1. If an employer wishes to check the e-mail correspondence of non-executive employees on the basis of allegations against the management in the context of an internal investigation, he must obtain the prior consent of the works council in accordance with § 87(1) No. 6 BetrVG.
2. If the employer violates the right of co-determination, the works council may claim from him information on the names of the workers concerned, the notification of the personal cause for their review and future omission.
3. In addition, in order to eliminate the consequences of non-codetermination, the Works Council may require that the employer engage third parties entrusted with the investigation to delete the data forwarded to them and destroy printouts.
4. The removal claim of the works council does not exist, as far as the employer has a legitimate interest in the utilization of the data in a legal dispute. Otherwise, the right to dispose of the goods would be subject to a prohibition on the use of evidence which cannot be the subject of effective operational regulation nor can it be enforceable with the right to dispose of the goods under industrial law.
Regional Labour Court Cologne, 9 TABV 125/18 of 19.07.2019
..
I. On the employer's complaint, the decision of the Cologne Labour Court dated 26.06.2018, Az. 16 BV 327/17, partially amended.
The request for 2nd is rejected.
II. Furthermore, the employer's complaint is rejected.
III. The appeal shall be admissible for both parties.
1
G r e s
2
I.
3
The employer operates Airport K and regularly employs approx. 1,800 employees.
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On 25 June 2010, it concluded with the 19-member works council formed by it a framework operating agreement for the introduction and application of information and communication technology systems (ICT systems), which reads as follows:
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§ 10 Performance and behavioural control, employee/internal data protection
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(…)
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2. 8
Performance and behavioural controls i. S. d. § 87 (1) No 6 BetrVG are inadmissible.
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Derogations from this may be regulated in separate operating agreements.
10
(…)
11
5. 12
The BDSG, in particular § 32 BDSG, shall apply to control measures for the prevention of irregularities and criminal offences in its current version. In the event of a threat to safety, which requires immediate action, the information of the works council shall be provided retrospectively and without delay.
13
According to § 32 para. 1 p. 2 BDSG may only take control measures for the detection of criminal offences if actual evidence to be documented gives rise to suspicion that the person concerned has committed an offence in the employment relationship which is necessary to collect, process or use personal data for the detection and does not outweigh the employee's legitimate interest in excluding the collection, processing or use, in particular the nature and extent of the cause.
14
(…)
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11. 16
If externals are entrusted with the collection, processing or use of employee-related data, compliance with applicable agreements and laws shall be contractually ensured.
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(…)
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§ 12 Monitoring
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The works council shall at any time, upon request, provide the information and documentation necessary to monitor compliance with this agreement. It shall be granted access to ICT systems at any time upon request.
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In accordance with § 4 of the framework business agreement 01/2015 for the use of communication systems, the employer tolerates the private use of the service e-mail account insofar as service concerns are not affected, the technical resources are only burdened to a small and negligible extent and thus the employer does not incur any additional costs.
21
In autumn 2017, the employer investigated allegations against its former managing director G, who had since left the company. According to local press reports, the airport was alleged to have overpaid a freight company for leased premises and to have settled that company’s invoices without receiving services in return. Employees were alleged to have been released from their duties for an extended period. It was also alleged that a privately rented aircraft had been paid for at too low a rate. At an extraordinary meeting on 09.11.2017, the employer’s supervisory board decided to suspend managing director G and conduct internal investigations with the assistance of law firm H and audit firm E. During the investigation, the employer reviewed electronic correspondence involving management, senior executives and other employees and passed it to the law firm and the audit firm.
22
On 29.11.2017, the works council received an e-mail from the employer's data protection officer. In this e-mail, the Data Protection Officer stated that the data protection review he carried out did not raise any objections to the transfer of the data to E.
23
On 27.12.2017, the Works Council submitted this decision-making procedure to the Cologne Labour Court, with which it asserts a claim for information regarding the data collected and forwarded, requests the deletion and destruction of these data as well as the omission of access to the electronic correspondence of employees. In order to justify the applications, the works council held that it had a right of co-determination in accordance with § 87 para. 1No. 6 BetrVG, which it had not exercised in the final stage of the framework operating agreement.
24
The works council has requested:
25
26
1. to give up the employer, to inform him of the names and personal reasons of the employees, with the exception of the senior employees, whose electronic correspondence – e-mails – were checked, secured and evaluated by him in connection with the internal investigation of the operations of the former managing director, Mr. G , or forwarded for evaluation to the law firm H and the Wirtschaftsprüfungs GmbH E.
27
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2. give up the employer, cause the data transferred to the law firm H and the E Wirtschaftsprüfungs-GmbH within the meaning of the application to 1. including their evaluations at the law firm H and the E Wirtschaftsprüfungs-GmbH are physically deleted and destroyed.
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3. to abandon the employer, to refrain in future from monitoring the electronic correspondence (e-mails) of workers, with the exception of senior employees, within the framework of internal investigations initiated by her, to secure and evaluate the data and to forward it to third parties for the purpose of evaluation, without first requesting his consent and, in case of refusal of consent, to bring about a decision of the unit, unless there are risks of security threats that make immediate action necessary.
31
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4. the employer in any case of infringement of the obligation to cease to exist as set out in point 3, to threaten an ordinary allowance up to EUR 10,000.–
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The employer has requested that:
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reject the applications.
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It considered the applications to be inadequate and held that the works council had already exercised its right of co-determination in section 10, point 5 of the framework agreement. In addition, the right of codetermination does not include manual transmission and evaluation by third parties as well as the elimination of consequences in the sphere of third parties. In any event, she, the employer, could not guarantee the complete deletion of the data in question by the third parties responsible for the investigation. The works council was not entitled to a claim for information either because it had not taken sufficient precautions to ensure data protection in respect of the requested information.
