LAG Schleswig-Holstein - 1 Sa 148/22

LAG Schleswig-Holstein - 1 Sa 148/22
Court:	LAG Schleswig-Holstein (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 6(1)(f) GDPR Article 12(3) GDPR Article 13(1) GDPR Article 13(2) GDPR Article 15(1) GDPR Article 17(1) GDPR § 15(2) AGG § 15(4) AGG § 26(1) BDSG § 6(1) AGG
Decided:	21.02.2023
Published:
Parties:
National Case Number/Name:	1 Sa 148/22
European Case Law Identifier:	ECLI:DE:LARBGSH:2023:0221.1SA148.22.00
Appeal from:	ArbG Lübeck 5 Ca 1507/21
Appeal to:
Original Language(s):	German German
Original Source:	LAG Schleswig-Holstein (in German) Landesvorschriften und Landesrechtsprechung (in German)
Initial Contributor:	n/a

LAG Schleswig-Holstein dississes a data subject's claims for age discrimination and GDPR violations due to the these were found as an abuse of rights under Article 82 GDPR and § 242 BGB, designed primarily to obtain compensation.

English Summary

Facts

In this case, the data subject, a 1972-born individual, applied to the controller, an eCommerce company selling garden and Indoor furniture, for a position. The data subject, with a diverse career background including roles in banking, IT security, and sales, highlighted his qualifications in a structured email application. Despite following up, the controller rejected the application. On 14 June 2021, the data subject claimed age discrimination and demanded compensation of €1,500, and refused a subsequent interview invitation. Additionally, on 14 September 2021, the data subject requested detailed information about stored personal data under Article 15 GDPR. The company responded on 21 September 2021, stating that no further data beyond the email correspondence was stored. The data subject pursued legal action for damages under Article 82 GDPR and argued that information used by its legal representatives from an online database violated his right to informational self-determination and should be deleted.

Holding

The court held that the data subject's claims were unsubstantiated, dismissing the case on grounds of abuse of rights. Firstly, the court determined that the data subject used the GDPR and the General Equal Treatment Act (AGG) claims purely to obtain compensation, a purpose not aligned with the intended spirit of these laws. Although the court confirmed that the data subject had followed the appropriate procedural timelines (e.g., filing within the three-month period as required by the AGG), it nonetheless ruled the actions as abusive under § 242 of the German Civil Code (BGB).

Next, the court acknowledged some GDPR violations by the controller, noting a partial failure to provide information required by Article 15 GDPR and Article 13 GDPR. However, it found these insufficient to warrant damages under Article 82 GDPR, especially since these claims appeared to be integrated as part of a larger strategy for financial gain rather than genuine data protection concerns.

The court found no basis to order the deletion of the data subject’s information from the websites cited by the controller, as this information was determined to be processed lawfully under the legitimate interest clause (Article 6 GDPR#1f) and was crucial for the defense against what was ruled as an abusive claim.

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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.

Schleswig-Holstein Regional Labour Court

File Number: 1 Sa 148/22

5 Ca 1507/21 Labour Court Lübeck

(Please quote in all correspondence!)

Judgment

In the Name of the People

In the legal dispute

pp.

the Schleswig-Holstein Regional Labour Court - 1st Chamber - through the Vice President of the Regional Labour Court ..., the lay judge ..., and the lay judge ... after the oral hearing on 21.02.2023

ruled as follows:

The plaintiff's appeal against the judgment of the Labour Court Lübeck dated 10.06.2022 – 5 Ca 1507/21 – is dismissed at his expense.

The revision is not permitted.

Legal Instruction

There is no right of appeal against this judgment; otherwise, reference is made to § 72 a ArbGG.

Statement of Facts:

The plaintiff claims compensation for discrimination and claims under the GDPR.

The defendant, founded in July 2013, sells products in the categories of garden and indoor furniture, home accessories, and furnishings through an online shop and e-commerce marketplaces, previously only to businesses and resellers. It intended to expand its business to transactions with end consumers and, for this purpose, placed a job advertisement on 07.04.2021, seeking a colleague for "Customer Service (m/f/d)."

After describing the job requirements and the qualifications of the applicant, the defendant presented itself as a "young team" that loves to learn and be successful. Further, the applicant was promised training by a "young and professional team." The ad concluded with a request to include salary expectations and the earliest possible start date in the application. For the exact content of the advertisement, reference is made to p.2 of the complaint.

