After the LAG Düsseldorf awarded an applicant damages of EUR 1,000 under Art. 82 GDPR, the eagerly awaited decision of the BAG (judgement of 5 June 2025 – 8 AZR 117/24) is now available. As part of the appeal proceedings, the plaintiff additionally demanded at least EUR 4,000.00 from the GDPR. Furthermore, he sought judicial clarification to the effect that the defendant was liable for all damages – both present and future – resulting from the data protection breach
The decision of the BAG
The application for a declaratory judgement based on the violation of Art. 33 Para. 2 GG was unsuccessful before the BAG. In the opinion of the court, a rejected applicant is only entitled to damages for violation of the application procedure claim under Art. 33 Para. 2 GG if he can prove that he was the best-qualified candidate in terms of suitability, aptitude and professional performance and that the position should have been awarded to him if the selection process had been flawless. The mere violation of the selection procedure is not sufficient; rather, it is necessary that every other appointment decision proves to be legally flawed. The latter was not to be affirmed because at the time of the selection decision there were facts that had to give rise to justified doubts about the personal suitability of the plaintiff for the advertised position.
The BAG also confirmed the compensation of EUR 1,000.00 awarded to the plaintiff by the LAG as appropriate compensation – it rejected any additional or even “punitive” component of the compensation. The compensation should only compensate, not penalise, and multiple infringements do not lead to an increase if they relate to the same processing operation
Conclusion
Both the LAG Düsseldorf and the BAG consider internet searches in the application process to be permissible in principle, but require transparent information in accordance with Art. 14 GDPR. The LAG awarded 1,000 euros due to the loss of control; the BAG confirmed this amount, specified the requirements for causality and presentation of damages and rejected further claims due to a lack of proof of best qualification. In particular, the BAG emphasised that compensation under Art. 82 GDPR does not have a punitive function, but only a compensatory function; multiple violations do not automatically increase the amount