BAG - 8 AZR 225/23
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| BAG - 8 AZR 225/23 | |
|---|---|
 | |
| Court: | BAG (Germany) |
| Jurisdiction: | Germany |
| Relevant Law: | Article 9 GDPR Article 82(1) GDPR § 26(3) of the German Federal Data Protection Act (BDSG) |
| Decided: | 25.07.2024 |
| Published: | |
| Parties: | Employee versus Employer |
| National Case Number/Name: | 8 AZR 225/23 |
| European Case Law Identifier: | |
| Appeal from: | LG Düsseldorf (Germany) 12 Sat 18/23 |
| Appeal to: | Unknown |
| Original Language(s): | German |
| Original Source: | Rewis (in German) |
| Initial Contributor: | Shravan |
The Federal Labour Court held that an employer unlawfully processed an employee's health data by having him surveilled in order to verify if they were faking their incapacity to work. It also awarded the employee €1,500 in immaterial damages.
English Summary
Facts
The data subject was an employee at a company. Him and the employer (controller) had a difficult relationship, after the latter had unsuccessfully tried to let him go for not adequately fulfilling his duties. Then he decided to relocate him in another region, despite the data subject's opposition.
On 4 February 22, the data subject submitted a medical certificate for incapacity to work for the period between 4 February and 4 March 2022, due to an injury suffered outside of working hours on that day. The controller suspected a feigned illness and engaged a detective agency to monitor the employee during that period. The investigators observed him in public areas and near his home, recording his physical activities such as shopping, carrying heavy objects, and working on his terrace.
When the data subject became aware of it, he filed a case before the court of first instance (Regional Labor Court of Düsseldorf - AG Düsseldorf) seeking compensation for immaterial damages at least €25,000, under Article 82(1) GDPR, for the unlawful processing of his personal data and especially health data. The Labour Court dismissed the claim, holding that the controller had legitimate interest in the surveillance and it was necessary for the exercise of his rights under Article 9(2)(b) GDPR in conjunction with § 26(3) of the German Federal Data Protection Act (BDSG).
On the data subject's appeal, the court (Higher Labour Court of Düsseldorf -LAG) overturned the ruling and ordered the controller to pay compensation in the amount of €1,500.
Both parties appealed to the Federal Labour Court (BAG). The data subject sought a higher sum while the employer sought dismissal of all damages.
Holding
The Federal Labour Court dismissed both appeals, upholding the award of €1,500 in damages under Article 82(1) GDPR.
First, it found that observing and documenting the data subject’s physical condition, such as his gait and mobility, constituted processing of health data under Article 9(1) GDPR.
Second, the court examined the application of Article 9(2)(b) GDPR in conjunction with § 26(3) BDSG, provisions that waive the prohibition of processing of health data in the employment field. The latter provision allows an employer to have an employee observed if they have doubts about the existence of a medically certified incapacity for work. The processing of health data is permissible only if the evidential value of a submitted medical certificate of incapacity for work is shaken and an examination by the medical service of the health insurance company is not possible or objectively cannot be expected to clarify the situation.
In this case, the surveillance was deemed as not necessary for the exercise of rights under labor law within the meaning of Article 9(2)(b) GDPR in conjunction with § 26(3) BDSG, since the probative value of the medical certificate had not been sufficiently discredited and less intrusive alternatives, such as review by the statutory medical service, were available but not pursued. Therefore, the court ruled that the controller unlawfully processed the data subject's health data.
Lastly, the court confirmed that the data subject suffered immaterial damage, namely loss of control over his data and reasonable fear of further private surveillance. However, it rejected the claim for higher compensation, reiterating that damages under Article 82 GDPR are compensatory in nature, not punitive or deterrent. The €1,500 awarded by the LAG was proportionate given the scope, duration, and impact of the surveillance.
Comment
The Federal Labour Court held that employers under German law must exhaust less intrusive options before resorting to surveillance. It is also interesting to note that documenting of a data subject's physical condition via surveillance amounts to processing of health data.
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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.
Subject
Data protection - compensation for damages - monitoring by the detekteig
Guiding principle
If an employer has an employee monitored by a investigation agency on suspicion of a feigned incapacity for work and documents the employee's visible state of health, it is the processing of health data within the meaning of the General Data Protection Regulation.