The plaintiff, born in 1972, applied for this position via the following email on 08.04.2021:

"...I would like to apply for the position you advertised on "m....de" yesterday as an employee because I have a commercial vocational training as a bank clerk with about 7 years of professional experience, technical retraining as an IT system technician with 5.5 years of professional experience in IT security, and since 2005 have worked in inside sales in traditional call centres in inbound and outbound calls, thus having extensive telephone experience and very good PC skills. I have technical background training as an IT system technician. I have expert knowledge in new customer acquisition, customer support, and targeted customer care. Due to my commercial training and my retraining as an IT system technician, I have a good commercial and technical understanding. To a limited extent, customer advice in IT was also part of my duties. I have often worked in customer service for international companies.

I am 48 years young and was employed in 2011 at U... in project management office and was engaged in scheduling private customers in the financial services sector from 2012-2020, worked as a customer advisor at D... where it was exclusively inbound telephony, and in other temporary employment relationships in inside sales. For many years, I have been successfully involved in the sale of complex products in the IT, telecommunications sector in tele sales or inside sales. I can use my extensive and well-founded knowledge and skills to convince end customers of the respective products, arrange appointments or at least arouse interest. The successes speak for themselves and are a testament to my excellent communication skills, the ability to persuade and inspire others about products and services.

Thus, I have routine in the creation and management of offers, offer follow-up, order billing, and order processing as well as schedule tracking.

I have good IT skills, which I acquired during my many years in IT security and through my retraining as an IT system technician. I have a driving licence class B (II) and am accustomed to a service- and sales-oriented working method.

My English skills are good. I had English for 9 years in school and went on language trips to H… and C…. for 14 days each. In addition, English was the corporate language in the IT security company where I worked for over 5 years.

I am used to working independently and responsibly, but I consider coordination within a team to be essential and indispensable.

I have 210 keystrokes in the 10-finger system and am experienced in the responsible capture of customer data. I have a confident, competent demeanour, negotiation skills, and a strong team and communication ability. Because my girlfriend lives in H…, I would like to change jobs.

I look forward to an invitation to a personal interview..."

Various documents were attached to the application.

The defendant rejected the plaintiff's application by email on 12.04.2021. In an email dated 14.06.2021, the plaintiff demanded compensation from the defendant for age discrimination, stating that he estimated a gross monthly salary of €3,000, three salaries would then be €9,000, and announced a lawsuit in case the defendant did not pay him €1,500 by 15.07.2021. The plaintiff did not accept an invitation from the defendant to a job interview on 15.06.2021.

In an email dated 14.09.2021, the plaintiff requested the defendant to provide him with "comprehensive and complete" information according to Art. 15 para. 1 GDPR and made a claim for release under Art. 15 para. 3 GDPR. On the same day, he filed the present lawsuit by fax with the Labour Court.

In a letter dated 21.09.2021 (Bl. 154 d.A.), the defendant informed the plaintiff through its legal representative that, apart from the current email correspondence, no data about the plaintiff was stored.

The law firm G…, D… operates a database on the internet in which it reports, among other things, on cases of a person who has claimed compensation under § 15 para. 2 AGG in several cases before the labour and civil courts in M... and B..., and in the reported cases, these claims were all dismissed due to abuse of law. The person's name is not mentioned. He is described as a former bank clerk who has mainly worked in call centres in the past. Upon inquiry, the former legal representative of the defendant confirmed that this person was the plaintiff. The defendant has submitted the internet addresses of the documents as exhibit H2 to the court file.

The plaintiff asserted: He had signed the faxed complaint in the original and then submitted this original to the court file following a judicial order. The defendant owes him compensation because she discriminated against him because of his age. This is indicated by the job advertisement, which referred to a "young team." It is not abusive for him to apply for discriminatory job postings, even if this has happened repeatedly. His application letter also does not give rise to the assumption of abusive behaviour. The information from the database of the law firm G..., D... is, moreover, not usable as it violates his right to informational self-determination. The defendant is also obliged to delete it. The amount of compensation for discrimination should be assessed at €4,500.

Furthermore, the defendant is obliged to provide information under Art. 15 para. 1 GDPR. She has only partially fulfilled this claim. Due to the data protection violation, she is to be condemned to pay compensation under Art. 82 para. 1 GDPR in the amount of a further €3,000. Finally, she must delete the data stored about him under Art. 17 para. 1 GDPR.

The defendant responded: It assumes that the plaintiff did not file the discrimination compensation claim in time. It denies that there is an original signed by the plaintiff for the fax of 14.09.2021. The entire complaint is evidently pieced together, and the signature is also inserted by copy. The alleged original submitted by the plaintiff has a different signature than the fax.

Moreover, she did not discriminate against the plaintiff because of his age. This is also not indicated by the job advertisement. The term "young team" refers to her company, which was only founded in 2013. The plaintiff is acting abusively because he was only interested in compensation from the beginning. This is evidenced by the application letter, which contains no specific reference to the advertised position, the fact that the plaintiff immediately demanded compensation, did not follow a subsequent invitation to a job interview, and has indisputably made abusive compensation claims in several legally binding cases.

