Term and Meaning of Operational Protection
The term operational protection describes, in a legal context, all measures and legal norms that serve to protect a business, its organization, processes, and legal positions from internal and external risks and adverse effects. Operational protection is not only an internal organizational concern, but also governed by numerous statutory regulations. It encompasses business management, employment law, environmental law, security law, and data protection law aspects, and contributes to securing the functionality and economic viability of a company.
Legal Basis of Operational Protection
Employment Law Operational Protection
Protection against business disruptions
Operational protection in the context of employment law encompasses all provisions aimed at ensuring the undisturbed operation of company processes. This includes, in particular, regulations to maintain industrial peace (§ 74 Works Constitution Act), participation rights of the works council (§§ 87 ff. BetrVG), as well as ancillary duties of employees under employment contracts, such as obligations of confidentiality and non-competition.
Employee protection and duty of care
Employers are legally obliged under duty of care (§ 618 BGB, § 3 Health and Safety at Work Act) to avert hazards and protect the lives and health of employees. This also includes technical protection measures, company emergency plans, and prevention of workplace accidents. Measures of operational protection are often closely linked with occupational safety and also fulfill collective legal requirements.
Trade and Environmental Law Related Operational Protection
Protection against external impacts
Operational protection under trade law includes protection against unauthorized interventions by third parties, sabotage, theft, espionage, and vandalism. Key regulations are found in the Criminal Code (e.g. § 242 Theft, § 303 Damage to property, § 202a Data espionage) as well as in the police laws of the states. Companies are entitled to implement measures such as access controls, video surveillance (in compliance with data protection requirements), plant security, or the use of private security services.
Environmental Protection and Corporate Due Diligence
Operational protection also includes protection of the company from environmentally-related damage incidents. Relevant here are environmental law regulations such as the Federal Emissions Control Act (BImSchG) and the Water Resources Act (WHG), which serve to protect against harmful environmental impacts caused by business activities or third parties. Operator obligations to avert danger and emergency management are integral components of operational protection.
Industrial Property Rights and Know-how
Intellectual Property
Operational protection includes comprehensive protection of intellectual property, such as trade secrets, technical proprietary rights (patents, utility models), trademark protection, and copyrights. Sections 17-19 of the Act Against Unfair Competition (UWG) establish the protection of business and trade secrets. Additionally, the Act on the Protection of Trade Secrets (GeschGehG), implementing EU Directive 2016/943, governs the company’s rights against unlawful acquisition, use, and disclosure of trade secrets.
IT and Data Protection
Measures to protect corporate IT systems and personal data (General Data Protection Regulation – GDPR, Federal Data Protection Act – BDSG) are also part of operational protection. These include requirements for data security, access control, as well as preventing data loss, unauthorized access, and cyberattacks.
Organizational and Technical Operational Protection
Internal organizational measures
Operational protection is implemented through internal company regulations such as guidelines for access, IT usage, secure storage of sensitive documents, and emergency management. Company rules, safety officers, and compliance systems serve to identify and avert risks at an early stage.
Technical and structural measures
Technical operational protection measures include alarm systems, fire and building protection, access controls, encryption technologies, as well as structural security systems. Occupational health prevention, protection against infectious diseases, and occupational health and safety measures also form essential pillars.
Proportionality and Legal Protection
Limits of operational protective measures
All measures under operational protection are subject to the principle of proportionality. In particular, the protection of personal rights and data privacy must be observed. Company agreements or consents are required if measures such as video surveillance or data processing are undertaken.
Legal enforceability and sanctions
Affected parties have various contractual and statutory claims, for example for injunctive relief, removal, damages, or information. Violations of operational protection regulations can result in civil law sanctions, damage claims, or criminal investigations.
Summary
Der operational protection is a multifaceted and cross-disciplinary term that describes all measures and legal instruments for comprehensive protection of companies against internal and external risks. The legal framework ranges from employment protection mechanisms to trade, environmental, and IT and data protection law, as well as the protection of intellectual property. Implementation takes place through organizational, technical, and contractual measures, observing the principle of proportionality and legal boundaries. Operational protection thereby secures the integrity, functionality, and economic stability of companies within a complex legal environment.