36
The Labour Court granted the applications by a decision announced on 26 June 2018 and essentially justified this as follows: The Works Council had against the employer a right to provide the requested information in accordance with § 80 para. 2 sentence 1 BetrVG for the performance of its tasks under the Works Constitution Act. The supervisory task of the works council according to § 80 para. 1 No. 1 BetrVG extends to compliance with the data protection regulations by the employer in particular in connection with the evaluation of the service and permitted private emails. The tasks of the works council also included the exercise of the right of co-determination under § 87 (1) No. 6 BetrVG and the enforcement of disposal claims after a violation of this right of co-determination. Accordingly, the works council was entitled to dispose of the situation which had occurred contrary to co-determination because of the infringement of its right of participation. In the event of a breach of § 87 para. 1 no. 6 BetrVG, this claim covers the erasure of unlawfully collected and transferred data to third parties. Finally, the works council could require the criminally-reinforced in future failure to monitor, secure, evaluate and forward electronic correspondence of workers within the framework of internal investigations as long as the co-determination procedure was not carried out and completed.
37
The decision was notified to the employer on 04.12.2018. Their appeal against it was received by the Landesarbeitsgericht on 20.12.2018 and, after extending the period of grounds for appeal until 04.03.2019, they were substantiated with a written statement received on 01.03.2019.
38
The employer believes that the proposals of the works council are too vague. In any case, they are unfounded. There was no task for the works council to carry out which it had to rely on the requested information. The works council exercised its right of co-determination by concluding the framework operating agreement. Even in the event of a breach of § 87 (1) point 6 BetrVG, the works council could only require an elimination of consequences in the form of the removal of the monitoring facility. A right to erasure the personal data is, at best, up to the workers themselves. It would amount to an inadmissible prohibition on the use of evidence if it were prevented from prohibiting its attorneys' representatives from exploiting the transmitted.
39
The employer requests that:
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the decision of the Cologne Labour Court of 26 June 2018, Az. 16 BV 327/17, to amend and reject applications.
41
The works council shall request:
42
the employer's complaint against the decision of the Cologne Labour Court dated 26.06.2018,Az. 16 BV 327/17, reject.
43
He defends the labour court's decision by deepening his substantive presentation.
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In view of the further details of the state of play and of the dispute, reference shall be made to the grounds of the contested decision, to the pleadings exchanged during the appeal procedure, to the documents filed and to the minutes of the proceedings.
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II.
46
The employer's admissible complaint is only partially justified.
47
1.) The Labour Court correctly ordered the employer, in accordance with application 1, to inform the works council of the names of the non-executive employees whose electronic correspondence had been reviewed, secured, evaluated or forwarded for evaluation to law firm H and audit company E during the internal investigation concerning former managing director G, and of the individual reason for doing so.
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(a) Contrary to the employer's opinion, the application is not inadmissible in the absence of sufficient certainty.
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aa) In the decision-making procedure, an application must be determined in the same way as in the judgment proceedings. § 253 para. 2 No. 2 ZPO is applicable to the decision-making procedure and the requests made in it accordingly. The subject-matter of the proceedings must be identified in such a way that the actual issue of dispute between the parties can be decided with legal effect (BAG, Beschluss vom 3. Mai 2006 – 1 ABR 63/04 –, Rn. 16, juris). An judgment debtor must know what is required of him. The concrete nature of the duties of conduct must not be transferred to the enforcement proceedings (BAG, Beschluss vom 9. Juli 2013 – 1 ABR 17/12 –, Rn. 14, juris; HWK/Treber, 8. Aufl. 2018, § 81 ArbGG, Rn. 2).
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(bb) The claim for information referred to in the request for (1) satisfies these requirements.
51
(1) According to its wording, the application covers the names of all non-conducting workers whose e-mails have been verified, secured, evaluated or forwarded for evaluation by the employer in connection with the internal investigation to the law firm H and the auditing company E. These are not only the names of the employees whose e-mail mailboxes were evaluated, but also the names of those workers who sent an e-mail to the suspects that was verified by the employer. These e-mails were also checked by the employer in connection with the internal investigation.
52
(2) The desired communication of the requested personal occasion is also adequately determined. The employer shall inform the works council of why it has examined the e-mails of the worker concerned. The response expectation is thus clearly identifiable, namely either the notification that the employee himself was suspected and/or that his e-mail has been found in a suspicious employee's e-mail mailbox.
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(3) Finally, it is clear from the application that the conditions set out in the application "revealed, secured, evaluated or forwarded for evaluation (...)" only have to be alternatively available. In this way, the number of employees whose names are to be the subject of information has been very widened. However, this does not lead to the indeterminate nature of the application and only corresponds to the fact that the number of employees involved in the investigation was correspondingly large.
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(b) the request for 1. shall also be justified. As the Labour Court has correctly recognized, the claim is based on § 80 para. 2 sentence 1 ArbGG. He also finds his support in § 12 of the framework operating agreement, according to which the information and documentation required for monitoring compliance with this operating agreement must be provided to the works council at any time upon request.
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aa) According to § 80 para. 2 sentence 1 BetrVG, the works council must be informed in good time and comprehensively by the employer in order to carry out its tasks under the Works Constitution Act.
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1. This obligation shall be accompanied by a corresponding right of the works council to the extent that the requested information is required for the performance of tasks. The requirement for entitlement is that there is a task at all by the works council and, on the other hand, that the requested information is required to carry out the task (BAG, decision of 7 February 2012 – 1 ABR 46/10 –, BAGE 140, 350-361, Rn. 7; BAG, Decision of 30 September 2008 – 1 ABR 54/07 –, BAGE 128, 92-101,Rn. 28). Since the information claim is strictly task-bound and is determined in its scope by the necessity principle, the works council must point out the specific rules to which it has to monitor and which are intended to carry out its request for information. Only in this way can the employer and, in the event of a dispute, the labour court check whether the requirements of an obligation to provide information as well as a corresponding claim for information are met (BAG, decision of 9 April 2019 – 1 ABR 51/17 –, Rn. 12,13 juris).
