BAG - 2 AZR 296/22

BAG - 2 AZR 296/22
Court:	BAG (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 17(1)(d) GDPR Article 17(3)(e) GDPR
Decided:	29.06.2023
Published:
Parties:
National Case Number/Name:	2 AZR 296/22
European Case Law Identifier:
Appeal from:
Appeal to:	Not appealed
Original Language(s):	German
Original Source:	OpenJur (in German)
Initial Contributor:	mg

The German Federal Labour Court held that video recordings collected in violation of the information obligations of Article 13 GDPR could be used as evidences in a labour proceeding involving the dismissal of an employee.

English Summary

Facts

The controller fired the data subject for having declared to be in the workplace when they had actually left the office. To substantiate this claim, the controller used images from the video surveillance system.

The data subject objected to the decision before a labour court, claiming that data obtained in violation of the GDPR could not be used in a labour procedure against the data subject. In particular, the controller did not fully comply with their obligation to inform in accordance with Article 13 GDPR.

The court of first instance upheld the data subject’s position. The controller appealed the decision and lost also in second instance. Therefore, they brought the case before the German Federal Labour Court (Bundesarbeitsgericht - BAG)

Holding

The court further acknowledged that in principle, according to Article 17(1)(d) GDPR, personal data shall be deleted when they were unlawfully processed – in this case ‘collected’. However, Article 17(3)(e) GDPR provides for an exception for those cases in which processing is still necessary for the establishment, exercise or defence of legal claims.

The court pointed out that Article 17(3)(e) GDPR also requires a balancing of interests oriented by proportionality. As a matter of fact, the defence of one’s rights before courts is a fundamental right enshrined in Article 47 of the European Charter of Fundamental Rights. Thus, the data subject’s fundamental rights to privacy and data protection (Articles 7 and 8 of the Charter) should be seriously threatened in order to justify an erasure.

The impact of a video surveillance system on a data subject is that the latter’s self-determination could be impaired. However, in the case at issue the data subject was not limited in their behaviour by the video surveillance. To the contrary, despite aware of the cameras, they committed a disciplinary offence. What the data subject invoked to limit the use of the recording as evidence was not a constitutionally protected right, as data protection is not protection of unlawful conducts. The court also stressed that the fact that the monitoring system was not a hidden one.

In light of the above, the Federal Labour Court upheld the controller’s appeal and sent the case back to the lower judge, in order for the latter to decide on the merits, taking into account the video recording as a valid piece of evidence.

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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.

1. In a dismissal protection process, in accordance with the General Data Protection Regulation and the Code of Civil Procedure, there is generally no ban on the use of such recordings from open video surveillance that are intended to prove that the employee has intentionally breached the contract. This also applies if the employer's surveillance measures are not completely in line with the requirements of data protection law.2. The company parties lack the regulatory power to establish a ban on exploitation that goes beyond the formal procedural law of the Code of Civil Procedure, or to effectively limit the employer's ability to present facts about company events in an individual legal dispute.

