Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 21 July 2021 – X-FAB Dresden GmbH & Co. KG v FC
(Case C-453/21)
Language of the case: German
Referring court
Bundesarbeitsgericht
Parties to the main proceedings
Defendant, appellant in first appeal and appellant on a point of law: X-FAB Dresden GmbH & Co. KG
Applicant, respondent in first appeal and respondent in the appeal on a point of law: FC
Questions referred
Is the second sentence of Article 38(3) of Regulation (EU) 2016/679 1 (General Data Protection Regulation; ‘the GDPR’) to be interpreted as precluding a provision in national law, such as, in the present case, Paragraph 38(1) and (2) in conjunction with the first sentence of Paragraph 6(4) of the Bundesdatenschutzgesetz (Federal Law on data protection; ‘the BDSG’), which makes dismissal of the data protection officer by the controller, who is his employer, subject to the conditions set out therein, irrespective of whether such dismissal relates to the performance of his tasks?
If the first question is answered in the affirmative:
Does the second sentence of Article 38(3) of the GDPR also preclude such a provision in national law if the designation of the data protection officer is mandatory not in accordance with Article 37(1) of the GDPR, but only in accordance with the law of the Member State?
If the first question is answered in the affirmative:
Does the second sentence of Article 38(3) of the GDPR have sufficient legal basis, in particular in so far as it covers data protection officers that have an employment relationship with the controller?
If the first question is answered in the negative:
Is there a conflict of interests within the meaning of the second sentence of Article 38(6) of the GDPR if the data protection officer also holds the office of chairman of the works council established at the controlling body? Must specific tasks have been assigned within the works council in order for such a conflict of interests to be assumed to exist?
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1 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1).