If employers and works councils agree on ‘more specific rules’ in a works agreement regarding the processing of employees’ personal data in the employment context (Art. 88 (1) GDPR), these must take into account the general data protection principles, including the lawfulness of processing (Art. 5, Art. 6 and Art. 9 GDPR), according to the European Court of Justice (ECJ). In addition, such a works agreement is comprehensively subject to review by the courts; any scope for discretion that is not subject to judicial review must be rejected (Decision of 19 December 2024, case no. C-65/23).
The case
The employer had initially concluded a temporary works agreement with the works council formed at the company and later a works agreement on the use of the software ‘Workday’ with the works council. This works agreement provided, inter alia, that specifically identified employee data may be transferred to a server of the parent company in the US. An employee brought an action before the Labour Court for access to certain information, for the deletion of data concerning him and for damages. He argued, among other things, that his employer had transferred personal data concerning him to the parent company’s server, some of which were not specified in the toleration works agreement. Since he did not fully prevail before the Labour Court, the employee appealed to the Federal Labour Court (BAG). The BAG referred three questions to the ECJ for a preliminary ruling.
General requirements...
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