Tenor
The appeal of the plaintiff and the subsequent revision of the defendants against the judgment of the Landesarbeitsgericht Düsseldorf of 26. April 2023 - 12 Sat 18/23 - will be rejected.
Of the costs of the appeal proceedings, the plaintiff has to bear 94 pH and the defendant 6 vH.
Facts
1
The parties are still arguing about a claim by the plaintiff for immaterial damages according to Art. 82 para. 1 GDPR because of its surveillance by private detectives initiated by the defendant.
2
The plaintiff was since the 1. September 2009 first with legal predecessors of the defendants and then with them in various positions in sales. He worked in the field and worked in his residential building in B (home office). In 2017, a legal predecessor of the defendant wanted to terminate the employment relationship by ordinary termination, but the action for protection against dismissal against this was successful. The defendant then offered the plaintiff a position as account manager for the south region and invited him to an interview on the 20th. March 2020. The plaintiff said this conversation on presentation of a certificate of incapacity for work on the 18th. March 2020. In October 2020, the defendant terminated the plaintiff's employment relationship for operational reasons with effect from the 28th. February 2021. The Labor Court B legally determined that this termination did not terminate the employment relationship either.
3
As a result, the defendant declared to the plaintiff by letter dated 29. July 2021 a change notice to the 30th November 2021. In this context, the plaintiff was offered to terminate the employment relationship from the 1st December 2021 on the position of Account Manager for the South Region. The Competence Center Süd in O (Baden-Württemberg) was planned as the place of work. The defendant offered financial support for the necessary move.
4
By letter of 5. In August 2021, the plaintiff accepted the change offer subject to social justification. His change protection action was unsuccessful. The defendant requested the plaintiff to seter the activity as an account manager from the 1st. December 2021 in O. By e-mail from 30. In November 2021, the plaintiff apologized for health reasons and canceled a recently booked hotel room.
5
The actual start of work took place on 10. January 2022. Subsequently, differences arose between the parties as to whether the tasks assigned to the plaintiff were in accordance with the contract. On the 3rd In February 2022, the plaintiff had a fruitless dispute with the defendant's management regarding the question of what activities he had carried out in the previous weeks. With pleading of 4. In February 2022, the plaintiff sued the defendant before the labor court M for employment in accordance with the contract. He is employed with inferior tasks and responsibilities that do not correspond to the change offer.
6
With e-mail from 4. February 2022, the plaintiff with private health insurance informed the managing director of the defendant at 2:30 p.m. of his incapacity for work due to an injury suffered "outside working hours" on that day. The corresponding certificate of incapacity for work from the same day extends to the period up to the 18th of the day of the period. February 2022. It was issued by a specialist at a medical care center in B. With e-mail from 18. In February 2022, the plaintiff sent a follow-up certificate dated 17. February 2022, which continues to be incapacity for work until the 4th March 2022 certified.
7
The defendant left the plaintiff on suspicion of a feigned incapacity for work in the period from 25. February 2022 until the 4th March 2022 by a detecting afire at least on a random basis. In the course of the observation, the plaintiff's family practice and the residential building of his former partner were also visited. The latter is in the report of the Detektei of 18. March 2022, however, not mentioned. For the rest, the report reflects excerpts from the following observations in public space and on the property of the plaintiff's residential building:
"25. February 2022
...
In one of the frequent "control corridors", Mr. S can be seen spending a bulky object (measures about 1 m long and 30 cm in diameter) and another object in the form of a roll (measures 1 m long and 10 cm in diameter) into the trunk of the Mercedes-Benz 300 SE, .... Before that, he places the objects in front of the trunk. After that, he goes back to the residential building via the high stairs.
...
01. March 2022
...
He drives into the parking lot of the bathroom studio ... and enters the bathroom studio. Mr. S pulls his left leg while walking.
...
Arrival at the Edeka market ...
With a box filled with food, he comes out again.
...
04. March 2022
...
... it can be observed how Mr. S expands the car battery ... and then spends it over the high stairs to the residential building. Apparently he doesn't have much trouble carrying the certainly heavy battery.
...
Mr. S is working on wooden boards or the like on the terrace table, ...
In the following period, he is observed several times on the terrace while sawing and grinding.
