According to a decision of the Regional Labour Court of Düsseldorf dated 7 March 2012 (docket no. 4 TaBV 11/12), an employer may not arbitrarily access data stored on the works council's drive of the EDP system.

In the case at hand, the employer had discovered an eight-page opinion on an ongoing unfair dismissal action on the works council's drive. Since it assumed that a member of the works council who was not released from his employment duties had drafted the document during his work hours and had therefore failed to work the contractually specified work hours, the employer sought a judicial declaration to the effect that it could also examine the document history without the works council's consent and thereby determine the time of the processing of the document and its author.

In the opinion of the Regional Labour Court of Düsseldorf, the employer – notwithstanding its ownership of the data drive – is not entitled to access data of the works council. The distinguishing characteristic of the shop constitution is the autonomously structured safeguarding of interests which enables the works council to manage its data and other written documents at its own responsibility.

The works council in turn wanted to determine how the employer had gained knowledge of the written opinion and sought access to the protocol data on access to the works council's drive. This request was also rejected by the Regional Labour Court on 7 March 2012 (docket no. 4 TaBV 87/11): The works council already lacked an interest in legal protection in this case because the source of the leak was known and it was at the works council's own responsibility to seal this leak.

The two decisions of the Regional Court of Düsseldorf clearly illustrate that clear boundaries must also be drawn between the employer and the works council in the EDP system: ownership of the drives does not entitle the employee to access data of the works council without or against the latter's will. Even if these access possibilities should exist de facto and in observance of data protection provisions, the employer is well advised not to act without the consent of the works council. Otherwise, the employer faces forbearance claims of the works council, and the inability to use the arbitrarily obtained data in judicial proceedings also cannot be ruled out.

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