Korkein hallinto-oikeus (Finland) - KHO:2021:125

Korkein hallinto-oikeus - HFD:2021:125
Court:	Korkein hallinto-oikeus (Finland)
Jurisdiction:	Finland
Relevant Law:	Article 51 GDPR Article 52 GDPR Article 53 GDPR Article 54(1) GDPR Article 47 CFR Article 19(1) TFEU
Decided:	10.09.2021
Published:	10.09.2021
Parties:
National Case Number/Name:	HFD:2021:125
European Case Law Identifier:	ECLI:FI:HFD:2021:125
Appeal from:
Appeal to:
Original Language(s):	Swedish
Original Source:	Korkein hallinto-oikeus (in Swedish)
Initial Contributor:	Florence D'Ath

The Finnish Supreme Administrative Court annulled the decision to end the mandate of the head of the regional Ålandic DPA because it did not comply with Article 54(1)(d) GDPR, according to which the duration of the term of any DPA member can be no less than four years.

English Summary

Facts

The Regional Government of Åland had appointed Mr A as head of the regional Ålandic DPA for a probationary period of one year.

Pursuant to section 10(2) of the Act on Public Officials in the Region of Åland, the Government of Åland stated that they would not propose the appointment of A to a permanent post and that A's term of office would therefore automatically come to and end after the one-year probationary period.

At the end of the probationary period, the Government of Åland issued a notice confirming that Mr A's term of office had ended. Mr A however applied to the Supreme Administrative Court of Finland for the annulment of this decision, which he considered contrary to the GDPR.

Holding

The Supreme Administrative Court considered that the notice issued by the Government of Åland constituted an administrative decision terminating Mr A's mandate.

The Supreme Administrative Court found that, in addition to national legislation, A's role as head of the data protection authority is also regulated by EU law, and in particular by the GDPR.

Although the GDPR does not contain explicit provisions regarding probationary period, the minimum length of the term of any member of any data protection authority is "no less than four years", as set in Article 54(1)(d) GDPR. As a consequence, the termination of A's mandate at the end of the probationary period could not be considered in line with the GDPR.

The Supreme Administrative Court further noted that leaving Mr A without any possibility of appeal against that decision would be contrary to the right to a fair trial as protected under the Finnish Constitution, Article 19 TFEU and Article 47 CFR.

As Mr A's mandate and termination had not been assessed in the light of the provisions of the GDPR, the Supreme Administrative Court concluded that the decision to terminate Mr A's mandate had to be annulled and the matter referred back to the Government of Åland for reconsideration.

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English Machine Translation of the Decision

The decision below is a machine translation of the Swedish original. Please refer to the Swedish original for more details.

HFD:2021:125

Åland - Case about Officials - Data Inspectorate's head of authority - Probationary period - the regional Act on Public Officials - EU General Data Protection Regulation - GDPR - Minimum term of office - Supervisory authority's independent status - Notice of termination of service - Appeal decision - Right to seek amendment
Yearbook number: HFD:2021:125
Given: 10.9.2021
Bed number: H3054
Record number: 20383/2020
ECLI: ECLI:FI:HFD:2021:125

The Åland Provincial Government had employed A for the position of head of authority at the Data Inspectorate with a probationary period of one year. With reference to section 10, subsection 2, the head of administration and development of the Provincial Government had. in the provincial civil servants' law announced that he will not propose that A be permanently appointed to the position and that A's employment relationship ends at the end of the probationary period. A requested in the Supreme Administrative Court that the decision to terminate his employment be revoked.

The Supreme Administrative Court regarded the announcement as an administrative decision which meant that A's employment had ended, revoked the decision and referred the matter back to the provincial government for consideration in compliance with the provisions of the Data Protection Ordinance.

A's position as head of authority at the Data Inspectorate was regulated not only by national rules but also by the provisions on data protection supervisory authorities at EU level. A basic premise of the Data Protection Regulation, which has been binding and directly applicable in the Member States since 25 May 2018, was that the supervisory authority should have an independent position.

Although the Data Protection Regulation did not contain explicit provisions on probation, the minimum term of office laid down in Art. 54.1 (d) of the Data Protection Regulation limits the application of national rules on probation. Such an application of the Civil Servants Act's provisions on probation that the employment relationship would be considered to have ended automatically at the end of the probationary period because no decision had been made to appoint A as a regular holder of the position was not compatible with the Data Protection Ordinance's minimum term.

