BVwG - W256 2235360-1 (part 2)

BVwG - W256 2235360-1 (part 2)
Court:	BVwG (Austria)
Jurisdiction:	Austria
Relevant Law:	Article 6 GDPR Article 9 GDPR Article 22 GDPR §30 (2) VwGG
Decided:	27.01.2021
Published:	02.04.2021
Parties:	Data Protection Authority - DSB (appellant and applicant) Public Employment Service Austria (respondent in the initial trial before the DSB)
National Case Number/Name:	W256 2235360-1 (part 2)
European Case Law Identifier:	ECLI:AT:BVWG:2021:W256.2235360.1.00
Appeal from:
Appeal to:	Pending appeal VwGH (Austria)
Original Language(s):	German
Original Source:	Rechtsinformationssystem des Bundes (RIS) (in German)
Initial Contributor:	Fabian Schuster

The Federal Administrative Court of Austria refused to suspend automated decision making by the public employment service until conclusion of judicial proceedings. According to the court, the DPA's request lacked necessary concretisation.

English Summary

Facts

The Public Employment Service (AMS) is a service provider under public law with its own legal personality. It is responsible for implementing the labour market policy of the federal government. In order to support workers in their (re-)integration into the labour market, it offers various services which are implemented by its counsellors. In the course of a counselling interview, counsellors have to discuss the client's wishes/expectations, their previous life history and the reasons for their unemployment. The jobseeker's chances on the labour market should also be addressed and discussed. In order to support counsellors in assessing the labour market opportunities of jobseekers, the AMS has developed a concept for calculating the labour market opportunities of jobseekers (AMAS)

In concrete terms, AMS uses an algorithm to automatically calculate the probability of currently registered customers being employed for a certain number of days within a certain period in the future. For this purpose, a so called IC is calculated from the following data: age group, gender, group of States, education, health impairment, caring duties, professional group, pre-career regional labour market performance, duration of the business case at the AMS

Based on the calculated IC, a classification is made into the following groups: Service clients with high labour market opportunities, care clients with low labour market opportunities, counselling clients with medium labour market opportunities. In order to ensure that the counsellors do not adopt AMAS unquestioningly, the AMS has issued guidelines and corresponding instructions as well as conducted training courses.

The Data Protection Authority (DSB) initiated an ex officio investigation into the matter and concluded that the AMS was prohibited from processing data with the help of the AMAS with effect from 1 January 2021, unless there is a suitable legal basis for the data processing.

This decision was then repealed by the Federal Administrative Court without replacement.

Holding

Pursuant to section 30 subsection 2 VwGG, the administrative court shall, upon application of the appellant, grant suspensive effect by order until the appeal has been submitted, if this is not opposed by compelling public interests and if, after weighing the public interests affected and the interests of other parties, the execution of the challenged decision or the exercise of the right granted by the challenged decision would be disproportionately disadvantageous for the appellant. Accordingly, the two prerequisites mentioned in § 30 para 2 VwGG (disproportionate disadvantage for the appellant and no opposing compelling public interest) must be met cumulatively. If only one of these requirements is missing, the application for granting suspensive effect cannot be granted.

Notwithstanding the wording of § 30 (2) VwGG, the granting of suspensive effect is also permissible in the case of an official appeal. However, "disproportionate disadvantage for the appellant" in this case is to be understood as a disproportionate impairment of the public interests to be represented by the official party as a consequence of the implementation of the challenged decision in reality (cf. in this regard, for example, VwGH 08.06.2016, Ra 2016/05/0026). In this context, it is incumbent on the party filing an official appeal to set out in detail in the application for the granting of suspensive effect those circumstances from which such a "disproportionate disadvantage" results (cf. on this, in addition to the aforementioned decision of the Administrative Court, also that of 12 May 2010, AW 2010/10/0002, mwN); if such a sufficient specification is missing, this is a substantive defect and not a formal defect that can be improved (Kolonovits/Muzak/Stöger, Verwaltungsverfahrensrecht10 (2014), marginal no. 1378). However, a "disproportionate disadvantage" for the data protection authority as described above, resulting from the implementation of the challenged decision in reality, was not (specifically) raised in the present case.

The data protection authority limited itself to state that it had to protect data subjects from unlawful processing operations and that the non-granting of the suspensive effect and the associated possible and unlawful use of AMAS would result in a disproportionate disadvantage for all data subjects. However, further explanations as to what this "disproportionate disadvantage" should actually consist of are completely missing.

The application for the granting of suspensive effect by the data protection authority thus lacks the necessary concretisation, which is why it was not to be granted for this reason alone pursuant to § 30 para. 2 VwGG.

