View source for LAG Schleswig-Holstein - 1 Sa 148/22

{{COURTdecisionBOX

|Jurisdiction=Germany
|Court-BG-Color=
|Courtlogo=Courts_logo1.png
|Court_Abbrevation=LAG Schleswig-Holstein
|Court_Original_Name=Landesarbeitsgericht Schleswig-Holstein
|Court_English_Name=Regional Labour Court Schleswig-Holstein
|Court_With_Country=LAG Schleswig-Holstein (Germany)

|Case_Number_Name=1 Sa 148/22
|ECLI=ECLI:DE:LARBGSH:2023:0221.1SA148.22.00

|Original_Source_Name_1=Juris
|Original_Source_Link_1=https://www.gesetze-rechtsprechung.sh.juris.de/bssh/document/JURE235003255
|Original_Source_Language_1=German
|Original_Source_Language__Code_1=DE
|Original_Source_Name_2=
|Original_Source_Link_2=
|Original_Source_Language_2=
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|Date_Decided=21.02.2023
|Date_Published=
|Year=2023

|GDPR_Article_1=Article 4(1) GDPR
|GDPR_Article_Link_1=Article 4 GDPR#1
|GDPR_Article_2=Article 15(1) GDPR
|GDPR_Article_Link_2=Article 15 GDPR#1
|GDPR_Article_3=Article 15(3) GDPR
|GDPR_Article_Link_3=Article 15 GDPR#3
|GDPR_Article_4=Article 17(1) GDPR
|GDPR_Article_Link_4=Article 17 GDPR#1
|GDPR_Article_5=Article 82(1) GDPR
|GDPR_Article_Link_5=Article 82 GDPR#1
|GDPR_Article_6=
|GDPR_Article_Link_6=
|GDPR_Article_7=
|GDPR_Article_Link_7=

|EU_Law_Name_1=
|EU_Law_Link_1=
|EU_Law_Name_2=
|EU_Law_Link_2=

|National_Law_Name_1=§ 24 (1) (2) BDSG
|National_Law_Link_1=https://dejure.org/gesetze/BDSG/24.html
|National_Law_Name_2=
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|Party_Name_1=
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|Appeal_From_Body=
|Appeal_From_Case_Number_Name=1 Sa 148/22
|Appeal_From_Status=
|Appeal_From_Link=https://www.gesetze-rechtsprechung.sh.juris.de/bssh/document/JURE235003255
|Appeal_To_Body=
|Appeal_To_Case_Number_Name=1 Sa 148/22
|Appeal_To_Status=Appealed - Confirmed
|Appeal_To_Link=https://www.gesetze-rechtsprechung.sh.juris.de/bssh/document/JURE235003255/part/L

|Initial_Contributor=
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}}

The court rejected a data subject's claim for compensation of damages under Art. 82 GDPR because of the data subject's abuse of rights.

== English Summary ==

=== Facts ===
A data subject made an access request with a company where he had previously applied for a job offering. He was rejected. 

On 14.09.2021, the data subject requested his personal information (Article 15 (1) GDPR and Article 15 (3) GDPR) from the controller. On the same day, the data subject filed a complaint with the court concerning the access request and alleged age-based discrimination by the controller. 

On 21.09.2021, the controller answered the access request, responding that that no information except the email history was stored about him.

The controller found information on a website run by a law firm, where an anonymous data subject had previously filed law suits against compainies who rejected his job application. That data subject claimed that he was rejected due to age-discrimination. Upon request, the law firm confirmed to the controller that the data subject in their case and in the website entries were the same. Therefore, the controller included these entries in their defence statatement.

The data subject requested compensation under Art. 82 GDPR (€1.500) because the controller allegedly did not fully respond to the access request. In addition, he requested the court to order the controller to initiate the deletion of the information from the website of the law firm. He stated that it would infringe his right of informational self-determination.

In the first instance, the District Labour Court of Lübeck (Arbeitsgericht Lübeck) dismissed the claim. They stated that the data subject’s request for erasure according to Article 17 (1) GDPR  was inadmissible and unfounded because the data was not personalised. Thus, the inclusion of this data was not processing of personal data. The data subject did not demonstrate any breach of law by the controller, thus, was not entitled to any compensation under Article 82 (1) GDPR.

On 5.08.2022, the data subject appealed the decision. He upheld his claim for damages and founded it on the violation of his right to informational self-determination in relation the the information published on the website. Additionally, the data subject requested the controller to erase his personal data (Article 17 GDPR) included in the controller’s statement on 04.03.2022.
=== Holding ===
The Regional Labour Court Schleswig-Holstein (Landesarbeitsgericht Schleswig-Holstein) stated that the information on the website was personal data according to Article 4 (1) GDPR in a "relative" sense, meaning that the data subject could only be identified with additional knowledge about his persona. Consequently, the Court ruled that the data on the website constituted personal data of the data subject. 

The controller infringed on the data subject’s right to informational self-determination by processing the data subject'S data. However, the Regional Labour Court Schleswig-Holstein (Landesarbeitsgericht Schleswig-Holstein) decided that the infringement was justified as it protected the legitimate interests of the controller (§ 24 (1) (2) BDSG). As it proved that the data subject acted abusively in numerous cases and he intended to do so in the present case.

The appeal court ruled that the data subject abused his rights because it became apparent that his aim was to generate income from the lawsuits. For that reason, the GDPR infringements of the controller - the appeal court argued that the access request was not fully responded to - did not result in damages under Art. 82 GDPR. 

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== English Machine Translation of the Decision ==
The decision below is a machine translation of the German original. Please refer to the German original for more details.