tenor
1. In response to the defendant's appeal, the judgment of the Lower Saxony State Labor Court of July 6, 2022 - 8 Sa 1149/20 - is annulled - while rejecting the appeal in all other respects - insofar as it granted the plaintiff's applications for protection against dismissal and rejected the defendant's application for dissolution. 2. To the extent of the annulment, the matter will be referred back to another chamber of the State Labor Court for a new hearing and decision - including on the costs of the appeal proceedings.
Facts of the case
The parties primarily dispute the effectiveness of an extraordinary termination. The plaintiff was most recently employed by the defendant as a team spokesman in the foundry. The defendant accuses him, among other things: alleges that on June 2, 2018 (Saturday) he did not work a so-called overtime shift with the intention of not receiving remuneration for it. According to the agreement of both parties, the plaintiff initially entered the factory premises on that day. The evaluation of the recordings from the video camera at gate 5 to the factory premises, which was identified by a pictogram and could not otherwise be overlooked, following an anonymous tip, showed, according to the defendant's submission, that the plaintiff left before the start of the shift. The defendant terminated the employment relationship of the parties - after hearing the works council - with a letter dated October 5, 2019, without notice and with a further letter dated October 9, 2019, with effect from December 31, 2019. The plaintiff filed the present lawsuit in a timely manner and, among other things. claims he was working on June 2, 2018. The defendant's findings from video surveillance are subject to a ban on presenting facts and using evidence. Despite this, the works council was not properly consulted. The defendant did not comply with the declaration deadline of Section 626 Paragraph 2 of the German Civil Code (BGB) for the extraordinary termination. The plaintiff recently requested 1. to establish that the parties' employment relationship was not terminated by the defendant's termination on October 5, 2019, 2. to establish that that the parties' employment relationship was not terminated by the defendant's termination on October 9, 2019, 3. to order the defendant to issue him a qualified interim certificate, 4. alternatively, in the event of defeat with the application for 3. the defendant to order him to issue a qualified final certificate. The defendant has applied for dismissal of the lawsuit and, in the second instance, in the alternative, for the employment relationship to be terminated on 31 December against payment of a severance payment, the amount of which is at the discretion of the court but should not exceed 50,000.00 euros gross. December 2019. The plaintiff has requested that the application for dissolution be dismissed. To justify the terminations, the defendant claimed that the plaintiff only appeared at the plant on June 2, 2018 to fake his presence to work the overtime shift. In any case, his untruthful procedural arguments justify the termination of the employment relationship. The lower courts have approved the lawsuit with the applications 1 to 3. The state labor court also rejected the defendant's application for dissolution. With its appeal, the defendant continues to request the dismissal of the lawsuit or, alternatively, the judicial termination of the parties' employment relationship.
reasons
The defendant's appeal is largely justified. I. The revision is admissible overall. This also applies to the application for a qualified interim certificate. In this respect, no separate justification was required. § 72 Para. 5 ArbGG in conjunction with. § 551 Para. 3 Sentence 1 No. 2 ZPO, because the defendant assumes that the Senate can itself reject the plaintiff's applications for protection against dismissal. If this were the case, according to the case law of the Seventh Senate based on the State Labor Court (BAG November 4, 2015 - 7 AZR 933/13 - Rn. 39), there would no longer be room for the issuance of a qualified interim certificate. Because a decision of the Federal Labor Court according to Section 563 Paragraph 3 ZPO becomes legally binding upon its announcement (Section 705 Sentence 1 ZPO).II. However, the defendant's appeal with regard to the application for the issuance of a qualified interim certificate is unfounded because its appeal lacks the separate justification required in this regard in accordance with. Section 64 Paragraph 6 Sentence 1 ArbGG in conjunction with. Section 520 Paragraph 3 Sentence 2 ZPO was inadmissible. The verdict of a state labor court does not generally become legally binding when it is announced. Therefore, according to the above-mentioned case law of the Seventh Senate, the employer is also to be sentenced to the requested issuance of a qualified interim certificate if the appeal court considers the parties' employment relationship to have been dissolved.III. Furthermore, the defendant's appeal is well founded. The State Labor Court rejected her appeal against the first-instance judgment in favor of the action with legally incorrect reasons regarding the applications for protection against dismissal and dismissed her application for dissolution. Since the Senate itself cannot make a final decision on the priority application against the extraordinary termination, the appeal judgment must be overturned (Section 562 Para. 1 ZPO) and the matter - including the undecided alternative application for the issuance of a qualified final certificate - is sent for a new hearing and decision to refer back to another chamber of the State Labor Court (Section 563 Paragraph 1 Sentence 1 and Sentence 2 ZPO).1. The claim, which is still in dispute and has not been interpreted by the appeal court in accordance with Section 133 of the German Civil Code (BGB), is to be understood as meaning that the plaintiff initially submitted two applications in accordance with Section 4 Sentence 1 of the KSchG. With a main application he objects to the extraordinary termination, with a spurious auxiliary application against the ordinary termination (cf. BAG September 27, 2022 - 2 AZR 508/21 - Rn. 12; December 10, 2020 - 2 AZR 308/20 - Rn. 9, BAGE 173, 233).2. The State Labor Court - based on the substance - made a legal error in granting the priority application against