Can A Works Council Chair Also Be The Data Protection Officer?

Back in 2011, a German court ruled that works council membership did not necessarily preclude serving as data protection officer. The same court, after referring the question to the European Court of Justice, has now changed tack, ruling that the two offices are incompatible.

Under the German Data Protection Act, employers with more than 20 employees which conduct automated processing of personal data must appoint a data protection officer ('DPO'). These conditions are easily satisfied in many companies due to the use of IT systems in areas like HR, marketing and sales. In SMEs, however, there may not be many suitable candidates for the DPO position. Members of works councils are therefore often considered for the role. In a recent ruling (not yet been published in full), the German Federal Labour Court ('BAG') has decided that the chair of the works council is not eligible to serve as DPO.