Court case 5 Sa 108/19 – Court Ruling (Germany, 2020)

The defendant revoked the plaintiff’s appointment as a group data protection officer due to the allegations that the plaintiff had illegally set up a pension commitment for the then commercial director in collusive cooperation and had likewise acted on his own pension promise without an effective legal basis. = TThe plaintiff took the view that the revocations of the appointment as group or data protection officer were ineffective since there was no important reason. The plaintiff argued that he had not violated his obligations as data protection officer. = The defendant argued that the plaintiff lacks the necessary reliability for the work of the data protection officer. In the defendant’s view, there was no entitlement to a company pension scheme and the plaintiff's legal opinion was not justifiable. Only the Supervisory Board was responsible for the promise of a pension. The plaintiff disregarded the objections expressed by the head of payroll accounting and two other employees. He also did not involve the defendant's supervisory board. The State Labour Court Mecklenburg-Western Pomerania had to decide, whether the plaintiff has violated any general obligations from the employment relationship that prevent further use in the role of data protection officer. The Court stated that the data protection officer must not only have the necessary specialist knowledge, but also offer the guarantee that he will carry out his duties conscientiously and not against his obligations as a data protection officer, e.g. B. violates his duty of confidentiality. A serious violation of general employment contract obligations can also jeopardize reliability, e.g. theft, embezzlement, intentional damage to reputation, assault against other employees, etc. The reliability must be assessed taking into account the purpose of the appointment of a data protection officer. The data protection officer has the task of ensuring effective self-monitoring of the data protection regulations, in order to relieve public control bodies at the same time. The person appointed to the data protection officer must be able to guarantee effective self-control in addition to expertise. With an internal data protection officer, his position as a data protection officer cannot be completely separated from the underlying employment relationship. A serious breach of contractual obligations can mean that it is no longer possible to reliably exercise self-regulation under data protection law. The court argued that the plaintiff has the necessary reliability for the work of the data protection officer. In the opinion of the court, the plaintiff has not violated any general obligations from the employment relationship that prevent further use in the role of data protection officer