To consider that the employment relationship had ended automatically at the end of the probationary period without the possibility of seeking redress would have meant that A had not been guaranteed real opportunities to have the termination of his employment tried in court, which was contrary to the Finnish Constitution, the Treaty on European Union and the European the Charter of Fundamental Rights of the Union. Considering that the probationary period determined on the basis of section 10 of the Civil Servants Act was not compatible with the nature of the Data Protection Ordinance. 54.1 (d), the announcement that A's service as head of authority will end at the end of the probationary period would be regarded as such a decision to terminate his employment relationship, which he was entitled to seek change under the Civil Service Act of the Province of Åland.

As A's employment relationship and its termination had not been assessed in the light of the provisions of the Data Protection Regulation, the decision to terminate his employment relationship would be revoked and the matter would be referred back to the provincial government.

Vote 4−1.

Finnish Constitution 21 § 1 subsection and section 120

Treaty on European Union, Art. 19.1

European Union Charter of Fundamental Rights, Art. 47

Regulation (EU) 2016/679 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and on the repeal of Directive 95/46 / EC (GDPR), Art. 51, 52, 53.1, 53.3, 53.4 and 54.1 (a) - (e)

The Self-Government Act for Åland, section 1, section 3, subsection 2. and section 25, subsection 2.

The Civil Servants Act (1987: 61) for the province of Åland, section 1, subsection 1, section 2, subsections 1–2, section 10, section 38, subsection 6. and section 61

The Landscape Act (2019: 9) on data protection within the provincial and municipal administration, section 1, subsection 1, section 14, subsections 1–2, section 15, subsections 1 and 3. and subsection 4, 3 points, section 16, subsection 1, section 18, subsection 2. and § 36.

Decisions to which the amendment applies
Åland's provincial government 23.1.2020

Background to the case
With its decision of 25 January 2019 no. 5 with a probationary period of one year, the Åland Provincial Government has employed jur. kand. A to the position of head of authority at the Data Inspectorate with access by agreement.

A has 25.2.2019 been appointed to the position for the probationary period 1.3.2019–29.2.2020. His duties have been stated to lead and develop the Data Inspectorate's activities under current legislation and be responsible for achieving established goals, handle the supervisory tasks imposed on the Data Inspectorate, provide instructions and advice on the processing of personal data within the provincial and municipal administrations and handle other tasks belonging to the Data Inspectorate. area.

The decision of the provincial government
The Provincial Government's head of administration and development has 23.1.2020 with reference to section 10, subsection 2. in the Civil Servants Act (1987: 61) for the province of Åland (Civil Servants Act) announced that he will not propose that A be appointed permanently to the position of head of authority at the Data Inspectorate, as he considers that A is not suitable on the basis of his evaluation. A's employment relationship thus ends at the end of the probationary period. A has been informed that he is welcome to come and discuss the matter on 28.1.2020.

It is noted that the provincial government on 24 February 2020 has appointed B as acting head of authority at the Data Inspectorate for the period 1–29 March 2020.

Proceedings in the Supreme Administrative Court
A has requested that the provincial government's decision that his employment as head of authority at the Data Inspectorate be terminated be revoked and that the provincial government be ordered to reimburse his legal costs together with legal default interest.

The petitioner has justified his petition for amendment in the following ways, among others:

In this case, the Provincial Government has tried to circumvent the Constitution and the European Convention on Human Rights (the Human Rights Convention) as well as the Civil Servants Act and the Administrative Procedure Act (2008: 9) for the province of Åland (the Administrative Procedure Act). In addition, the case has been both prepared and decided by a disqualified official and the application of a discretionary probationary period is contrary to the European Union's General Data Protection Regulation (GDPR).

Several officials from the authority participated in the discussion meeting on 28 January 2020, while A had not been informed of his right to bring an assistant. During the meeting, it emerged that the decision to terminate A's employment relationship was due, among other things, to complaints from leading players within the company Åda Ab. No minutes were drawn up for the discussion meeting on 28.1.2020.

A has repeatedly asked for an appealable decision on whether he should be appointed to the post. He considers that there is no basis for terminating his employment. He has not been notified of the decision on 24 January 2020 to appoint a acting head of authority.