the extraordinary termination on the grounds that there was a lack of an important reason in the sense of. § 626 Para. 1 BGB.a) The appeal court rightly assumed at the outset that the behavior that the defendant accused the plaintiff of on June 2, 2018 (obscuring compensation for an overtime shift that was not completed) - if it were undisputed or proven - an important reason iSv. § 626 Para. 1 BGB could constitute an extraordinary dismissal without notice. b) Furthermore, the State Labor Court correctly assumed that the strong suspicion of such behavior can also constitute an important reason. c) However, the appeal court was wrong to say that The plaintiff adequately disputed the defendant's allegations - regardless of the possible intervention of a ban on the use of material presentations - that he did not work the overtime shift on June 2, 2018 with the intention of deception. The State Labor Court misjudged the principles of the graduated burden of presentation, which come into play when the employer has to present a negative fact (here: failure to complete the shift after previously pretending to be present) (cf. BAG December 16, 2021 - 2 AZR 356/21 - Rn. 31 ff.).aa) According to the consistent submissions of both parties, the plaintiff bindingly reported for the overtime shift on June 2, 2018 and entered the factory premises before the start of the shift using his work ID, triggering an electronic attendance record through a turnstile at Gate 5 . It is of no legal significance to the accusation of dismissal alleged by the defendant whether he subsequently entered his name into an attendance list available on site or whether he had another person enter his name. The only decisive factor is the pretense of being present with the intention of not working the shift without justification.bb) According to the defendant, the latter was the case because the plaintiff left the factory premises again before the start of the overtime shift and then returned there before or during the shift Shift should not have re-entered. The defendant has thus satisfied its primary burden of proof that the plaintiff could not have completed the extra shift (negative). the overtime shift - speak. To do this, he would first have had to specifically explain whether he wanted to stay on the factory premises throughout or whether he wanted to leave it again but re-enter it in a timely manner. This is what is missing so far. The State Labor Court also did not find any facts that would have made a determination unreasonable for the plaintiff (see BGH January 8, 2019 - II ZR 139/17 - Rn. 32). The argument against this is that, according to his own argument, he only wanted to leave the factory premises again before the start of a shift - initially - in rare, exceptional cases. Therefore, this must have remained in his memory. In addition, according to the plaintiff's own argument, access to the factory premises is only possible at the main entrance, which is manned by a gatekeeper, without using the factory ID card to activate a turnstile and at the same time record attendance electronically. The plaintiff would therefore have had to explain - based on life experience credibly (cf. BGH April 19, 2001 - I ZR 238/98 - on II 1 of the reasons) - why he no longer remembers the extremely unusual re-entry to the factory premises via the main entrance could be. Without corresponding submissions, the defendant's submission regarding the plaintiff's failure to complete the extra work shift with an intention to deceive is to be regarded as admitted in accordance with Section 138 Para. 3 ZPO a ban on the collection of evidence, but primarily a ban on the use of material presentations (for the effect of which see BAG August 23, 2018 - 2 AZR 133/18 - Rn. 16, BAGE 163, 239) must examine the defendant's submissions on the basis of which they claim the lack of work of the plaintiff on June 2, 2018. However, there is no ban on presenting facts or taking evidence. Rather, the appeal court had to comply with the provisions of Article 6 Paragraph 1 Subparagraph. 1 letter e in conjunction with Paragraph 3 and, if applicable, Paragraph 4 in conjunction with. Art. 23 Para. 1 Letters f and j GDPR in conjunction with. § 3 BDSG and the requirements of the Code of Civil Procedure (§§ 138, 286, 371 ff. ZPO) the decision should not only be based on the defendant's allegations about the plaintiff leaving the factory premises prematurely, but also, if necessary, on the relevant image sequence from the surveillance at Gate 5.aa) The question of whether the labor courts may or must take into account the parties' significant legal arguments and, if necessary, their evidence when making their decision will be answered in accordance with its regulations after the GDPR comes into force. The GDPR also regulates the admissibility of data processing in proceedings before national civil courts. (1) According to Article 6 Paragraph 1 Subparagraph. 1 letter e GDPR, the processing of personal data is lawful if it is necessary for the performance of a task that is in the public interest or in the exercise of official authority vested in the person responsible. According to Article 6 Paragraph 3 Sentence 1 Letter b GDPR, the legal basis for such processing may be determined by the law of the Member State to which the controller is subject. According to Article 6 Paragraph 3 Sentence 4 GDPR, this must pursue a goal that is in the public interest and be proportionate to the legitimate purpose pursued. This can be assumed if the civil courts (ECJ March 2, 2023 - C-268/21 - [Norra Stockholm Bygg] Rn. 32) - which, according to the understanding of Union law, also include the courts for labor matters (to a dismissal protection process as a civil law dispute in the sense of. Brussels Ia-VO cf. BAG May 7, 2020 - 2 AZR 692/19 - Rn. 16) - exercise the judicial powers conferred on them by national law (ECJ May 4, 2023 - C-60/22 - [Federal Republic of Germany] Paragraph 73). (2) If this processing is carried out for a purpose other than that for which the data was collected, this is in accordance with Article 6 Para. Recital 50 of which is particularly permissible if the purpose-changing processing is based on the law of a Member State and represents a necessary and proportionate measure in a democratic society to protect the objectives set out in Article 23(1) of the GDPR. According to recital 