The Saxon LAG had to deal with the question the question of whether the appointment of the plaintiff there as a data protection plaintiff's appointment as data protection officer had been effectively revoked. was effectively revoked. The decision was based on the following facts:
The defendant is a group company with its registered office in Saxony. The parent company is based in Thuringia. The plaintiff is in the in his function as the exempted chairman of the defendant's works deputy chairman of the central works council in all companies belonging to the companies belonging to the group.
The defendant as well as the other group companies aimed to appoint a data protection officer in order to achieve a group-wide data protection standard. For this reason, the plaintiff was appointed as the company data protection officer at the defendant and as the external data protection officer at the other group companies in 2015.
Works council chairperson + data protection officer = conflict of interest ?
In 2017, the Thuringian State Commissioner for Data State Commissioner for Data Protection (TLfDI) approached the parent company of the and expressed doubts about the expertise and reliability of the plaintiff as data protection officer. as data protection officer. In particular, the TLfDI expressed the opinion, that due to the plaintiff's activity as a data protection officer, there were doubts about his doubts as to his reliability due to possible conflicts of interest due to his position as chairman of the works council. The TLfDI held out the prospect parent company to oblige the responsible body to appoint a data protection officer appoint a suitable company data protection officer in accordance with § 4f BDSG. At the end of 2017, the defendant informed the plaintiff, referring to the legal opinion of the TLfDI, that his of the TLfDI that his appointment as in-house data protection officer had been had been invalid from the beginning. In the alternative, his appointment as data protection officer was revoked. On 25 May 2018, the plaintiff was dismissed for for operational reasons pursuant to Art. 38 para. 3 sentence 2 DS-GVO. data protection officer again as a precautionary measure.
The plaintiff successfully defended himself against this dismissal in the at first instance before the Dresden Labour Court. With the appeal the defendant sought to have the judgment of the Dresden Labour Court set aside. be set aside. The Saxon Higher Labour Court dismissed the defendant's appeal on the following grounds reasons:
The chairman of the works council can also be be a data protection officer
The plaintiff was effectively appointed data protection officer of the defendant. According to the Saxon LAG, there is incompatibility for the appointment of a data protection officer with the office of the with the office of the works council chairperson. In this respect, the Saxon Higher Labour Court refers to the to the decision of the Federal Labour Court of 23 March 2011 (- 10 AZR 562/09 -, AP No. 3 to § 4 f BDSG, with further references), which already the appointment of a data protection officer with the office of a "simple" works works council member. For the Saxon LAG, it was not why anything else should apply to the chairperson of the works council. should apply to the works council chairperson.
The revocation has not been "at the request of the supervisory authority". takes place
According to the Saxon LAG, the defendant cannot rely on that the revocation of the appointment of the data protection officer at the end of 2017 "at the request of the supervisory authority".
The request for revocation vis-à-vis the defendant was made the supervisory authority responsible for the defendant pursuant to § 4 f para. 3 sentence 4 BDSG old. supervisory authority. The TLfDI is only responsible for the federal state of Thuringia, where the where the parent company has its registered office. The Free State of Saxony, where the has its own supervisory authority, namely the Saxon Data Protection Commissioner. Data Protection Commissioner. The latter had submitted a request for the revocation of the the plaintiff's appointment as data protection commissioner vis-à-vis the defendant. the defendant.
Nor can the revocation be based on § 626 BGB analogue
Pursuant to § 4 f para. 3 sentence 4 BDSG a. F., for the There must be an important reason for dismissal. The Saxon LAG was not able to recognise this was unable to recognise this. The TLfDI's request for revocation from 2017 is not a good reason because it is the authority that is not competent for the defendant.
Even if a revocation of the plaintiff's appointment as data as data protection officer for the other group companies would have been effective. would have been effective, this would also have been inappropriate as good cause. It is true that the creation of a group-wide data protection standard could possibly not be achieved by several data data protection officers might not be achieved. However, it was not that a dismissal of the plaintiff as data protection officer for the other group companies would the other group companies would prevent the plaintiff from continuing to act as data protection officer for the defendant. data protection officer for the defendant would make it impossible or at least significantly jeopardise it. or at least considerably jeopardise it.
The revocation shall not be ineffective after the of the GDPR becomes ineffective
The revocation of the order of 25 May 2018 was also ineffective pursuant to § Section 38 (2) in conjunction with Section 6 (4) BDSG (new version).
First of all, according to the opinion of the Saxon LAG, the special protection against dismissal and dismissal of a company data protection of a company data protection officer is a regulation under labour law, which, in addition to the requirements of Regulation (EU) 2016/679, can also be retained in the BDSG (as amended). (cf. also BT-Drs. 18/11325 p. 82).
Pursuant to section 6 para. 4 sentence 1 i. in conjunction with Section 38 (2) BDSG n.F. the dismissal of a private data protection commissioner is only permissible in application of section 626 of the German Civil Code (BGB). In the opinion of the Saxon LAG the Saxon LAG, there is no good cause.
Source: Judgement of the Saxon LAG of 7 July 2019 - 9 Sa 268/18
Previous instance: ArbG Dresden - Verdict of 27 June 2018 - 10 Ca 234/18
GoldbergUllrich Attorneys at Law 2019
Lawyer Julius Oberste-Dommes LL.M. (Information Law)
Specialist lawyer for information technology law