The announcement that A will not be appointed to the position does not meet the formal requirements according to section 39 of the Public Administration Act, it is not a decision made at an individual presentation and the appeal instructions have not been attached. The notice must nevertheless be regarded as an appealable decision, as it was made by the competent official and it is to A's disadvantage.

According to section 10, subsection 2. in the Civil Servants Act, a decision on whether an official employed on probation shall be appointed to the position shall be made before the end of the probationary period, regardless of whether the person in question is appointed or not.

The preparatory work states that an official may not be dismissed during the probationary period without cause. Åland officials thus enjoy the same legal protection as in the country. This legal protection presupposes that the official in a case that directly affects him or her receives a written decision together with an appeal.

Failure to draw up a decision and issue instructions for appeal is also contrary to section 21 of the Constitution, Article 6. in the Human Rights Convention and section 42 of the Administrative Procedure Act.

The procedure in the case further contravenes the provisions on non-compliance in section 24, subsection 2. 3 and 6 of the Public Administration Act. Since the son of the head of administration and development is a board member of Åda Ab, there is reason to question whether the person who both prepared and made the decision was impartial.

According to art. 54.1 (d) of the GDPR, the period of employment of an official at the Data Inspectorate may not be less than four years. The prescribed exceptions to this main rule do not apply in A's case. Irrespective of the other grounds for revoking the decision to terminate A's employment relationship, the application of the probationary period of one year is clearly unlawful.

In its declaration, the Provincial Government has requested that the application for amendment and the claim for compensation for legal costs be rejected and stated in support of its claims, among other things:

In state and municipal employment conditions and according to the Employment Contracts Act, an active measure is required so that employment on probation does not become ordinary, but according to the Civil Servants Act for the province of Åland, it is the opposite. If the employer does nothing during the probationary period but allows the appointment to expire, the employment will end without any formal decision. The e-mail to which the request for amendment applies is thus not a formal decision and thus not subject to appeal.

If the Supreme Administrative Court were to conclude, contrary to expectation, that a formal decision would still have to be made or that the e-mail would be considered a formal decision, it prevails in any case in accordance with section 25, subsection 2. in the Self-Government Act for Åland Prohibition of appeals in appointment matters.

When the National Civil Servants Act was amended on 1 January 2018 to introduce a right of appeal, it was stated in the bill on which the amendment is based (RP 77/2017 rd) that, among other things, neither the constitution nor international agreements presuppose the right to appeal decisions regarding appointment to office or employment relationship. According to the case law of both the Supreme Court and the Supreme Administrative Court, an amendment cannot be sought in a decision on appointment to a state service or a state employment relationship. On the other hand, the Supreme Administrative Court has, with a decision (HFD 39: 2011), appealed against an appointment without review.

The current case concerns a situation where the provincial government in accordance with section 10, subsection 2. in the Civil Servants Act has announced that no decision will be made to appoint the head of authority at the Data Inspectorate to the position after the end of the probationary period. A has thus not been dismissed during the probationary period but has been given the opportunity to show his ability and suitability for the position during the entire probationary period.

The procedure with probation is common in the provincial administration and decisions are made as the law prescribes only when someone is appointed as a regular. The procedure can be compared to a fixed-term employment which terminates in the same way if no new decision is made.

The provisions of the Public Administration Act are applied in accordance with section 1, subsection 4 of the Act. not if there are deviating provisions in another law. Section 10 (2) of the Civil Service Act. thus takes precedence over section 39 of the Public Administration Act. Since no formal decision needs to be made in this case, the provisions of the Administrative Procedure Act on the forms of decision-making or section 42, which applies to instructions on appeal, do not apply either.

A was informed as early as the autumn of 2019 that the employer was not satisfied with the way in which he handled his assignment. At a meeting on 2 September 2019 between A and the head of administration and development and the head of human resources, it was discussed how he met and collaborated with authorities, among other things during audits. Due to contacts from your organizations who were dissatisfied with A's treatment and ability to cooperate, he was offered guidance by a psychologist and organizational consultant. The complaints also continued after receiving guidance and despite the fact that the problem had been discussed with A. several times.

The provincial legislation does not require the employer to inform the employee at a minuted meeting and inform about the right to have a representative with them. There was also no obligation to notify A of the decision to employ another person in his place or any right for him to complain about that decision.

