Court formation: Fourth Chamber
Subject matter: Principles, objectives and tasks of the Treaties;Data protection
Procedure: Reference for a preliminary ruling
Origin: Germany

Translation C-17/22 – 1 
Case C-17/22 
Request for a preliminary ruling 
Date lodged: 
7 January 2022 
Referring court: 
Amtsgericht München (Germany) 
Date of the decision to refer: 
21 December 2021 
Applicant: 
HTB Neunte Immobilien Portfolio geschlossene Investment UG & 
Co. KG 
Defendant: 
Müller Rechtsanwaltsgesellschaft mbH 
  
[…] 
Amtsgericht München (Local Court, Munich) 
[…] 
In the case of 
HTB Neunte Immobilien Portfolio geschlossene Investment UG & Co. KG, 
[…] 28217 Bremen – applicant - 
[…] 
v 
Müller Rechtsanwaltsgesellschaft mbH, […] 80687 Munich – defendant - 
[…] 
EN 
REQUEST FOR A PRELIMINARY RULING OF 21. 12. 2021 – CASE C-17/22 
 
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in the matter of requests for information 
The Court of Justice of the European Union is hereby requested to give a 
preliminary ruling. The order for reference is made together with and, aside from 
the heading, is identical in wording to the order made in other proceedings before 
the referring court […]. The order for reference suspends the proceedings pending 
the ruling by the Court. On 21 December 2021, the court made the following 
Request for a preliminary ruling 
The following questions are referred to the Court of Justice of the European Union 
for a preliminary ruling on the interpretation of the General Data Protection 
Regulation (Regulation (EU) 2016/679 of the European Parliament and of the 
Council): 
1.a. Is Article 6(1)(b) and (f) of the General Data Protection Regulation to be 
interpreted as meaning that, in the case of a partnership comprised of many 
members of the public, a limited partner with negligible liability has a ‘legitimate 
interest’ in obtaining information relating to all partners with shares held 
indirectly through a trustee, together with their contact details and the number of 
their shares in such a partnership, and a contractual obligation to that effect must 
be inferred from the partnership agreement? 
1.b. Or is a legitimate interest restricted under such circumstances to obtaining 
from the partnership information on limited partners with shares held indirectly 
and, rather than bearing negligible liability, hold shares above a minimum 
threshold  that may, at least potentially, allow them to influence the future of the 
partnership? 
2.a. Does the intention to make contact for the purpose of becoming better 
acquainted, exchanging views or negotiating the purchase of shares in the 
partnership suffice in order not to exceed the limits to prevent abuse of rights 
inherent in such an unrestricted right (1a) or to make an exception to the 
restriction applicable to a restricted right to information (1b)? 
2.b. Or is an interest in information potentially relevant only where its disclosure 
is requested with the express intention of contacting other partners in order to 
invite them to coordinate on specifically designated matters on which a consensus 
is needed for the purpose of partners’ resolutions? 
Reasons 
A. The dispute to be adjudicated by the national court: 
The national court has been seised of two disputes seeking information and hence 
data disclosure. The applicants have each invested indirectly in different 
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investment companies, both of which are organised in the form of a limited 
partnership. The partnerships are publicly owned and holdings in them are 
acquired by cash investment. In terms of order of magnitude, one of the 
partnerships has approximately 1 800 limited partners with direct and indirect 
holdings. 
The applicants are seeking disclosure of the names and addresses of everyone, that 
is of the entire public invested in the publicly owned investment company, 
including the names of all the limited partners with holdings held indirectly via a 
trustee and information on how they can be reached. In other words, they have 
requested information on everyone who has invested in the partnership. 
The applicants are also investment companies themselves. The defendants assume 
that the intention is to use the data requested in order to pursue the applicants’ 
own economic interests, be it to advertise their own investment products or to 
worry investors into selling their shares at a discount and to resell them at a profit, 
rather than for the purpose of promoting the business. The investment and trust 
agreements lay down contractual rules prohibiting the disclosure of data to other 
investors. 