50, in order to protect these important objectives of general public interest, the controller is entitled to continue processing the personal data, regardless of whether the processing was compatible with the purposes for which the personal data were originally collected (ECJ March 2, 2023 - C-268/21 - [Norra Stockholm Bygg] para. 33). The objectives standardized in Art. 6 Para. 4 GDPR include, according to Art. 23 Para external interventions, but also the proper administration of justice. In addition, according to Article 23 Paragraph 1 Letter j GDPR, the enforcement of civil law claims also represents a goal that can justify processing personal data for a purpose other than that for which they were collected (cf. ECJ March 2, 2023 - C-268/21 - [Norra Stockholm Bygg] para. 38). In this respect, it is irrelevant whether their processing is based on a substantive or procedural provision of national law (cf. ECJ March 2, 2023 - C-268/21 - [Norra Stockholm Bygg] para. 40). Sections 138, 286, 355 ff. meet the above requirements of Union law - which is a matter for the German courts to assess (cf. ECJ March 2, 2023 - C-268/21 - [Norra Stockholm Bygg] Rn. 39, 53). .ZPO. These provisions of national law oblige the parties to submit substantiated and truthful submissions and the court to take them fully into account and, if necessary, to make a factual assessment, including with regard to any taking of evidence. In accordance with Article 6 Para. 3 Sentence 1 Letter b of the GDPR, they represent the necessary legal basis for corresponding processing in court proceedings. (3) The processing of personal data by the court - if necessary for a different purpose - comes into consideration even if this occurs - or out-of-court collection of this data by a litigant turns out to be unlawful in accordance with the GDPR or national data protection law - as accepted by the State Labor Court. This follows clearly from Article 17 GDPR without the need for a related preliminary ruling procedure by the Court of Justice of the European Union in accordance with Article 267 (3) TFEU. According to paragraph 1 letter d, personal data must be deleted if they have been processed unlawfully, which, according to Article 4 No. 2 GDPR, also includes their unlawful collection. However, according to Article 17 Paragraph 3 Letter e of the GDPR, there is an exception to the right to delete unlawfully processed data to the extent that further processing of the data in question is “necessary” to assert, exercise or defend legal claims. To this end, the Court has made it clear that the right to protection of personal data is not an unrestricted right, but - as stated in recital 4 of the GDPR - must be seen in the light of its social function and balanced against other fundamental rights while respecting the principle of proportionality (ECJ 24. September 2019 - C-136/17 - [GC et al.] Rn. 57; Baker in Kühling/Buchner GDPR 3rd edition Art. 13 Rn. 68). Even if Article 17 Paragraph 3 Letter e of the GDPR did not constitute a legal basis for further processing in these cases, the necessary authorization would lie in Article 6 Paragraph 1 subparagraph. 1 letter e in conjunction with Paragraph 3 and, if applicable, Paragraph 4 in conjunction with. Art. 23 Para. 1 Letters f and j GDPR in conjunction with. § 3 BDSG in conjunction with. the above-mentioned standards of the Code of Civil Procedure (§§ 138, 286, 355 ff. ZPO).bb) In the event of a dispute, the Senate does not have to make a final decision as to whether and, if so, under what conditions a procedural ban on the use of facts can apply that an employer gained knowledge through unlawful data processing. A ban on the presentation of facts or the use of evidence only comes into consideration - especially within the scope of the GDPR - if the failure to take into account submissions or evidence is based on a law stipulated by Union law or Article 2 Para. 1 in conjunction with. The legal position of the employee protected by Article 1 Paragraph 1 of the Basic Law is mandatory. This is usually not the case in the case of a breach of duty committed intentionally by him that was covered by an open surveillance measure. (1) The Senate can assume in favor of the employee affected by open video surveillance that - although it seems rather doubtful - the characteristic of the The necessity in Article 17 Paragraph 3 Letter e GDPR requires a full proportionality test. Otherwise, the provision would be ineffective and Art. 47 Para. 2 GRC guarantees the right to effective legal protection and in particular to a fair trial, according to which the parties to a civil case must generally be able to adequately justify and prove their goal of legal protection (cf. ECJ March 2, 2023 - C-268/21 - [Norra Stockholm Bygg] Rn. 53), the judicial processing of the plaintiff employee's personal data unlawfully collected by the employer could only prove to be inappropriate (disproportionate in the narrower sense ) if the surveillance measure under Union law were to prove to be a serious violation of Articles 7 and 8 GRC and other possible sanctions for the employer (e.g. damages under Article 82 GDPR and the imposition of fines under Article 83 GDPR) would be completely inadequate .(2) On the other hand - but this also seems questionable - it can be assumed in favor of the plaintiff employee that under Article 17 Paragraph 3 Letter e of the GDPR, in a constitutionally compliant interpretation of national procedural law, the court may exceptionally be prohibited from to use factual presentations or evidence that are part of the right to informational self-determination (Art. 2 Paragraph 1 in conjunction with Art. 1 Paragraph 1 GG) of data processing violating the employee was obtained from the employer. Such a situation led to a lack of a legal basis in the procedural law of the Member States. Article 6 paragraph 1 subparagraph 1 letter e in conjunction with Paragraph 3 sentence 1 letter b GDPR was missing (para. 24 f.). This in turn would mean that there would be no authorization under Union law for data processing by a court. (a) A ban on use would come into consideration if this is absolutely necessary due to a legal position of a party to the lawsuit protected by the Basic Law. As a rule, this presupposes that the protective purposes of the fundamental right violated during the acquisition conflict with the use of the knowledge or evidence in legal disputes and that the use itself would therefore constitute a violation of fundamental rights. This is the case if the court, which is directly bound by fundamental rights according to Article 1 Paragraph 3 of the Basic Law, intervenes without justification in a constitutionally protected position of a litigant by perpetuating or deepening a violation of personal rights by a private individual. Beyond their duty to refrain from unjustified encroachments on fundamental rights, the courts may at most be required by a constitutional duty to protect to actively counter a violation of general personal rights by private individuals and to disregard factual presentations or evidence presented by a party for reasons of general prevention, if otherwise the violated protection standard would be ineffective in the cases in question (BAG August 23, 2018 - 2 AZR 133/18 - Rn. 14, BAGE 163, 239). (b) A reference to Art. 2 Para. 1 in conjunction with. The ban on exploitation based on Article 1 Paragraph 1 of the Basic Law is - even taking into account the requirements of Article 17 Paragraph 3 Letter e of the GDPR assumed by the Senate in favor of the employee concerned - regularly excluded with regard to such image sequences from open video surveillance that were committed intentionally (should) show breaches of duty to the detriment of the employer, without the legality of the entire surveillance measure being relevant. (aa) The impairment of an employee's right to informational self-determination through an open surveillance measure is caused, on the one hand, by the behavioral inhibition (psychological pressure to adapt) and, on the other hand, by causes the reification of the behavior that is nevertheless shown, including the inherent risk of the recording being disseminated. In contrast to a covert surveillance measure, a surveillance that is visible to the person is not about protection against (secret) spying, but rather "only" about protection against development, documentation and dissemination. A ban on exploitation only comes into consideration if and to the extent that the employee is worthy of protection for these purposes. This is not the case if the employer becomes aware of an intentional breach of duty through the available data and wants to react to it. The employee was not prevented from acting independently by the previous monitoring and recording of his behavior. Rather, despite his knowledge of the surveillance, he decided to commit an intentional act to the detriment of the employer. This behavior was documented and thus made possible for it to be spread. However, the employee must accept this consequence - which he recognizes in view of the openness of the surveillance - if the image sequence in question is used to provide "proof of the crime" in a dismissal protection process, i.e. is only intended to enforce the employer's legally protected interests (cf. ECHR May 27, 2014 - 10764/09 - [De la Flor Cabrera/Spain]; Niemann JbArbR Vol. 55 pp. 41, 60). The constitutionally guaranteed right to informational self-determination cannot be invoked for the sole purpose of evading responsibility for intentionally unlawful actions (see BAG August 23, 2018 - 2 AZR 133/18 - Rn. 30, BAGE 163, 239 ; BGH November 24, 1981 - VI ZR 164/79 - to II 2 b of the reasons). Data protection is not protection. (bb) Aspects of general prevention could at most lead to a ban on use in relation to intentional misconduct by the employee if the employer's surveillance measure as such, despite its open implementation, turns out to be a serious violation of the law set out in Article 2 Paragraph 1 in conjunction with . 1 Paragraph 1 of the Basic Law (conceivable, for example, in the case of open surveillance of toilets or changing rooms or open continuous surveillance without the possibility of retreat, cf. BAG August 23, 2018 - 2 AZR 133/18 - Rn. 35, BAGE 163, 239). This corresponds to the requirements assumed in favor of the employee in Article 17 Paragraph 3 Letter e GDPR in conjunction with. Art. 7 and Art. 8 GRC (para. 28) with sufficient clarity comply with Union law, which the Senate can decide without a related request for a preliminary ruling in accordance with Art. 267 para. 3 TFEU.cc) A ban on incriminating image sequences from open video surveillance in After all, there is no need to take an inspection because they may not show any behavior on the part of the employee that represents or at least indicates an intentional violation of the employer's legal interests. Since Art. 103 Para. 1 GG and Art. 47 Para. 2 GRC fundamentally require the investigation of significant evidence, the taking of evidence must not be omitted due to the mere possibility that it violates fundamental rights. In this respect, there are also sufficient other protective mechanisms for the affected employee. The visual inspection shows “absolutely nothing” in the sense. employer, he not only loses the process. Rather, the further processing - clearly - of irrelevant sequences and their introduction into a legal dispute can constitute a serious violation of personal rights, for which he is liable under the conditions of Section 823 Paragraph 1 of the German Civil Code (BGB) in conjunction with. Art. 2 Para. 1 in conjunction with Art. 1 Para. 1 GG owes monetary compensation (BAG August 23, 2018 - 2 AZR 133/18 - Rn. 36, BAGE 163, 239) or non-material damages according to Art. 82 GDPR (ECJ May 4, 2023 - C-300 /21 - [Austrian Post]).dd) In the present legal dispute, the defendant's - supposed - findings from the video surveillance at Gate 5 of the factory premises had to be taken into account, as well as the image sequence that is supposed to show the plaintiff leaving the factory premises early, if necessary . would have to be inspected as evidence. (1) It was a case of open video surveillance, identified by at least one pictogram and otherwise impossible to overlook. It is of no legal significance that the pictogram - beyond monitoring - did not specifically refer to the recording and storage of the image sequences and that the defendant may not have fully complied with its information obligations under Article 13 Paragraph 1 and Paragraph 2 GDPR. In any case, the plaintiff had to assume that his “passing behavior” could also be recorded and stored. He was not secretly "spyed on", but rather exposed himself to a record of his possible