Court case 17 K 3920/19 – Court Ruling (Germany, 2020)

The plaintiff contests the publication of his remuneration in accordance with the Hamburg Transparency Act (§ 3 (1) No. 15 HmbTG). The plaintiff is employed by the University Medical Center in Hamburg, a corporation under public law. The defendant's financial authority informed the University Medical Center that its subsidiaries would largely fail to meet the requirements of the Hamburg Transparency Act on the disclosure of management remuneration. It is asked to influence the management and to ensure that the next year's remuneration report is published. The University Medical Center informed the plaintiff that the intention was to transmit the requested information on his remuneration and fringe benefits to the defendant. The Hamburg Administrative Court had to decide, if the publication of the remuneration of the plaintiff is lawful. Plaintiff: The plaintiff argued his legitimate interest in determining that his salary information should not be published. He argued that the Hamburg Transparency Act is not applicable and therefore, the publication of his remuneration violates his general right of personality. In addition, according to the German Federal Data Protection Law (§ 26 BDSG,) personal data of employees for the purposes of the employment relationship should only be processed if this is for the decision on the establishment of an employment relationship or after the establishment of the employment relationship for its implementation or termination or for the exercise or fulfillment resulting from a law or a Collective agreement, a company or service agreement (collective agreement) resulting rights and obligations of the representation of interests of employees. This requirement is missing here. Defendant: The defendant is of the opinion that the plaintiff's salary should be published. According to the Hamburg Transparency Act, which is applicable according to the defendant, essential company data of municipal holdings, including a description of the annual remuneration and fringe benefits for the management level, should be published. The interference with the plaintiff's personal rights brought about by the publication of his remuneration was therefore justified and proportional. Remuneration information does not concern tighter privacy, but the professional area and is therefore not highly sensitive data, especially since it does not allow any reliable conclusions to be drawn about the financial situation. Employment contract regulations would not prevent publication. The court decided that the publication of the plaintiff's remuneration does not violate data protection regulations. The court stated that, contrary to the plaintiff's opinion, the inadmissibility of data processing does not arise from a law in the German federal data protection act (§ 26 BDSG). The respective law does not conclude on the admissibility of the processing of personal data of employees, so that in any case recourse to the general regulations of the GDPR would remain possible. In this respect, the legality of the data processing results from Art. 6 (1) (c), (e) GDPR and from the applicable Hamburg transparency law (§ 3 (1) No. 15 HmbTG). The court argued that the establishment of a high level of transparency with regard to the use of public funds, which is pursued by the regulation, represents a public concern of considerable importance. The provision of the Hamburg transparency law pursues a legitimate purpose insofar as it provides for the publication of the remuneration of the management level of urban participations. This consists in creating transparency with regard to the type and scope of the use of public funds for the purpose of economic activity what gives the public the opportunity to assess the appropriateness of this use of funds. In this respect, the publication not only serves to satisfy general curiosity, but also contributes to the public opinion-forming process in a democratic society. The respective law is also suitable and necessary to achieve this purpose. In particular, a mere aggregated publication of the remuneration of a particular associated company does not create the same level of transparency with regard to the appropriateness of the use of funds in the respective individual case. After all, there can be no objection to the fact that the legislature, in the context of its prerogative of assessment, has given (reasonable) preference to the legitimate interest of transparency in the public when weighing up the opposing interests.