OGH - 9ObA120/19s

Summary

The Austrian Supreme Court ruled that an employer installing and using a GPS system in company vehicles without employee consent or a company agreement can lead to damages for the employee. The employer tracked the employee's vehicle usage, including during leisure time, despite repeated requests to stop. This case highlights the importance of consent and proper procedures when implementing employee monitoring technologies.

Full text

Help OGH - 9ObA120/19s: Difference between revisions From GDPRhub Jump to:navigation, search ← Older editVisualWikitext Revision as of 09:49, 14 December 2023 view sourceAr (talk | contribs)Bureaucrats, Interface administrators, noContributionReport, Administrators2,246 editsm ← Older edit Latest revision as of 09:47, 24 June 2026 view source Bms (talk | contribs)Bureaucrats, Interface administrators, noContributionReport, Administrators117 edits Line 10: Line 10: |ECLI=ECLI:AT:OGH0002:2020:009OBA00120.19S.0122.000|ECLI=ECLI:AT:OGH0002:2020:009OBA00120.19S.0122.000 |Original_Source_Name_1=|Original_Source_Name_1=RIS |Original_Source_Link_1=https://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Justiz&Gericht=&Rechtssatznummer=&Rechtssatz=&Fundstelle=&AenderungenSeit=Undefined&SucheNachRechtssatz=False&SucheNachText=True&GZ=9ObA120%2f19s&VonDatum=&BisDatum=30.03.2020&Norm=&ImRisSeitVonDatum=&ImRisSeitBisDatum=&ImRisSeit=Undefined&ResultPageSize=100&Suchworte=&Position=1&SkipToDocumentPage=true&ResultFunctionToken=9dc30ee7-d8ca-4aaa-8738-f757c43133d6&Dokumentnummer=JJT_20200122_OGH0002_009OBA00120_19S0000_000|Original_Source_Link_1=https://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Justiz&Gericht=&Rechtssatznummer=&Rechtssatz=&Fundstelle=&AenderungenSeit=Undefined&SucheNachRechtssatz=False&SucheNachText=True&GZ=9ObA120%2f19s&VonDatum=&BisDatum=30.03.2020&Norm=&ImRisSeitVonDatum=&ImRisSeitBisDatum=&ImRisSeit=Undefined&ResultPageSize=100&Suchworte=&Position=1&SkipToDocumentPage=true&ResultFunctionToken=9dc30ee7-d8ca-4aaa-8738-f757c43133d6&Dokumentnummer=JJT_20200122_OGH0002_009OBA00120_19S0000_000 |Original_Source_Language_1=German|Original_Source_Language_1=German Latest revision as of 09:47, 24 June 2026 OGH - 9 ObA 120/19s Court: OGH (Austria) Jurisdiction: Austria Relevant Law: § 33 Austrian Data Protection Act 2000 (DSG 2000)§ 16 Austrian Civil Code (ABGB)§ 1328a Austrian Civil Code (ABGB)§ 18 Austrian Employment Act (AngG)§ 96 Austrian Labour Constitution Act (ArbVG)§ 10 Austrian Act on the Amendment of Employment Contract Law (AVRAG) Decided: 22.01.2020 Published: Parties: Employee (anonymous) Employer (anonymous) National Case Number/Name: 9 ObA 120/19s European Case Law Identifier: ECLI:AT:OGH0002:2020:009OBA00120.19S.0122.000 Appeal from: OLG Linz (Austria) Appeal to: Original Language(s): German Original Source: RIS (in German) Initial Contributor: n/a Austrian Supreme Court ("OGH") holds that if an employer installs and uses a GPS positioning system in company vehicles without a company agreement or the consent of the individual employee, this may give rise to a claim for damages by the employee concerned. Contents 1 English Summary 1.1 Facts 1.2 Dispute 1.3 Holding 2 Comment 3 Further Resources 4 English Machine Translation of the Decision English Summary Facts An employer (defendant) used a GPS positioning system installed in the company vehicles (which were allowed for private use as well) without a company agreement or the consent of the individual employee (plaintiff). The system was able to transmit GPS data around the clock, to monitor the battery level and to recognize when the ignition was switched on. The defendant tracked the plaintiff's use of his company vehicle during the plaintiff's work and leisure time. Several managers working for the defendant could view the data created by the GPS positioning system at any time via the internet. There was no company agreement on this GPS positioning system, especially since there was no works council in the company. The defendant did not comply with the plaintiff's repeated written and verbal requests to refrain from the GPS tracking, at least in his leisure time. The GPS tracking caused considerable inconvenience for the plaintiff. He was often called by his