She provided information about the data stored about the plaintiff by letter dated 21.09.2021 without delay. This information has been repeated and supplemented in the proceedings; she has not created any personnel or applicant files about the plaintiff, no handwritten notes, and apart from the email correspondence, nothing has been stored. These data would have been deleted long ago if it were not for the legal dispute. They would be deleted as soon as this legal dispute is resolved. She has no use for these emails, which only still exist with her legal representative.

For the further facts and circumstances of the first instance and the applications made there, reference is additionally made to the statement of facts of the first-instance judgment.

The Labour Court dismissed the action and essentially stated: The plaintiff is not entitled to a compensation claim under § 15 para. 2 AGG because he did not observe the deadline for judicial assertion. The fax of 14.09.2021 does not observe the deadline because the plaintiff did not prove that there is an original for it. The plaintiff cannot be granted reinstatement against missing the deadline. The claim for information according to Art. 15 para. 1 GDPR is inadmissible and unfounded. The plaintiff is not entitled to compensation under Art. 82 para. 1 GDPR because he has not demonstrated a violation of the defendant. The requests for 4a) and 4b



) are unfounded because the documents listed in Exhibit H2, whose deletion the plaintiff is seeking, do not contain personal data. For the further reasoning of the Labour Court, reference is made to the grounds of the contested judgment.

The plaintiff appealed against the judgment delivered on 07.07.2022 on 05.08.2022 and, after the extension of the deadline for the grounds of appeal until 07.10.2022, stated the grounds for appeal on 07.10.2022.

He complains that the Labour Court did not sufficiently deal with the legal views he presented regarding the assertion of the compensation claim. Contrary to the Labour Court's opinion, his fax observes the claim deadline. The compensation claim is also otherwise justified.

Regarding the request for information and release to 2), the plaintiff withdrew the appeal initially filed in this respect. The plaintiff continues to assert that he is entitled to compensation under Art. 82 para. 1 GDPR. In this respect, he presented various violations of the GDPR by the defendant and the unlawful use of the AGG archive of the law firm G…, D…. The legal operator has no legitimate interest in the contested publications about him. The publications are not necessary and are highly damaging to his personality. Contrary to the Labour Court's opinion, it is not necessary to demonstrate further damage.

Finally, the applications to 4a) and 4b) are also justified. Contrary to the Labour Court's opinion, the documents compiled in Exhibit H2 contain personal data. Regarding the concept of personal data, he extensively argued in the first instance with a pleading dated 03.10.2022. The documents listed in Exhibit H2 should, in any case, be deleted if the underlying legal disputes were concluded more than 6 months ago, alternatively three years ago. This applies to all cited proceedings.

The plaintiff requests, under the annulment of the Labour Court Lübeck 5 Ca 1507/21 judgment of 10.06.2021

1. to condemn the defendant to pay the plaintiff compensation under Art. 15 II AGG, 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 rate from the service of the complaint,

2. to condemn the defendant to pay the plaintiff compensation under Art. 82 I EU - GDPR, the amount of which is at the discretion of the court but should not be less than €3,000.00 plus 5% interest above the base rate from the service of the complaint,

3.

a) To condemn the defendant to delete the following personal data of the plaintiff under Art. 17 I GDPR, each attached as exhibits to the defendant's pleading of 04.03.2022,

A. AGG-Hopper fails now also before the BAG – G... ...

https://www.lawfirm-w....de/agg-hopper-fails-now-also-

at-the-bag/..

1. 28.05.2021 - Incidentally: Due to the firm's location close to the station in W... the lawyers of the firm G...-D... Law firm ...

https://www.lawfirm-w....de/warning-agg-hopper-court-

known-apparent-applicant-tries-again-at-labour-court-m.../ - Exhibit 10

B. Warning AGG Hopper – Court Known Apparent Applicant ...

https://www.lawfirm-w....de/warning-agg-hopper-court-

known-apparent-applicant-tries-again-at-labour-court-m.../.

1. 10.01.2017 — Lawyer, Partner. For the third time, we have received a claim from a court-known AGG Hopper at the Labour Court M... on the ... – Exhibit 3

C. AGG Hopper fails at Labour Court M...

https://www.lawfirm-w....de/warning-agg-hopper-court-

known-apparent-applicant-tries-again-at-labour-court-m.../..