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(2) This has been done by the works council. For, on the one hand, he wants to check in accordance with § 80 para. 1 No. 1 BetrVG whether the employer has complied with its statutory requirements. On the other hand, he invokes a right of codetermination in social matters under § 87 (1) No. 6 BetrVG.
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(2.1) The Federal Data Protection Act (BDSG) and the EU General Data Protection Regulation (GDPR) are also part of the laws and regulations in force for the benefit of employees within the meaning of § 80 (1) No. 1 BetrVG. Because the task of data protection is to counteract the impairment of legitimate interests of the data subject by protecting their personal data from misuse during their processing. Since the employer is granted the right to process personal data of his employees within the framework of the employment contract purpose, the provisions that specify the way in which data processing is to be used for protection against misuse are standards intended to benefit the workers concerned. They specify the provisions of Section 75(2) BetrVG concerning the company constitution, according to which employers and works councils should protect and promote the free development of the personality of employees employed in the company. The works council must therefore ensure that the data protection regulations are observed when processing personal data in the company (BAG, decision of 17 March 1987 – 1 ABR 59/85 –, BAGE 54, 278-297, Rn. 26).
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2.1.1. The verification of when an employee has written an e-mail and the information he has provided to third parties is always a collection, recording, sorting, storing or reading of data iSv. Art. 4 No. 2 GDPR. Such data processing is subject to a prohibition with reservation of permission (Fuhlrott/Oltmanns, NZA 2019, 1105). Even the BDSG aF. was conceived as a "prohibition law with reservation of permission". Even according to Art. 6 GDPR, data processing is only lawful if a permit is fulfilled. Both in accordance with § 32 para. 1 sentence 2 of the BDSG as applicable until 24 May 2018 and according to § 26 para. 1 sentence 2 of the BDSG as currently valid, personal data of employees for the detection of offences may be processed only if actual evidence to be documented gives rise to suspicion that the person concerned has committed an offence in the employment relationship, processing is necessary for detection and the legitimate interest of the employee or employees in the exclusion of processing is not outweighed, in particular the nature and extent of the cause is not disproportionate. If an e-mail has been received in an employee's mailbox and is then visible or stored there, the employer must therefore respect both the general limitations of the BDSG concerning personality and data protection law (Quangel, Internal Investigations, NZA 2017, 1494, 1496 f.) as well as the co-determination right of the works council (Grobys/Panzer-Heemeier, keyword comment labor law, electronic communication means, 3rd edition, Edition 8, paragraph 43).
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(2.1.2) The works council also has a claim for information under § 80 para. 2 sentence 1 BetrVG, because the processing of personal data of employees tasks for the co-regulation of data processing according to § 87Abs. 1 point 6 of the BetrVG. The technical identification of information on workers entails the risk that workers will be made the object of a monitoring technique which collects, stores, links and makes visible personal or performance-related information. The resulting risks to employees' personal rights are to be countered by co-determination (BAG, Beschluss vom 13. Dezember 2016 – 1 ABR 7/15 –, BAGE 157, 220-229, Rn. 21). In this case, the employer carried out such monitoring by means of a technical body. To this extent, it is not necessary that the data on the behaviour or performance of the individual employee be collected by the technical institution itself and "automatically". In fact, it is sufficient to trigger the co-determination principle that e-mails, as here, had been sent to storage and access and that the employer had accessed them (vgl. BAG, Beschluss vom 13. Dezember 2016 – 1 ABR 7/15 –, BAGE 157, 220-229, Rn. 41).
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(2.2) The knowledge of which e-mails the employer has verified, secured and evaluated on what personal occasion or forwarded to the law firm H and the Wirtschaftsprüfungs-GmbH E for evaluation is therefore a prerequisite for the examination of the data protection admissibility of this monitoring measure according to § 32 para. 1 sentence 2 BDSG aF. and § 26 para. 1 sentence 2 BDSG. The collection of the relevant information is one of the control tasks of the works council.
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bb) The claimed claim for information also arises directly from § 12 of the framework operating agreement, according to which, upon request, the works council must at any time provide the information and documentation necessary for monitoring compliance with this agreement. A company agreement, like any standard contract, also has culpable effects between the employer and the works council, which must be asserted in the labour court decision procedure (Fitting, 29. Aufl. 2018, § 77 BetrVG, Rn. 50, 51). § 12 Sentence 1 of the framework business agreement is such a legal claim basis in which the obligations of the employer are regulated and whose fulfilment the works council can claim directly on the basis of this agreement, but in any case in conjunction with § 77 para. 1 sentence 1 BetrVG. In accordance with this provision, the works council may require the employer to implement all the agreements reached (BAG, Beschluss vom 10. November 1987 – 1 ABR 55/86 –, BAGE 56, 313-321, Rn. 23).
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cc) The information claim of the works council is not restricted by the regulations of the Federal Data Protection Act. The Labour Court has also seen this right.
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(1) This follows from the legal subsidiarity of data protection law vis-à-vis company constitutional regulations (dazu BAG, Beschluss vom 12. August 2009 – 7 ABR 15/08 –, BAGE 131, 316-324, Rn. 26), as it has been reflected in § 32 para. 3 BDSG aF. and § 26 para. 6 BDSG. According to both standards, data collection, processing and use do not affect the participation rights of employee representatives, including works councils (BAG, Beschluss vom 14. Januar 2014 – 1 ABR 54/12 –, Rn. 28, juris). This means: The exercise of participation rights is not prohibited by data protection law from the outset, because it is associated with the processing of personal data; however, the business parties must comply with the requirements of data protection (BAG, Beschluss vom 9. April 2019 – 1 ABR 51/17 –, Rn. 23, juris).
