How to protect the Data Protection Officer against dismissal

How to protect the Data Protection Officer against dismissal. The case before the EFTA Court

The Republic of Poland's participation in the proceedings before the EFTA Court in Case E-5/25 Silbernagl (Personal Data Protection – grounds for dismissal of the Data Protection Officer) is justified. This position was forwarded by the President of the Personal Data Protection Office, Mirosław Wróblewski, to the Chancellery of the Prime Minister. The contentious issue concerns the dismissal of the Data Protection Officer (DPO).

The plaintiff (Rainer Silbernagl) was appointed as a DPO and employed by the University of Liechtenstein. Then, on the basis of an annex, he was additionally employed as a habilitated doctor as a professor of the department.

Later, regulations came into force, according to which work as a habilitated doctor cannot be combined with other employment at the university. For this reason, Rainer Silbernagel's employment relationship was terminated.

The plaintiff believes that the termination had no justified reason and was invalid. In the defendant's opinion, the GDPR and national regulations do not provide any protection against dismissal under labor law. The courts of first and second instance dismissed the plaintiff's claims. However, the case went to the Prince's Supreme Court and the Constitutional Tribunal.

When re-examining the case, the national court decided to refer the question to the EFTA Court for an interpretation of the provisions of law in that case. The questions referred to the Court concern, in particular, the extent of the protection against dismissal afforded to DPAs by the second sentence of Article 38(3) of the GDPR and by the national legislation. According to this provision of the GDPR, the Data Protection Officer may not be dismissed or punished by the controller or the processor for the performance of their tasks.

As indicated by the President of the Personal Data Protection Office in its letter to the Chancellery of the Prime Minister, the application of the above-mentioned provision of the GDPR may cause problems in practice. This is indicated, inter alia, by questions referred by national courts to both the CJEU and the EFTA Court. The Polish legislator has not yet decided to adopt regulations clarifying the solutions provided for in Article 38(3), second sentence, of the GDPR.

In the opinion of the President of the Personal Data Protection Office, the ruling to be issued in case E-5/25 Silbernagl before the EFTA Court may be relevant not only within the scope of application of Article 38(3), second sentence, of the GDPR, but may also have an impact on the scope and direction of clarification of the regulations on the dismissal of a DPO in the Polish legal system.

Therefore, it can be assumed that the judgment of the EFTA Court may necessitate a change in Polish law or the practice of its application.

DPNT.0623.13.2025