8
On the 23rd In March 2022, the defendant heard the plaintiff on the accusation of pretense of incapacity for work in the period from 4. February 2022 until the 4th March 2022. The plaintiff stated that on the 3rd February 2022 to have been in O until the end of the day. After that, he went to B. He suffered the injury on the 4th. February 2022 before 08:00 a.m. in B. The observed activities did not hinder the recovery process.
9
With pleading of 31. August 2022, which the defendant on the 1st September 2022, the plaintiff has claimed the payment of a "sore money" of at least 25,000.00 euros.
10
He held the opinion that the defendant had had him monitored by detectives during that period in violation of the requirements of the General Data Protection Regulation. There was no sufficient reason for such a procedure. The submitted certificates of incapacity for work were duly drawn up after he had been issued on the morning of the 4th. Febbruar 2022 had stumbled on the stairs to his residential building and injured himself in the process. If clarification was needed, one could have listened to it. The surveillance was a serious invasion of his privacy, because the detectives observed him not only in public, but also in the entrance area of his house and on his terrace. This worries him about further impairments of his privacy. In addition, the detectives, without regard to the incapacity for work, would have included his former life partner and the family doctor's practice not involved in their observation. He is therefore entitled to compensation for the immaterial damage in the least 25,000.00 euros. The defendant wanted to prepare a notice of termination. The claimed compensation for damages only amounts about one tenth of the desired savings in personnel costs.
11
Insofar as it is of interest for the appeal proceedings, the plaintiff has requested,
to order the defendant to pay him a pain and suffering allowance of at least EUR 25,000.00, plus interest in the amount of five percentage points above the base interest rate since the 25th February 2022.
12
The defendant has requested the dismissal of the claim. The investigation was permissible. She had a legitimate interest in the observation of the plaintiff, because objective facts had given rise to the suspicion that he had been incapacitated for work in the period from 4. February 2022 until the 4th March 2022 had pretended. The reason for the suspicion is the on the 4th February 2022 issued in B certificate of incapacity for work. Their probative value is shaken. The plaintiff had after the since the 1. December 2021 applicable contractual regulations both on Thursday, the 3rd February 2022, as well as on Friday, the 4th February 2022, in O and not in B. This was assumed. In the event of an injury on Friday in O, the return trip to B for a medical examination with a length of over 600 km would have been impossible. There was no milder means of checking incapacity for work. The medical service of the statutory health insurance could not be engaged because the plaintiff was privately insured. The suspicions are also reinforced by the fact that the plaintiff had previously taken refuge in incapacity for work. The surveillance measures were limited to the observation of the plaintiff in public or freely visible spaces and to four days a week. Finally, the detective report showed that the plaintiff was not unable to work.
13
There is also no proof of damage to the plaintiff. In any case, the amount of the claim asserted of at least EUR 25,000.00 is unreasonably high.
14
The Labour Court dismissed the claim regarding the application for compensation for pain and suffering. On the appeal of the plaintiff, the Landesarbeitsgericht, based on Art. 82 para. 1 GDPR the defendant to pay a "compensation" iHv. 1,500.00 Euro plus interest since the 2nd September 2022. The plaintiff rejected the further appeal and allowed the appeal for both parties. With his appeal, the plaintiff seeks, according to Art. 82 para. 1 GDPR as "compensation" a further 23,500.00 euros plus interest in the statutory amount since the 2nd September 2022. With its subsequent review, the defendant seeks to completely reject the plaintiff's appeal.
Reasons for decision
15
The revision and the follow-up audit are permissible, but unfounded. As a result, the Landesarbeitsgericht has the defendant rightly to pay immaterial damages iHv. 1,500.00 Euro plus litigation interest sentenced.
16
I. Revision and follow-up revision are permissible. The appeal of the plaintiff is - contrary to the opinion of the defendant - according to § 72 para. 5 ArbGG iVm. § 551 para. 3 sentence 1 no. 2 ZPO (for the requirements, see BAG 24. January 2024 - 4 AZR 362/22 - Rn. 12). The plaintiff only objects to the amount of the damages judged. The appeal denounces the "deterrent effect" with a case-related justification of an amount of 1,500.00 euros and reproaches the failure to appreciate the - allegedly - intended to save personnel costs by the defendant. This is a sufficient examination of the contested decision. The subsequent audit of the defendants also does not meet with any procedural concerns.