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(2) If the employer provides the works council with information about the data collected and processed by him, this is a form of data use permitted in accordance with § 32 (1) BDSG aF. and § 26 (1) BDSG (BAG, decision of 14 January 2014 – 1 ABR 54/12 –, paragraph 28, juris). This applies regardless of whether the works council is part of the responsible body (so BAG, decision of 14 January 2014 – 1 ABR 54/12 –, point 28, juris; ErfK/Kania, 19th edition 2019, BetrVG § 80 Rn. 22) or as the responsible person iSd. Article 4(7) DGSVO (so Fitting, 29th ed. 2018, § 80 BetrVG, paragraph 58). In any case, if data processing is permitted in accordance with the data protection regulations, the right of the employee concerned by the data processing to informational self-determination is safeguarded (BAG, decision of 9 April 2019 – 1 ABR 51/17 –, paragraph 51, juris).
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(3) The fulfilment of the information requested by the works council constitutes internal data processing for employment purposes. Since the works council claims to require these for the performance of a legal task, the transfer of the names of the employees concerned involves data processing for the purposes of employment. The processing serves to fulfil obligations arising from the law of representing employees' interests (vgl. BAG, Beschluss vom 9. April 2019 – 1 ABR 51/17 –, Rn. 34, juris). At the same time, there is the necessity of data processing required by § 32 para. 1 sentence 1 BDSG aF., § 26 para. 3 sentence 1 BDSG (BAG, Beschluss vom 9. April 2019 – 1 ABR 51/17 –, Rn. 41, juris).
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dd) The informational right of workers to self-determination does not preclude the requested information. According to the established case law of the Federal Labour Court, neither employer nor works council can rely on an alleged violation of individual legal positions of the individual employees in industrial disputes (BAG, Beschluss vom 14. Januar 2014 – 1 ABR 54/12 –, Rn. 29, juris ; BAG, Beschluss vom 7. Februar 2012 – 1 ABR 46/10 –, BAGE 140, 350-361, Rn. 50; BAG, Beschluss vom 20. Dezember 1995 – 7 ABR 8/95 –, BAGE 82, 36-47, Rn. 46). The performance of the tasks assigned to the works council by law is not dependent on prior consent of the employees and is not subject to their disposition according to the company constitution concept (BAG, Beschluss vom 9. April 2019 – 1 ABR 51/17 –, Rn. 21, juris).
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ee) The Labour Court has also rightly stated that the employer's reference to inadequate provisions of the Works Council for the safe handling of the desired sensitive information cannot be countered by the requested information. In passing on data to the works council, the employer does not have in his hands how sensitive the works council deals with them. However, he is denied any requirements related to this to the works council because of its independence as a structural principle of the company constitution. The works council's autonomy is incompatible with the employer's control rights and authority regarding the exercise of the works council office (BAG, Beschluss vom 9. April 2019 – 1 ABR 51/17 –, Rn. 47, juris; BAG, Beschluss vom 11. November 1997 – 1 ABR 21/97 –, BAGE 87, 64-83, Rn. 36). Only in the application of a request for information directed to sensitive data, the works council must state the existence of measures that safeguard the legitimate interests of the workers concerned (BAG, Beschluss vom 9. April 2019 – 1 ABR 51/17 –, Rn. 47, juris). Sensitive personal data, from which racial and ethnic origin, political opinions, religious or ideological beliefs or union membership emerge, as well as genetic data, biometric data for the unambiguous identification of a natural person, health data and data concerning sexual life or the sexual orientation of a natural person may not be processed in accordance with § 9 para. 1 GDPR. This is not the case with the works council's request for information.
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2.) The request for 2nd, by which the works council requires the employer to arrange the deletion and destruction of the transferred data including their evaluations by the law firm H and the auditing company E, is partially inadmissible and, moreover, unfounded.
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a) The application is not fully sufficiently determined iSd. § 253 para. 2 No. 2 ZPO and therefore partially inadmissible.
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(aa) The admissibility of the application, to the extent that the employer is to be given up, does not meet any serious concerns about its deletion or its termination. To cause destruction.
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1. However, the application shall be interpreted in such a way. In its wording, the motion is aimed at getting someone to do something. In the present case, however, it is doubtful whether the law firm and the auditing company will comply with the employer's request. In addition, their legal possibilities for enforcing their request may be limited. Therefore, according to a life-oriented interpretation of the works council's request, it is not intended to achieve real success, but rather to ensure that the employer uses at least the actual and legal possibilities available to her in order to encourage the law firm and the auditing company to participate (cf. BGH, decision of 18 December 2008 – I ZB 68/08 –, paragraph 21, juris). In this respect, it is a "claim for effect" to be enforced under § 888 ZPO (see BAG, judgment of 27 April 2017 – 2 AZR 67/16 –, BAGE 159, 82-91, paragraph 39). This is meant by the term "let go".
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2. The application is thus sufficiently defined as the data transmitted, whether in electronic form or as an expression, are deleted or destroyed. However, it is unclear what the term "evaluations" refers to. "Evaluation" is commonly understood to mean drawing or winning conclusions from a finding. This includes viewing and analyzing the data. This is a sufficiently delimitable process. In contrast, "evaluations" are objects (files and documents) created on the basis of this sighting and analysis without having to identify the connection with the evaluation process and whose number is not limited. "Evaluations" means that the files and documents are not so precise that the court's decision determines which ones to delete or destroy.
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(b) The application shall be unfounded where it is admissible. This is because the claim by the works council to eliminate the consequences of an anti-determination behaviour of the employer is regarded as so-called. Global request also those transferred data, whose collection, processing or use was (possibly) illegal, but which on the part of the employer and the investigators commissioned by it should be exploited in a legal dispute with the management and employees, because they would nevertheless not be subject to any prohibition of proof in a judicial dispute. The works council cannot demand the deletion/destroyment of these data because its desire does not fall within the regulatory competence of the company parties and the employer's right to be heard under Art. 103 para. 1 GG would be undermined.
