Pursuant to section 4 f (3) sentence 4 BDSG, the appointment of a data protection officer may be revoked for good cause in analogous application of section 626 BGB. Neither the employer's decision to have the tasks of a data protection officer performed by an external third party in the future nor membership in the works council constitute such good cause for revocation.
The plaintiff, who had been employed by the first defendant since 1981, was appointed data protection officer of the first defendant and its wholly-owned subsidiary, the second defendant, in 1992. This task took up about 30% of her working time. Since 1994, the plaintiff has also been a member of the works council at the first defendant.) On 12 August 2008, the defendants decided to have the tasks of the data protection officer performed uniformly throughout the group by an external third party. They therefore revoked the plaintiff's appointment. The first defendant also gave the plaintiff partial notice of termination of this task. The plaintiff filed an action against these measures.
The lower courts upheld the action. The defendant's appeal before the Tenth Senate of the Federal Labour Court was unsuccessful.
The statutory provision of Section 4 f (3) sentence 4 BDSG, Section 626 BGB grants the data protection officer special protection against dismissal. This is intended to strengthen their independence and the exercise of their office without instructions. A dismissal is only possible for good cause if a continuation of the legal relationship is unreasonable for the employer. The employer is free to appoint an internal or external data protection officer for the first time. However, if the employer has appointed an internal data protection officer, it cannot revoke the appointment of the internal data protection officer solely on the grounds that it now wants to appoint an external data protection officer for the entire group. Such an organisational decision alone does not constitute good cause. Similarly, mere membership in the works council does not justify questioning the reliability of a data protection officer. The defendants did not refer to specific breaches of duty.
Federal Labor Court, Judgment of March 23, 2011 - 10 AZR 562/09 -
Previous instance: Berlin-Brandenburg Regional Labor Court, judgment of May 28, 2009 - 5 Sa 425 and 434/09
Source: Press release of the Federal Labour Court (BAG)
Goldberg Attorneys at Law 2011
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