1. 10.12.2015 - Incidentally: Due to the firm's location close to the station in W... the lawyers of the firm G...-D... Law firm ... – Exhibit 2

D. AGG Hopper tries his luck again at Labour Court ...

https://www.lawfirm-w....de/agg-hopper-luck/

1. 23.07.2015 - Incidentally: With the firm's location close to the station in W... the lawyers of the firm G...-D... Law firm are also for ... - Exhibit 1

E. News from the AGG-Hopper: Labour Court M... dismisses ...

https://www.lawfirm-w....de/news-from-agg-hopper-labour-

court-m...-dismisses-claim-of-apparent-applicant-again/ - Exhibit 8 1. 13 August 2019 | by Lawyer H... A. G... | Category: Labour Law ... Since the defendant refused to pay, and also an out-of-court ...

F. AGG-Hopper also fails at the Regional Labour Court ...

https://www.lawfirm-w....de/agg-hopper-also-fails-at-

the-regional-labour-court-b.-b./

1. 20.11.2018 - Incidentally: With the firm's location close to the station in W... the lawyers of the firm G...-D... Law firm are also for ...

https://www.lawfirm-w....de/no-compensation-agg/ - Exhibit

6

G. https://www.lawfirm-w....de/agg-hopper-also-fails-at-

the-regional-labour-court-b.-b.-the-reasons/ , 23.01.2019 – Exhibit 7

G. Alleged age discrimination constitutes ...

https://www.lawfirm-w....de/alleged-age-discrimination-

constitutes-abusive-agg-hopping/

1. 23.12.2020 — December 2020 | by Lawyer H... A. G... | Category: Labour Law ... this is true, but not further leading, since already .. .- Ex-

hibit 9

H. District Court M... clearly rejects AGG-Hopping https://www.law-

firm-w....de/district-court-m...-clearly-rejects-agg-hopping/.

1. 24.07.2017 — July 2017 | by Lawyer H... A. G... | Category: Labour

Law ... who has been active in the greater M... area for years as an AGG

Hopper, ...- Exhibit 4

https://www.lawfirm-w....de/labour-court-b...-rejects-

compensation-claim-of-an-apparent-applicant-under-the-agg-for-gender-

discrimination/ 11.04.2018 –

Exhibit 5

alternatively in the event of partial or total defeat with the application to 3a

b) to condemn the defendant to refrain from processing, profiling, making accessible or disseminating the documents listed in the application to 3a with the respective links under Art. 4 No.2 GDPR, under Art. 4 No. 4 GDPR to profile or make them available to other third parties or disseminate them, except for the purpose of processing and use in the subject proceedings Labour Court Lübeck 5 Ca 1507/21, including any appeal proceedings.

The defendant requests,

to dismiss the appeal.

She defends the reasons for the Labour Court's decision and further denies that the plaintiff signed the fax of 14.09.2021 in the original, referring to the plaintiff's first-instance presentation on this question. Therefore, the plaintiff missed the deadline for filing the claim. Moreover, her job advertisement is not discriminatory. In any case, the plaintiff acts abusively. On these points, the defendant repeats her first-instance presentation.

Furthermore, the GDPR claims are also opposed by the objection of abuse of rights because the plaintiff is only concerned with generating income.

For further facts and circumstances, reference is made to the file.

Reasons for the Decision

The appeal of the plaintiff, which is permissible according to § 64 para. 2 lit. b) ArbGG, was filed in due form and time and is therefore admissible, but it is not justified. The Labour Court rightly dismissed the action. It is unfounded with all the requests still pending in the appeal proceedings.

I. The request to 1. is unfounded. The plaintiff is not entitled to the claimed compensation under § 15 para. 2 AGG. Although the plaintiff has complied with the deadline for filing the claim under § 61 b para. 1 ArbGG contrary to the opinion of the Labour Court, the claim is unfounded because the plaintiff's assertion of a compensation claim is abusive.

1. The plaintiff has complied with the deadlines for asserting his compensation claim under §§ 15 para. 4 AGG, 61 b para. 1 ArbGG.

a) It is not disputed between the parties that the plaintiff complied with the assertion deadline of § 15 para. 4 AGG with his letter of 14.06.2021. For this reason, reference is made to the correct statements under 2 a of the Labour Court's reasons for the decision. The court follows these statements according to § 69 para. 2 ArbGG and adopts them as its own. No objections were raised against this in the appeal proceedings.

b) The plaintiff has also complied with the deadline for filing the claim under § 61 b para. 1 ArbGG.

aa) According to § 61 b para. 1 Arb



GG, a claim for compensation under § 15 AGG must be filed within three months after the claim has been asserted in writing. § 61 b para. 1 ArbGG is a statutory limitation period that must be observed ex officio. If the claim is not filed in time, the claim is forfeited. The claim remains admissible but is unfounded (Germelmann/Schleusener, ArbGG, 9th edition 2017, § 61 b, Rn 10).

bb) The plaintiff filed his claim on 14.09.2021 by fax and thus within the period of § 61 b para.1 ArbGG running since 14.06.2021. The filing of the claim was also effective. According to the court's examination, it is to be assumed that there is an original signed by the plaintiff for the fax.