intentional breach of duty "with full eyes". Things would have been different if the defendant had "reassured" him with regard to the recording and storage of intentional breaches of duty (cf. BAG August 23, 2018 - 2 AZR 133/18 - Rn. 44, BAGE 163, 239) . However, nothing has been established for this. Nothing else follows from the plaintiff's argument - controversial and, moreover, unsubstantiated - that the works council was informed that the video surveillance was intended to give non-employees and employees who had problems with their works ID card the opportunity to call the works security by ringing a bell Contact us so that he can open the factory gate remotely. It is not clear from this that this was disclosed to the works council as the sole purpose of video surveillance - especially the exit from the factory premises. Regardless of this, it has neither been shown nor otherwise apparent that the defendant explained to the works council that pure video monitoring was taking place or that the recordings of the cameras should not be used to detect intentional breaches of duty. (2) The State Labor Court did not determine that what exact coverage area the cameras at gate 5 to the factory premises had. However, the existence of permanent or total monitoring leading to constant pressure to adapt and perform can be ruled out. The employees were essentially only filmed for a short time when they walked through the gate - when they entered the factory premises and when they held their company ID card in front of the card reader. Your intimate or private life was not affected. A serious violation of fundamental rights does not follow from the fact that the defendant may have waited a long time before viewing the image material for the first time and kept it until then (see BAG August 23, 2018 - 2 AZR 133/18 - Rn. 30, 33, BAGE 163, 239).(3) The use of the image sequence in question in the present legal dispute does not constitute a change of purpose in the sense of. Art. 6 Para. 4 GDPR is connected. The relevant abstract purpose of data collection (protection of the legitimate interests of the defendant and, if not, enforcement of civil law claims) corresponds to the purpose of data processing in the present proceedings (enforcement of civil law claims) (cf. Schulz in Gola/Heckmann GDPR/BDSG 3rd ed. Art 6 GDPR Rn. 135). Even if there were a change in purpose from property protection to asset protection, the balancing of the mutual interests - to be carried out by the national court (cf. ECJ March 2, 2023 - C-268/21 - [Norra Stockholm Bygg] Rn. 48) - shows that The plaintiff's fundamental rights positions under Art. 7 and Art. 8 GRC do not outweigh the defendant's right to effective judicial protection against - supposedly - intentional misconduct by their employee, which is guaranteed by Art . Due to the findings made so far by the State Labor Court, the Senate cannot itself make a final decision on the priority claim against the extraordinary dismissal without notice. In this respect, the appeal judgment does not appear to be correct in its result (Section 561 ZPO) because the defendant - as the labor court assumed - would be excluded from the legal dispute for reasons of works constitution law with her submissions, since she told the works council at the hearing in accordance with Section 102 BetrVG had not submitted. For the allegation of dismissal and the committee's related admission, it does not play a significant role whether the plaintiff confirmed himself in the attendance list in his capacity as team spokesman or had another team spokesman make a corresponding entry (paragraph 19). There are certainly no two different termination circumstances.V. The required referral includes the application against the ordinary termination, the defendant's application for dissolution and the application for the issuance of a qualified final certificate. On the other hand, the legal dispute regarding the issuance of a qualified interim certificate has been legally concluded (No. 12).VI. The following further information is necessary for the continued appeal process: 1. The State Labor Court will first have to decide on the priority application against the extraordinary dismissal of October 5, 2019, which - regardless of the other dismissal circumstances cited by the defendant - should take effect if it can be assumed that the plaintiff has completed the extra work shift on October 2. June 2018 with the intention of not having it paid at all by the defendant (paragraph 16). by the plaintiff after his previous admission in accordance with Section 138 Paragraph 3 of the Code of Civil Procedure (ZPO) is to be regarded as having been granted, because he has neither denied it with sufficient substantiation (para. 18 ff.) nor does a ban on the use of material presentations apply in his favor (para. 22 ff.).b ) In order to meet the secondary burden of proof that applies to him, the plaintiff would first have to determine whether he left the factory premises on June 2, 2018 before the start of the shift, but also re-entered it "unnoticed" before the start of the shift, or whether he was consistently on the site would like to have remained on the factory premises. The defendant would then (only) be responsible for proving that this representation is not correct (cf. BAG December 16, 2021 - 2 AZR 356/21 - Rn. 31 f.).c) Should the plaintiff claim that he is constantly on the factory premises remained, the State Labor Court would have to collect evidence in accordance with Sections 371 ff. ZPO by visually inspecting the incriminated image sequence from the video surveillance at Gate 5, which is not subject to a ban on exploitation (No. 22 ff.), of the defendant's contrary claim that the plaintiff had plans to use the site Leave again at the start of your shift. If this turns out to be the case, it would therefore have to be assumed that the defendant's representation of the accusation of dismissal (not working the shift with the intent to deceive) is correct. The plaintiff could not claim in a procedurally permissible manner that he did not leave the factory premises; If he did leave it, he would have re-entered it before the start of the shift. d) Should the plaintiff provide substantiated evidence after being sent back that he initially left the factory premises again, but that he left it "unnoticed" before the start of the shift - when, through which entrance ? - enter again and then - after reaching the foundry in time? - worked properly, the State Labor Court - without relying on the image sequence from the video surveillance at gate 5 presented by the defendant - will have to assess in accordance with Section 286 Paragraph 1 ZPO whether it considers the plaintiff's claim to be proven did not enter the factory premises again on June 2, 2018. The appeal court will have to take into account that in order to form a conviction in the sense of § 286 para. 1 ZPO a degree of certainty that is useful for practical life is sufficient, which silences remaining doubts without completely excluding them. The court may have to justify why it was unable to overcome residual doubts. In particular, the failure to achieve a sufficient degree of certainty must not be based solely on the fact that other explanations are theoretically conceivable (cf. BAG June 11, 2020 - 2 AZR 442/19 - Rn. 62, BAGE 171, 66). Accordingly, the State Labor Court will be fully convinced in accordance with. The defendant's argument can possibly also be achieved solely by considering the plaintiff's contrary argument regarding re-entry through the main entrance to be sufficiently substantiated, but not credible because it lacks any internal probability (cf. BGH November 22, 1994 - XI ZR 219/93 - to II f of the reasons). In this context, it could also play a role if the plaintiff in the present legal dispute and the plaintiffs in the parallel proceedings decided by the Senate on the same day - 2 AZR 297/22 and 2 AZR 298/22 - visited the factory premises at short intervals before the start of the overtime shift left through gate 5, but wanted to have re-entered it in time through a different gate "unnoticed". a corresponding presentation of evidence by the defendant is procedurally significant, as this can be ruled out after electronic attendance recording and video surveillance. It does not constitute a violation of the plaintiff's general personal rights if he was not included in a surveillance measure. There was also no serious violation of fundamental rights associated with the electronic attendance recording and open video surveillance at the gates to the factory premises (paragraphs 33, 37). of electronic attendance recording into the proceedings.aa) The appeal court based its opinion on a works agreement concluded on October 17, 2007 for Plant H on the introduction of electronic attendance recording (BV 2007), according to which "no personal evaluation of data he follows". By concluding this operating agreement, the further content of which is not clear from the contested judgment, the defendant lulled the plaintiff into security in the sense of a "legitimate expectation of privacy". This applies even in the event that the works council subsequently agreed to the evaluation of the card readers, since the works agreement - according to the State Labor Court - grants the employees their "own rights".bb) It can be assumed that the BV 2007 is the regulation used by the State Labor Court contains. However, this could not establish a legitimate expectation of privacy with regard to the working time manipulation accused of the plaintiff or "lull the plaintiff into security" with regard to the commission and punishment of his alleged working time manipulation (see Rn. 36). (1) The lower court assumed without justification that The BV 2007 also aims to exempt an intentional breach of duty from legal punishment. Such an interpretation raises concerns because the thwarting of sanctions, even for serious breaches of duty, would hardly be compatible with the “well-being of the company” as stated in Section 2 Para. 1 BetrVG as the goal of cooperation between the company parties. The regulation in the manner understood by the appeal court would also benefit - without any apparent reason - from the intentional offender who acted in breach of contract. (2) However, the State Labor Court does not have to investigate the content of the BV 2007 any further. Even if this were to be interpreted in accordance with his point of view, a violation by the defendant of the "ban on evaluation" specified therein would not lead to the courts for labor matters being prevented from basing their decision on the findings introduced into the legal dispute. (a) Den Company parties lack the power to establish a ban on exploitation that goes beyond the formal procedural law of the Code of Civil Procedure or to effectively limit the employer's ability to present facts about company events in an individual legal dispute (already doubtful BAG January 31, 2019 - 2 AZR 426/18 - para . 68, BAGE 165, 255) and to prove this. It can be left open as to whether and, if so, to what extent the employer can undertake to the works council not to use findings from data processing. The operating parties are entitled, within the scope of their responsibility, to design and, if necessary, expand the participation rights under the works constitution. They are not limited to the regulatory subjects mentioned in Section 88 BetrVG. The list of matters mentioned there is not exhaustive. However, the operating parties lack the authority to intervene in the legal proceedings. This is not at their disposal. Rather, its design is the responsibility of the legislature. This alone is authorized to determine the course of the legal proceedings (cf. BAG August 18, 2009 - 1 ABR 49/08 - Rn. 20, BAGE 131, 358). This also includes the possibility specified in §§ 138, 286 para. 1 ZPO to introduce facts into the proceedings and to prove them, as well as the related assessment by the court. (b) In addition, the right to - here declared with priority - extraordinary termination of the employment contract in accordance with Section 626 of the German Civil Code (BGB) cannot be waived or made significantly more difficult in advance and a contrary regulation according to Section 134 of the German Civil Code (BGB) is void (BAG March 15, 1991 - 2 AZR 516/90 - to II 2 d aa of the reasons; October 28, 1971 - 2 AZR 15/71 - to II 2 b of the reasons; December 18, 1961 - 5 AZR 104/61 - to 1 of the reasons). However, a prohibition for the employer to provide evidence from a surveillance measure that (should) indicate behavior that is "in itself" suitable would at least make the right to extraordinary termination significantly more difficult, an important reason in the