New BDSG: Cabinet draft approved

The Cabinet today approved the draft of a completely new Federal Data Protection Act (BDSG), the draft of which has been prepared by the Federal Ministry of the Interior and coordinated with the Federal Ministry of Justice and Consumer Protection. Final passage of the bill is scheduled for April.

After today’s decision, the new law must be dealt with in the committees. It is to be expected that the negotiations will be laborious. The bill faces widespread opposition. Criticism was voiced by the Federal Commissioner for Data Protection, among others, who criticized restrictions on monitoring rights and the rights of those affected. The data protection commissioner in Mecklenburg-Western Pomerania sees “minor improvements, unfortunately also drastic deteriorations” compared to the earlier drafts and speaks of “superficial cosmetic repairs instead of necessary core renovation”.

In contrast, the Federal Minister of the Interior is quoted in the BMI press release as saying that a “major step has been taken toward harmonizing data protection regulations in Europe and thus toward a harmonized digital single market.” This view is surprising, as the new draft thwarts or attempts to restrict the regulations of the EU General Data Protection Regulation (GDPR) in a large number of cases. If all EU states were to enact similar legislation, it would create a larger patchwork of data protection legislation than has been the case to date. The economy is not served by national go-it-alone measures, but by a regulation that is as uniform as possible throughout Europe, which the GDPR offers. The new BDSG should only fill clear gaps, e.g. in the mandatory ordering of employee data.

Sharp criticism is already coming from the EU. The Green Party MEP Jan Philipp Albrecht, who was instrumental in drafting the GDPR, is already warning in the Stuttgarter Zeitung: “If this bill also passes the Bundestag in this form, it will end up before the European Court of Justice in no time.”

The draft contains a large number of regulations that violate the GDPR (e.g., restrictions on data subjects’ rights, introduction of regulations on scoring and credit agencies, or extensions of powers for security purposes). In addition, it must be criticized that the BMI is not amending the BDSG and adapting the provisions of police and security law in separate acts, thus creating significant legal uncertainty.

It therefore remains exciting to see what changes will be made to the draft legislation in the committees and whether the planned timeframe can be maintained. We will, of course, keep you up to date.

Contact: Dr. Stefan Drewes, Tel: +49-228-90248070;