A conflict of interest would presuppose that the outcome of the case may entail special benefit for the company that the related party represents. The case must affect the company directly and the company must have a legal or actual interest in the matter. These criteria can not be considered fulfilled in a case concerning the employment of an official at an authority, whose task is mainly to inform and offer advice to and exercise supervision over public authorities on Åland.

According to the GDPR, heads of government must be appointed in accordance with the national law of the Member States. For Åland, the employment procedure has been laid down in the Civil Servants Act and the Provincial Act (2019: 9) on data protection within the provincial and municipal administration.

When appointing the head of the Data Inspectorate, the same provisions apply as for other civil servants in the provincial administration. The provincial government's practice is to employ senior officials with a one-year probationary period.

The articles of the GDPR that regulate the administration of the supervisory authority do not affect probationary periods at all. It is therefore not correct that a probationary procedure is contrary to its rules. On the other hand, it is clear that the intention has been to leave the recruitment process to the Member States themselves.

It must be considered a legitimate interest for the employer to ensure that you have the right person for the position of head of authority. A certain probationary period is proportionate for this purpose, especially when this procedure is applied to the employment of heads of authorities in the provincial administration. Regulating in an EU regulation the conditions for the appointment of the head of authority would not be appropriate, nor is it reasonable to believe that the legislator intended to create such an arrangement.

The petitioner has replied and stated, inter alia:

It is not a question of the applicant for amendment having been overlooked when recruiting, but of the fact that he has held the position of head of authority for the Data Inspectorate. The Civil Servants Act explicitly presupposes a decision on whether an employee on probationary period shall be appointed to the position.

It has been noticed in local media that the Data Inspectorate has criticized Åda Ab. The company's reputation has run the risk of deteriorating due to the shortcomings that the Data Inspectorate has pointed out. Thus, the company is directly affected by who leads the Data Inspectorate's supervision of the company's compliance with the GDPR.

It is clear from the case law of Union law that the independence of the supervisory authority must be ensured so that independence in the exercise of supervision cannot even be theoretically affected. It is thus sufficient that an external authority or an object of supervision has the opportunity to influence the careers or other employment conditions of the supervisory authority's officials in order for the authority not to be considered independent. The Provincial Government's arbitrary rules on probation, in which dissenting officials are allowed to decide on their own initiative whether to employ a supervisory official after the probationary period has expired, are in clear conflict with Union law.

The fact that the Civil Servants Act provides an opportunity to make a decision on whether or not a salaried employee is to be appointed to a position does not mean that the authority can terminate an employment relationship without a basis and without a decision. Through its procedure, the Provincial Government neglects its obligation to demonstrate that there are serious and objectively verifiable reasons for the termination of the employment relationship and also makes it impossible to investigate this. The fact that the supervised objects have been given the opportunity to directly influence who carries out their supervision is also contrary to Union law. A Member State may not invoke provisions of its internal legal system as a basis for failing to comply with its obligations under Union law.

Since Union law takes precedence over national law, the provincial government's finding that its procedure is common in the provincial administration must be disregarded.

Due to the fact that the provincial government's decision is incorrect and that the case directly affects the petitioner and his fundamental rights and since the provincial government has actively performed the acts that led to the situation that arose, it would be unreasonable for the petitioner to bear his own costs, 9,166.08 Euro.

In a supplementary statement, the Provincial Government has disputed the petitioner's claim for compensation for its legal costs, since his petitioner for change is manifestly unfounded.

The provincial government's objection has been notified to A for information.

The decision of the Supreme Administrative Court
The Supreme Administrative Court has tried the case.

1. The written notice, dated 23.1.2020, that A will not be appointed to the regular position as head of authority at the Data Inspectorate is regarded as an administrative decision which means that A's employment relationship ends. The matter is referred back to the Åland Provincial Government, which will examine it in compliance with the provisions of Regulation (EU) 2016/679 on the protection of individuals with regard to the processing of personal data and on the free flow of such data and on the repeal of Directive 95/46 / EC (GDPR, hereinafter the Data Protection Regulation).

2. The provincial government is ordered to reimburse A's legal costs in the Supreme Administrative Court with 6,000 euros plus default interest. The default interest rate is determined in accordance with the interest rate referred to in section 4, subsection 1. in the Interest Act and begins to run from the month that has elapsed from the day when the Supreme Administrative Court has given this decision.