Frequently Asked Questions
What liability risks does the employer face in the event of violations of operational protection?
In case of violations of the statutory provisions on operational protection, the employer is liable both in civil and criminal law. Civil liability may arise for claims of employees for damages relating to health or property damage if these result from a breach of operational protection duties. This includes, among others, claims under §§ 280, 823 BGB as well as under the General Equal Treatment Act (AGG), if a violation due to lack of protection leads to discrimination or disadvantage. In terms of criminal liability, employers face fines and imprisonment under § 26 Health and Safety at Work Act (ArbSchG) and further special statutory provisions, for example for breaches of occupational safety rules or negligent bodily injury (§ 229 StGB), especially if serious accidents have occurred. Additionally, there may be administrative liability under § 130 OWiG (Regulatory Offenses Act), according to which management must regularly monitor and ensure compliance with operational protection obligations.
In what form must employers legally document operational protection?
Legally, the employer is obliged to document operational protection systematically. This is based inter alia on § 6 Health and Safety at Work Act (ArbSchG), which expressly requires the documentation of risk assessments, protective measures taken, and their results. This includes a comprehensible record of all risks, their evaluation, and the resulting occupational safety measures. The documentation serves as evidence of compliance with statutory duties in case of dispute and protects the employer against liability claims. It must be updated continuously, especially when there are material changes in business processes or in the event of accidents. Additionally, there may be special statutory documentation requirements, for example under the Operational Safety Ordinance (BetrSichV), Hazardous Substances Ordinance (GefStoffV), or Workplace Ordinance (ArbStättV).
What co-determination rights does the works council have in the context of operational protection?
According to §§ 87 para. 1 item 7, 89 BetrVG, the works council has extensive co-determination rights regarding occupational health and safety and accident prevention regulations. This concerns all specific measures for improving operational protection, the introduction of technical and organizational protection measures, the execution of risk assessments, as well as the selection and provision of personal protective equipment. Furthermore, the works council has monitoring rights with respect to implementation and may insist on compliance in case of violations. Information, hearing, and initiative rights are also relevant, for example under § 80 BetrVG, enabling the works council to make its own proposals for improvement of operational protection and to push for their implementation.
What notifications are required by law within the framework of operational protection?
Certain incidents in connection with operational protection are subject to reporting requirements. For example, work-related accidents and occupational illnesses must be reported to the responsible professional association in accordance with § 193 SGB VII. Serious workplace accidents resulting in fatalities or multiple injuries often have to be immediately reported to the occupational health and safety authority. Furthermore, the Health and Safety Act provides notification obligations for certain disruptions, such as those involving hazardous substances or technical equipment (§§ 16, 19 BetrSichV; § 22 GefStoffV). Violations of these reporting requirements may result in fines or even criminal consequences.
Can employees take legal action to enforce operational protection and what are the legal grounds for this?
Employees fundamentally have the right to demand statutory operational protection. If operational protection is neglected, they may first turn to the works council or the specialist for occupational safety. If this is unsuccessful, there is the option to assert the claim to safe working conditions before the labor court, based on § 618 BGB and § 3 ArbSchG. In addition, employees may exercise the right to withhold work performance under § 273 BGB if there is a significant risk to life or limb. In some cases, serious violations may also justify immediate termination of the employment relationship by the employee.
What consequences can the disregard for rules on operational protection have for business operations?
Non-compliance with operational protection regulations can lead to significant disruptions in business operations. This includes, in particular, official orders for business shutdowns or partial closures, and possibly the withdrawal of operating permits under § 22 ArbSchG or §§ 20 ff. BetrSichV. In addition, repeated or serious violations may result in reputational damage, loss of employee motivation, as well as recourse claims from insurers in case of accidents. There is also the risk that employees may refuse to work or be absent at short notice, which can lead to substantial losses in production and revenue.
