A case for gourmets: a former employee allegedly sold company property on eBay without permission. The company gains access to the woman's private eBay account and then sues her for damages. The Higher Labor Court of Lower Saxony is now asking itself whether it may use the evidence obtained at all within the meaning of the ZPO - or whether it is in breach of the GDPR. This is now to be decided by the ECJ.
Ex-employee allegedly sold company property on eBay
In the case pending before the Higher Labor Court of Lower Saxony (case reference: 8 Sa 688/23), the plaintiff company is claiming damages of around 46,000 euros from the employee who left the company.
The company, a heating and air conditioning company, claims that the ex-employee sold items from the company's private property to third parties via eBay without authorization and enriched herself from the proceeds. "The plaintiff bases her findings about the sales transactions on the fact that the defendant accessed her private eBay account without her knowledge or consent," explained the LAG in a statement.
A piquant fact: the defendant is married to the managing director of the company, but the couple live separately. How the company obtained the defendant's ebay user name and the corresponding password is disputed between the parties.
Does the ZPO need a GDPR update?
The 8th Chamber of the Higher Labor Court of Lower Saxony has now referred the case to the Court of Justice of the European Union (CJEU) for a preliminary ruling.
Main reason: In its judgments of March 24, 2022 - C-245/20 - (Autoriteit Persoonsgegevens) in para. 25 and of March 2, 2023 - C-268/21 - (Norra Stockholm Bygg AB) in para. 26, the Court of Justice made it clear that judicial activity, insofar as data is processed, also falls within the scope of the General Data Protection Regulation (GDPR). Therefore, the LAG now wants the ECJ to answer the following two questions in particular:
- In the case of an independent judicial processing activity falling under Art. 6(1)(e), (3) GDPR, do the provisions of national (procedural) law satisfy the requirement of certainty arising from Art. 8(2), Art. 52(1) CFREU and Art. 5(1)(c) GDPR if the judicial processing activity involves interference with fundamental rights for a party or a third party? c GDPR if the judicial processing activity involves interference with fundamental rights for a party or a third party?
- When processing data - in particular personal data - can a national court rely on the fact that this processing is permitted under Article 17(3)(e) GDPR, or do Articles 6 and 9 GDPR constitute the exclusive basis for judicial processing activities?
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LAG has reservations about BAG ruling
The first question referred is intended to clarify whether the provisions of German civil procedural law are sufficiently specific and have the necessary depth of regulation to meet the requirements of the GDPR.
The Court is also asked which of the GDPR's standards apply to judicial data processing activities and which legal principles must be observed by the courts.
In its ruling of 29.6.2023 - 2 AZR 297/22, the 2nd Senate of the Federal Labor Court stated that the processing of personal data by a court can be considered even if the pre- or extrajudicial collection of this data by a litigant is unlawful under the GDPR or national data protection law.
However, the judges of the LAG have reservations about this case law and are asking the ECJ for clarification.
"The ECJ's answer to the questions can be helpful beyond the specific case in all cases in which the national courts have to assess whether and under what conditions knowledge and evidence that a party introduces into the legal dispute that may have been obtained unlawfully can be used by them," the LAG explains in its communication.
The proceedings are being conducted by the Court of Justice of the European Union under case number C-484/24.
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