The applicants deny any such intentions. They claim that they have a right to 
contact the other members; that the contractual terms prohibiting the disclosure of 
data are invalid; and that they wish to enter into share purchase negotiations with 
the other limited partners and to invite them to an exchange of views in order to 
become better acquainted. By that submission, the actions address two mutually 
reinforcing lines of case-law by the supreme and higher civil jurisdiction in 
Germany. 
1. The applicants refer to case-law of the Bundesgerichtshof (Federal Court of 
Justice) in support of their right to contact the other members. By its order of 
19 November 2019, II ZR 263/18, the Federal Court of Justice abided by its case-
law that one ‘vital and key right of partners’ in a partnership is the right to obtain 
the names and addresses of the other partners and thus to become acquainted with 
their contractual partners; that this also applies to limited partners with indirect 
holdings; that each partner needs to know all the partners, including partners with 
indirect holdings, in order to make effective use of the rights in the partnership 
formed between trustors of a partnership comprised of many members of the 
public; that disclosure of the data to other partners is therefore in keeping with the 
obligations of the partnership under the partnership agreement executed; and that 
one partner’s request for information for the purpose of becoming acquainted with 
the other partners is restricted only by the ban on the inadmissible exercise of 
rights (Paragraph 242 of the Bürgerliches Gesetzbuch (Civil Code, ‘the BGB’) 
and the ban on chicanery (Paragraph 226 of the BGB). 
This maintains a line of precedent initiated in supreme court judgments prior to 
the adoption of the General Data Protection Regulation. The court held as follows: 
REQUEST FOR A PRELIMINARY RULING OF 21. 12. 2021 – CASE C-17/22 
 
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There is no abuse of rights where an investor seeks to contact other investors in 
order to exchange views with the other investors on what they consider to be 
problems in the partnership and, possibly, to establish an interest grouping 
between the investors. Where purposes are pursued that are unrelated to the 
business, the remedies available under competition law and data protection law 
suffice for the purpose of initiating action against abusive conduct. There is no 
reason to refuse information on the grounds of a purely abstract risk of misuse of 
the data (findings from the judgment of the Federal Court of Justice of 5 February 
2013, II ZR 134/11). It must be left to the partner in that regard to decide how and 
by what means to approach the other partners. A partner should not have to rely 
on the management of the partnership as a go-between to contact other partners or 
be required to use media provided and controlled by it. Nor, therefore, should a 
partner need to be referred to an online forum as a milder device within the 
meaning of Paragraph 127a of the Aktiengesetz (Law on Stock Corporations, ‘the 
AktG’) (findings from the judgment of the Federal Court of Justice of 5 February 
2013, II ZR 134/11). 
Nor can the right to information be excluded by contract. Excluding a right to 
know all the other partners would eliminate in fact an essential partner’s right, 
namely the right to convene an extraordinary meeting of partners, as a minority 
partner could only achieve the quorum needed to do so by joining forces with 
other partners, which would be impossible without their names and addresses 
(findings from the judgment of the Federal Court of Justice of 21 September 2009, 
II ZR 264/08). 
Certain questions, such as who controls the partnership, whose ‘mouthpiece’ a 
trustee is acting as, whether the trustee is prohibited from voting where other 
partners have a vested interest, whether another partner has a duty to act in good 
faith similar to a prohibition of competition, and how the composition of the 
partnership changes in structure over time, give rise to an inalienable right to 
information on all the partners, even in a partnership comprised of many members 
of the public, that is more extensive than in the case of a listed public limited 
company, for which the statutory duty of disclosure enacted in Paragraph 33 of the 
Wertpapierhandelsgesetz (German Law on Trading in Securities) only applies to 
holdings representing upwards of 3% of voting rights (findings from the judgment 
of the Federal Court of Justice of 5 February 2013, II ZR 134/11). 