<pre>
Court: Schleswig-Holstein State Labor Court 1st Chamber
Decision date: February 21, 2023
Legal force: yes
File number: 1 Sa 148/22
ECLI: ECLI:DE:LARBGSH:2023:0221.1SA148.22.00
Document type: Judgment
Source:
Standards: Section 15 Paragraph 2 AGG, Section 61b Paragraph 1 ArbGG, Section 242 BGB, Art 15 EUV 2016/679, Art
82 Paragraph 1 EUV 2016/679 ... more
Claim for compensation - Discrimination - Request for information -
Data protection violation - abuse of law - compliance with the deadline
Guiding principle
Individual case decision on the abusive assertion of a claim for compensation in accordance with Section 15 Paragraph 2 AGG together with a claim for compensation in accordance with Article 82
Paragraph 1 GDPR (Rn. 64)
Procedural course
proceeding ArbG Lübeck, June 10, 2022, 5 Ca 1507/21, judgment
tenor
The plaintiff's appeal against the judgment of the Lübeck Labor Court dated
June 10, 2022 - 5 Ca 1507/21 - will be rejected at his expense.
The revision is not permitted.
Facts of the case
1 The plaintiff asserts a claim for compensation for discrimination and claims under the GDPR.
2 The defendant, founded in July 2013, has in the past only sold products in the categories of garden and indoor furniture, home accessories and furnishings to tradesmen and women via an online shop and eCommerce marketplaces
Reseller. It intended to focus its activities on transactions with end consumers
expand and for this purpose posted a job advertisement on April 7th, 2021 with which she
was looking for a colleague in “Customer Service (m/f/d)”. After describing the requirements of the job and the applicant's qualifications, the defendant portrayed itself as a “young team” that loved to learn and be successful. In the
The applicant was also given training by a “young and professional
Team” announced. The ad ended with a request to submit an application including, among other things, salary expectations and the earliest possible starting date. For the exact content of the advertisement, please refer to page 2 of the lawsuit.
- Page 1 of 16 -
3 The plaintiff, born in 1972, applied for this with the following email dated April 8, 2021
Job:
4 “…I would like to contact you based on your job advertisement at “m….de”.
Applying as an employee yesterday because I have commercial vocational training as a bank clerk with a total of around 7 years of professional experience, and technical retraining as an IT system technician with 5.5 years of professional experience in the field
IT security and since 2005 as an internal sales representative in classic
I have worked in inbound and outbound call centers and therefore have extensive experience on the telephone and very good PC skills. Training with a technical background as an IT system technician is available.
There is expert knowledge in the acquisition of new customers and support
Existing customers and targeted customer support. Because of my business
I completed my training and retraining as an IT system technician
good commercial and technical understanding. To a limited extent
Customer advice in IT was also part of my tasks. I was often in
Customer service for international companies.
5 I am 48 years old and was employed at the U... in the project management office in 2011 and was active in scheduling private customers in the financial services sector in the period 2012-2020, working as a customer advisor at D...
where it was all about inbound telephony and also worked in other temporary employment relationships in the internal sales department. For many years I have been successfully selling products that require explanation in the IT, telecommunications, telesales and internal sales sectors. I can do this based on my extensive knowledge
Knowledge and skills provide the end customer with the respective products from the point of purchase
convince, arrange appointments or at least arouse interest. The successes
are impressive and are an expression of my excellent communication skills in being able to convince and inspire other people about products and services.
6 So I have a routine in creating and managing offers,
tracking offers, billing orders and order processing as well as tracking appointments.
7 I have good computer skills, which I have developed over my years
Working in the IT security sector and through my retraining as an IT system technician, I have a class B (II) driving license and am used to a service and sales-oriented way of working.
8 My English skills are good. I had English for 9 years in school and was
for 14 days each on a language trip in H… and C…. English was also the company language in the IT security company where I worked for over 5 years.
9 I am used to working independently and on my own responsibility, but I keep it that way
Coordination within a team is essential and indispensable.
10 I have 210 keys in the 10-finger system and am therefore experienced in recording customer data responsibly. A binding one. competent demeanor, negotiating skills as well as strong teamwork and communication skills
- Page 2 of 16 -
bility are available. Because my girlfriend lives in H…, I would like to change careers.
11 I look forward to being invited to a personal interview…”
12 Various documents were attached to the application.
13 The defendant rejected the plaintiff by email dated April 12, 2021. With email from
On Monday, June 14, 2021, the plaintiff demanded compensation from the defendant
because of age discrimination, said that he estimated a gross monthly salary of 3,000.
- EUR, three salaries would then be EUR 9,000 and announced a lawsuit in the event
that the defendant does not pay him EUR 1,500 by July 15, 2021. An invitation
The plaintiff did not attend an interview from the defendant on June 15, 2021
at.
14 In an email dated September 14, 2021, the plaintiff demanded that the defendant provide him with “comprehensive and
“completely” to provide information in accordance with Article 15 Paragraph 1 GDPR and asserted a claim for release in accordance with Article 15 Paragraph 3 GDPR. On the same day he sent a fax
The labor court filed the pending lawsuit here.
15 In a letter dated September 21, 2021 (page 154 of the file), the defendant informed the plaintiff about her
Legal representative that apart from the existing email history, no data about
the plaintiff was stored with her.
16 The law firm G…, D… operates a database on the Internet in which, among other things,
also reported on the processes of a person who appeared in several cases before the labor and
