E-5/25

EFTA-case   

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Deadlines: Motivation ministry:    29 May 2025
Written observations:                    15 July 2025

Keywords: termination of employment contract, GDPR

Subject: General Data Protection Regulation: Article 38(3).

Facts of the case:
This case concerns the dismissal of a university data protection officer whose dual role as postdoctoral researched was deemed incompatible with his DPO duties. The referring court requests an advisory opinion from the EFTA Court regarding the interpretation of the second sentence of Article 38(3) of the GDPR, specifically whether it precludes national rules (like Liechtenstein’s Data Protection Act) that allow dismissal of a data protection officer only for ‘just cause’, whether an ordinary termination of the employment contract constitutes ‘dismissal’ under that provision, and whether a dismissal that breaches those protective rules must be treated as void so that the employment relationship remains intact. 

Request for an advisory opinion:
First question:
Must the second sentence of Article 38(3) of the GDPR be interpreted as meaning that it precludes a national provision such as, in the present case. Article 7(4) of the Data Protection Act, according to which a data protection officer employed by a public body may only be dismissed by the public body with just cause, in particular, where circumstances exist in the presence of which continuation of the employment relationship can, on good faith grounds, no longer be reasonably expected, even if the data protection officer precisely does not perform his function or does not perform it correctly?

Second question:
Must the second sentence of Article 38(3) of the GDPR as worded in German be interpreted as meaning that the term "dismissed" [in German "abberufen"] includes also an (ordinary) termination of the employment contract by the employer of the data protection officer if, as a result, the employment contract basis and thus the factual possibility of exercising the activity of data protection officer ceases to exist?

Third question:
Does the protective purpose of the second sentence of Article 38(3) of the GDPR, that is to say, safeguarding the functional independence of the data protection officer, require an interpretation of this provision and corresponding national rules serving the same protective purpose, such as Article 7(3) and (4) of the Data Protection Act, to mean that a dismissal which is effected contrary to these rules entails that the dismissal is void and that the employment relationship between the employer and data protection officer as such remains intact?

Cited (recent) case-law: C-453/21 X-FAB Dresden GmbH & Co KG; C-560/21 KISA; C-534/20 Leistritz. 

Policy Area: SZW; JenV