(1) According to §§ 253 para. 4 in conjunction with 129 para. 1, 130 para. 1 No. 6 ZPO, determinations - such as the filing of a claim - must be signed by the party (or their legal representative) (constant case law, references at Zöller/Greger, 34th edition 2022, § 130, Rn 6). When transmitting by fax, the original must be signed according to § 130 No. 6 ZPO, the use of a facsimile stamp is not sufficient, nor is a pasted or scanned signature (BGH of 04.05.1994 - XII ZB 21/94 - Juris, Rn 9; Ory/Weth/Müller, Juris PK-ERV Volume 2, 2nd edition 2022, § 130, Rn 66 f). There are also no constitutional concerns against the requirement of a handwritten signature under an original in a claim filed by fax and the different handling in a computer fax (BVerfG of 18.04.2007 - 1 BvR 110/07 -).

(2) The plaintiff signed the faxed claim in the original.

The page 9 of the claim submitted by the plaintiff as an exhibit to the court file with the pleading dated 20.10.2021 (Bl. 123 d. A.) is the original of the fax that arrived at the Labour Court on 14.09.2021. The court established this in the appeal hearing by inspection and noted it in the record. When the fax and the original are superimposed, the signatures on both documents are identical. They coincide. This is clearly visible when the two superimposed sheets are held against the light.

The original is also a document actually signed by the plaintiff, not a mere copy of the fax. This can be determined by running a finger over the document. The impressions of the ballpoint pen on the paper are clearly noticeable. This also excludes forgery or subsequent production.

Insofar as the Labour Court assumes otherwise based on the plaintiff's letter of 20.10.2021, the appeal chamber does not follow this. In this letter, the plaintiff expressly states that he has enclosed the last signed page of the claim in the original. The other statements of his legal representative and the plaintiff in the proceedings may be misleading, but they do not prove that the plaintiff subsequently produced the document submitted with the pleading of 20.10.2021.

2. It can be left open whether the defendant discriminated against the plaintiff when rejecting his application because of his age. In any case, the plaintiff's assertion of a compensation claim is abusive.

a) The compensation claim of an unsuccessful applicant under § 15 para. 2 AGG may be subject to the objection of abuse of rights (§ 242 BGB). Abuse of rights is assumed if this person did not apply to obtain the advertised position but aimed solely to obtain the formal status of an applicant within the meaning of § 6 para. 1 sentence 2 AGG to assert claims for compensation and/or damages (BAG of 31.03.2022 - 8 AZR 238/21 - Juris, Rn 37). The employer bears the burden of proof for the prerequisites that justify the objection of abuse of rights against a compensation claim under § 15 para. 2 AGG. Therefore, the employer must present and, in case of dispute, prove the facts that justify the objection (BAG, a. a. O., Rn 39).

b) According to these standards, the plaintiff's claim for compensation in the present case is abusive.

aa) This follows primarily from the plaintiff's application letter for the offered position. This letter is formulated so that only the conclusion can be drawn that the plaintiff aimed to provoke a rejection of his application solely to assert a compensation claim under § 15 AGG.

(1) The application shows no relation to the industry and business of the defendant. The defendant is looking for an employee in online sales service. The plaintiff does not refer to this or to the industry in which the defendant operates, namely the trade in garden and indoor furniture and home accessories and furnishings, in any way.

(2) Instead, the application emphasises own qualifications in bold print that have no apparent relation to the advertised position, such as "training as a bank clerk," "extensive telephone experience," "exclusive inbound telephony," "arranging appointments," or "driving licence class B (III)."

(3) The application also contains an unordered list of many qualifications in the non-bold part, which have no relation to the advertised job.

(4) In contrast, what the defendant highlighted in bold in its job advertisement as a crucial decision criterion for hiring is missing. The plaintiff neither indicated a salary expectation nor an earliest possible start date. This alone should be a "knockout criterion" for an invitation to an interview, which must be evident to any applicant.