Civil courts in M... and B... claimed compensation in accordance with Section 15 Paragraph 2 AGG
in the cases reported, all of these lawsuits were dismissed due to abuse of rights. The person's name is not mentioned. He is considered a former
Bank clerk described, who in the past mainly worked in call centers
have worked. When asked, the defendant's former legal representative confirmed that this person was the plaintiff. The defendant submitted the Internet addresses of the documents as Appendix H2 to the court file.
17 The plaintiff stated: He signed the original of the complaint submitted by fax and then also had this original available in response to the court order
Court filing filed. The defendant owes him compensation because she discriminated against him because of his age. This will be done through the job advertisement in which
reference to a “young team” is indexed. He also does not act in an abusive manner when he applies for discriminatory tenders, even if he does
this had happened repeatedly. His application letter also gives no reason for this
the acceptance of abusive behavior. The information from the database
Incidentally, the lawyers G..., D... cannot be used because they violate his right to informational self-determination. The defendant is also entitled to their deletion
obligated. The amount of compensation due to discrimination is EUR 4,500
to be measured.
18 Furthermore, the defendant is obliged to provide him with information in accordance with Article 15 (1) GDPR. This one
She only partially fulfilled her claim. Because of the data protection violation, she is entitled to a compensation payment in accordance with Art. 82 Paragraph 1 GDPR in the amount of a further EUR 3,000
- Page 3 of 16 -
condemn. Finally, she must process the data stored about him in accordance with Article 17 Paragraph 1
Delete GDPR.
19 The defendant replied: It assumes that the plaintiff is suing for compensation
due to discrimination, I did not file it within the deadline. She denies that there is an original signed by the plaintiff for the fax dated September 14, 2021. The whole lawsuit
was clearly copied together, and the signature was also copied in.
The alleged original that the plaintiff submitted shows a different signature
than the fax.
20 Furthermore, it did not discriminate against the plaintiff because of his age. That will happen too
not indexed by the job advertisement. The term “young team” refers
to her company, which was only founded in 2013. Furthermore, the plaintiff is acting in an abusive manner because from the outset he was only interested in paying compensation
had gone. This is proven by the application letter, which has no specific reference to
of the advertised position, the fact that the plaintiff immediately demanded compensation, a subsequent invitation to an interview
did not comply and undisputedly made abusive demands for compensation in several legally decided cases.
21 She immediately provided the plaintiff with information about the data stored about the plaintiff in a letter dated September 21, 2021. The defendant has this information in the proceedings
repeated and added that she had no personnel or applicant files on the plaintiff
created, no handwritten notes were created and apart from the email history there was nothing
been saved. This data would have been deleted long ago if it had
the legal dispute would not exist. They would be deleted as soon as this legal dispute was resolved.
She has no use for these emails, which only exist with her legal representative anyway.
22 Due to the further facts and status of the dispute in the first instance and the applications made there, reference is also made to the facts of the first instance judgment.
23 The labor court dismissed the lawsuit and essentially stated as justification: The plaintiff was not entitled to a claim for compensation under Section 15 (2) AGG,
because he did not meet the deadline for filing a claim in court. The fax from
September 14, 2021 did not meet the deadline because the plaintiff had not proven that there was an original. The plaintiff cannot be granted reinstatement if the deadline is missed. The request for information 2) in accordance with Art. 15 Para. 1 GDPR
is inadmissible and unfounded. Compensation in accordance with Article 82 Paragraph 1 GDPR is available
did not apply to the plaintiff because he had not demonstrated any violation of the law by the defendant. The applications for 4a) and 4b) are unfounded because the documents listed in Appendix H2, which the plaintiff is requesting to be deleted, do not contain any personal data.
For the further reasoning of the labor court in detail, reference is made to the reasons for the decision under appeal.
24 The plaintiff filed an appeal against the judgment delivered on July 7, 2022 on August 5, 2022
filed and this after extending the deadline for the reasons for the appeal until
07.10.2022 founded on 07.10.2022.
25 He complains that with regard to asserting the claim for compensation
the labor court did not adequately consider the legal views it presented
- Page 4 of 16 -
placed one next to the other. Contrary to the opinion of the labor court, his fax was correct
Deadline for filing a lawsuit. The claim for compensation is also justified.
26 With regard to the request for information and production of 2), the plaintiff initially has
The appeal lodged in this regard was also withdrawn. The plaintiff further claims,
He is entitled to compensation in accordance with Article 82 (1) GDPR. In this respect, he reported on various violations by the defendant of the GDPR as well as the unlawful use of the
AGG archive of the lawyers G…, D… presented. The lawyer operator has
no legitimate interest in the disputed publications about him.
The publications are not necessary and are seriously damaging to personality. Contrary to the opinion of the labor court, the statement is further
Damage not necessary.
27 Finally, the applications under 4a) and 4b) are also justified. The documents compiled in Annex H2 contained contrary to the opinion of the labor court
personal data. He made extensive presentations on the concept of personal data in the first instance in a written statement dated October 3, 2022. Those in Appendix H2
In any case, the documents mentioned must be deleted if the underlying legal disputes have been concluded for longer than 6 months, or alternatively three years. The
apply to all cited procedures.
28 The plaintiff applies for annulment of the judgment of the Lübeck Labor Court 5 Ca
1507/21 from June 10, 2021