sense of. § 626 BGB to be introduced into a dismissal protection process. Because these are regularly the most reliable sources of knowledge (cf. BAG August 23, 2018 - 2 AZR 133/18 - Rn. 27, BAGE 163, 239). (c) After all this, it remains to be seen whether a ban specified in a works agreement For the employer to introduce findings from a - especially open - surveillance measure into a dismissal protection process that indicate an intentional breach of duty by an employee would also be contrary to EU law. This is likely to be supported by the fact that, according to Article 1 Para. 1, the GDPR is intended to ensure a fundamentally complete harmonization of national legal provisions on the protection of personal data, and the Member States or the operating parties, if they benefit from an opening clause such as that in Article 88 Para. 1 GDPR, must exercise their discretion under the conditions and within the limits of the provisions of the GDPR and therefore may only adopt legal provisions or collective agreements that do not violate the content and objectives of the GDPR (including protection of the free movement of data). This applies in particular to the requirements contained in Art. 6 GDPR (cf. ECJ March 30, 2023 - C-34/21 - [Main Staff Council of Teachers] paras. 51, 59, 68 ff. and 79). According to its paragraph 1 subparagraph, the regulation states: 1 letter f, however, is alien to the fact that certain processing of personal data is excluded despite a legitimate interest of the person responsible - particularly high in the case of intentional acts - regardless of a case-by-case assessment. It also seems doubtful whether such exploitation bans are suitable and special measures to protect, among other things. the legitimate interests and fundamental rights of the employers concerned iSv. Art. 88 Paragraph 2 GDPR (see ECJ March 30, 2023 - C-34/21 - [Main Staff Council of Teachers] Rn. 64).g) The State Labor Court will also not have to clarify whether the Video surveillance - to the extent that the knowledge gained from it is of any importance - the works council's co-determination rights were ignored. The protective purpose of Section 87 Paragraph 1 No. 6 and Section 77 BetrVG does not require a ban on use in any case if the use of the information or evidence - as here - is permissible according to general principles (cf. BAG October 20, 2016 - 2 AZR 395/15 - Rn. 36, BAGE 157, 69; September 22, 2016 - 2 AZR 848/15 - Rn. 44, BAGE 156, 370). be convinced, but if there is a corresponding urgent suspicion, it would have to be checked whether the plaintiff - which everything speaks for - was properly heard (for the requirements see BAG April 25, 2018 - 2 AZR 611/17 - Rn. 31 f .).i) Finally, it might be necessary to discuss whether the defendant complied with the declaration deadline set out in Section 626 Paragraph 2 of the German Civil Code (BGB) and whether the works council - which, contrary to the opinion of the labor court, is supported - properly in accordance with the law. § 102 para. 1 BetrVG on the intended extraordinary termination.2. If the appeal court grants the main application against the extraordinary termination without notice of October 5, 2019, the spurious auxiliary application against the ordinary termination of October 9, 2019 would have to be decided. In this respect, it may be important to note that the declaration deadline of Section 626 Paragraph 2 of the German Civil Code (BGB) does not apply to an ordinary termination of an offense or suspicion of termination (cf. BAG January 31, 2019 - 2 AZR 426/18 - Rn. 31, BAGE 165 , 255).3. If the State Labor Court were to also grant the spurious auxiliary application directed against the ordinary dismissal, the application for dissolution in accordance with Section 9 Paragraph 1 Sentence 2 of the KSchG, which was permissibly put on record by the defendant in the second instance, would have to be decided. There is much to suggest that the defendant did not effectively introduce the relevant reasons into the proceedings. She neither gave the reasons for the application in the minutes of the appeal court nor in a written document received by the court as an electronic document in accordance with Section 46g Sentence 1 ArbGG (see Siegmund NJW 2023, 1681, 1683). However, this does not require a decision. The defendant can electronically submit its (paper) written statement justifying the application for dissolution, which was previously only handed over at the appointment, in the continued appeal process. The application for dissolution is likely to prove successful if the submission made by the defendant in the second instance and in the appeal proceedings regarding the plaintiff's untruthful procedural arguments remains undisputed or is proven.4. Finally, in accordance with Section 139 Paragraph 1 Sentence 2 ZPO, the State Labor Court will have to work towards clarifying whether the plaintiff actually only applied for the issuance of a qualified final certificate for the - which did not occur (Rn. 12) - case of failure with the application for issuance a qualified interim certificate or rather in the event of losing one of the applications for protection against dismissal or against the defendant's application for dissolution, i.e. the termination of the employment relationship.5. When deciding on costs for the first instance, the State Labor Court - even if it rejects the defendant's appeal in its entirety and rejects its application for dissolution made in the second instance - must take into account that the plaintiff has withdrawn a general application for a declaration that was initially submitted (§ 269 para . 3 Sentence 2 ZPO) and the labor court has also legally rejected two supposed further general applications for a declaration as inadmissible. These “applications” may not have increased the fee amount in dispute for the first instance. However, this does not mean that the partial withdrawal or dismissal of the lawsuit would not have an impact on the plaintiff by creating a fictitious cost dispute (cf. Niemann NZA 2019, 65, 71). With regard to the withdrawn application, the situation could be different if - as there is much to suggest - it was not a main application but a spurious auxiliary application. In addition, the appeal court will have to decide on the costs of the second instance proceedings and the appeal.KochSchlünderNiemannMertzAlex