BAG on the scope of the right to copies of employees pursuant to Art. 15 DSGVO

On 27 April 2021, the Federal Labour Court (BAG, decision of 27 April 2021 - 2 AZR 342/20) dealt with the question of the extent to which an employer must provide its employees with copies of their personal data in the context of a request for information under Article 15(3) GDPR. 

The decision

The BAG is of the opinion that a claim for surrender of such copies - in the case in dispute, in particular of e-mails - must be specified. In the opinion of the BAG, the assertion of a claim for the surrender of copies of the data subject's email correspondence as well as emails that mention the data subject by name is not specific enough. The claim of employees as data subjects under data protection law according to Art. 15 (3) DSGVO is consequently limited to certain information according to a staged procedure.

The consequences

The BAG's decision has shed some light on the right to obtain copies under GDPR - at least in essential parts. The right to be provided with copies pursuant to Article 15 (3) of the GDPR is not unlimited, but only gives data subjects the right to examine the information pursuant to Article 15 (1) of the GDPR - in line with the protective purpose of the provision. In the future, data controllers, with the backing of the German Federal Labour Court, will be able to reject a claim for the surrender of copies if data subjects do not limit and specify the content of their claim - the requirement is the specificity for a possible enforcement of such a claim by a court. The surrender of copies is thus limited to the information that must be disclosed pursuant to Article 15 (1) and (2) of the GDPR. 

Background

The BAG's decision was preceded by a legal dispute in which an employee brought an action against his former employer for his claim to information and the surrender of copies under Article 15 GDPR (ArbG Hameln, judgment of 26 June 2019 - 3 Ca 24/19). After the legal dispute with regard to the claim for information under Art. 15(1), (2) of the GDPR was mutually declared settled by the parties, the claim for surrender of the copies under Art. 15(3) of the GDPR remained open. The Hameln Labour Court dismissed the action. The court of appeal (LAG Niedersachsen, judgment of 9 June 2020 - 9 Sa 608/19) ordered the employer to provide the employee with copies of the personal data - but only to a certain extent. The court limited the claim to the provision of copies to the scope that must be provided within the scope of the right to information under Article 15(1) and (2) of the GDPR, but not to complete data sets. In the case of larger amounts of data, data subjects must also specify which copies are to be provided. Furthermore, the claim does not include information that is already known to the data subject - in the case in question, this concerned the e-mail correspondence of the data subject himself, which was not to be provided as a copy.