29 1. to order the defendant to pay the plaintiff compensation in accordance with Art. 15 II AGG
to pay, the amount of which is at the discretion of the court, but should be at least € 4,500.00, plus 5% interest above the base interest rate
service of lawsuit,
30 2. to order the defendant to pay the plaintiff compensation in accordance with Article 82 I EU –
GDPR, the amount of which is left to the discretion of the court, but
€ 3,000.00 plus 5% interest above the base interest rate from service of the lawsuit
should fall below,
3.
31 a) To order the defendant to delete the plaintiff's subsequent personal data in accordance with Article 17 I of the GDPR, attached as appendices to the defendant's written statement dated March 4, 2022,
32 A. AGG-Hopper now also fails before the BAG – G… …
33 https://www.rechtsanwalts-kanzlei-w....de/agg-hopper-scheitert-nunmehr-auchbeim-bag/..
34 1. May 28, 2021 - By the way: Because of the office's headquarters in the immediate vicinity
Train station in W... are the lawyers from the law firm G...-D... Rechtsanwälte...
35 https://www.rechtsanwalts-kanzlei-w....de/achten-agg-hopper-gerichtsknowner-scheinwerbungtrit-erneut-sein-glueck-beim-arbeitsgericht-m.../ - Annex 10
- Page 5 of 16 -
36 B. Attention AGG Hopper – fake applicant known to the court ...
37 https://www.rechtsanwalts-kanzlei-w....de/ächte-agg-hopper-gerichtsknowner-scheinrechnertreibt-erneut-sein-glueck-beim-arbeitsgericht-m.../.
38 1. 10.01.2017 — Lawyer, Partner. For the third time, we are faced with a lawsuit filed by an AGG Hopper who is known to the labor court in M... –
Appendix 3
39 C. AGG Hopper fails before the labor court in M...
40 https://www.rechtsanwalts-kanzlei-w....de/ächte-agg-hopper-gerichtsknowner-scheinrechnertreibt-erneut-sein-glueck-beim-arbeitsgericht-m.../..
41 1. 10.12.2015 - By the way: Because of the office's headquarters in the immediate vicinity
Bahnhof in W... are the lawyers from the law firm G...-D... Rechtsanwälte ... – Appendix 2
42 D. AGG Hopper tries his luck again at the labor court... https://www.rechtsanwalts-kanzlei-w....de/agg-hopper-glueck/
43 1. July 23, 2015 - By the way: With office headquarters in the immediate vicinity of the train station
W... are the lawyers of the law firm G...-D... Lawyers also for... - Appendix 1
44 E. News from the AGG-Hopper: Labor Court M... points out...
45 https://www.rechtsanwalts-kanzlei-w....de/neues-vom-agg-hopper-arbeitsgerichtm...-weisterneut-klage-des-scheinwerbungs-ab/ - Appendix 8 1. August 13, 2019 |
by Attorney H... A. G... | Category: Labor Law ... Since the defendant refused to pay, and also an out-of-court ...
46 F. AGG-Hopper is also subject to the state labor court... https://www.rechtsanwalts-kanzlei-w....de/agg-hopper-unterlegen-auch-vor-dem-landesarbeitsgerichtb.-b./
47 1. November 20, 2018 - By the way: With office headquarters in the immediate vicinity of the train station
W... are the lawyers of the law firm G...-D... Lawyers also for... https://www.rechtsanwalts-kanzlei-w....de/nicht-entschaedigung-agg/ - Annex 6
48 G. https://www.rechtsanwalts-kanzlei-w....de/agg-hopper-unterlegen-auch-vordem-landesarbeitsgerichtb.-b.-die-judgmentgruende/, January 23, 2019 - Annex 7
49 G. Alleged age discrimination constitutes ...
50 https://www.rechtsanwalts-kanzlei-w....de/vermeintliche-altersdiskriminierungstellenrechtsmissbraeuchliches-agg-hopping/
51 1. 12/23/2020 — December 2020 | by Attorney H... A. G... | Category: Labor law ... so this is correct, but it doesn't go any further, since already .. .- Appendix 9
52 H. District Court M... clearly rejects AGG-Hopping https://www.rechtsanwaltskanzlei-w....de/amtsgericht-m...-erteilt-agg-hobbing-klare-absage/.
- Page 6 of 16 -
53 1. July 24, 2017 — July 2017 | by Attorney H... A. G... | Category: Labor law ... who has been operating as an AGG Hopper in the greater M... area for years, ...- Appendix 4
54 https://www.rechtsanwalts-kanzlei-w....de/arbeitsgericht-b...-weist-entschaedigungsklage-eines-scheinwerbungs-nach-dem-agg-wegen-genderdiscrimination-zurueck/ April 11, 2018 –
55 Appendix 5
56 alternatively in the event of total or partial defeat with the application under 3a
57 b) to condemn the defendant to refrain from processing the attachments listed in the application under 3a with the links provided in each case in accordance with Art. 4 No. 2 GDPR, profiling them in accordance with Art. 4 No. 4 GDPR or other third parties other than their legal representatives to make accessible or distribute, except for the purpose of processing and use in the disputed matter
Proceedings Labor Court Lübeck 5 Ca 1507/21 including any appeal proceedings in this regard.
58 The defendant requests
59 dismiss the appeal.
60 She defends the reasons for the labor court's decision and further denies that
the plaintiff signed the original fax dated September 14, 2021 and in this regard refers to the plaintiff's first instance submission, which in her view suggests this
on this question. The plaintiff therefore missed the deadline for filing a lawsuit. Furthermore, your job advertisement is not discriminatory. In any case, the plaintiff was acting in an abusive manner. To
The defendant repeats its first-instance submission on these points.
61 Furthermore, the claims under the GDPR are also contradicted by the objection of abuse of rights because the plaintiff is only concerned with generating income.
62 Please refer to the file for further information and the status of the dispute.
Reasons for the decision
63 According to § 64 Para. 2 lit
The plaintiff's admissible appeal is not justified. The labor court dismissed the lawsuit
Result correctly rejected. It is unfounded with all applications still pending in the appeal process.
64 I. The application 1. is unfounded. The plaintiff is not entitled to the asserted claim for compensation in accordance with Section 15 Paragraph 2 AGG. Contrary to the opinion of the labor court, the plaintiff complied with the deadline for filing a lawsuit under Section 61 b (1) of the ArbGG. The lawsuit
However, it is unfounded because the plaintiff is abusing the law by asserting a claim for compensation.
65 1. The plaintiff has set the deadlines for asserting his claim for compensation
§§ 15 para. 4 AGG, 61 b para. 1 ArbGG are respected.
- Page 7 of 16 -
66 a) It is not further disputed between the parties that the plaintiff met the deadline for assertion of Section 15 (4) AGG with his letter dated June 14, 2021. In this respect, reference is made to the relevant statements under 2a of the labor court's reasons for the decision. The court follows in accordance with Section 69 Paragraph 2