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aa) In principle, however, a works council may require a situation created in breach of its co-determination rights to be remedied (BAG, Beschluss vom 7. Februar 2012 – 1 ABR 63/10 –, BAGE 140, 343-349, Rn. 14; BAG, Beschluss vom 9. Dezember 2003 – 1 ABR 44/02 –, BAGE 109, 61-70, Rn. 30; BAG, Beschluss vom 16. Juni 1998 – 1 ABR 68/97 –, BAGE 89, 139-148, Rn. 33; GK/Oetker, 11. Aufl. 2018, § 23 BetrVG; Rn. 185; Fitting, 29. Aufl. 2018, § 87 BetrVG, Rn. 597; ErfK/Kania, 19. Aufl. 2019, § 87 BetrVG,Rn. 138; Stück, ArbRAktuell 2010, 31, 34).
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1. An employer who unilaterally implements a co-determining measure is acting as an exclusive decision-making authority and has the power to co-design the works council. In contrast to the legal distribution of powers, it thus creates facts on whose concrete design the works council cannot exert any influence (Thalhofer, Verkehrsverfassungsrechtliche Entwicklungsrecht, 1999, p. 40 f.). Equally, as the works council is not entitled to intervene in the management of the company through unilateral actions (Section 77 para. 1 sentence 2 BetrVG), the employer may not infringe the employee's participation rights through unilateral actions (cf. Prütting, RdA 1995, 257, 261). The only effective sanction against such measures is the granting of a right to dispose of the goods under the legislation governing the establishment (Denck, RdA 1982, 279, 284). It is a right to secure an entitlement and thus a right of defence directed at its protection, whose aim is the restoration of rights (Richardi, Festschrift Wlotzke, 1996, p. 419).
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(2) The claim includes not only the removal of the surveillance body itself, but also the consequences resulting from the infringement of the right of co-determination in which the infringement is perpetuated. These are the conditions which the right of codetermination did not want to make dependent solely on an act of the employer. Since the right of codetermination from § 87 para. 1No. 6 BetrVG is intended to counteract the risks of personal rights arising from technical supervision, so that the right of disposal is directed towards the data resulting from the monitoring. This is not about the cancellation rights of employees, which the works council asserts in their place as a process manager, but rather about an own claim of the works council derived from the co-determination standard.
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(3) Regardless of whether third parties such as the law firm and the auditing company are obliged or entitled to follow an instruction from the employer to destroy the data, the employer may therefore be encouraged to influence its contractors accordingly. This applies, in particular, against the background that the employer must contractually ensure according to § 10 No. 11 of the framework business agreement that external persons who are commissioned to collect, process or use employee-related data comply with the applicable agreements and laws.
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bb) However, the removal claim of the works council does not collect data and documents in whose use the employer has a legitimate interest because they are needed in a (judicial) dispute. In relation to these data and documents, the application for a (faktic) prohibition of proof of use would amount to that which cannot be the subject of an effective operating regulation or is enforceable with the right to dispose of the company under the law.
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(1) In accordance with the decision of the employer's Supervisory Board dated 09.11.2017, the data forwarded to the law firm and the auditing company served as internal investigations to investigate misconduct by the management and employees. They are therefore suitable and intended to provide evidence of such infringements and offences in a dispute, for example against those persons. The requested destruction of the data would be liable to affect either directly or indirectly the field of evidence and that of the decision in the case of a non-liquet (see Baumgärtel/Laumen, Handbuch der Erweißlast, vol. 1,4. Aufl. 2019, Kapitel 26, Rn. 2). In the present case, for example, the employer would be prevented from using the e-mails in accordance with § 371 para. 1 sentence 2 of the ZPO to obtain evidence of the authenticity of the documents and, by means of the printouts in accordance with § 416 of the ZPO, proof of the primacy of legitimate claims (for the taking of evidence Sander, CR 2014, 292, 294). The destruction of data and documents requested by the works council, which the employer wants to use not only in-house but also in a court dispute, would thus amount to at least a factual prohibition on the collection of evidence.
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(2) A right to dispose of the works council can only be granted in so far as the statutory co-determination rule is sufficient (Richardi, Wlotzke, 1999, p. 420). However, a prohibition of exploitation does not fall within the scope of compulsionable co-determination and therefore cannot be the subject of the co-determination right under § 87 para. 1 Nr. 6 BetrVG. Such agreements between the operating parties would be ineffective (LAG Baden-Württemberg, judgment of 06 June 2018 – 21 Sa 48/17 –, paragraph 148, juris; Reinhard, NZA 2016, 1233, 1238; Fuhlrott/Oltmanns, NZA 2018, 413, 416 f.; this case NZA 2019, 1105, 1108; see line ErfK/Kania, 19th edition 2019, § 87 BetrVG, paragraph 137). Unlike the (permissible) agreement of a prohibition on the collection of evidence, which only results in the employer having to renounce certain instruments for the control of performance and behaviour (cf. Reinhard, NZA 2016, 1233, 1238), the prohibition of exploitation would be directed towards an inadmissible normative intervention in the judicial cognition procedure. Nor can this be justified by the consideration that collective agreements may contain more favourable rules for the employee than the statutory provisions (but LAG Berlin-Brandenburg, judgment of 9 December 2009 – 15 Sa 1463/09 –, paragraph 44, juris). Although Section 77(4) sentence 1 of the BetrVG, according to which company agreements apply directly and compellingly, does not exclude the principle of convenience for the relationship between contractual and legal claims with the content standards of the company agreement as far as the legal relationship between employee and employer is concerned (BAG, decision of 16 September 1986 – GS 1/82 –, BAGE 53, 42-77, paragraph 44). However, the agreement of a prohibition on the use of evidence goes beyond the legal sphere between the employee, employer and company. A prohibition on the use of evidence is intended to have a binding effect on third parties, in particular courts, and to intervene in the civil procedural principles for the collection and assessment of evidence.
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cc) It is also not the case that all data collected and processed by the employer would in any case be subject to a prohibition on the use of evidence because they would have been unlawfully or otherwise collected.