17
II. However, the plaintiff's appeal and the defendant's subsequent audit are unfounded. The Landesarbeitsgericht has rightly imposed on the plaintiff immaterial damages iHv. 1,500.00 Euro plus litigation interest from the 2nd September 2022 on the basis of Art. 82 para. 1 GDPR.
18
1. According to Art. 82 para. 1 GDPR, the defendant has processed health data as the controller in the context of the observation without the consent of the plaintiff. This was not necessary iSv. Art. 9 para. 2 letter b GDPR iVm. § 26 para. 3 BDSG.
19
a) According to art. 9 para. 1 GDPR, among other things, the processing of health data is generally prohibited. Art. 9 para. 2 letter b GDPR, this prohibition - insofar as it is of interest here - is waived if the processing is necessary so that the controller can exercise the "rights arising from labor law ...", insofar as this is permissible under Union law or the law of the Member States, which provides for appropriate guarantees for the fundamental rights and interests of the data subject.
20
b) According to § 26 Abs. 3 sentence 1 BDSG is in deviation from Art. 9 para. 1 GDPR the processing of special categories of personal data within the send of. Art. 9 para. 1 GDPR for purposes of the employment relationship if it is necessary for the exercise of rights or for the fulfillment of legal obligations, among other things from labor law, and there is no reason to assume that the interest worthy of protection of the data subject in the exclusion of the processing prevails. According To § 22 Abs. 2 BDSG, appropriate and specific measures to safeguard the interests of the person concerned must be provided for (§ 26 para. 3 sentence 3 BDSG). The corresponding validity order of § 22 Abs. 2 BDSG ensures the protection of fundamental rights and the safeguarding of the interests of the data subjects. Accordingly, appropriate and specific measures to safeguard the interests of the data subject must be provided for when processing special categories of personal data (cf. BAG 20. June 2024 - 8 AZR 253/20 - Rn. 82 ff. ; 9. April 2019 - 1 APR 51/17 - Rn. 28, BAGE 166, 269).
21
c) With these regulations, the German legislator has in a permissible manner from the opening clause in Art. 9 para. 2 letter b GDPR made use of. By the criterion of the necessity of data processing according to § 26 para. 3 sentence 1 BDSG ensures that a legitimate goal in itself is not taken as an opportunity to excessively collect personal data within the sem of Art. 9 para. 1 GDPR. In the case of a data processing measure by the employer related to employee data, this is determined by the legal materials (cf. BT-Drs. 18/11325 p. 97) a weighing of conflicting positions in fundamental rights by way of practical concordance and a proportionality test. The interests of the person concerned are supplemented by § 26 para. 3 Sentence 3 in conjunction with § 22 para. 2 BDSG (cf. BAG 9. May 2023 - 1 APR 14/22 - Rn. 49 ff. ; 1. June 2022 - 5 AZR 28/22 - Rn. 58 f., BAGE 178, 150).
22
d) In the present case, due to the documentation of the visible state of health of the plaintiff, in particular his gait, it is partly health data iSv. Art. 9 para. 1 iVm. Art. 4 No. 15 GDPR. Accordingly, the admissibility of data processing as a whole is in accordance with Art. 9 para. 2 letter b GDPR iVm. § 26 para. 3, § 22 para. 2 BDSG (cf. ECJ 4. July 2023 - C-252/21 [Meta Platforms and others (Conditions générales d´utilisation d´un réseau social)] - Rn. 89). In addition, according to the case law of the Court of Justice of the European Union (ECJ), the principles for the lawful processing of personal data pursuant to Art. 6 para. 1DSGVO and Art. 5 para. 1 GDPR (to the cumulative audit standard: ECJ 21. December 2023 - C-667/21 - [Health insurance North Rhine] Rn. 76 ff. mwN; BSG 20. January 2021 - B 1 KR 7/20 R - Rn. 65 ff., BSGE 131, 169). Also Art. 32 para. 1 GDPR, which is in accordance with Art. 5 para. 1 letter f GDPR regulates the security requirements for data processing, applies (cf. ECJ 21. December 2023 - C-667/21 - [Health insurance North Rhine] Rn. 68).