ArbGG the statements there and adopts them as our own. No objections to this were raised in the appeal proceedings.
67 b) The plaintiff also observed the deadline for filing a lawsuit under Section 61 b (1) of the ArbGG.
68 aa) According to Section 61 b Paragraph 1 ArbGG, a claim for compensation according to Section 15 AGG must be filed within three months of the claim being asserted in writing
is to be collected. Section 61 b (1) ArbGG is a statutory exclusion period that must be observed ex officio. If the lawsuit is not filed in a timely manner, the claim is forfeited. Although the lawsuit remains admissible, it is not founded (Germelmann/Schleusener, ArbGG, 9th edition 2017, § 61 b, Rn 10).
69 bb) The plaintiff filed his lawsuit on September 14, 2021 by fax and thus within the since
the deadline of § 61 b paragraph 1 ArbGG, which runs on June 14, 2021. The lawsuit
was also effective. After the inspection carried out by the court, it can be assumed that the fax was accompanied by an original signed by the plaintiff
writing exists.
70 (1) According to Sections 253 Para. 4 i. V. m. 129 Para. 1, 130 Para. 1 No. 6 ZPO, determining written documents - such as the filing of the lawsuit here - must be signed by the party (or their legal representative) (consistent case law, evidence in
Zöller/Greger, 34th edition 2022, § 130, Rn 6). If transmitted by fax,
According to § 130 No. 6 ZPO, the original must be signed; the use of a facsimile stamp is no more sufficient than a pasted or scanned signature
(BGH from May 4, 1994 - XII ZB 21/94 - Juris, Rn 9; Ory/Weth/Müller, Juris PK-ERV Volume 2,
2nd edition 2022, § 130, Rn 66 f). Against the requirement of a handwritten signature
There are no constitutional concerns regarding an original in a lawsuit filed by fax and the different handling of a computer fax (BVerfG of April 18, 2007 - 1 BvR 110/07 -).
71 (2) The plaintiff personally signed the original complaint filed by fax.
72 Page 9 of the lawsuit submitted by the plaintiff as an appendix to the court file in his letter dated October 20, 2021 (page 123 of the file) is the original of the fax,
which was received by the labor court on September 14, 2021. The court determined this by visual inspection at the appeal hearing and recorded it accordingly in the minutes
held. When you place the fax and the original on top of each other, the signatures on both letters absolutely match. You have to take cover. The
is clearly visible when you look at the two sheets placed one on top of the other against the light
holds.
73 The original is also one actually signed by the plaintiff
letter, not just a new copy of the fax. This can be determined if
you run your finger over the writing. The impressions of the ballpoint pen
- Page 8 of 16 -
on the paper are clearly noticeable. This is also a fake or subsequent
Manufacturing excluded.
74 To the extent that the labor court believes that something different emerges from the plaintiff's letter of October 20, 2021, the appeal chamber does not follow this. The plaintiff leads in this
Letter expressly stated that he had attached the original last signed page of the complaint. The other statements made by his legal representative and the
The plaintiffs in the proceedings may be misleading, but they do not prove that the
Plaintiff subsequently produced the letter submitted to the court file in the letter dated October 20, 2021.
75 2. It can remain open whether the defendant supported the plaintiff in rejecting his application
discriminated against because of his age. In any case, the plaintiff is abusing the law by asserting his claim for compensation.
76 a) The request for compensation from an unsuccessful applicant according to Section 15 Paragraph 2 AGG
can be exposed to the sweeping objection of legal abuse (§ 242 BGB).
Abuse of the law can be assumed if this person has not applied for the
to receive the advertised position, but she was only interested in the formal status
as an applicant within the meaning of Section 6 Paragraph 1 Sentence 2 AGG with the exclusive
The aim is to assert claims for compensation and/or damages (BAG
from March 31, 2022 - 8 AZR 238/21 - Juris, Rn 37). For the fulfillment of the requirements,
the objection to a claim for compensation in accordance with Section 15 Paragraph 2 AGG
If there is abuse of law, the burden is on the employer to provide explanations and evidence.
The latter must therefore present and, in the event of a dispute, prove evidence that substantiates the legal objection (BAG, loc. cit., Rn 39).
77 b) Accordingly, the plaintiff's request for compensation in the present case is:
constitutes an abuse of law.
78 aa) This follows first of all from the plaintiff's letter of application for the position offered. This is done in such a way that only the conclusion can be drawn:
The plaintiff wanted to provoke a rejection of his application with the sole aim of asserting a claim for compensation in accordance with Section 15 AGG.
79 (1) The application has no connection to the defendant's industry or business. The defendant is looking for an employee in the online sales service. The plaintiff
does not mention anything about this or the industry in which the defendant operates in his application,
namely the trade in garden and indoor furniture as well as home accessories and furnishings, in any way related.
80 (2) On the other hand, in the application, your own qualifications are expressly highlighted in bold print, which obviously have no connection to the advertised position, such as “vocational training as a bank clerk”, “extensive experience in...
Telephone”, “inbound telephony only”, “arrange appointments” or the “Class B (III) driving license”.
81 (3) Even in the part not printed in bold, the application contains a disordered list of a large number of qualifications that have no relation to the job offered
have.
- Page 9 of 16 -
82 (4) In contrast, what the defendant stated in bold print in her job advertisement as an important decision criterion for employment is missing
has. The plaintiff did not specify a salary expectation or an earliest possible starting date. That alone should be a “knockout criterion” for an invitation to one
interview, which every applicant must be aware of.
83 (5) The only personal connection that the plaintiff makes to the position in the application is the desire for a career change because his girlfriend lives in H.... However, when the defendant disputed this fact, the plaintiff did not further specify his submission. He would have been obliged to do that because
