On February 9, 2023, the Court of Justice of the EU (“CJEU”) released two separate rulings on the dismissal of data protection officers (“DPOs”) under the German Federal Data Protection Law (“German DPL”) (C-453/21 and C-560/21). The main question in both cases was whether Section 6(4) of the German DPL which permits the dismissal of a DPO with “just cause” is compatible with the GDPR. In short, the CJEU (i) found that the provision was compatible with the GDPR because EU member states can use “just cause” as a threshold for dismissal as long as this does not undermine the objectives set for DPOs under the GDPR, and (ii) clarified the criteria EU member states should take into account to determine whether there is a conflict of interest.
The CJEU rulings concerned DPOs who were employed at German companies and dismissed “for just cause” from their respective DPO positions due to conflicts of interest concerns. In one case, the DPO was simultaneously chair of the company’s works council. In the other case, there was a perceived incompatibility with the DPO’s other professional responsibilities at the company (which the judgment does not disclose). Importantly, the DPOs had not been dismissed because of the way they performed their duties and tasks as a DPO.
The term “just cause” is used in the German Civil Code to refer to situations where it cannot be reasonably expected for the employment contract to continue as normal, i.e., until the end of the notice period or until the agreed termination date, taking into account all the circumstances of the individual case and weighing the interests of both parties. This requirement goes beyond the provision in Article 38(3) GDPR, which provides that the DPO “shall not be dismissed or penalized by the controller or the processor for performing his tasks.”
Continue Reading Court of Justice of the EU Clarifies Rules on Data Protection Officers’ Dismissal and Conflicts of Interest