Dismissal of a company data protection officer: Requirements under current case law

In-house data protection officers can only be dismissed if there is good cause for doing so (Section 6 para. 4 sentence 1, Section 38 para. 2 Federal Data Protection Act in conjunction with Section 626 para. 1 German Civil Code). The Federal Labour Court (BAG) has recently declared this termination requirement to be compliant with European data protection law (judgment of 6 June 2023 – case no. 9 AZR 621/19). In the same decision, the BAG confirmed that the dismissal of the company data protection officer does not necessarily require a partial termination of the employment relationship. Rather, the specific terms of the agreement concluded between the parties will be decisive in this respect.

 

The case

The plaintiff employee was appointed company data protection officer during his existing employment relationship. The employee carried out this activity in addition to his actual work for approximately half of his working hours. The defendant dismissed the plaintiff as data protection officer and justified this, among other things, on the basis of a conflict of interest on the part of the plaintiff. The plaintiff objected to the dismissal and demanded continued employment as data protection officer.

 

ECJ: Stricter national regulations for the protection of data protection officers permissible

After the plaintiff failed in the lower courts, the BAG initially suspended the proceedings and asked the European Court of Justice (ECJ) to decide whether the provision of Section 6 para. 4 sentence 1 Federal Data Protection Act (BDSG) is in line with EU law. The BAG had concerns as to whether this provision was compatible with the General Data Protection Regulation (Art. 38 para. 3 sentence 2 GDPR). According to this provision, a data protection officer may not be dismissed or disadvantaged due to the performance of their duties. The ECJ found that a national provision to protect a data protection officer does not violate Art. 38 para. 3 sentence 2 GDPR subject to certain conditions (judgment of 9 February 2023 – case no. C-453/21).

The BAG then ruled that the protection of the data protection officer provided for in the BDSG (Section 6 para. 4 sentence 1 BDSG) does not conflict with the objectives of the GDPR. A conflict would only exist if national law prevented “any” dismissal of the data protection officer. Although the requirement for good cause would make dismissal more difficult, it would not make it impossible.

 

Federal Labour Court: Partial termination of the employment relationship is not required

At the same time, the BAG confirmed previous case law, according to which the dismissal of a company data protection officer does not necessarily require a partial termination of the employment relationship. Whether or not a partial termination is required depends on the agreements made between the parties. When appointing an employee as data protection officer, it is generally assumed that the employment contract is merely amended and extended for the duration of the assignment. This assumption also applies if no express agreement has been made in this regard. By dismissing the data protection officer, the activity as data protection officer is no longer part of the contractually owed service, so that no partial termination is required in this regard.

 

Takeaways for employers

The BAG's clarification that the dismissal of the data protection officer does not necessarily require a partial termination of the employment relationship is to be welcomed. An agreement to transfer into the data protection officer role does not usually entail a permanent transfer or amendment of the employment contract. The circumstances of each individual case will be decisive in this respect, so that the terms of the agreement should always be examined carefully before dismissal.

The BAG's decision on Section 6 para. 4 sentence 1 BDSG makes it clear that the data protection provisions of the BDSG can also have consequences under employment law. Employers must therefore carefully examine whether the dismissal can take place due to the existence of good cause (Section 626 para. 1 German Civil Code) - which is required for extraordinary dismissal.