A company's vacation lists do not constitute trade secrets

The Dresden Higher Regional Court (OLG) ruled on March 14, 2023 (Case No. 4 U 1377/22) that a company's vacation lists do not constitute trade secrets. In addition, a legal entity would not be entitled to injunctive relief and removal claims under data protection law due to the use of data of its employees from personnel files.

1. facts

The plaintiff company requested the defendant trade union to cease and desist from using data from its payroll accounting and, by way of a step-by-step action, to provide information on the possession and surrender of further documents containing confidential information from its company. The content concerned information from payroll accounting (including lists of sick days and vacation days) as well as e-mails from a former employee of the plaintiff. The defendant had submitted these documents in other proceedings.

The Regional Court had dismissed the action. It was irrelevant whether the e-mails were trade secrets. In any case, the defendant had been able to invoke substantial interests and had therefore been allowed to present the e-mails in the proceedings. Furthermore, data protection regulations of the DS-GVO (Basic Data Protection Regulation) were not violated. The submission of data in legal proceedings does not constitute data processing within the meaning of Article 4 of the GDPR.

The OLG confirmed the result of the Regional Court's decision.

Decision 2

In the opinion of the OLG, the Regional Court was correct in denying possible claims under the GDPR. According to the clear wording of Article 4 No. 1 of the GDPR, legal entities such as the plaintiff cannot rely on the claims contained in the GDPR. Furthermore, the plaintiff cannot rely on the Federal Data Protection Act (BDSG). However, the mere fact that the plaintiff, as a non-public body within the meaning of Section 1 (1) sentence 2, Section 2 (4) BDSG, is obligated to protect the data it collects from employees does not give rise to a claim by the plaintiff against third parties. Finally, the plaintiff also has no claim based on §§ 823, Subsection 2 , 1004, Subsection 1, Sentence 2, BGB, in conjunction with the provisions of the BDSG. Due to the direct legally binding nature of the GDPR(Article 288 (2) TFEU) and its primacy of application, national law only applies if the material scope of application of the GDPR is limited or if the European legislator has transferred the power to regulate independently to the Member States by means of an opening clause. Finally, the plaintiff also has no claims for injunctive relief, information and surrender from §§ 6, 7 and 8 GeschG with regard to the vacation and sickness lists. Because the information has no economic value in the sense of § 2 No. 1a GeschG. It was not recognizable to what extent this information could cause damage to the plaintiff GmbH if it became known.

3. conclusion 

The decision is convincing in substance. Even if this decision largely confirms already known principles that result from a simple interpretation of the law, it is still relevant to practice. In particular, the court's considerations on the question of the existence of a trade secret are very informative.

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