The German Federal Labour Court refers questions on damages pursuant to Art. 82 GDPR and on the legitimacy of data processing based on a collective agreement to the ECJ

On 22 September 2022, the Federal Labour Court (Bundesarbeitsgericht – BAG) issued an interim ruling (8 AZR 209/21) referring to the European Court of Justice (ECJ) critical questions on data protection for preliminary ruling by the ECJ. These questions relate to two topics:

1. The requirements and calculation of claims for intangible damages pursuant to Art 82 (1) GDPR.
2. To what extent the parties to a collective agreement, like a German Shop Agreement (Betriebsvereinbarung) may use discretion on determining how specific data processing may be legitimate and to what extent such agreements are subject to judicial review.

Requirements for damage claims under Art. 82 (1) GDPR

In doing so, the Federal Labour Court summarised the following questions in its order for referral:

• Does the claim for compensation for non-pecuniary damage under Article 82 (1) of the GDPR require that, in addition to the infringement of privacy rights, the data subject must demonstrate a concrete damage – of some weight – suffered by him or her also in case of non-pecuniary damages (such as the actual loss of control over data)?
• Does Article 82 (1) GDPR have a special or general…