The reasons for the Supreme Administrative Court's decision

The main point

Question

In the case, the Supreme Administrative Court has to decide in the first instance whether the Åland Provincial Government has been able to consider that A's tenure as head of authority at the Data Inspectorate has ended at the end of the probationary period and whether A is entitled to have the case tried by the Supreme Administrative Court.

Applicable legal rules and preparatory work

Relevant provisions of the Treaty on European Union, the Constitution of Finland and the Åland Islands Self-Government Act

According to art. 19.1 of the Treaty on European Union (TEU), Member States shall lay down the means of redress necessary to ensure effective judicial protection in the fields covered by Union law.

According to art. 47 of the Charter of Fundamental Rights of the European Union, anyone whose rights and freedoms guaranteed by Union law have been violated has the right to an effective remedy before a court or tribunal, subject to the conditions laid down in this Article. Everyone has the right to have his case heard in a fair and public hearing within a reasonable time and before an independent and impartial tribunal established by law.

According to section 21, subsection 1. In the Finnish Constitution, everyone has the right to have his or her case heard by a court or other competent authority in a competent manner and without undue delay, and to have a decision concerning his or her rights and obligations heard in court or otherwise. other independent judicial body.

According to section 120 of the Constitution, the province of Åland has self-government in accordance with what is specifically stipulated in the Self-Government Act for Åland.

The province of Åland is added in accordance with section 1 of the Self-Government Act for Åland Self-Government in accordance with what is stipulated in this Act.

The county's general board and administration arrive in accordance with section 3, subsection 2. in the Self-Government Act of the Åland Provincial Government and the authorities under it.

Appeals against the legality of the provincial government's decision may, in accordance with section 25, subsection 2. in the Self-Government Act is stated before the Supreme Administrative Court. In the provincial government's decision in appointment matters, no change may be sought through appeals.

Obligations arising from data protection regulations

According to art. 51.1 of the Data Protection Regulation, which is binding and directly applicable in the Member States, each Member State shall provide that one or more public authorities shall be responsible for monitoring the application of this Regulation, in order to protect the fundamental rights and freedoms of natural persons in relation to processing and that facilitate the free movement of such data within the Union (hereinafter referred to as the supervisory authority). According to art. 51.2, each supervisory authority shall contribute to the uniform application of this Regulation throughout the Union.

Each supervisory authority shall, in accordance with Art. 52.1 of the Data Protection Regulation shall be completely independent in the performance of their tasks and the exercise of their powers under this Regulation. The member or members of each supervisory authority shall, in accordance with Art. 52.2 in the performance of their duties and the exercise of their powers in accordance with this Regulation shall be free from outside influence, directly or indirectly, and may neither request nor receive instructions from anyone.

Member States shall, in accordance with Art. 53.1 provide that each member of their supervisory authorities shall be appointed by an open procedure with the supervision of their Parliament, their Government, their Head of State, or an independent body entrusted with the appointment by the national law of the Member State. According to art. 53.3, a member's term of office shall end when the term of office expires or if the member resigns or is removed from office in accordance with the national law of the Member State concerned. A member may, according to art. 53.4 is dismissed only due to gross negligence or when the member no longer meets the conditions required to perform the assignment.

Each Member State shall, in accordance with Art. 54.1 (a) - (e) establish by law the establishment, qualifications and conditions of suitability for each supervisory authority required for the appointment of a supervisory authority by a supervisory authority, the rules and procedures for appointing a member or members of each supervisory authority; each supervisory authority member or members, which may not be less than four years, except for the appointment of the first members after 24 May 2016, when a step-by-step appointment procedure with shorter periods for some of the members may be applied if necessary to ensure the authority's independence; whether the member or members of each supervisory authority may be given a renewed mandate, and if so, for how many terms.

The application on Åland of the Data Protection Ordinance is specified and supplemented in accordance with section 1, subsection 1. in the Provincial Act (2019: 9) on data protection within the provincial and municipal administration through this Act.

According to section 14 (1) of the Act. The Data Inspectorate functions as a supervisory authority in accordance with the Data Protection Ordinance and this Act. The Data Inspectorate is in accordance with section 2 of the section. an independent authority administratively subordinate to the provincial government.

At the Data Inspectorate, according to section 15, subsection 1 of the Act. a position as head of authority to whose duties belong to leading the authority.

