No Claim for Damages for Breach of the Obligation to Provide Information pursuant to Art. 15 GDPR?

The Regional Labour Court (LAG) of Düsseldorf has dismissed the entirety of a claim by a former employee for payment of damages under Art. 82 GDPR for delayed and initially incomplete data information under Art. 15 GDPR (judgment of 28 November 2023, file no. 3 Sa 285/23). In the first instance, the Duisburg Labour Court ruled that the plaintiff was entitled to damages in the amount of EUR 10,000 (judgment of 23 March 2023, file no. 3 Ca 44/23).

The LAG Düsseldorf considered the late and initially incomplete information to be a breach of Art. 12 Para. 3 GDPR and Art. 15 GDPR, but that this did not give rise to a claim for damages under Art. 82 Para. 1 GDPR. According to the LAG Düsseldorf, a mere breach of the duty to provide information under Art. 15 GDPR does not fall within the scope of Art. 82 GDPR. Liability under the provision requires data processing in breach of the GDPR. A mere breach of the duty to provide information does not meet these requirements. In addition, there is no non-material damage that could give rise to a claim for damages under Art. 82 Para. 1 GDPR. The loss of control over his personal data alleged by the plaintiff in the proceedings is not sufficient in this regard.

Employees must prove actual damage

With regard to the requirement of concrete non-material damage, the European Court of Justice (ECJ) recently clarified that the mere violation of the provisions of the GDPR is not sufficient to justify a claim for damages. Rather, the affected person must have actually suffered damage as a result of the breach (ECJ, judgment of 4 May 2023, file no. C-300/21).

Claim for damages for breach of the duty to provide information remains undetermined

However, the question of whether a breach of the obligation to provide information under Art. 15 GDPR can give rise to a claim for damages under Art. 82 Para. 1 GDPR has not yet been decided by the highest courts. The ECJ, which is responsible for ruling on the interpretation of the GDPR, has not yet ruled on the issue. The German Federal Labour Court has recently at least indicated doubts as to whether a breach of Art. 15 GDPR falls within the scope of Art. 82 GDPR at all (BAG, judgment of 5 May 2022, Ref.: 2 AZR 363/21).

Loss of the right to information as a means of pressure for the employee?

The lack of a claim for damages in the event of breaches of the duty to provide information under Art. 15 GDPR would have a significant impact on employment law disputes between employees and employers. The right to information under data protection law is a common means of pressure used by employees, particularly in the context of unfair dismissal proceedings. This would become largely obsolete in the absence of a claim for damages.

It remains to be seen how case law will deal with this issue in the future. In the meantime, the LAG Düsseldorf has allowed the appeal against the Duisburg Labor Court's judgment.