superior and asked why he had left home so late. Since the plaintiff did not want his private life to be controlled and monitored by the GPS tracking of the company car, he did not drive the company car but went on holiday in another car. Dispute Does the tracking of a company vehicle (which an employee is also free to use in his leisure time) by an employer via a GPS positioning system require the employee's consent or a company agreement? Is an employee who has been unlawfully monitored by such GPS positioning system entitled to non-material damages? Holding The Supreme Court upheld the decisions of the lower instances, which awarded the plaintiff compensation for the non-material damage he had suffered as a result, totalling EUR 2 400 (approximately EUR 400 per month of surveillance). With the GPS tracking system, the defendant had introduced a technical measure for the permanent control of its sales staff, which affects human dignity, because it controls the privacy brought into the company by each employee. The use of this tracking system also violated the defendent's duty of care as an employer under § 18 Austrian Employment Act (AngG). Under § 96(1) Z 3 Austrian Labour Constitution Act (ArbVG) and § 10 Austrian Act on the Amendment of Employment Contract Law (AVRAG) this control measure would therefore have required a company agreement or the consent of the plaintiff in an individual contract in order to be admissible. By using the GPS positioning system in the plaintiff's company vehicle during his working hours (and leisure time), the defendant unlawfully and culpably (intentionally) encroached on the plaintiff's private sphere, namely his very personal sphere of life. Since the intensity and extent of the violation also constituted a considerable violation of the plaintiff's private sphere, the plaintiff was entitled to non-material damages under § 1328a Austrian Civil Code (ABGB). Comment The case did not fall under the scope of the GDPR, as the GPS tracking started and ended before the GDPR was applicable (08. 05. 2017 until 31. 01. 2018). Hence the Supreme Court did not assess the case under Articles 6 et seqq. GDPR. Further Resources Share blogs or news articles here! English Machine Translation of the Decision The decision below is a machine translation of the original. Please refer to the German original for more details. Head The Supreme Court, as a court of appeal in labour and social law cases, was established by the President of the Senate of the Supreme Court, Dr. Hopf as chairman, the court councillor of the Supreme Court Dr. Fichtenau and the court councillor of the Supreme Court Dr. Hargassner as well as the expert lay judges KR Mag. Paul Kunsky and Harald Kohlruss as further judges in the labour law case of the applicant party D***** S*****, represented by Martin Wakolbinger, lawyer in Enns, against the defendant I***** GmbH, *****, represented by Martin Singer, lawyer in Schwaz, on 7.434.83 EUR sA, on the defendant's appeal (value of the appeal: 2,400 EUR) against the judgment of the Higher Regional Court of Linz as court of appeal in labour and social law cases of 12 August 2019, GZ 11 Ra 45/19w-33, which did not allow the appeals of both parties against the judgment of the Regional Court of Linz as labour and social law court of 19 February 2019, GZ 9 Cga 79/18i-26, to be heard in closed session: Saying The revision is not followed. Orders the defendant to pay the applicant the costs of the appeal proceedings, assessed at EUR 418,78 (including EUR 69,80 VAT) within 14 days Text Grounds for the decision: The plaintiff was employed by the defendant as a sales representative from May 8, 2017 to January 31, 2018. His gross monthly salary was EUR 2,857.14. In addition, the plaintiff received a sales commission as well as a company car, which he was also allowed to use privately - with the offsetting of a non-cash benefit. From the outset, the defendant had installed a GPS positioning system in this official vehicle - without the plaintiff's knowledge. This GPS positioning system, which the defendant had installed in every company car of the sales department, was able to transmit GPS data around the clock, which enabled th

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