(5) The only personal reference the plaintiff makes in the application is the desire for a career change because his girlfriend lives in H... The plaintiff did not further specify his presentation on this point after the defendant contested this circumstance. He was obliged to do so because only then could the defendant present in detail and, if necessary, offer proof by naming the plaintiff's girlfriend as a witness in response to the objection of abuse of rights.

bb) Another indication of the plaintiff's intention to file the application solely to claim compensation from the defendant is that the plaintiff responded to the rejection solely with a compensation demand and the announcement of a lawsuit, and additionally made a pre-litigation "settlement offer." The plaintiff does not refer to the position he applied for in a single sentence. This also shows that he was primarily concerned with compensation.

cc) The chamber's assumption that the plaintiff acts abusively was reinforced by the fact that he has claimed compensation in many other cases and these claims were all dismissed due to abuse of rights.

(1) However, according to the case law of the Federal Labour Court, the mere fact that a person has sent many unsuccessful applications and has conducted or is conducting several compensation lawsuits does not allow for a conclusion of abuse of rights. Such behaviour can also be explained by the fact that there was a serious interest in obtaining the respective position and that the applicant, because he sees himself discriminated against contrary to the AGG's requirements in the selection and appointment decision, legitimately asserts his rights under the AGG with the compensation and/or damages claim (BAG of 26.01.2017 - 8 AZR 848/13 - Juris, Rn 145).

However, this case law does not apply to the facts to be decided here. The plaintiff had no serious interest in the advertised position in customer service. This is evident from his application for the position at issue here, as just outlined.

In other cases of the plaintiff, the claims were also dismissed due to abuse of rights. The plaintiff has filed abusive compensation claims under the AGG in many cases. The defendant has pointed out, without contradiction, the decision of the LAG M... of ... – ... Sa .../..., the lower court of the Labour Court M... of ... – ... Ca .../..., the decision of the LAG B... B... of ... – ... Sa .../..., the lower court of the Labour Court B... B... and another case at the Labour Court M... and a case at the District and Regional Court M..., as well as in the appeal proceedings, a decision of the Labour Court M... (judgment of ... – ... Ca .../...). In all cases, the plaintiff's actions were deemed abusive. The court, therefore, assumes that the plaintiff's application in this case was solely aimed at obtaining the formal status of an applicant to claim compensation.

(3) The defendant's presentation of the plaintiff's abusive behaviour in other cases where he filed a compensation lawsuit for discrimination is also procedurally admissible in the present proceedings. There is no prohibition on the use of such evidence due to a violation of the plaintiff's general right to privacy.

(a) A prohibition on the use of evidence or a prohibition on the use of undisputed facts due to a violation of a party's general right to privacy in labour court proceedings can only arise from the need for a constitutionally compliant interpretation of procedural law. Neither the Civil Procedure Code (ZPO) nor the Labour Court Act (ArbGG) contain provisions on the procedural admissibility of unlawfully obtained evidence or facts. Instead, the right to be heard under Art. 103 para. 1 GG and the principle of free assessment of evidence (§ 286 ZPO) generally require the consideration of the parties' submissions and the evidence they offer. Therefore, a special legitimisation and legal basis are required to assume a prohibition on the use of evidence. This



 also applies to a prohibition on the use of facts (BAG of 22.09.2016 - 2 AZR 848/15 - Juris, Rn 20 f). A prohibition on the use of evidence or a prohibition on the use of undisputed facts can only be considered if it is imperative due to a constitutionally protected position of a party to the proceedings. The court confronts the parties to the proceedings in the exercise of state authority. Therefore, it is bound by the fundamental rights relevant in this regard when making a judgment according to Art. 1 para. 3 GG and obliged to design the proceedings in accordance with the rule of law. In this context, material fundamental rights such as Art. 2 para. 1 GG can also give rise to requirements for the judicial procedure if it concerns the disclosure and use of personal data protected against knowledge by third parties. Therefore, the court must examine whether the use of secretly obtained personal data and the findings derived from them is compatible with the general right to privacy of the affected party. Even if no specific aspect of the general right to privacy is affected, the use of personal data interferes with the right to informational self-determination, which guarantees the right to decide on the disclosure and use of personal data. Art. 8 para. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms also serves to respect this right (BAG, a. a. O., Rn 23).

(b) According to these standards, the defendant's presentation of the plaintiff's behaviour in other cases, obtained via the internet and information from the law firm G/D, is not subject to a prohibition on the use of facts.

(aa) The information on the websites listed in Exhibit H2 constitutes personal data of the plaintiff within the meaning of Art. 4 No. 1 GDPR, contrary to the Labour Court's opinion. According to Art. 4 No. 1 GDPR, personal data is any information relating to an identified or identifiable natural person. An identifiable natural person is considered to be one who can be identified, directly or indirectly, in particular by reference to an identifier or other characteristics.

The personal reference within the meaning of the GDPR is to be regarded as "relative." It is to be assumed from an absolute approach with relative elements, that for one responsible party, the information can be linked to the data subject based on accessible additional knowledge, and for others, they remain "anonymous" due to the lack of accessible additional knowledge (Gola, GDPR, 2nd edition 2018, Art. 4, Rn 18 m. w. N).