23
e) If the employer has doubts about the existence of a medically certified incapacity for work and therefore wishes to have the employee observed by detectives or other persons, the resulting processing of health data may be prohibited in accordance with Art. 9 para. 2 letter b GDPR iVm. § 26 para. 3, § 22 para. 2 BDSG can only be admissible if the evidentiary value of a presented medical certificate of incapacity for work is shaken and an examination by the medical service of the health insurance fund according to § 275 para. 1a sentence 3 SGB V is not possible or objectively does not allow clarification to be expected. Otherwise, the determination as data processing is not necessary iSv. Art. 9 para. 2 letter b GDPR iVm. § 26 para. 3 set 1 BDSG.
24
aa) In the case law of the Federal Labor Court, even before the entry into force of the General Data Protection Regulation and the Federal Data Protection Act in the since 25. The version in force on May 2018, that in the event of a suspicion of the pretensation of incapacity for work despite a medical certificate of incapacity for work, an observation of the employee by detectives because of the associated interference with the general right of personality in the form of the right to informational self-determination (Art. 2 para. 1 iVm. Art. 1 para. 1 GG) is only considered if there are reasonable doubts about the correctness of the medical certificate of incapacity for work. Otherwise, there is no suspicion requiring clarification that could justify data collection by observation (cf. § 32 para. 1 BDSG aF: BAG 29. June 2017 - 2 AZR 597/16 - Rn. 40, BAGE 159, 278; 19. February 2015 - 8 AZR 1007/13 - Rn. 25 ff.). But even if there are such doubts about the incapacity for work, the employer may have to avoid a serious interference with the rights of the employee concerned by means of an examination by the medical service of the statutory health insurance fund in accordance with § 275 para. 1a sentence 3 SGB V as a milder means of avoiding (cf. BAG 29. June 2017 - 2 AZR 597/16 - Rn. 41, aaO; on the reimbursability of investigation costs, see BAG 28. May 2009 - 8 AZR 226/08 - Rn. 26; cf. also BAG 29. April 2021 - 8 AZR 276/20 - Rn. 30, BAGE 175, 25).
25
bb) These principles must continue to be adhered to. § 26 para. 3 sentence 1 BDSG requires in the since the 25. May 2018 as well as Art. 9 para. 2 letter b GDPR in each case constellation the necessity of data processing in the sense described. In this regard, the German legislator has to the May 2018 and the case law of the Supreme Court issued in this regard (cf. BAG 9. May 2023 - 1 ABR 14/22 - Rn. 61 with reference to BT-Drs. 18/11325 S. 97). Accordingly, monitoring of the employee remains inadmissible if the evidentiary value of the medical certificate of incapacity for work is not shaken by well-founded doubts or, if such a shock is present, the milder means of assessment by the medical service of the health insurance fund is available.
26
f) Accordingly, the observation in question by a detective in question was not necessary for the exercise of rights under labor law iSv. Art. 9 para. 2 letter b GDPR iVm. § 26 para. 3 sentence 1 BDSG and thus constitutes a violation of the General Data Protection Regulation iSv.Art. 82 para. 1 GDPR (cf. ErwGr. 146 sentence 5 GDPR). The view of the Landesarbeitsgericht, according to which the probative value of the two certificates of incapacity for work for the period from 4 February 2022 until the 4th March 2022 is not shaken, can withstand an audit review.
27
aa) The employer can only shake the probative value of the medical certificate of incapacity for work by stating factual circumstances and proving, in the event of a dispute, the doubts about the employee's illness arise with the consequence that the medical certificate no longer has probative value (BAG 28. June 2023 - 5 AZR 335/22 - Rn. 12). The employer is not limited in his arguments to the rule examples of serious doubts about the incapacity for work listed in § 275 para. 1a SGB V. When determining the requirements for the mutual burden of presentation of the parties, it must be taken into account that the employer is generally not aware of the causes of the disease and is only able to present facts to a limited extent to present facts to shake the probative value of the medical certificate of incapacity for work (BAG 8. September 2021 - 5 AZR 149/21 - Rn. 13 f., BAGE 175, 358). The circumstances of the individual case are decisive (cf. on certificates of incapacity for work after termination: BAG 13. December 2023 - 5 AZR 137/23 - Rn. 18; 8. September 2021 - 5 AZR 149/21 - Rn. 19, aaO).
28
bb) In principle, the corresponding assessment of the evidence according to § 286 ZPO is reserved to the judge. In terms of statutory audit law, it is only necessary to examine whether the assessment of evidence has been carried out without contradiction in itself and without violation of the laws of thought and general theos of experience, whether it is legally possible and whether the Court of Appeal has taken into account all the circumstances that are essential for the assessment (BAG 13. December 2023 - 5 AZR 137/23 - Rn. 12 ff. mwN).
29
cc) The assessment of the probative value of the two for the period from 4. February 2022 until the 4th The medical certificates of incapacity for work issued by the Landesarbeitsgericht issued in March 2022 do not have a revisible legal error. The Landesarbeitsgericht has both the conflict-ridden overall circumstances and the events on the 3rd and 4th February 2022 including the question of the plaintiff's whereabouts fully and without contradictions. In doing so, it has included in its considerations that the plaintiff on 18. March 2020 and on 30. November 2021 had already canceled appointments with those responsible for the defendant for health reasons and this in turn considered as individual cases of a longer period of time. It also has the "controversy" between the plaintiff and the managing director of the defendant on the 3rd February 2022 and assigned this to the basically existing dispute about the work to be provided by the plaintiff in accordance with the contract. This appreciation is covered by the discretion of the appellate instance. Contrary to the view of the subsequent revision, the assessment of the Landesarbeitsgericht does not prove to be incomplete either, because the Landesarbeitsgericht rejected the lawsuit of 4. February 2022 because of the question of the plaintiff's contractual employment. The Landesarbeitsgericht has taken into account the long-standing conflict regarding the plaintiff's contractual work in accordance with its decision. In this perspective, the lawsuit for employment in accordance with the contract is ultimately only a further escalation of the existing basic conflict.
30
g) It may therefore remain open whether the supervision of the plaintiff is the detection of a criminal offence within the sens of the part of the applicant. § 26 para. 1 sentence 2 BDSG, whether this standard meets the requirements of EU law of Art. 88 GDPR is sufficient (cf. § 26 para. 1 sentence 1 BDSG: BAG 9. May 2023 - 1 ABR 14/22 - Rn. 62 ff. with reference to ECJ 30. March 2023 - C-34/21 - [Main Staff Council of Teachers] Rn. 65) and how their relationship to § 26 para. 3 BDSG is designed. The monitoring was also not necessary for the reasons mentioned iSv. § 26 para. 1 sentence 2 BDSG.
31
2. The plaintiff has - which the Landesarbeitsgericht assumed in a way that is not objectionable under revision law - an immaterial damage within the meaning of Art. 82 para. 1 GDPR.
32
a) The follow-up revision correctly points out that the existence of a "damage" is one of the three conditions for the in Art. 82 para. 1 GDPR, as well as the existence of a violation of the General Data Protection Regulation and a causal relationship between the damage suffered and the violation, whereby these three conditions must be cumulatively met (cf. ECJ 25. January 2024 - C-687/21 - [MediaMarktSaturn] Rn. 58; 14. December 2023 - C-340/21 - [National agency for private] Rn. 77; 4. May 2023 - C-300/21 - [Austrian Post] Rn. 32). The claim for damages has a compensatory function, in particular in the case of immaterial damage. The on art. 82 para. 1DSGVO is intended to make it possible to fully compensate for the damage suffered as a result of the violation of the General Data Protection Regulation, and does not serve a deterrent or punitive function (cf. ECJ 25. January 2024 - C-687/21 - [MediaMarktSaturn] Rn. 50; 21. December 2023 - C-667/21 - [Health insurance North Rhine] Rn. 87).
33
(b) With regard to the burden of proof and proof, the Court of Justice of the European Union has made it clear that the person who, on the basis of Art. 82 para. 1 GDPR requires compensation for non-material damage, must not only prove the violation of provisions of the General Data Protection Regulation, but also that it has incurred such damage as a result of this violation (cf. ECJ 11. April 2024 - C-741/21 - [juris] Rn. 35; 25. January 2024 - C-687/21 - [MediaMarktSaturn] Rn. 60 f.). The even short-term loss of control over personal data can be an "intangible damage" within the sement of Art. 82 para. 1 GDPR, which gives rise to a claim for damages, provided that the person concerned provides proof that he or she has actually suffered such damage - however minor it may be - (ECJ 11. April 2024 - C-741/21 - [juris] Rn. 42; 25. January 2024 - C-687/21 - [MediaMarktSaturn] Rn. 66). Negative feelings ("fear") can give rise to a claim for compensation for the immaterial damage. However, merely a vocation to a certain emotional situation is not enough. Rather, the court has to examine whether the feeling can be considered justified, taking into account the specific circumstances (ECJ 14. December 2023 - C-340/21 - [National agency for private] Rn. 85). This presupposes the application of an objective standard (BAG 20. June 2024 - 8 AZR 124/23 - Rn. 15).
