GER: Works Council Chairs Can’t Double as Data Protection Officers

Jun 30, 2023 Benn-Ibler Rechtsanwälte

The position of works council chairperson precludes additionally performing the duties of data protection officer. For this reason, employers are permitted to revoke the appointment of data protection officers, according to the German Federal Labour Court (Bundesarbeitsgericht, hereinafter BAG).

The plaintiff is the chairman of the works council and an employed by the defendant. In 2015, the plaintiff was appointed data protection officer for the company employing him as well as other subsidiary companies. In 2017, his position as data protection officer was revoked by the defendant company and its subsidiaries at the behest of the Thuringian State Commissioner for Data Protection and Freedom of Information. The reason was the incompatibility of the positions of works council chairperson and data protection officer. The plaintiff took legal action against this. The defendant objected that there was a conflict of interest in holding both offices. The lower courts upheld the action. The appeal filed by the defendant company was successful.

According to the BAG, revocation of the appointment as data protection officer was justified for good cause. Such good cause existed insofar as the appointed data protection officer lacked the reliability and expertise required for the office. Thus, the integrity of the data protection officer could be called into question if there was a risk of a conflict of interest. Such a conflict of interest (which could lead to dismissal) is to be assumed if a data protection officer holds a position which has as its purpose the determination of reasons and means for processing personal data. Personal data may only be made available to the works council for purposes expressly provided for in the German Works Constitution Act. According to the BAG, the tasks of a works council chairperson and a data protection officer should therefore typically not be performed by the same person.

The works council decides by resolution under which specific circumstances the works council requests certain personal data from the employer and in which way this data is then processed. Within this framework, the works council determines the purposes and means of processing personal data.

Press release 27/23 on BAG, 9 AZR 383/19 (06.06.2023)