In the present case, the information on the website is initially not personal data because it neither directly names the plaintiff nor describes him so precisely that he can be identified solely based on these descriptions. On the internet, only a former bank clerk who has mainly worked in call centres in the past is mentioned. This does not yet allow a conclusion to be drawn about the plaintiff. However, the plaintiff can be identified by the additional knowledge of the website operator. Since this knowledge has been communicated to the former legal representative of the defendant and this knowledge has been passed on to the defendant, the plaintiff is also identifiable to the defendant. Thus, the information introduced by the defendant into the present proceedings constitutes personal data of the plaintiff.

(bb) These data were also processed by the defendant, particularly stored by her legal representative on her behalf.

(cc) Therefore, the plaintiff's right to privacy in the form of his right to informational self-determination was interfered with.

(dd) The interference is, however, justified under § 24 para. 1 No. 2 BDSG, as it occurred to safeguard the legitimate interest of the defendant within the meaning of this provision.

(aaa) The legal basis for data processing is § 24 para. 1 No. 2 BDSG, not § 26 para. 1 sentence 1 BDSG. The defendant did not process the plaintiff's data for employment purposes. An employment relationship was not established between the parties. The present action is also not aimed at establishing an employment relationship, so even under the aspect that the defendant is defending against establishing an employment relationship, the data processing cannot be based on § 26 para. 1 sentence 1 BDSG.

According to § 24 para. 1 No. 2, processing personal data for a purpose other than that for which it was collected is permitted by private bodies if it is necessary for the establishment, exercise, or defence of legal claims, provided the interests of the data subjects in excluding the processing do not prevail.

(bbb) Therefore, the storage of the internet addresses where the documents listed in Exhibit H2 to the court file can be found is lawful in the present case.

The defendant uses the information about the plaintiff to defend in the lawsuit. Processing these data for this purpose is necessary to defend against the plaintiff's claim. By proving that the plaintiff has acted abusively in many cases, the defendant can at least provide indicative evidence that he intended to do so in the present case. There is no other way to prove the plaintiff's abusive behaviour in the past than through data processing. The defendant's interests in processing outweigh the plaintiff's interests in excluding processing. This results from the required balancing of interests. It must be considered that the information about the plaintiff is truthful in every respect. The information relates to his professional background and not to his private life. The defendant also has a legitimate interest in informing herself whether the plaintiff has made abusive compensation claims in the past. Data protection regulations do not serve to cover the abusive assertion of claims (see a similar balancing decision LAG Hamburg of 23.06.2010 - 5 Sa 14/10 - Juris, Rn 67 to 74). It should also be considered that the information about the plaintiff is only the subject of this lawsuit and is further stored anonymously by the defendant. Further disclosure beyond the circle of those at the defendant who know the plaintiff's identity is not to be expected. This distinguishes the present case from the AGG-Hopper archive of the law firm G…/L… cited by the plaintiff. Whether the plaintiff can demand the deletion of the database from the law firm D., G. is not the subject of the present lawsuit.

As the defendant lawfully introduced her presentation into the proceedings under data protection law, there are no procedural objections to its consideration, and in particular, there is no prohibition on the use of facts.

II. The request to 2. is also unfounded. The plaintiff is not entitled to compensation under Art. 82 para. 1 GDPR.

According to this provision, any person who has suffered material or non-material damage due to a violation of this Regulation has the right to receive compensation from the controller or processor. However, the defendant has not complied with all the plaintiff's applicable GDPR provisions. Nevertheless, the compensation claim under Art. 82 para. 1 GDPR is also subject to the objection of abuse of rights.

1. The defendant has violated the GDPR to the plaintiff's detriment in several respects.

a) First, there is a violation of Art. 15 para. 1 GDPR. The defendant did not provide the plaintiff with all the required information under this provision.

aa) However, the defendant, through her legal representative, provided information about what information she had stored about the plaintiff before the trial with a letter dated 21.09.2021 (Bl. 154 d. A.) and during the trial with a pleading dated 24./30.01.2022 (Bl. 220 d. A.), stating that no further data had been stored about him. This satisfied the right to information under Art. 15 para. 1 lit. a) to d) GDPR.

bb) However, the plaintiff was not informed about the right to rectification or erasure under 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).

cc) The plaintiff has not presented anything regarding the obligations to provide information under Art. 15 para. 1 lit. g) and lit. h) GDPR.