The Federal Court of Justice did not feel duty bound to request a preliminary 
ruling by the Court. The fact that a partner should be granted a right to 
information, which cannot be restricted by contract and against which the only 
possible plea is abuse of rights, is so obvious an application of EU law as to leave 
no scope for reasonable doubt. The fact that disclosure by the partnership to one 
partner of the data of all the other partners is also justified under the General Data 
Protection Regulation clearly follows from recital 48 of the General Data 
Protection Regulation, which refers to data processing even ‘within a group of 
undertakings’ as a possible legitimate interest. This means, by the process of 
reduction applied by the Federal Court of Justice, that data transmission within a 
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group of undertakings is justified under recital 48 if carried out for ‘internal 
administrative purposes’, thereby putting the transmission of personal data of all 
the partners to one partner on the same footing as transmission from one 
controlled undertaking to another or to the controlling undertaking, while at the 
same time classing it as an internal administrative purpose. 
2. By their further submission that they wished to negotiate share purchases 
with the other limited partners, the applicants then refer to the case-law on the 
following question: if the only limit on the right to information is abuse of rights, 
what of itself constitutes abuse of rights or at what point does abuse of rights 
occur. Other regional court judgments are relevant in that regard here, including 
judgment of the Oberlandesgericht München (Higher Regional Court, Munich) of 
16 January 2019, 7 U 342/18, which found as follows: 
Corporate law allows investors to strengthen their position in a partnership by 
acquiring additional shares. Every trustor is aware that the investment fund uses 
their data for the purpose of performing the partnership agreement. The 
partnership agreement essentially sets out terms governing the exercise of 
partners’ rights, including by means of reciprocal exchange, the exercise of 
control and, where appropriate, mergers between partners, and the measures to 
strengthen a partner’s position. That includes the facility to influence that position, 
if necessary by purchasing shares. The exercise of rights would only become 
inadmissible where there is no conceivable link between one partner’s standing 
and their privity of contract with the other partners. The information may be 
refused only where there is no reasonable interest in its disclosure, for example, 
where it is established that its purpose is unrelated to the business. However, an 
interest in purchasing third-party shares is a reasonable interest. 
Thus, the Higher Regional Court implicitly assumes that each partner’s abstract 
expectation that their data are needed and will be used to perform the partnership 
agreement justifies the further assumption that the limited partnership may 
disclose data to any other partner for the simple reason that that other partner is 
interested in purchasing shares. The Higher Regional Court did not consider the 
other partners’ reasonable interest in confidentiality of their personal data. The 
judgment of the Higher Regional Court further implies that even future voting 
rights secured by one partner, perhaps by increasing their own holding, would 
constitute a legitimate interest in information already inherent in the existing 
privity of contract. 
B. […] The relevance of the answers to the questions referred […]: 
As a consequence of the national case-law, empty and practically unprovable 
assertions by one partner that they might be interested in purchasing another 
partner’s shares would suffice in order to demand comprehensive information on 
all the limited partners, even those with an indirect holding, including their 
addresses and their stake in the business. As rights are potentially abused only 
where there is no conceivable link with the partner’s position, even abstract risks, 
REQUEST FOR A PRELIMINARY RULING OF 21. 12. 2021 – CASE C-17/22 
 
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i.e. risks which cannot be shown and which are not purely theoretical, that 
unrelated purposes will be pursued carry no weight, as there is always the 
possibility that the data will, at the very least, also be used to achieve a consensus 
with the other partners that promotes the business. Once the data have been 
disclosed, the data controller is no longer able to apply security measures to 
control the handling of the data by the applicants. To summarise, the disclosed 
data of limited partners, including those with an indirect holding in a partnership 
comprised of many members of the public, lose all residual protection as of their 
disclosure. 
Although interpretation may well result in that outcome, for example where the 
principles of commercial law governing investment in an undertaking in the form 
of a partnership take precedence, such that anyone who personally invests in an 
undertaking, even with limited liability, must be treated as a principal, the 
referring court does not consider that, in the case of the limited partners of a 
partnership comprised of many members of the public with relatively negligible 
liability, often amounting in total to a manageable sum of capital, an interpretation 
by the Court is so predictable as to render an order for reference superfluous. 
