X-FAB Dresden (C-453/21): When Do Other Duties Make a DPO Conflicted?

When they decide purposes and means. The EU Court of Justice held that a conflict of interest exists where a DPO’s other tasks lead them to determine the purposes and means of processing, a case-by-case question for the national court. Member States may also give DPOs stronger dismissal protection.

Case Summary

Key facts
CourtCourt of Justice of the European Union
CaseC-453/21, X-FAB Dresden GmbH & Co. KG v FC
Referred byGermany’s Federal Labour Court
Judgment9 February 2023
FineNone (preliminary ruling on interpretation)
ProvisionsArt. 38(3) and 38(6)

Background

X-FAB’s DPO, appointed in 2015, also chaired the local works council and was vice-chair of the central works council. At the request of the Thuringian data protection authority, X-FAB and its group companies dismissed him as DPO. He challenged the dismissal, and the lower German courts sided with him (Hunton Andrews Kurth).

What the Court Decided

The judgment sets out Recital 97 in its legal context (judgment). Member States may give DPOs stronger dismissal protection, such as a “just cause” rule, provided it doesn’t undermine the GDPR’s objectives. A conflict of interest exists where other tasks lead the DPO to determine the purposes and means of processing. Whether that applies is a case-by-case assessment for the national court (Reed Smith). The court took a similar line on dismissal protection in C-534/20 (Leistritz) in June 2022.

Timeline

X-FAB Dresden: from appointment to CJEU judgment (positions scaled to actual elapsed time)
2015
DPO appointed
27 Apr 2021
Federal Labour Court refers
9 Feb 2023
CJEU judgment

Amber marks the decisive decision or ruling.

Timeline of events
DateEvent
X-FAB appoints the employee as DPO
Germany’s Federal Labour Court refers questions to the CJEU
The Court of Justice rules in C-453/21

What could have been done differently

Assess the conflict question before appointing, not after. Once a DPO is in post, national dismissal protection can make it much harder to unwind a poor appointment.

Frequently Asked Questions

When does a DPO have a conflict of interest?

According to the CJEU in C-453/21, where other tasks lead the DPO to determine the purposes and means of processing. Whether that applies is a case-by-case assessment for the national court.

Can Member States make it harder to dismiss a DPO?

Yes. The Court held that Member States may give DPOs stronger dismissal protection, such as a “just cause” rule, provided it doesn’t undermine the GDPR’s objectives.

Why does X-FAB matter for Recital 97?

The judgment sets out Recital 97 in its legal context when interpreting the independence and conflict rules in Article 38.

Appointing or replacing a DPO? Get the conflict check done first, while it’s still easy to change course.

Talk to a DPO

Sources

  • CJEU, Case C-453/21 X-FAB Dresden GmbH & Co. KG v FC, judgment of 9 February 2023 (copy hosted by the Hellenic DPA)
    collab.dpa.gr
  • Hunton Andrews Kurth, CJEU clarifies rules on conflict of interest in relation to DPO role
    hunton.com
  • Reed Smith, CJEU rules on DPO conflicts of interest under the GDPR
    reedsmith.com
  • Simmons & Simmons, on C-534/20 (Leistritz)
    simmons-simmons.com
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