GermanyGDPR Article 22 and BDSG Sections 31 and 37, Automated Decisions and Credit Scoring in Germany
In force since .
A data subject rights rule binding public and private bodies.
- How the hook was established
- express
- What makes it apply
- Operator establishment, Market targeting, User location, Place of effect
- Audit expectation
- none
What it requires
- Where a decision based solely on automated processing about a person in Germany rests on a contract with them or on their explicit consent, put suitable safeguards in place, at least the right to obtain human intervention, to express their point of view and to contest the decision, under General Data Protection Regulation (GDPR) Article 22(3).NIST Privacy FrameworkCT.DM-P10
- If you are an insurer, you may make a solely automated decision about a person in Germany in performing an insurance contract where it grants their request in full, or where it applies binding fee rules for medical treatment and you let them obtain human intervention, state their view and contest the decision, telling them of these rights no later than when you tell them their request was not fully granted, under BDSG Section 37(1).
- Do not subject a person in Germany to a decision based solely on automated processing, including profiling, that produces legal effects concerning them or similarly significantly affects them, unless the decision is necessary for entering into or performing a contract with them, is authorised by Union or Member State law that also lays down suitable measures to safeguard their rights, or rests on their explicit consent, under GDPR Article 22(1) and (2).NIST Privacy FrameworkCT.DM-P10
- Do not base a solely automated decision with legal or similarly significant effects on a person in Germany on the special categories of personal data in GDPR Article 9(1), unless they gave explicit consent or the processing is necessary for reasons of substantial public interest on the basis of proportionate Union or Member State law, and suitable measures to safeguard their rights are in place, under GDPR Article 22(4).NIST Privacy FrameworkCT.PO-P1
- If you make solely automated decisions about a person in Germany of the kind GDPR Article 22(1) and (4) describe, including profiling, tell them so and give them meaningful information about the logic involved and the significance and envisaged consequences for them: when you collect their data, within the Article 14(3) period where you obtained it from someone else, and in answering their access request, under GDPR Articles 13(2)(f), 14(2)(g) and 15(1)(h).NIST Privacy FrameworkCM.AW-P1
These lines are LexLint's reading of the law's text. Also read by: Article 29 Working Party, guidelines endorsed by the European Data Protection Board (guidance, recorded ); Case C-634/21 SCHUFA Holding (Scoring), judgment of the Court of Justice of (First Chamber) (recorded ).
In the frameworks
- NIST Privacy Framework
- CT.PO-P1Policies, processes, and procedures for authorizing data processing (e.g., organizational decisions, individual consent), revoking authorizations, and maintaining authorizations are established and in place.
- CT.DM-P10Stakeholder privacy preferences are included in algorithmic design objectives and outputs are evaluated against these preferences.
- CM.AW-P1Mechanisms (e.g., notices, internal or public reports) for communicating data processing purposes, practices, associated privacy risks, and options for enabling individuals’ data processing preferences and requests are established and in place.
Our reading of where this law's duties sit in each framework, and in the NIST Privacy Framework, line by line beside each duty above. It never says that running a control meets the law. How we read a framework against the law
Who enforces it
Settledness
- As of
- Case link
- https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62021CJ0634
- Guidance link
- https://ec.europa.eu/newsroom/article29/redirection/document/49826
- Case citation
- Case C-634/21 SCHUFA Holding (Scoring), judgment of the Court of Justice of (First Chamber)
- Guidance body
- Article 29 Working Party, guidelines endorsed by the European Data Protection Board
- Open questions
- Is Section 31 of the Bundesdatenschutzgesetz, and from its replacement Section 37a, a legal basis authorizing a decision based solely on automated processing under Article 22(2)(b) of Regulation (EU) 2016/679, a question the Court of Justice in Case C-634/21 left to the national court for Section 31?
What it makes you log
What the log must hold
Disclosure shown
Logging duty
Where address data are used to calculate a probability score, the notice given to the person beforehand about that use must be documented. GDPR Article 22 and BDSG Section 37 set no record of their own, and Section 31 names no format, owner or period for the documentation. Regulator powers to demand it sit in BDSG Section 40 and GDPR Article 58, outside the provisions this instrument cites.
- Kind
- Explicit
- As of
- Provision
- BDSG Section 31, paragraph 1, number 4
- Trigger
- automated_decisions
What this law does
General Data Protection Regulation (GDPR) Article 22 gives a person in Germany the right not to be subject to a decision based solely on automated processing, including profiling, that produces legal effects or similarly significantly affects them, unless the decision is necessary for a contract with them, authorised by a law that safeguards their rights, or based on their explicit consent.
Where it rests on a contract or consent, the controller must at least let the person obtain human intervention, express their point of view and contest the decision.
Under Article 22(4), such a decision may not rest on the special categories of personal data in Article 9(1) unless the person gave explicit consent or the processing is necessary for reasons of substantial public interest on the basis of proportionate Union or Member State law, with suitable safeguards in place.
Articles 13(2)(f), 14(2)(g) and 15(1)(h) require the controller to tell the person that such decision-making takes place, with meaningful information about the logic involved and its significance and envisaged consequences for them, at collection, within the Article 14(3) period where the data came from another source, and on an access request.
BDSG Section 37 is Germany's Article 22(2)(b) law for insurance: in performing an insurance contract, a solely automated decision may be made where it grants the person's request in full, or where it applies binding fee rules for medical treatment and the insurer lets the person obtain human intervention, state their view and contest the decision. Section 31 sets conditions for using a probability score about a person's future conduct.
In SCHUFA (Case C-634/21, judgment of ), the CJEU held that the automated establishment of such a probability value is itself automated individual decision-making under Article 22(1) where a third party draws strongly on it to establish, implement or terminate a contractual relationship. Under Article 3 of the Act of (Federal Law Gazette 2026, Part I, number 139), section 31 of the BDSG is repealed and a new section 37a, headed Scoring, is inserted after section 37.
That Act takes effect on , so section 31 binds until then and section 37a governs scoring from that date. Under section 37a, paragraph 4, a controller that creates scoring values must store for one year the information needed to answer a data subject's request about the data used, the criteria, their weighting, the score and its recipients.
When LexLint raises it
When your app profile says your app makes high-risk automated decisions.
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