Right to Copy of Medical Records Free of Charge According to Article 15 (3) Sentence 1 of the GDPR vs. Mandatory Reimbursement of Costs by Patient under National Law

The article covers the topic of compatibility of national regulations, which contain an obligation for the patient to reimburse costs for copies from the medical record, with the regulations of the GDPR. The discussion is based on the example of the German regulation in Section 630g (2) of the German Civil Code (BGB) since the German Federal Court of Justice (2022) recently submitted the question of the compatibility of this provision with the GDPR to the ECJ (European Court of Justice) for a preliminary ruling. The study also focuses on Austria, where the Supreme Court of Justice already in 2020 had assumed that the comparable provision in Art. 17a (2) lit. g of the Vienna Hospital Act 1987 could be a permissible restriction within the meaning of Art. 23 (1) lit. e of the GDPR. The article concludes that the request for a copy of the medical record is not “excessive” within the meaning of Art. 12 (5) sentence 2 of the GDPR, although the request did not serve data protection purposes but served to assert claims for damages against the physician. Furthermore, the article assumes that a national provision that requires the patient to bear the costs in any case is not a “necessary and proportionate measure” within the meaning of Art. 23 (1) of the GDPR. However, a restriction of the physician’s obligation to provide copies free of charge based on the wording of Art. 15 (3) sentence 1 of the GDPR might be possible. Keywords: right to copies free of charge, necessary and proportionate national measures, patient’s personal data, medical record, European Court of Justice, German Federal Court of Justice, Austrian Supreme Court of Justice, health law