The Brandenburg Higher Regional Court issued, on 23 February 2022, its decision in Case No. 4 U 111/21 in which it confirmed that the claimant, who was a subcontractor, could transmit personal data of their employees to the defendant, who was the general contractor, under Article 6(1)(f) of the General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR'), following a complaint submitted by the subcontractor.

Background to the case

In particular, the Court noted that the claimant, the subcontractor, is suing the defendant, the general contractor, for payment of an amount of €9,837.71 as remuneration for cleaning work in August and September 2019 and that the defendant invoked a right of retention with regard to a claim for the provision of evidence of the payment of the minimum wage to the claimant's employees working in the defendant's properties. In addition, the Court stated that the defendant had informed the claimant that the payments would only be released after proof of payment of the minimum wage of the Land Berlin had been provided and justified this by stating that it had remuneration statements, from which it was clear that the minimum wage was not being complied with. Furthermore, the Court outlined that the claimant took the view that they had fulfilled their obligation to provide evidence by submitting declarations from their tax advisor according to which the minimum wage was paid, noting that the submission of their employees' pay slips was prevented by the GDPR, as it was not permissible to submit the pay slips without the employees' consent, which the claimant did not have.

Findings of the Court

In particular, the Court held that the claimant is not prevented by the provisions of the GDPR from providing the defendant with evidence of the payment of the minimum wage to the employees they had employed to fulfil the defendant's orders. On the contrary, the Court held that this form of processing of personal data of the claimant's employees is, insofar as the limits of necessity and data economy are observed, permitted pursuant to Article 6(1)(f) of the GDPR. In addition, the Court held that the defendant had a legitimate interest in demanding proof of compliance with the minimum wage payment from the claimant as this results from the fact that the defendant is liable like a guarantor for the claimant's obligation to pay the minimum wage to their employees. Furthermore, the Court held that the defendant's control of the claimant, which is made possible by the request for proof of the payment of the minimum wage, is also necessary to protect the legitimate interests of the defendant.

Furthermore, the Court noted that there are no interests or fundamental rights and freedoms of the claimant's employees that require the protection of personal data and outweigh the legitimate interest of the defendant in the disclosure of personal data of the calimant's employees to the defendant in order to monitor compliance with the obligation to pay the minimum wage. However, the Court stated that the rights and interests of the claimant's employees can be taken into account within the framework of the balancing of interests to be carried out in this respect by ensuring that the disclosure of their personal data required to fulfil the control interest of the general contractor is carried out as sparingly as possible, which can be ensured by anonymisation, pseudonymisation, or blackening. Lastly, the Court noted that the proof to be submitted to the defendant may only contain further information if the respective employee has given their consent to the claimant passing on the respective personal data to the defendant.

Outcomes

In light of the above, the Court held that the defendant has a legitimate interest under Article 6(1)(f) of the GDPR in demanding proof of compliance with the minimum wage payment from the claimant. 

You can read the decision, only available in German, here.