BAG - 2 AZR 225/20

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BAG - 2 AZR 225/20
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Court: BAG (Germany)
Jurisdiction: Germany
Relevant Law: Article 38(3) GDPR
Decided: 25.08.2022
National Case Number/Name: 2 AZR 225/20
European Case Law Identifier:
Appeal from: ArbG Nürnberg
Az. 3 Ca 4080/18
Appeal to: Unknown
Original Language(s): German
Original Source: Rewis (in German)
Initial Contributor: n/a

Adhering to a preliminary ruling by the CJEU, which ruled that a German provision, that grants DPOs protection from dismissals without an observed notice period nor good cause, is compatible with Article 38(3) GDPR, the German Federal Labour Court upheld a decision my a lower court deeming that organizational "restructuring measures" do not constitute "good cause."

English Summary


The case concerns a dispute regarding the validity of an ordinary termination of a data protection officer's (DPO) employment relationship.

The plaintiff had been working for the defendant as the company DPO starting on 1 February 2018. In a letter dated 13 July 2018, the defendant, the plaintiff's employer, terminated the employment relationship with effect from 15 August 2018. In order to make the termination effective, the defendant invoked a restructuring measure which had led to the discontinuation of the plaintiff's need for employment.

The plaintiff applied for a declaration to declare that the employment relationship between her and the defendant was not terminated by the defendant's notice of termination. The plaintiff invoked a special protection against the dismissal of DPOs pursuant to section 38(2) in conjunction with section 6(4) sentence 2 of the German Federal Data Protection, according to which DPOs may not be dismissed without observing a notice period unless facts exist which entitle the employer to terminate the employment relationship for "good cause".

The defendant filed a motion to dismiss the action, arguing that the plaintiff could not invoke the special protection as the law would violated Article 38(3) GDPR which mandates that DPOs shall only be protected from dismissals which relate to the performance of their tasks.

Consequently, the court asked the CJEU for a preliminary ruling on whether, as argued by the defendant, the national and European norms are in conflict.


The CJEU answered that the norms are not in conflict. Therefore, the German Federal Labour Court decided to agree with the plaintiff.

According to the CJEU (see C-534/20), Article 38(3) second sentence GDPR is to be interpreted as not precluding a national rule, under which a data protection officer employed by a controller or processor may be dismissed only for good cause, even if the dismissal is not related to the performance of his or her duties, provided that that rule does not prejudice the attainment of the objectives of the GDPR. This is not the case in regards the discussed provisions of the German data protection law.

Based on this CJEU ruling, the Federal Labour Court elaborated that the special protection against dismissal protects data protection officers from losing their job which may threaten them - even in a disguised form - because of the performance of his or her duties. Moreover, the special protection against dismissal protects their independence in the performance of their statutory duties, which benefits the enforcement of the objectives of the German data protection law and the GDPR.


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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.

2 AZR 225/20
Federal Labor Court 2nd Senate
Subject: AZR
Proceeding ArbG Nuremberg, July 22, 2019, Az: 3 Ca 4080/18, judgment
Section 6 (4) sentence 2 BDSG 2018, Section 38 BDSG 2018, Art 38 (3) sentence 2 EUV 2016/679, Section 626 (1) BGB, Art 3 (1) GG, Art 12 (1) GG, Art 14 (1) GG
Suggested citation: Federal Labor Court, judgment of August 24, 2022, Az. 2 AZR 225/20 (REWIS RS 2022, 5604)
Paper sources:
REWIS RS 2022, 5604
The course of the proceedings was automatically recognized based on case law in our database. It may be incomplete.
ArbG Nuremberg, 3 Ca 4080/18, 22.07.2019.
Federal Labor Court, 2 AZR 225/20, August 25, 2022.
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