Special protection for data protection officers – the content of this special German provision is the same as that already in force under the old Federal Data Protection Act. Since the introduction of the General Data Protection Regulation, it has been a matter of legal dispute whether the regulation is valid at all or whether it violates European law.
The background to this is that the General Data Protection Regulation created uniform European law. The member states may enact additional data protection law if the subject matter to be regulated falls under one of the so-called opening clauses, i.e., covers an area that the European Union has deliberately left to the member states for regulation.
The best example of this interaction between European and national law is the opening clause of Art. 88 GDPR for the area of employee data protection, which Germany has used by creating Section 26 BDSG.
Now, the fact is that the GDPR precisely does not provide for an opening clause regarding the position of the data protection officer.
Consequently, nationally increased, special protection for data protection officers can only be effective if this area does not fall under the subject matter regulated by the General Data Protection Regulation and thus does not fall under the primacy of European law. Therefore, in the case of the provision from the Federal Data Protection Act, it is being discussed whether this is not actually a provision of labor law and thus falls under the independent regulatory competence of the member states.