only then will the defendant provide further details on the accusation of abuse of law on this point
present and, if necessary, offer evidence by naming the plaintiff's girlfriend as a witness.
84 bb) Also indicative of the plaintiff's intention to submit the application to the defendant with the exclusive aim of obtaining compensation is the fact that the
The plaintiff responded to his rejection exclusively with a demand for compensation and the announcement of a lawsuit and also made a pre-trial “settlement offer”. The plaintiff does not go back to the point he referred to in any sentence
has applied. This also shows that his primary concern was compensation.
85 cc) The assumption that the plaintiff is abusing the law has become more certain
for the Chamber in that he asserted claims for compensation in a whole series of other proceedings and these were all dismissed due to abuse of law.
86 (1) However, according to the case law of the Federal Labor Court, this cannot already be the case
it can be concluded that there is an abuse of law because a person has sent a large number of unsuccessful applications and has conducted several compensation processes or
leads. Viewed on its own, such behavior can also be explained by the fact that:
There was a serious interest in maintaining the respective position and that the applicant, because he sees himself being discriminated against in the selection and appointment decision contrary to the requirements of the AGG, is legitimately exercising his rights under the AGG by filing a claim for compensation and/or damages (BAG dated January 26th). 2017 – 8 AZR
848/13 – Juris, Rn 145).
87 However, the above case law cannot be applied to the facts at issue here. The plaintiff had no serious interest in this
advertised position in customer service. For the position in question, this emerges from his application, as has just been explained.
88 In the plaintiff's other proceedings, the lawsuits were also dismissed precisely because of abuse of law. The plaintiff has brought claims for compensation under the AGG in a number of cases that were abusive of the law. In this respect, the defendant has not contradicted the decision of the LAG M... of … – … Sa …/…-, the lower instance
of the labor court M... from … – … Ca …/…–, the decision of the LAG B... B… from … –
… Sat …/… -, the lower court on this as well as another lawsuit at the Labor Court M... and
a lawsuit at the local and regional court in M... and most recently in the appeal proceedings referred to a decision by the labor court in M... (judgment of ... - ... Ca .../...). In all
In some cases, the plaintiff's actions were deemed to be an abuse of law. The
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The court therefore assumes that the plaintiff is also in this case with his
The application was solely about the formal position as an applicant, on the basis of which he is asserting claims for compensation.
89 (3) The defendant's submissions regarding the plaintiff's abusive behavior in other cases in which he brought a claim for compensation for discrimination can also be used procedurally in the present proceedings. There is none
Prohibition of the use of material presentations due to a violation of the plaintiff's general personal rights.
90 (a) A ban on presenting facts or using evidence due to a violation of a party's general personal rights can arise in labor court proceedings
solely because of the need for a constitutionally compliant interpretation of procedural law
result. Neither the Civil Procedure Code nor the Labor Court Act contain any provisions regarding the procedural usability of unlawfully obtained knowledge or evidence. Rather, the right to be heard in accordance with Article 103 Paragraph 1 of the Basic Law requires
and the principle of free assessment of evidence (§ 286 ZPO) basically requires consideration of the factual presentation of the parties and the evidence they offer. Accordingly, the adoption of a ban on the use of evidence requires special legitimacy and a legal basis. This also applies to any ban on the use of material presentations (BAG of September 22, 2016 - 2 AZR 848/15 - Juris, Rn
20f). A ban on the use of evidence or a ban on even presenting undisputed facts
therefore only comes into consideration if this is absolutely necessary due to a constitutionally protected position of a litigant. The court comes
towards those involved in the proceedings in the exercise of state sovereignty. According to Article 1 Paragraph 3 of the Basic Law, it is therefore bound to the relevant fundamental rights when making a judgment and is obliged to structure the procedure in accordance with the rule of law. Requirements can also arise from material fundamental rights such as Article 2 Paragraph 1 of the Basic Law
to the legal process when it comes to disclosure and exploitation
personal data is fundamentally protected from knowledge by third parties
are. The court must therefore examine whether the exploitation of secretly procured goods is permitted
personal data and findings resulting from this data are compatible with the general personal rights of the person concerned. Even if no specific form of general personal rights is affected, exploitation applies
of personal data into the fundamental right to informational self-determination
one that guarantees authority even over the disclosure and use of personal information
to locate data. Article 8 paragraph 1 of the Convention also serves to respect this right
for the protection of human rights and fundamental freedoms (BAG, loc. cit., Rn 23).
91 (b) According to these standards, the defendant's presentation on the plaintiff's behavior in other proceedings, which she obtained via the Internet and information from lawyers G/D, is not subject to a ban on the use of factual presentations.
92 (aa) The information on the websites listed in Appendix H 2 is about this
- contrary to the opinion of the labor court - this concerns personal data
Plaintiff within the meaning of Article 4 No. 1 GDPR. According to Art. 4 No. 1 GDPR, personal data is all information that relates to an identified or identifiable natural person. A natural person is considered to be identifiable,
which directly or indirectly, in particular by means of assignment to an identifier or others
characteristics can be identified.
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93 Personal reference within the meaning of the GDPR is to be viewed as “relative”. An absolute approach with relative elements can be assumed in such a way that:
a responsible person provides the information based on additional knowledge available to him
can be linked to the person concerned and is not accessible to others
Additional knowledge is and remains “anonymous” (Gola, GDPR, 2nd edition 2018, Art. 4, Rn 18
m. w. N).
94 In the present case, the information on the website is not initially personal, as it neither directly identifies the plaintiff nor describes it in such detail that he
can be identified solely on the basis of these descriptions. On the Internet is alone
a former bank clerk who had worked primarily in call centers in the past. This does not allow any conclusions to be drawn about the plaintiff.
However, the plaintiff can be identified through the additional knowledge of the website operator.
Since he communicated his knowledge to the defendant's previous legal representative and he passed his knowledge on to the defendant, the plaintiff is
also identifiable for the defendant. Thus, the information on the website introduced by the defendant in the present process constitutes personal data
of the plaintiff.
95 (bb) This data is also processed by the defendant, namely in particular by
stored by your legal representative on your behalf.
96 (cc) This interfered with the plaintiff's personal rights in the form of his right to informational self-determination.
97 (dd) However, the intervention is justified according to Section 24 Paragraph 1 No. 2 BDSG since it was carried out to protect the legitimate interest of the defendant within the meaning of this provision.
98 (aaa) The authorization for data processing is § 24 Para. 1 No. 2 BDSG, not
Section 26 Paragraph 1 Sentence 1 BDSG. The defendant does not have the plaintiff's data from the website
processed for the purposes of the employment relationship. An employment relationship is
between the parties has not been established. The present lawsuit is also not up to date
the establishment of an employment relationship, so that not under
the aspect that the defendant defends himself against the establishment of an employment relationship, the data processing can be based on Section 26 Paragraph 1 Sentence 1 BDSG.
99 According to Section 24 Paragraph 1 No. 2, the processing of personal data by non-public bodies for a purpose other than that for which they were collected is permitted if they are used to assert, exercise or defend civil law
Claims are necessary unless the interests of the data subjects are affected
exclusion of processing predominates.
100 (bbb) After that, the Internet addresses on which the system is located are stored
H2 documents submitted to the court file can be found by the defendant in the present case.
101 The defendant uses the information about the plaintiff to defend itself in the legal dispute. The processing of this data for this purpose is to defend against the
Plaintiff's claim required. By proving that the plaintiff has acted abusively in numerous cases, the defendant can at least provide circumstantial evidence that he also intends to do so in the present case. Another way,
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to prove the plaintiff's abusive behavior in the past,
as that of data processing is not recognizable. The defendant's interests in the
Processing also outweighs the plaintiff's interests in its exclusion. This results in the necessary balancing of interests. It should be borne in mind that the information about the plaintiff is truthful in every respect. The information relates to his professional career and therefore not to his private life. The defendant also has a legitimate interest in finding out whether the plaintiff in
has made claims for compensation in an abusive manner in the past.
The data protection regulations do not serve to cover the abusive assertion of claims (see LAG Hamburg of June 23, 2010 - 5 Sa 14/10 - Juris, Rns 67 to 74) for a similar consideration. It should also be taken into account that
that the information about the plaintiff is the sole subject of this process and
are still only stored anonymously by the defendant. A further disclosure about the circle of those at the defendant who are aware of the identity of the plaintiff
know, is not to be expected. This also distinguishes the present situation from
the AGG Hopper archive of the law firm G…/L… cited by the plaintiff. If he
The plaintiff can demand that the law firm D., G. delete the database is not the subject of the present legal dispute.
102 Since the defendant introduced her submission into the process in accordance with data protection law
there are no procedural objections to its use, in particular
There is no ban on presenting material.
103 II. The application under 2 is also unfounded. The plaintiff is not entitled to compensation
according to Art. 82 Para. 1 GDPR.
104 This provision provides that any person who has suffered material or non-material damage as a result of a breach of this Regulation is entitled to
Compensation for damages against the person responsible or against the processor. However, the defendant did not comply with all of the GDPR regulations that existed in favor of the plaintiff. However, the claim for compensation is also inferior
Art. 82 Para. 1 GDPR counters the objection of abuse of rights.
105 1. The defendant violated the GDPR in some points to the detriment of the plaintiff.
106 a) First of all, there is a violation of Article 15 Para. 1 GDPR. The defendant has
did not provide the plaintiff with all of the information required by this provision.
107 aa) However, the defendant, through his legal representative, has done so before the court
Letter dated September 21, 2021 (page 154 of the file) and in the legal proceedings with written submissions
dated January 24th/30th, 2022 (page 220 of the A) expressly provided information about what information it had stored about the plaintiff and also stated that no further data had been stored about him. This means that she has the right to information
With regard to Article 15 Paragraph 1 Letters a) to d) GDPR fulfilled.
108 bb) However, the plaintiff was not informed about the right to correction or deletion according to Art. 15 Para. 1 lit. e) GDPR or the existence of a right to lodge a complaint
with a supervisory authority (Art. 15 Para. 1 lit. f) GDPR).
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109 cc) With regard to violations of Article 15 Para. 1 lit. g) and lit. h) GDPR, the plaintiff has
Nothing has been said to suggest that there is a corresponding obligation to provide information.