As far as data collection from third parties is concerned (lit. g), the defendant has communicated from whom and in what way the information in Exhibit H2 about the plaintiff was obtained. It is not apparent that she could have added anything further. The plaintiff has not claimed this either. The same applies to the information under lit. h). The defendant has indicated what data she processed and how; an automated decision-making process did not take place with her. The plaintiff has not provided further details on this but also has not declared the information claim settled.

b) Additionally, the defendant violated the plaintiff's information claims under Art. 13 para. 1 and 2 GDPR, as she did not communicate the information mentioned there to the plaintiff at the time of collection.

c) The further GDPR violations complained of by the plaintiff in the grounds of appeal do not exist.

aa) As far as the plaintiff complains of a violation of Art. 30 GDPR, he does not present anything to show that the defendant employs 250 or more employees (Art. 30 para. 5 GDPR), so it is not apparent that the provision's scope is opened.

bb) Violations of Art. 24, 5 para. 2, and 6 para. 1 GDPR do not exist, as the defendant does not have a burden of proof against the plaintiff.

cc) The alleged violation of Art. 12 para. 3 sentence 1 GDPR is not apparent, as the defendant responded to his information request within a week and thus observed the one-month period of Art. 12 para. 3 sentence 1 GDPR.

dd) Finally, the plaintiff's alleged use of the "



AGG archive" is lawful as stated above.

2. However, the plaintiff is not entitled to compensation under Art. 82 para. 1 GDPR because he also acts abusively within the meaning of § 242 BGB in this respect.

a) Cases of abuse of rights include situations where a right is exercised as a pretext for achieving extraneous or improper purposes (Grüneberg, BGB, 81st edition 2022, § 242 BGB, Rn 50).

b) According to the court's conviction, the plaintiff's assertion of the right to information serves solely to achieve improper purposes, namely to induce the defendant to pay compensation.

aa) This is evidenced by the plaintiff's conduct in connection with the AGG compensation claim. The plaintiff asserted his information claims simultaneously with the compensation action. The assertion letter is evidently pieced together from other letters. This is already evident because he refers to a contested application before the Labour Court K... in his assertion letter (see Bl. 8 d. A.). Furthermore, in the assertion letter, he requests information about a personnel file with all entries at the company K... C... I... GmbH, against which the plaintiff is evidently conducting a lawsuit before the Labour Court K... under the reference number mentioned in the assertion letter. This demonstrates, from the court's perspective, that the plaintiff's primary concern with the information request was to exert pressure on the defendant to obtain the highest possible compensation and that he systematically pursues this approach. Thus, the information request is part of a "general strategy" aimed at obtaining the highest possible monetary amount from the plaintiff. This is not covered by the legal system.

bb) Another indication of the plaintiff's abusive behaviour is that his information requests are evidently excessive and disproportionate. The parties exchanged just five emails, three of which were from the plaintiff and two from the defendant. The defendant responded to the plaintiff's information request within a week. Nevertheless, the plaintiff filed all the information claims unchanged with the claim extension dated 03.10.2021. This also indicates that the plaintiff was only concerned with being as inconvenient as possible and creating work for the defendant to induce her to pay compensation.

III. The request to 3 a. is unfounded. The defendant is not obliged to delete the stored internet pages about the plaintiff.

The processing of the plaintiff's data by storing the website links listed in the request to 3. a is - as already stated - permissible for defending against the plaintiff's civil claims. This right to data processing exists as long as the present case is not concluded. Therefore, the plaintiff cannot demand the deletion of these data at this time.

Whether and when the defendant must delete the relevant data in the future is not the subject of the request. Moreover, the defendant has already declared that she will delete all data about the plaintiff upon the final conclusion of the case.

IV. The alternative request to 3. b is also unfounded.

1. As far as the plaintiff seeks to prevent future data processing of the documents listed in Exhibit H2 within the meaning of Art. 4 No. 2 GDPR, he does not present that every single category of "processing" listed in Art. 4 No. 2 is prohibited to the defendant. Art. 4 No. 2 GDPR defines processing as including the storage of data. The storage of data from Exhibit H2 is, as already stated, currently permissible by the defendant. Since the request is directed globally against any processing by the defendant, it is already unfounded because not every processing by the defendant is prohibited.

2. As far as the plaintiff seeks to prevent profiling of his data under Art. 4 No. 4 GDPR, the request is unfounded because the plaintiff does not present the necessary "risk of occurrence" for an injunction.

3. The same applies to the request to prevent the dissemination of information from Exhibit H2 to other third parties. The plaintiff also does not present a risk of occurrence in this regard.

V. The decision on costs is based on § 97 para. 1 ZPO. There are no grounds for admitting the revision. The case concerns an individual decision on the question of abuse of rights, which does not raise fundamental legal questions.

signed … signed … signed …