According to section 3 of the section. The Data Inspectorate shall, unless otherwise provided in this Act, handle such information concerning the authority's personnel which, in accordance with the Civil Servants Act (1987: 61) for the province of Åland, falls to the provincial government. The Provincial Government makes pursuant to subsection 4. 3 point decision in respect of the position as head of authority.

Eligible for the position as head of authority is in accordance with section 16, subsection 1. who at a university or comparable university, which is recognized by a national education authority, has completed a degree that corresponds to at least four years of full-time studies and contains a suitable subject combination. Appointment as head of authority takes place for six years at a time and the same person can be appointed to the position for a total of a maximum of 18 years.

If civil servants' general rights and obligations are prescribed in accordance with section 18 (2) of the Act. in the Civil Servants Act for the province of Åland.

According to section 36 of the Act, the Provincial Act on Data Protection in the Provincial and Municipal Administration has entered into force on 1 May 2019. According to section 2 of the Act, the Act has. repealed the Provincial Act (2007: 88) on the processing of personal data within the provincial and municipal administration and the Provincial Act (2007: 89) on the Data Inspectorate.

Relevant regulations that apply to provincial officials

If landscape officials and services at works and institutions that are subject to the county administration and if the employment relationship applies in accordance with section 1, subsection 1. in the Civil Servants Act (1987: 61) for the province of Åland (the Civil Servants Act) what is stipulated in this law.

According to 2 § 1 and 2 point of the Civil Servants Act, a civil servant is a person who has been appointed or transferred to a position (regular civil servant) and a person who has been employed on probation (civil servant on probation).

According to section 10 (1) of the Act. the person elected to the position before the appointment may be employed on probation, if this is required to ascertain whether the person elected to the position is able to fulfill his or her duties in a satisfactory manner. The probationary period is a minimum of three and a maximum of six months. However, the probationary period may not exceed one year if the nature of the service or other special reason so requires.

According to section 2 of the section. before the end of the probationary period, a decision shall be made as to whether an official employed on probationary period shall be appointed to the position. If an official employed on probation is not appointed to the position no later than before the end of the probationary period, his employment relationship terminates without notice at the end of the probationary period. An official employed on probation may be dismissed notwithstanding what is stipulated in this Act regarding the grounds for dismissal.

According to section 38, subsection 6. in the Civil Servants Act, the employment relationship for an official who has been appointed or employed for a certain period of time without dismissal when the specified period has expired, unless the employment relationship due to dismissal has ceased before that.

Section 61 of the Act stipulates that in decisions other than those referred to in Sections 58–60 made by the Provincial Government on the basis of this Act, an amendment may not be sought through an appeal. Termination of employment on probation is not mentioned among the decisions that according to sections 58–60 of the Act can be appealed through a request for rectification or an appeal.

Investigation in the case

The Åland Provincial Government has on 11 October 2018 declared the ordinary position as head of authority at the Data Inspectorate vacant. Eligibility requirements were a law degree and familiarity with data protection issues. The advertisement mentioned that probation may be applied.

The position was applied for by nine authorized persons. After personality and skill tests and an in-depth interview, A was suggested for the position.

On 25 January 2019, the Provincial Government decided to employ A with a probationary period of one year and access according to agreement.

On 25 February 2019, the Provincial Government appointed A to handle the employment relationship as the Data Inspectorate's head of authority during the probationary period 1.3.2019–29.2.2020.

According to the ordinance, A's duties were, among other things, to carry out the supervisory tasks imposed on the Data Inspectorate in accordance with current legislation and to provide instructions and advice on the processing of personal data within the provincial and municipal administrations.

During the probationary period, the provincial government received complaints concerning cooperation problems from the authorities over which A in the service would exercise supervision and offer instructions and advice.

When the cooperation problems, despite repeated discussions that the provincial government's head of administration and development and chief of staff had with A, continued, the head of development and personnel informed in an e-mail on 23.1.2020 A that his employment would end at the end of the probationary period.

A was given the same message orally at a meeting on 28.1.2020.

On 24 February 2020, the Provincial Government decided to appoint another person as acting head of authority at the Data Inspectorate for the period 1–29 March 2020.

Legal assessment

The parties' actions and perception of the situation

As stated above, A has been appointed to the position of head of authority at the Data Inspectorate with a probationary period of one year. A has not sought an amendment to this decision. According to the provincial legislation, it is also not possible to apply for a change in appointment decisions through appeals.