34
c) The Landesarbeitsgericht rightly assumed that, according to the plaintiff's statement, the damage here was in the loss of control suffered by the surveillance and in particular in the loss of security from observation in the private environment. This presentation is not unsubstantiated, but relates to a surveillance lasting several days, which included a secret observation and assessment of the physical performance of the plaintiff and also concerned him in the outdoor area of his residential building. In such a constellation, the loss of control and the resulting fear of further surveillance are self-explanatory and do not require any further explanation (cf. Ehmann/Selmayr/Nemitz 3. Rel. GDPR Art. 82 Rn. 17; Spittka GRUR-Prax 2019, 475, 476; Kühling/Buchner/Bergt 4. Rel. GDPR Art. 82 Rn. 18c; on general personal rights BAG 19. February 2015 - 8 AZR 1007/13 - Rn. 29).
35
3. The amount of the according to art. 82 para. 1 GDPR has also been determined by the Landesarbeitsgericht free of revisible legal errors.
36
a) In the calculation of the height of the according to Art. 82 para. 1 GDPR, the national courts shall, in the absence of a provision in the General Data Protection Regulation, apply the national rules of the individual Member States on the scope of financial compensation, provided that the principles of equivalence and effectiveness of Union law are observed. Art. 82 para. 1 GDPR does not require that the severity of the fault of the controller or the processor be taken into account. The balancing function of the in Art. 82 para. 1 GDPR, it even excludes that any intentional violation of the General Data Protection Regulation is taken into account when assessing the compensation. However, the amount must be determined in such a way that it compensates in full for the damage suffered as a result of the violation of the General Data Protection Regulation (cf. ECJ 20. June 2024 - C-182/22, C-189/22 - [Scalable Capital] Rn. 27 ff. mwN).
37
b) In assessing the amount of damages to be made in accordance with these provisions, the courts of fact are entitled to the courts of fact in accordance with § 287 para. 1 ZPO a wide margin of discretion within which they have to take into account the special features of each individual case. The determination is subject only to limited review by the Court of Appeal (cf. BAG 20. June 2024 - 8 AZR 124/23 - Rn. 16; 5. May 2022 - 2 AZR 363/21 - Rn. 16).
38
c) The judged amount of a total of EUR 1,500.00 is also appropriate, taking into account the newer case law of the Court of Justice of the European Union, which the Landesarbeitsgericht could not know at the time of its decision. The incorrect assumption of a deterrent function of the claim for damages, from which the appeal also assumes, has no effect in the result. The Landesarbeitsgericht has comprehensibly focused on the observation and photography of the plaintiff in his private environment, on the temporal dimension and on the collection of health data. In favor of the defendant, it appreciated that they did not give the detective report to third parties and that the plaintiff did not present further psychological burdens. Insofar as the appeal is based on the amount of the plaintiff's remuneration and the defendant's alleged intention to save personnel costs, the principle also applies in the present constellation that the immaterial damage according to Art. 82 para. 1 GDPR has no recognizable reference to the amount of remuneration due to the creditor (cf. BAG 5. May 2022 - 2 AZR 363/21 - Rn. 26). The arguments of the follow-up revision also do not show any revisible legal errors. Accordingly, the Landesarbeitsgericht did not take into account that the monitoring had only been carried out on a random basis and no "videos or similar more intervention-intensive recordings were created". However, the Landesarbeitsgericht has dealt with the intensity of the investigations in terms of time and technology. In this respect, the follow-up audit only makes a different assessment. However, it does not show a revisible legal error on the part of the Court of Appeal.
39
4. The judged interest with litigation interest (§ 291 BGB) since the 2nd September 2022, the revision did not reprimand, but made itself its own in the appeal procedure.
40
III. The decision on costs follows from § 92 para. 1 sentence 1, § 97 para. 1 ZPO.