83
(1) Evidence obtained through theft, embezzlement or any other illegal activity shall not in principle be subject to a prohibition of use of evidence. Neither the Code of Civil Procedure nor the Labour Court Act contain provisions that restrict the usability of findings or evidence obtained unlawfully by an employment party (BAG, Urteil vom 23. August 2018 – 2 AZR 133/18 –, BAGE 163, 239-256, Rn. 14). In addition, the legal provisions that were violated in the event of obtaining them do not regularly serve a prohibition on the use of evidence according to their purpose of protection (tree gardening/prütting, manual of the burden of proof, Volume 1, 4th edition 2019, Chapter 6, paragraph 31).
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(1.1) According to the case law of the Federal Labour Court, it is rather a question of whether there is an interference with the employee's right to informational self-determination and whether this interference is admissible (BAG, Urteil vom 28. März 2019 – 8 AZR 421/17 –, Rn. 27, juris).
85
(1.1.1) Therefore, in any event, in a legal dispute there is no prohibition of exploitation in favour of workers if the employer has obtained and further related the relevant knowledge or evidence in accordance with the relevant data protection regulations (BAG, Urteil vom 31. Januar 2019 – 2 AZR 426/18 –, Rn. 49, juris). In this respect, the provisions of data protection specify and update the protection of the individual's right to informational self-determination (vgl. BAG, Urteil vom 28. März 2019 – 8 AZR 421/17 –, Rn. 29, juris). If a measure is admissible under the provisions of data protection law, there is therefore no breach of general personal rights (BAG, Urteil vom 23. August 2018 – 2 AZR 133/18 –, BAGE 163, 239-256, Rn. 15). A ban on the use of waste will cease from the outset (BAG, Urteil vom 28. März 2019 – 8 AZR 421/17 –, Rn. 30, juris). § 32 para. 1 sentence 1 BDSG aF, and § 26 para. 1 sentence 2 BDSG are independent permission standards for the processing and use of data in the employment relationship if the measures of the employer to monitor the correspondence or other communication of employees are accompanied by adequate and sufficient guarantees against abuse (EGMR, judgment of 5 September 2017 – 61496/08 –, NZA 2017, 1443, 1446 "Barbulescu/Romania"). The employer may, therefore, in principle, check whether the employee fulfils his obligations and collect, process or use data for this purpose both for the purposes of the employment relationship and for the preparation for termination of an employment relationship (BAG, Urteil vom 28. März 2019 – 8 AZR 421/17 –, Rn. 35, juris). In this context, he is also entitled to forward data to third parties in order to prepare a legal dispute with the employee (vgl. BAG, Urteil vom 23. August 2018 – 2 AZR 133/18 –, BAGE 163, 239-256, Rn. 22).
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(1.1.2) However, even if data collection and processing could not be carried out in accordance with the provisions of data protection, a prohibition on the use of evidence would not be the compelling consequence of this infringement. On the contrary, it has to be examined in individual cases whether the use of a recovered evidence by the court would constitute an unjustified fundamental right intervention or, on the basis of a constitutional obligation to protect, should be omitted and therefore an obligation to use it is mandatory (BAG, Urteil vom 23. August 2018 – 2 AZR 133/18 –, BAGE 163, 239-256, Rn. 14, 15; BAG, Urteil vom 28. März 2019 – 8 AZR 421/17 –, Rn. 27, 28, juris). However, neither the violation of a co-determination status nor the non-compliance with an operating agreement and its procedural rules alone can justify not taking into account a decision-relevant, undisputed material presentation by the parties and recognizing as a result a prohibition of retention of rights (BAG, Urteil vom13. Dezember 2007 – 2 AZR 537/06 –, Rn. 26, juris).
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(1.2) The case law of the Federal Labour Court is in line with the case law of the Federal Constitutional Court and the Federal Court of Justice.
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(1.2.1) The Federal Constitutional Court considers that a prohibition of the use of evidence is only necessary for constitutional reasons in the event of serious, deliberate or arbitrary procedural violations, in which the basic legal safeguards have been disregarded as planned or systematically. The same applies in cases where the absolute core area of private life design is affected (BVerfG, Nichtannahmebeschluss vom 9. November 2010 – 2 BvR 2101/09 –, Rn. 45, juris; BVerfG, Nichtannahmebeschluss vom 20. Mai 2011 – 2 BvR 2072/10 –, Rn. 12, juris). In other cases, a prohibition on the use of evidence arises only after a balance has been struck between the interference in the legal status of the person concerned and the law enforcement interests of the state (BVerfG, Nichtannahmebeschluss vom 9. November 2010 – 2 BvR 2101/09 –, Rn. 47, juris). For example, the Federal Constitutional Court did not object to the use of data from a "tax CD" with information about customers of Liechtenstein financial institutions (BVerfG, Nichtannahmebeschluss vom 9. November 2010 – 2 BvR 2101/09 –, juris).
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(1.2.2) The Bundesgerichtshof also makes a prohibition on the use of unlawfully obtained evidence dependent on the result of the balance between the rights of the person concerned on the one hand and the legally protected interests in favour of the exploitation on the other (BGH, judgment of 15 May 2018 – VI ZR 233/17 –, BGHZ 218, 348-377, paragraph 29). In doing so, it attaches particular importance to the rule of law principle enshrined in Article 20(3) of the Basic Law and to the need for effective administration of justice. Therefore, the courts are in principle required to take into account evidence offered by the parties if and to the extent that a statement of facts is significant and necessary. This is also due to the principle of free assessment of evidence as set out in § 286 ZPO and the right to be heard in a similar manner to that of the fundamental right pursuant to Art. 103(1) GG. It follows from them that the Courts have a fundamental obligation to take into account the facts presented by the parties and the evidence they offer (BGH, judgment of 15 May 2018 – VI ZR 233/17 –, BGHZ 218, 348-377, paragraph 29).
