Monitoring of works councils by data protection officer ruled inadmissible

On 11 November 1997, the German Federal Labour Court ruled that the monitoring of works councils by a company's data protection officer is inadmissible.

On 11 November 1997, the first Senate of the German Federal Labour Court (Bundesarbeitsgericht, BAG) ruled that the monitoring of works councils by a company's data protection officer is inadmissible (Decision 1 ABR 21/97 of 11 November 1997).

In the case in question, the BAG had to decide whether an employer could require the company works council to be monitored by the company's data protection officer, appointed according to the Federal Data Protection Act (BDSG, Bundesdatenschutzgesetz). The works council in the case uses electrical data processing (EDP) facilities for processing information on personnel. It resisted the monitoring of their EDP by the data protection officer on the grounds of its independent position. The first-instance Labour Court ruled against the employer, while the second-instance Regional Labour Court ruled against the works council.

The main reason the BAG gave for its ruling was that the monitoring and control of the works council by the data protection officer was not in conformity with the independence of the works council required by the Works Constitution Act (Betriebsverfassungsgesetz). The data protection officer does hold a neutral position between employer and works council, but has to be classified as related to the employer. The Federal Data Protection Act should not be interpreted in a way that it tacitly gives the data protection officer monitoring rights which would restrict the independence of the works council.