Germany: Changes To The German Federal Data Protection Act – An Overview

Last Updated: 7 April 2009
Article by Robert Alan Heym, Katharina A. Weimer, LL.M. and Jan Weißgerber

In December, the government issued a bill on the regulation of data protection audits and on certain amendments of other data protection provisions. The changes to the German Federal Data Protection Act (Bundesdatenschutzgesetz – "BDSG") shall come into force 1st July 2009. The material changes are summarized below.

Special Protection From Ordinary Dismissal For Internal Data Protection Officer

According to the draft bill, if a data controller has appointed an internal data protection officer ("DPO"), such officer will in the future enjoy special protection from ordinary dismissal. It will only be possible to dismiss the internal DPO based on extraordinary termination without notice for good cause. In addition, the internal DPO will remain protected from ordinary dismissal for one year after his revocation from the position of DPO, except for the already named exception of an extraordinary termination without notice for good cause.

The data controller will be obliged to enable the DPO to participate in continuing education and professional training programs at the data controller's cost.

Since the draft provision regarding dismissal protection could only apply to DPOs who are in an employment relationship with the data controller, it will be important in the future to consider whether this position should be filled by an employee, or rather by an external DPO. The extent of integration of the DPO into the organization that is necessary for the expedient fulfilment of the position will also have to be taken into consideration. This argument could speak against the choice of an external DPO. It should further be considered filling the position of internal DPO by a person who already falls within the scope of special dismissal protection such as, e.g., a member of the works council, the immission control officer, the water protection officer, etc. By means of such amalgamation of functions, it may be possible to avoid the protection from ordinary dismissals for a number of employees.

Act On The Audit Of Data Protection

The provision on data protection audits will be extracted from the BDSG and implemented as a separate act. The draft bill on data protection audits contains detailed provisions regarding the competences, the duties of the control sites, the qualification requirements of the personnel of the control site, and the supervision of the control site and the data controllers by the respective competent authorities. The conduct of a data protection audit will be voluntary.

According to the new act, data controllers will be able to have their data protection concept audited, and suppliers of data processing equipment and programs can request to have their offered IT equipment audited by the control site. In case of a positive evaluation the data protection concept or the offered IT equipment may carry a data protection audit seal.

In order to achieve a positive evaluation, it is required that:

  • The data processing for which the data processing concept or the respective equipment is intended abides by the provisions on the protection of personal data
  • Certain guidelines for the improvement of data protection and security that will be implemented are adhered to
  • In the case of a supplier with a national registered office, the provisions regarding the organizational position of the DPO are adhered to
  • This is controlled in accordance with the intended controls

The draft bill for a Data Protection Audit Act also contains provisions on administrative fines and sanctions. According to the draft, fines in the amount of up to EUR 300,000 can be imposed for certain infringements of the Act. In addition, in case the infringer has an intention for enrichment, a prison sentence of up to two years can be imposed.

Address Dealers

The processing and use of personal data for the purposes of address-dealing, for advertisement, and for polling and marketing surveys, will be subject to the consent of the data subject. Such consent must unequivocally relate to these purposes. If it is granted together with additional declarations of consent, the unequivocal relation must be created by specific means, such as individual checking of a box, individual signature or other measure.

Only certain personal data that is summarized in a list or other form may be processed and used without consent in exceptional circumstances. In addition, such processing or use will only be permissible if it is necessary for the respective purpose, e.g., data that is not required for the specific purpose may not be processed or used, such as religious affiliation for non-related advertisement. In addition, only data regarding the membership of the data subject in this group of persons, his/her occupation, industry or business, his/her name, title, academic degree and address, and his/her year of birth, may be used.

Notification Duties In Case Of Data Loss

The draft introduces a notification obligation for cases in which third parties gain knowledge of personal data illegitimately. A data controller will have to inform the respective data protection authority and the concerned data subjects without undue delay if certain data stored by the data controller has been transmitted illegitimately, or if third parties have by other means gained knowledge of the data, and that material detriments for the rights or interests meriting protection of the data subject are impending. This specific data includes, inter alia, specific kinds of personal data such as relating to religion, health, or racial or ethnic origin, and also bank and credit card details.

The concerned data subjects must be notified as soon as the prosecution would no longer be endangered by such notification. However, the data protection authority must be notified immediately. If an individual notification of each data subject would require an unreasonable effort, it may be replaced by a public announcement.

Increase Of Fines

The draft bill contains an increase of administrative fines and an expansion of the schedule of fines. In the future, concluding a contract for data processing on assignment not in writing will result in a fine in principle. This not only applies to contracts with third party providers, but also to agreements with affiliated companies within the group that provide services to other entities in the group. Accordingly, this will have consequences for data processing in groups where often data processing is centralized in one location. Data processing within a group is generally not privileged, i.e., each company within a group is treated as an independent third party. Although it has previously also been explicitly required by law to conclude such contract in written form, it is only this reform that introduces a fine of up to EUR 50,000 for breaches of this written form provision. The upper limits of the fines have been raised to EUR 50,000 for breaches of formalities, and to EUR 300,000 for material breaches. According to the draft, the fine shall exceed the economic advantage gained through the breach of the data protection provisions. If the named amounts do not suffice to fulfil this purpose, they may be exceeded.

Coming Into Force

The changes to the BDSG will come into force on 1st July 2009. However, the draft bill allows for a generous transition period of three years for the data processing for advertisement and address dealing: as far as the data was collected before 1st July 2009, the new regulation will only apply as of 1st July 2012.


It is an open secret that, at least until now, the consequences of non-compliance with data protection laws in day-to-day business were in most cases of a more theoretical nature. However, it is noticeable that within the last months, the coverage of data protection mishaps in large-scale enterprises and of proceedings against data controllers initiated by the supervisory authorities has increased. The public perception of non-compliance with data protection regulations has changed through such precedent cases, and has lead to legislative actions which are presumably not completed with the amendments illustrated above. In light of the most recent incidents in large enterprises regarding the comparison of business processes with employee data, this concerns in particular the so-called employee data protection ("Beschäftigtendatenschutz").

In Germany, the supervision of compliance with data protection provisions falls within the competence of the federal states (the Bundesländer"). Since the amplification of the German Federal Data Protection Act does not itself sufficiently increase the pressure on the addressees of the Act, some of the federal states already intend to increase the capacities of their supervisory authorities. To some extent this increase has already been implemented. It is therefore advisable for companies to take the subject of data protection more seriously in the future than it has been done in the past. Companies also have the possibility to cooperate with the supervisory authorities in order to jointly develop processes which are legally compliant.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions