- The LAG Hamburg considers a three-month expiry clause for claims to be compatible with the GDPR, provided that the effectiveness of the data subject’s rights is preserved.
- Prerequisites for validity: time limits must not practically prevent assertion, start of time limit after knowledge of the facts giving rise to the claim, claim remains recognizable and enforceable.
- Swiss law only prohibits a prior waiver of the right to information; a later waiver is permissible under certain circumstances if sufficient information and specifics are provided.
The Hamburg Higher Labor Court (LAG) had to checkwhether the following clause is compatible with the GDPR:
1) All mutual claims arising from the employment relationship and those that are related to the employment relationship shall lapse if they are not asserted in writing or in text form (§ 126 BGB) to the other party to the contract within three months of the due date.
The LAG comes to the conclusion that the GDPR such a forfeiture clause does not preclude. The GDPR does not regulate the disposability of data subjects’ rights. Rather, in accordance with the principle of procedural autonomy, it is the Member States that design the procedural modalities for enforcing data subjects’ rights, as long as the principle of effectiveness is also upheld. This applies if the following conditions are met:
- the time limits do not in fact make it impossible to assert claims;
- the period begins after knowledge of the facts giving rise to the claim, and
- the claim remains recognizable and enforceable for the creditor.
This ruling is perhaps less relevant for Switzerland because companies with employee data in Switzerland are often not subject to the GDPR. However, the FADP contains a similar provision in Art. 25 para. 5 FADP:
No one can waive the right to information in advance.
Because it is a relatively highly personal right, it is not waivable – but only “in advance”. This indicates that it can be waived at a later date under certain conditions. Contrary to stricter opinions (e.g. Schmid, FZR 1995 13, but also in the current BSK), this is also the view of the Federal Supreme Court. In BGE 141 III 119 has recorded it:
Une renonciation (non anticipée) ne peut être envisagée que si la person concernée connaît déjà l’essentiel de l’information à laquelle elle pourrait avoir accès […]
A waiver is therefore permissible if the data subject can essentially assess the processing without the information. This is certainly correct because a waiver, like consent – which is also a waiver of the exercise of a relatively highly personal right – can only be considered on the basis of sufficient information, and the subject of the waiver must also be sufficiently clear. A concretization is therefore a prerequisite for effectiveness. This means, for example, that a Balance clause It is conceivable that an employee could waive the right to information from the employer to a certain extent. An agreement in which an employee confirms that he or she is sufficiently informed about certain data processing would also be conceivable – in this case, the right to information would probably only exist to the extent of other or further processing.