Court case 2 AZR 225/20 – Court Ruling (Germany, 2022)

The case concerns a dispute regarding the validity of an ordinary termination of a data protection officer's (DPO) employment relationship. The plaintiff had been working for the defendant as the company DPO starting on 1 February 2018. In a letter dated 13 July 2018, the defendant, the plaintiff's employer, terminated the employment relationship with effect from 15 August 2018. In order to make the termination effective, the defendant invoked a restructuring measure which had led to the discontinuation of the plaintiff's need for employment. The plaintiff applied for a declaration to declare that the employment relationship between her and the defendant was not terminated by the defendant's notice of termination. The plaintiff invoked a special protection against the dismissal of DPOs pursuant to section 38(2) in conjunction with section 6(4) sentence 2 of the German Federal Data Protection, according to which DPOs may not be dismissed without observing a notice period unless facts exist which entitle the employer to terminate the employment relationship for "good cause". The defendant filed a motion to dismiss the action, arguing that the plaintiff could not invoke the special protection as the law would violated Article 38(3) GDPR which mandates that DPOs shall only be protected from dismissals which relate to the performance of their tasks. Consequently, the court asked the CJEU for a preliminary ruling on whether, as argued by the defendant, the national and European norms are in conflict. The CJEU answered that the norms are not in conflict. Therefore, the German Federal Labour Court decided to agree with the plaintiff. According to the CJEU (see C-534/20), Article 38(3) second sentence GDPR is to be interpreted as not precluding a national rule, under which a data protection officer employed by a controller or processor may be dismissed only for good cause, even if the dismissal is not related to the performance of his or her duties, provided that that rule does not prejudice the attainment of the objectives of the GDPR. This is not the case in regards the discussed provisions of the German data protection law. Based on this CJEU ruling, the Federal Labour Court elaborated that the special protection against dismissal protects data protection officers from losing their job which may threaten them - even in a disguised form - because of the performance of his or her duties. Moreover, the special protection against dismissal protects their independence in the performance of their statutory duties, which benefits the enforcement of the objectives of the German data protection law and the GDPR.