The work of the data protection officer (DPO) is a professional activity. The Federal Fiscal Court ruled on this back in January 2020. And let's not forget the famous Ulm ruling from 1990, in which the Ulm Regional Court stated in its decision (Ref.: 5T 153/90-01 LG Ulm) that company and official data protection officers exercise a profession because their work makes a permanent and non-temporary contribution to society as a whole. Even if they perform their duties as data protection officers in addition to their actual main job, this activity is to be regarded as a profession from a constitutional point of view.
The RDG provides lawyers with special powers that are not granted to non-lawyers. In its ruling of 12.03.2021 - 1 AGH 9/19 - the Lawyers' Court of North Rhine-Westphalia dealt with the question of whether only lawyers may act as data protection officers. The answer to this question is of particular interest to many external data protection officers because they are not usually lawyers.
According to the ruling, the authority to provide legal advice by a designated data protection officer arises from Art. 39 GDPR (tasks of the data protection officer). It states that his or her task is to "monitor compliance with this Regulation [or] other data protection provisions". The discussion is therefore about whether data protection officers are permitted to provide legal advice on data protection law in Germany as a result of the activities specified in the General Data Protection Regulation (GDPR), which also includes legal advice on data protection law, or whether this legal advice constitutes a breach of the RDG.
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