Why “all correspondence“ is not sufficiently concrete

In a decision dated 27 April 2021 (docket no. 2 AZR 342/20), the German Federal Labour Court has dealt with a claim raised by a former in-house lawyer for copies of all e-mails under Art. 15 (3) of the General Data Protection Act (“GDPR”). Referring to Sec. 253 (2) no. 2 of the German Code of Civil Procedure, the court refused the claim of the data subject who had been employed for one month and decided that a statement of claim in German civil proceedings must contain exact information not only on the subject matter and grounds for filing the claim, but also with regards to the petition for specific documents. A petition for copies of “all correspondence” was too vague.

The reason for the strict procedural requirement set out in the Code of Civil Procedure is that the petition defines the potential judgment which must be enforceable. If the judgment in itself would be too vague, the claim could not be effectively enforced, rendering the judgment useless.

As a consequence, the only way the data subject would have been able to enforce his claim in front of the court would have been to precisely describe the copies that he wanted to obtain.

It had been expected that the Federal Labour Court would also decide whether or not Art. 15 of the GDPR was to be construed as meaning that employers would indeed have to provide copies of all e-mails – a monumental task, specifically in cases of long employment relationships – but given the nonfulfillment of the procedural requirement for a sufficiently precise claim, the court did not (have to) deal with this question.

This recent decision can be seen as part of a new trend in Germany where dissatisfied employees, former employees and unsuccessful applicants have been requesting not just information about the processing of personal data in accordance with Art. 15 (1) of the GDPR, but also copies of all documents related to them.

Whether the court’s decision, which will make it extremely difficult for data subjects to obtain copies of all correspondence, will hinder data protection authorities from issuing administrative fines, is a different question and will remain to be seen.