The Åland Provincial Government has, with reference to the provisions of the Åland Civil Servants Act, considered that A's employment relationship, in that he has not been appointed ordinary head of authority, has terminated automatically at the end of the probationary period, and that this has not required formal decision-making.

A, for his part, has stated that the Åland Provincial Government has terminated his employment in an unlawful manner and, invoking his need for legal protection, requested that the case be taken to court.

Termination of A's employment relationship

The Supreme Administrative Court states that the case concerns the position of head of authority at the Data Inspectorate, whose position, in addition to national rules, is also regulated by the provisions on data protection supervisory authorities at EU level. A basic premise of the Data Protection Regulation, which has been binding and directly applicable in the Member States since 25 May 2018, is that the supervisory authority must have an independent position.

According to Art. 54.1 (c) regulates the procedure for appointing a member of a supervisory authority, although nationally, but it follows from point (d) of the article that the term of office of a member of a supervisory authority, with certain exceptions not in this case, may not be less than four years.

In addition, Art. 53.3 that a member's term of office shall end only when the term of office expires or if the member resigns or is removed from office in accordance with the national law of the Member State concerned. According to art. 53.4, a member may be dismissed only due to gross negligence or when the member no longer fulfills the conditions required to perform the assignment.

The European Court of Justice has ruled in its case law that terminating the statutory term of office without complying with the rules and safeguards provided for in the applicable law would be incompatible with the requirement of independence (for example, Case C-288/12, European Commission v Hungary, EU: C: 2014: 237).

Although the Data Protection Regulation does not contain explicit provisions on probation, the Supreme Administrative Court finds that the minimum limit for the term of office laid down in Art. 54.1 (d) of the Data Protection Regulation sets limits on the application of national provisions on probation. Such an application of the Civil Servants Act's provisions on probation that the employment relationship as head of authority for the Data Inspectorate would be considered to have ended automatically at the end of the probationary period because no decision had been made to appoint A as ordinary holder of the position, is thus not compatible with the Data Protection Ordinance.

A's right to seek change

Each has, as stated above, in accordance with section 21, subsection 1. in the Finnish Constitution the right to have a decision concerning his or her rights and obligations dealt with by a court or other independent judicial body.

Of art. 19.1 of the Treaty on European Union and Art. 47 of the Charter of Fundamental Rights of the European Union also stipulates that it must be possible to have violations of Union law rights tried in court. Although the starting point is that cases are handled according to national procedural rules, the national legal system is assumed to ensure the protection of individuals' rights under the provisions of Union law with direct effect (for example, Joined Cases C-222/05 – C-225/05 J. van der Weerd m. et seq. EU: C: 2007: 318 and the case law and case C-771/18 European Commission v Hungary EU: C: 2020: 584 and the case-law cited there). The principle of effectiveness presupposes that it must not be impossible or unreasonably difficult to exercise rights that follow from Union law in practice (for example, case C-3/16 Lucio Cesare Aquino EU: C: 2017: 209 and the case law specified therein).

In the present case, such an application of the national provisions, according to which the Data Inspectorate's tenure of the head of authority has ceased automatically at the end of the probationary period without the possibility of seeking amendment, that A has not been guaranteed real opportunities to have his termination of employment tried in court. Considering that the probationary period determined on the basis of section 10 of the Civil Service Act is not compatible with the nature of the Data Protection Ordinance. 54.1 (d), the e-mail, in which A was informed that his service as head of authority will end at the end of the probationary period, dated 23.1.2020, shall be regarded as such a decision to terminate his employment, which he is entitled to seek change in the Civil Servants Act. .

The minimum term of appointment to the post of Head of the Data Protection Authority and the grounds for termination of employment are governed by the provisions of the Data Protection Ordinance on the term of office of the members of the supervisory authority and on the termination of the term of office. As A's employment relationship and its termination have not been assessed in the light of these provisions, the decision to terminate his employment relationship, dated 23.1.2020, shall be revoked and the matter referred back to the Åland Provincial Government for processing in accordance with the order in the decision above.

Other grounds for appeal

At this conclusion of the case, the Supreme Administrative Court does not take a position on A's arguments concerning the decision - maker's jurisdiction and any discrepancies or shortcomings in the procedure or decision in light of the formal requirements under the Administrative Procedure Act for Åland.

