View source for LAG Berlin-Brandenburg - 10 Sa 2130/19

===Holding===
Both courts decided that the employer had to remove the warnings issued towards the employee, and that the employee was not obliged to use the fingerprint system and therefore did not violate his duties. 

The courts first stated that the only possible legal grounds for the processing operation could be Articles 9(2)(a) or (b). As the employee clearly did not give his consent, the courts did not elaborate further on Article 9(2)(a). With regards, to article 9(2)(b), the first instance court (ArbG Berlin) carried out a three-step assessment, based on:

- the suitability of the biometric procedure for the purposes of the employment relationship
- whether there were less intrusive means of attaining the purpose
- a comprehensive weighing of interests

The court concluded that an employer's interest in biometric access control systems to areas with sensitive business, production, and development secrets would be more likely to prevail than in the context of a time-tracking system. Therefore, in this case the system was not considered to be necessary, despite the employer's claims that the system could make it more difficult for employees to manipulate the records of working hours. The employer could therefore not rely on Article 9(2)(b) GDPR.

The LArbG Berlin-Brandenburg also confirmed that the processing was not necessary in light of Article 9(2)(b) GDPR, and emphasised that the question of whether appropriate technical and organisational safeguards, such as pseudonymisation, are taken only comes up if the necessity of the processing operation is first affirmed and it is established that there are no conflicts with interests of the data subject worthy of protection. Furthermore, the court pointed to the fact that the employer had mentioned in July 2018 that there could still be a possibility to write down the working hours in case the fingerprint system will not work well, and that using another version of the system which does not process fingerprint data could also be possible.