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(1.3) This means that if the employer has complied with the data protection provisions when collecting and forwarding the data or if at least no violations of fundamental rights or other constitutional protection obligations can be accused of it, she may use the e-mails as evidence. It does not need to be deleted or cancelled by the auditing company and the law firm. The European Parliament has already taken a decision on this. In the present case, in view of the allegations in the area against the management of airport operations, it cannot be entirely excluded, for all constellations, that the employer has complied with the provisions of data protection and that it must not be accused of fundamental rights violations or violations of other constitutional protection obligations. On the contrary, on the basis of the employer's assessment that the data protection review he carried out did not raise any objections to the transfer of the data, there are strong indications that even the data protection regulations had been complied with.
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(2) Nor does § 88 TKG, which protects telecommunications secrecy, establish an absolute prohibition on using the forwarded data as evidence. It can therefore remain undecided whether an employer that does not strictly prohibit private use of an email account, as in this case, is a telecommunications service provider within § 3 Nr. 6 und 10 TKG (befürwortend etwa LAG Hessen, Urteil vom 21. September 2018 – 10 Sa 601/18 –, Rn. 72, juris; Grimm, ArbRB 2012, 126, 127; Maschmann, NZA-Beilage 2018, 115, 122; ablehnend LAG Berlin-Brandenburg, Urteil vom 14. Januar 2016– 5 Sa 657/15 –, Rn. 116, juris; Arndt/Fetzer/Scherer/Graulich, 2. Aufl. 2015,§ 88 TKG Fernmeldegeheimnis, Rn. 81), whether tolerating private use of a work email account only under narrow conditions constitutes the commercial provision of telecommunications services (dazu LAG Berlin-Brandenburg, Urteil vom 14. Januar 2016 – 5 Sa 657/15 –, Rn. 116, juris), and whether telecommunications secrecy extends to emails that have already reached the recipient (zur Problematik BVerfG, Beschluss vom 16. Juni 2009 – 2 BvR 902/06 –, BVerfGE 124, 43-77, Rn. 45, 46; Hessisches LAG, Urteil vom 21. September 2018– 10 Sa 601/18 –, Rn. 77, juris). Even if the employer had been entirely prohibited from accessing its employees’ emails (zur Problematik ausführlich Wybitul, NJW 2014, 3605, 3608), this would not invariably prohibit their use as evidence (LAG Hamm, Urteil vom 10. Juli 2012 – 14 Sa 1711/10 –, Rn. 174, juris; Arndt/Fetzer/Scherer/Graulich,2. Aufl. 2015, § 88 TKG Fernmeldegeheimnis, Rn. 81). The right to be heard under Art. 103 Abs. 1 GG generally requires consideration of the parties’ factual submissions and offered evidence even where telecommunications secrecy has been breached. Accordingly, a particular justification and statutory basis would also be necessary in these cases to exclude the evidence (vgl. BAG, Urteil vom 22. September 2016 – 2 AZR 848/15 –, BAGE 156, 370-383, Rn. 21 zur Videoüberwachung).
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dd) Since the removal request of the works council also covers cases where there is no prohibition on the use of evidence on the basis of the principles set out above, it must as a general application be subject to rejection. According to the established case law of the Federal Labour Court, a global application covering a large number of possible cases must in principle be dismissed as unfounded if it can also cover situations in which the application proves to be unfounded (BAG, Beschluss vom 12. März 2019 – 1 ABR 42/17 –, Rn. 74, juris; BAG, Beschluss vom 22. Juni 2005– 10 ABR 34/04 –, Rn. 36, juris; BAG, Beschluss vom 3. Juni 2003 – 1 ABR 19/02 –, BAGE 106, 188-203, Rn. 27; BAG, Beschluss vom 3. Mai 1994 – 1 ABR 24/93 –, BAGE 76, 364-381, Rn. 46).
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3.) The request for 3. is admissible and well-founded. The Labour Court of the employer has rightly given up on the fact that in future it will not be possible to monitor the e-mails of workers within the framework of internal investigations, to secure and evaluate the data and to forward them to third parties for the purpose of evaluation without having previously obtained the consent of the works council or having obtained a decision from the unit.
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(a) the application shall be sufficiently determined. It limits the obligation of omission to internal investigations initiated by the employer and thus separates them from cases where third parties, in particular authorities such as the police or the public prosecutor's office, require investigations. Not only the situation in which the omission obligations are triggered, but also the behaviour to be omitted is precisely indicated in the application. The security and forwarding are legal concepts with sufficiently clear content to make it clear to the employer what it has to do. This also applies with regard to the term "evaluate". This is not the "evaluation" as an object, but rather the process of viewing and analysing e-mails. The evaluation of e-mails is therefore only the basis of the evaluations made on their basis, which can then be so far-reaching that they can no longer be captured with the necessary certainty.
95
(b) The request for 3. shall also be justified. The employer infringed the employee's right of co-determination under § 87 para. 1 no. 6 BetrVG by reviewing and passing on e-mails from three non-conducting employees.
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aa) For not only the introduction of systems with which the employer receives access to the e-mails of the employees is subject to co-determination of the works council according to § 87 para. 1 Nr. 6 BetrVG (MHdB ArbR/Reichold, Volume 1, 4th edition 2018, § 94, paragraph 12), but also the review of electronic messages and communications (LAG München, Beschluss vom 4. September 2014 – 2 TaBV 50/13 –, Rn. 100, juris; BeckFormB IT-Recht/Huben, 4. Auflage 2017, Nr. 1, Rn. 10).
97
bb) Under the settled case law of the Federal Labour Court, where the works council’s co-determination rights under § 87 BetrVG are infringed, it may seek an injunction against the measure adopted in breach of those rights. This claim does not require a gross breach of duty by the employer within § 23 Abs. 3 BetrVG (BAG, Beschluss vom13. Dezember 2016 – 1 ABR 7/15 –, BAGE 157, 220-229, Rn. 35; BAG, Beschluss vom 25. September 2012 – 1 ABR 49/11 –, Rn. 19, juris; grundlegend BAG, Beschluss vom 03. Mai 1994 – 1 ABR 24/93 –, BAGE 76, 364-381).