Costs

In view of the outcome of the case through the decision of the Supreme Administrative Court, it would be unreasonable for A to have to bear its own costs in full. Therefore, on the basis of section 95 of the Act on Administrative Proceedings in Administrative Matters, the Provincial Government is obliged to reimburse A's legal costs in the Supreme Administrative Court as stated in the decision above.

The case has been decided by Justice Anne E. Niemi, Outi Suviranta, Janne Aer, Petri Helander and Kristina Björkvall. Rapporteur Kaisa Pärssinen-Knight.

Voting speech

Justice Outi Suviranta disagreed. Her voting speech was as follows:

"I reject A's letter as a complaint. I consider that the letter is to be regarded as an application in an administrative dispute, in which A demands confirmation that his employment as head of authority at the Data Inspectorate has not ended at the end of the probationary period 29.2.2020.

Since the majority has tried the case as an appeal case, I state myself in substance despite the fact that the Supreme Administrative Court does not have jurisdiction to handle administrative disputes in the first instance. I establish that A's employment as head of authority at the Data Inspectorate has not ended on 29 February 2020 on the grounds that the probationary period has expired.

Obliged to state, on the basis of the majority's decision in the main proceedings, on the claim for compensation for legal costs, I am of the same opinion as the majority.

The reasons for the difference of opinion

According to section 6, subsection 1. in the Act on Administrative Proceedings (the Administrative Procedure Act), a decision by which an authority has decided or rejected an administrative case may be appealed. According to section 20, subsection 1. in the same law, the regional administrative court handles as an administrative dispute a dispute 1) which by law is to be decided as an administrative dispute, 2) which concerns a public payment obligation, 3) which concerns another interest or any other right or obligation based on a public law relationship; or 4) which applies to a management agreement. According to subsection 2. however, a case is not handled as an administrative dispute, if the case can or could have been decided by an administrative decision or a decision due to a basic appeal.

According to section 25, subsection 2. in the Self-Government Act for Åland (the Self-Government Act), appeals against the legality of the provincial government's decision may be lodged with the Supreme Administrative Court. In the provincial government's decision in appointment matters, no change may be sought through appeals.

I consider that the e-mail message 23.1.2020 is not to be regarded as such an appealable administrative decision as referred to in section 6, subsection 1. in the Administrative Procedure Act. A was elected to the position and was employed with a probationary period of one year by the provincial government's decision on 25 January 2019. Correspondingly, on 25 February 2019, he was appointed to the position. As A was not appointed to the position at the latest before the end of the probationary period, his employment relationship in accordance with the provisions of the Civil Servants Act for the province of Åland ceased automatically at the end of the probationary period. The e-mail has not been decisive for whether A's employment relationship has ended or continued. Thus, it is not a question of an appealable administrative decision.

A has claimed that the application of the probationary period of one year is contrary to the EU General Data Protection Regulation (GDPR). Article 54.1 (d) of the GDPR states that the period of employment of an official at the Data Inspectorate may not be less than four years.

I state with reference to 21 § 1 subsection. in the Finnish Constitution and Art. 19.1 of the Treaty on European Union that A shall be guaranteed the right to have the application of a probationary period of one year in this context tried by a court. Since according to 25 § 2 subsection. in the Self-Government Act it has not been possible to apply for an amendment to the decision by which A is employed with a probationary period, his right to judicial review is met by the possibility of initiating an administrative dispute in the administrative court, in this case in Åland's administrative court.

The relevant provisions on data protection in the case are set out above for the reasons for the majority's decision.

It appears from the provincial government's decision on 25 January 2019 that A was one of nine applicants when he was elected to the position of head of authority at the Data Inspectorate. He was employed with a probationary period of one year in accordance with current civil service legislation in the province, ie section 10 of the Civil Servants Act for the province of Åland, despite the fact that the term of office under the Data Protection Ordinance may not be less than four years. The purpose of the relevant EU legal provisions is to guarantee the independence of the supervisory authority. Applying probation in this context has been contrary to EU law. Since A has been elected to the position and since it has not been legally possible to employ or appoint him for a period of less than four years, I determine that A's employment relationship has not ended at the end of the illegal probationary period 29.2.2020 on the grounds that the probationary period expired."