The questions submitted will enable judgment to be given, as the only assertion 
made to date in the proceedings at issue is that the intention was to purchase third-
party shares. If that suffices, the action must be admitted. If it does not and all 
other submissions remain the same, the action would be ripe for dismissal. If the 
action is admitted, the court’s judgment would be final, as the adverse effects for 
the defendant are limited to the cost of providing the information, which falls 
below the national limit for referral to a higher court. 
C. Considerations of the court on the answers to the questions referred: 
1.a. The referring court also assumes that the term of the agreement excluding 
the provision of information is invalid, not because such exclusion is impossible 
as a matter of principle, but because, as a far-reaching and therefore unreasonable 
and hence invalid restriction of rights, it fails as a general term of business. 
1.b. The question referred by the national court is limited to the requirements of 
EU law applicable to information on partners with indirect holdings. Under 
German law, limited partners with direct holdings must by law be entered in the 
commercial register with their full name, date of birth and place of residence. 
Anyone who invests in an undertaking in that way must expect such disclosure. 
2. By contrast, it is not obvious to a person who invests via a trustee that such 
data must necessarily be disclosed because the partners have a key right to such 
disclosure. There is nothing to suggest that they should be treated in the same way 
as limited partners with a direct holding: 
2.a. The contested investment or trust agreements provide, even if they are 
invalid in that respect, that no data are to be disclosed to other investors and thus, 
at the very least, express a fundamental expectation of the partners. 
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2.b. There is no legal obligation to publish the names of persons party to a trust 
who invest in a commercial partnership without incorporating. 
2.c. Although the local court then concurs with the fundamental assumptions of 
the higher courts, namely that everyone in a partnership is aware that their 
personal data are retained by the partnership and may be disclosed, provided that 
is ‘objectively reasonable’ for the purpose of discharging contractual or legal 
obligations, in which case it is obvious that, where an obligation exists, it is 
objectively reasonable to discharge it, 
the existence of an obligation depends not only on whether the request by the 
partner seeking the information is objectively reasonable, but on how the 
agreement is to be evaluated, meaning that the request must outweigh the other 
partners’ interest in being allowed to keep their data secret, at least to start with, 
and not to see it disclosed as soon as a reasonable counter-interest arises. Under 
EU law, data protection is the rule and the fact that an interest is comprehensible 
does not of itself suffice to justify an exception. In the opinion of the referring 
court, that interest must always relate to the purpose for which the partner 
concerned disclosed their data, namely the fortunes of the business. 
2.d. Next, the referring court agrees with the objectives of the case-law set out 
above, that a partner has an automatic and, in that sense, unrestricted right to 
know who exerts real influence on the partnership in which they have made a 
business investment with the risks that entails. The referring court simply 
questions whether that can substantiate a duty to disclose information on all 
limited partners with indirect holdings. 
(1) It is obvious that the holding of most limited partners of a partnership 
comprised of many members of the public is not so large that the limited partner 
can expect to exert any influence on the fortunes of the partnership through their 
holding. Instead, the referring court assumes that the fact of being in a partnership 
and thus personally involved does not of itself suffice to be able to demand 
information. If it did, that would fail to take proper account of the fact that, in 
publicly owned limited partnerships which are or were open to any number of 
investors, an element of personal involvement has largely given way to the view 
that this is simply a form of investment in the capital market similar to a 
shareholding, and no shareholder whose holding falls below a significant 
percentage would expect the share depositary to pass their name and address to 
other shareholders. 
In that regard, further interpretation of the agreement would suggest various ways 
in which ‘small’ investors can be protected, so that they too can engage in the 
necessary collective exercise of interests, such as the right to have 
communications from ‘small’ investors passed to all the other investors via the 
partnership, which for its part is obliged to safeguard law-abiding conduct, or via 
a forum provided by the partnership for ‘small’ investors to exchange views 
similar to that referred to in Paragraph 127a of the AktG. 