110 As far as data collection from third parties is concerned (lit. g), the defendant has stated that
to whom and how the information recorded in Annex H2 about the
plaintiff has obtained. It is not apparent that it could provide anything additional. The plaintiff didn't claim that either. The same applies to
the information according to lit. h). The defendant has stated which data it processes and how
has; It is clear that no automated decision-making took place. The plaintiff has not submitted anything further about this, but also the right to information
not declared completed.
111 b) In addition, the defendant has challenged the plaintiff's information claims under Article 13
Paragraphs 1 and 2 of the GDPR are violated because they provide the plaintiff with the information mentioned there
not already communicated at the time of its collection.
112 c) The other violations of the law complained of by the plaintiff in the grounds of appeal
GDPR, on the other hand, does not exist.
113 aa) Insofar as the plaintiff complains about a violation of Art. 30 GDPR, he does not make any submissions about it:
that the defendant employs 250 or more employees (Art. 30 Para. 5 GDPR), so that
It is not clear that the scope of application of the regulation has been opened.
114 bb) There are no violations of Articles 24, 5 Para. 2 and 6 Para. 1 GDPR, since for the
The defendant has no obligation to provide evidence to the plaintiff in this respect.
115 cc) The violation of Article 12 Paragraph 3 Sentence 1 of the GDPR alleged by the plaintiff cannot be identified because the defendant responded to his request for information within a week
thus the one-month deadline from Article 12 Paragraph 3 Sentence 1 GDPR has been met.
116 dd) The use of the “AGG archive” ultimately complained about by the plaintiff is legal according to the above statements.
117 2. However, the plaintiff is not entitled to a claim for compensation under Article 82 Paragraph 1 of the GDPR because he is also acting in an abusive manner within the meaning of Section 242 of the German Civil Code (BGB).
118 a) Cases of abuse of rights also include constellations in which a
Law is exercised as a pretext for achieving non-contractual or unfair results
Purposes (Grüneberg, BGB, 81st edition 2022, § 242 BGB, Rn 50).
119 b) The court is convinced that the purpose here is to assert the right to information
by the plaintiff solely to achieve unfair purposes, namely the defendant
to cause compensation to be paid.
120 aa) This is proven by the plaintiff's actions in connection with the request for compensation under the AGG. The plaintiff asserted his right to information at the same time as the compensation claim. The validation letter
is obviously copied from other letters. This is already evident from the fact that
that in his letter of assertion he refers to a disputed application before the K… labor court (see p. 8 of the A.). The letter of assertion also contains information about a personnel file with all entries at the company
K… C… I… GmbH demands, against which the plaintiff appears before the labor court K...
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a legal dispute arises regarding the file number mentioned in the claim letter. From the court's point of view, this proves that this is the plaintiff's sole purpose in requesting information
to put pressure on the defendant in order to obtain the highest possible compensation and that he pursues this approach systematically. The request for information thus turns out to be part of an “overall strategy” of the plaintiff aimed at paying the highest possible amount of money. The legal system won’t do that
covered.
121 bb) The plaintiff's abuse of rights is also indicated by the fact that his requests for information are obviously excessive and disproportionate. In fact, the parties exchanged just five emails, three written by the plaintiff and two by the defendant. The defendant responded to the plaintiff's request for information within a week. Nevertheless, the plaintiff has all rights to information
With the lawsuit extension dated October 3rd, 2021, the lawsuit was filed again unchanged. That too
suggests that the plaintiff was only interested in making the defendant as inconvenient as possible and creating work in order to get her to pay compensation.
122 III. The application for 3 a. is unfounded. The defendant is not obliged to delete the Internet pages stored about the plaintiff.
123 The processing of the plaintiff's data by storing the website links mentioned in the application under 3. a is - as already stated - permitted to defend against the plaintiff's civil law claims. This right to data processing exists as long as the present process has not yet been completed. Therefore, the plaintiff cannot demand the deletion of this data at least now.
124 It is not clear whether and when the defendant will have to delete the relevant data in the future
Subject of the application. Furthermore, the defendant has already stated that it will delete all data about the plaintiff once the proceedings have been legally concluded.
125 IV. The subsequent auxiliary request for 3. b is also unfounded.
126 1. To the extent that the plaintiff objects to future data processing in Annex H
2 listed appendices within the meaning of Art. 4 No. 2 GDPR, it does not demonstrate that
each of the categories of “processing” of the defendant mentioned in Article 4 No. 2 are prohibited. Art. 4 No. 2 GDPR defines storage as processing
of data. However, as already stated, the defendant is currently permitted to store the data from Appendix H 2. However, since the application is global against every type
processing, it is already unfounded because not every type of processing
processing of the defendant is prohibited.
127 2. To the extent that the plaintiff objects to “profiling” of his data in accordance with Art. 4
No. 4 GDPR applies, the application is unfounded because the plaintiff does not demonstrate the “risk of commission” necessary for an injunction.
128 3. The same applies if the plaintiff also fails to disseminate the information
from Annex H 2 to other third parties. In this respect, too, there is no risk of the plaintiff committing the crime.
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129 V. The cost decision is based on Section 97 Paragraph 1 ZPO. There are no reasons for allowing the appeal. This is a case-by-case decision
Question of abuse of rights, which does not raise any fundamental legal questions.
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