IP case law Court of Justice

Referral C-534/20 (Leistritz, 21 Oct 2020)



Is the second sentence of Article 38(3) of Regulation (EU) No 2016/679 (General Data Protection Regulation; GDPR) to be interpreted as precluding a provision in national law, such as Paragraph 38(1) and (2) in conjunction with the second sentence of Paragraph 6(4) of the Bundesdatenschutzgesetz (Federal Law on data protection; ‘the BDSG’), which declares ordinary termination of the employment contract of the data protection officer by the data controller, who is his employer, to be impermissible, irrespective of whether his contract is terminated for performing his tasks?

If the first question is answered in the affirmative:
2. Does the second sentence of Article 38(3) GDPR also preclude such a provision in national law if the designation of the data protection officer is not mandatory in accordance with Article 37(1) GDPR, but is mandatory only in accordance with the law of the Member State?

If the first question is answered in the affirmative:
3. Is the second sentence of Article 38(3) GDPR based on a sufficient enabling clause, in particular in so far as this covers data protection officers that are party to an employment contract with the data controller?


Case details on the CJEU website (external link)


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