REQUEST FOR A PRELIMINARY RULING OF 21. 12. 2021 – CASE C-17/22 
 
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(2) The judgments given by the higher courts are also appropriate in that they 
establish a clear relationship between the rule and the exceptions. This allows for 
the fact that the controller in a partnership comprised of many members of the 
public cannot reasonably consider, individually and separately for each of its 
1 800 partners, whether information should or should not be provided, and must 
rely instead on manageable criteria that define in the abstract the group of persons 
on which information is to be provided. Therefore, a general  and hence formal  
criterion is needed by which to determine who is subject, as a rule at least, to 
mandatory disclosure of their information, so as to ensure that, as well as the 
courts, data protection officers have proper, legally secure, decision-making 
powers to adjudicate such disputes. 
The case-law to date is easily applied, as investment companies have to comply 
with practically all requests for information from partners. 
However, the court considers that a formal threshold clearly needs to be assumed, 
similar to the threshold which triggers mandatory disclosure in a listed stock 
corporation, above which significant influence on the partnership is considered 
formally feasible, as expressed in Paragraph 33 of the German Law on Trading in 
Securities, which sets a threshold of 3%. Although the application of that 
threshold mutatis mutandis has been rejected to date by the Federal Court of 
Justice, EU requirements would, at least potentially, allow such application 
mutatis mutandis. 
2.e. In any event, the court disagrees that purely empty assertions of an ‘interest 
in becoming acquainted’ or an ‘interest in purchasing shares’ suffice for the 
purpose of data disclosure and are not an abuse of rights. 
(1.) That an interest in purchasing shares suffices to establish a right to 
information would appear to the referring court to be contrary to the agreement 
and inappropriate: No-one is entitled to obtain names and addresses entrusted to a 
third party directly from that third party for the purpose of entering into 
negotiation with the data subject with a view to executing a future contract. On the 
contrary, that argument would appear to be inconsistent if future legal positions 
which depend on the will of others, and hence arbitrariness, are supposed to 
substantiate such rights to information ex ante. Proposing a transaction to 
someone does not justify disclosure of their data without their consent. 
Even more fundamentally, the argument that any conceivable right of itself 
suffices to exclude an abuse of rights would appear to fall short in terms of 
guaranteeing data protection under EU law. The referring court is of the opinion 
that data protection means that even abstract risks must be prevented and that this 
must then inform what is understood by abuse of rights. Consequently, the 
assertion of a right which does not in turn express a minimum commitment and/or 
substantive plausibility should always be classed as abuse of rights. 
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(2.) Similarly, ‘becoming acquainted’, measured against what is expected by a 
person who, as a member of the public, provides their data for the purpose of 
making an investment, does not constitute a serious reason. No-one who makes a 
financial investment thereby consents to the possibility of being approached in 
order to become acquainted. 
(3.) Instead, it seems reasonable and appropriate that particular, specifiable 
requests should have to be referred directly to the management. That would put 
the purpose of data transfer on a formal footing, thereby enabling the partnership 
to cite the purpose of the data transfer in the event of data disclosure complaints 
and, if it learns, for example through complaints from other partners, that the data 
are being used for undeclared purposes, to set in motion the sanction mechanisms 
provided for under data protection law. 
3. In short, the referring court suggests that it would be reasonable to interpret 
the General Data Protection Regulation as meaning that, in the case of a 
partnership comprised of many members of the public, it establishes an 
unrestricted right to information only above a certain threshold as a starting point 
and, moreover, that the partnership is only obliged to pass communications from 
one partner to all the partners with direct and indirect holdings. 
The referring court further suggests that it would be reasonable to interpret the 
General Data Protection Regulation as meaning that simply ‘becoming 
acquainted’ and an interest in purchasing shares are not relevant factors and 
cannot therefore establish a right to information, and that every request for 
information must state the specific, business-related reason behind the request for 
information. 
D. Admissibility of the questions referred 
The questions referred seek […] to determine the factors that are relevant in an 
appraisal by virtue of the law, i.e. what would appear to be significant and 
therefore ‘consequential’ in that appraisal. The same applies to questions 
concerning the factors that are relevant for the purpose of determining the intrinsic 
limits on a ‘legitimate interest’. Given the questions to which this gives rise 
concerning legal structures under EU law, it would appear appropriate to request a 
preliminary ruling by the Court. 
[…]