Germany
However, in March 2023, the CJEU ruled that a virtually identical state law (§ 23 HDSIG – Hesse Data Protection Act) was not a valid “specific measure” under Article 88 GDPR, as it merely repeated the Regulation’s legal bases. In May 2023, the Federal Labor Court (BAG) held that § 26 BDSG is likewise incompatible with EU law and therefore inapplicable. Employers must thus rely directly on the GDPR legal bases (primarily Art. 6(1)(b) GDPR). In response, the Federal Government revived work on a dedicated Employment Data Protection Act. A draft framework (April 2023) and ministerial draft (October 2024) propose: clearer rules on monitoring in the workplace (open/secret), on the use of Artificial Intelligence in HR, an expanded scope (possibly covering platform workers), specific provisions for recruitment processes, rules on intra-group data transfers, and explicit conditions for voluntary employee consent. As of early 2025, no final law has been enacted, leaving employers in legal German regulators, via the DSK, regularly publish guidance papers. In May 2024, the DSK issued an extensive guidance paper on Artificial uncertainty. Regulatory guidance: Intelligence and Data Protection, setting out criteria for GDPR- compliant AI deployment. It addresses issues such as lawful bases for training data, transparency obligations, and safeguarding rights against automated decisions.
Another hot topic is online tracking and advertising. In March 2023, the DSK issued a resolution on so-called “Pur subscription models” (pay-or- consent), stressing that consent must remain genuinely voluntary. In January 2024, the Cologne Higher Regional Court ruled that cookie banners must provide equally visible “accept” and “reject” options – a hidden or complicated “reject” button is unlawful. Regulators also report growing complaint volumes, especially against Big Tech providers such as Meta and Google. German authorities have aligned their fine calculation method with the EDPB fining guidelines since 2023.
www.omf-law.com
Made with FlippingBook - PDF hosting