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cc) The injunction claim of the works council exists regardless of whether the data collected is controlled by a technical institution itself or whether the employer or a third party appointed by him sees and analyses the data collected on the basis of printed documents. In the present case, it also covers the sighting of printed documents and/or the (manual) disclosure of such documents to third parties. The (manual) transfer constitutes an annex to the supervision, which is also subject to the mandatory right of participation of the works council because it extends the monitoring measure (zur Annexzuständigkeit BAG, Beschluss vom 6. Dezember 1983 – 1 ABR 43/81 –, BAGE 44, 285-323, Rn. 199). The preventive injunction claim is thus a reflection of the right to be disposed of under company law. It extends not only to the omission of the monitoring itself, but also to the measures taken by the employer which perpetuate the results of the co-determinatory monitoring. This also includes the (manual) transmission of data collected without the necessary approval of the works council. The technical collection of the data and their transmission, even if it takes the form of printed data, are inextricably linked to the law of destination. The Labour Court has quite rightly pointed out that the injunction and elimination claim of the works council would be void if it did not also record the printed files. Otherwise, the rights of the works council would be easily circumvented by quick printing of the data. Unlike the claim for elimination, there is no question of a prohibition on the use of evidence in the case of preventive injunction. As a result, it is directed only at the omission of a co-determinatory inquiry of evidence.
99
dd) The works council has not already exercised its right of participation in the transfer and evaluation of the e-mail accounts of the employees concerned in the framework agreement of 25.06.2010. This results regardless of whether or not Article 10(5) of the framework company agreement is interpreted as being in accordance with the principles of law or, as the employer considers it to be correct, as a contract.
100
(1) If § 10 No. 5 of the framework agreement is granted a normative character, the interpretation must be in accordance with the standards to be laid down for laws and collective agreements.
101
(1.1) First of all, the wording of the provision which corresponds to § 32 para. 1 sentence 2 BDSG aF. § 32 para. 1 sentence 2 BDSG aF. does not relate to questions of company law, but concerns the legal relationship between employer and employee. With regard to the control measures for the detection of criminal offences, there is therefore no regulatory content under § 10 of the framework operating agreement. However, from the point of view of the compliance function as well as for internal factual clarification, when concluding operating agreements on permissible control measures it is crucial that the works agreement describes the individual data processing, compliance controls and investigation measures sufficiently concretely (Wybitul/Böhm, CCZ 2015, 133, 135). An operational regulation, which contains interventions in fundamental legal positions, must contain clear and openly communicated regulations on the procedures, to ensure data security and possibly also for logging accesses (Auer-Reinsdorff/Conrad, IT- und Datenschutzrecht, Part F, § 37, paragraph 208). In other words, if a company agreement does not sufficiently precisely regulate the handling of personal data of workers concerned, the works council will continue to have co-determination rights for individual measures (Wybitul/Böhm, CCZ 2015, 133, 135).
102
(1.2) The overall context of the provision also weighs against interpreting the works agreement as a final exercise of the works council’s co-determination rights for monitoring measures intended to detect criminal offences. In § 10 Nr. 2 of the framework works agreement, the parties expressly provided that performance and conduct monitoring within § 87 Abs. 1 Nr. 6 BetrVG is prohibited, with departures permitted through separate works agreements. This accords with the nature of a framework works agreement, as the parties themselves expressly described it. The Labour Court correctly noted that § 10 Nr. 5 Satz 2 of the framework works agreement limits co-determination rights where imminent security risks require immediate action. That limitation would be redundant if the works council had no further co-determination rights over monitoring measures intended to prevent or detect administrative or criminal offences.
103
(2) In accordance with the principles of contract interpretation, the applicant has also not exercised his right of co-determination in the absence of a precise regulation on the handling of personal data of workers concerned. Conditions beyond the scope of the agreement, to which the employer refers for interpretation, may only be taken into account in agreements requiring form in accordance with the general principles of §§ 133, 157 BGB, if the relevant legal business will of the parties has found an expression in the form-compliant document, even if only imperfect or illustrative (BAG, Urteil vom 13. Juli 2006 – 8 AZR 382/05 –, Rn. 23, juris; BGH, Urteil vom 20. Dezember 1974– V ZR 132/73 –, BGHZ 63, 359-364, Rn. 23). This is not the case here. The mere reproduction of a legislative text does not indicate whether and under what conditions a monitoring measure obtains the approval of the works council. Nor does the framework business agreement provide any evidence that, as the employer has argued, the works council did not intend to expose itself to the risk of a breach of criminal law and therefore refrained from further co-determination in cases of suspicion of an offence, which would be inadmissible anyway.
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ee) Finally, the risk of repetition required for an injunction is present. There is already a factual presumption of that risk (BAG, Beschluss vom 29. Februar 2000 – 1 ABR 4/99 -, Rn. 34, juris). Fault is not required (BAG, Beschluss vom 29. April 2004- 1 ABR 30/02 -, BAGE 110, 252-276, Rn. 135; BAG, Beschluss vom 29. Februar 2000 – 1 ABR 4/99 -, Rn. 39, juris). As the Labour Court correctly held, the risk is further reinforced because, on more than three occasions, the employer disregarded the works council’s existing co-determination rights by forwarding emails to the law firm and audit firm instructed to evaluate them and continues to regard that conduct as lawful.
105
4.) The request for 4. is also justified and justified under § 890 (1) and (2) of the ZPO, whereby the amount of the regulatory money, as the application takes into account, is limited to 10.000,00 EUR in appropriate application of the special legal provision of § 23 (3) BetrVG (see BAG, decision of 29 April 2004 – 1 ABR 30/02 –, BAGE 110, 252-276, paragraph 138).
106
III.
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In part, the board attaches a fundamental importance to the issues of law relevant to the decision and has therefore authorised the appeal for both parties.