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English Machine Translation of the Decision

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

Court
Federal Administrative Court

Decision date
27.01.2021

Business number
W256 2235360-1

Saying
W256 2235360-1/7E


DECISION

The Federal Administrative Court, through Judge Caroline Kimm, rules on the application of the data protection authority to grant suspensive effect to the appeal against the decision of the Federal Administrative Court of 18 December 2020, no. W256 2235360-1/5E. W256 2235360-1/5E, the Federal Administrative Court issues the order:

Pursuant to § 30 para 2 VwGG, the appeal is not granted suspensive effect.


Text

REASON:

I. Course of proceedings and facts of the case:

With the contested decision of the Federal Administrative Court, the decision of the data protection authority prohibiting the Public Employment Service from processing data in connection with the determination of labour market opportunities of job-seekers with the help of the Labour Market Opportunities Assistance System ("AMAS") with effect from 1 January 2021, unless there is a suitable legal basis for the data processing by that date, was repealed without replacement.

The present appeal of the data protection authority filed with the Federal Administrative Court on 27 January 2021 is directed against this. The data protection authority justifies the associated request to grant the appeal suspensive effect as follows:

"The appellant must protect the public interest in complying with the requirements of the GDPR and protect data subjects from unlawful processing operations. The greater the number of (potentially) affected persons, the greater the public interest. 
The involved party has - according to media reports or the statement of its board members - stopped the use of AMAS, so that AMAS is currently not used. However, on the basis of the contested decision, it cannot be ruled out that the co-participating party will use AMAS again - especially in view of the expected negative development on the labour market in the course of COVID-19. As already explained above, the purpose of AMAS is precisely to shorten counselling time and to make discussions more efficient.
Since this data processing is associated with the considerable risks for data subjects described above and the question of whether AMAS can be lawfully used at all on the basis of the AMSG, the appellant requests that suspensive effect be granted in order to ensure that the risks are not extended to all jobseekers.

On the other hand, it is in the interest of the other party involved to be able to use AMAS to place jobseekers efficiently or to check whether a placement can still be considered (at all).
However, this interest takes a back seat to the interest in the granting of suspensive effect because AMAS is currently not being used at all and consequently no significant disadvantages are to be expected for the co-participating party if a decision on the legality of the use of AMAS is only made at a later date.Therefore, compelling public interests do not stand in the way of granting the suspensive effect. 

On the other hand, not granting suspensive effect would be disproportionately disadvantageous for all persons concerned - and ultimately also for the party involved - because it is not guaranteed that AMAS will be used in accordance with the law".


II. the Federal Administrative Court considered:

Legal assessment:

Pursuant to section 30 subsection 2 VwGG, the administrative court shall, upon application of the appellant, grant suspensive effect by order until the appeal has been submitted, if this is not opposed by compelling public interests and if, after weighing the public interests affected and the interests of other parties, the execution of the challenged decision or the exercise of the right granted by the challenged decision would be disproportionately disadvantageous for the appellant.

Accordingly, the two prerequisites mentioned in § 30 para 2 VwGG (disproportionate disadvantage for the appellant and no opposing compelling public interest) must be met cumulatively. If only one of these requirements is missing, the application for granting suspensive effect cannot be granted (see Kolonovits/Muzak/Stöger, Verwaltungsverfahrensrecht10 (2014), margin no. 1378).

Notwithstanding the wording of § 30 (2) VwGG, which is obviously not tailored to official appeals, the granting of suspensive effect is also permissible in the case of an official appeal. However, "disproportionate disadvantage for the appellant" in this case is to be understood as a disproportionate impairment of the public interests to be represented by the official party as a consequence of the implementation of the challenged decision in reality (cf. in this regard, for example, VwGH 08.06.2016, Ra 2016/05/0026).

In this context, it is incumbent on the party filing an official appeal to already set out in detail in the application for the granting of suspensive effect those circumstances from which such a "disproportionate disadvantage" results (cf. on this, in addition to the aforementioned decision of the Administrative Court, also that of 12 May 2010, AW 2010/10/0002, mwN); if such a sufficient specification is missing, this is a substantive defect and not a formal defect that can be improved (Kolonovits/Muzak/Stöger, Verwaltungsverfahrensrecht10 (2014), marginal no. 1378).

However, a "disproportionate disadvantage" for the data protection authority resulting from the implementation of the challenged decision in reality, as described above, was not (specifically) raised in the present case.
Rather, the data protection authority - as explained - limited itself to stating that it had to protect data subjects from unlawful processing operations and that the non-granting of the suspensive effect and the associated possible and unlawful use of AMAS would result in a disproportionate disadvantage for all data subjects. 
However, further explanations as to what this "disproportionate disadvantage" as a consequence of implementing the contested decision in the specific case should actually consist of are completely missing.

The application for the granting of suspensive effect by the data protection authority thus lacks the necessary concretisation, which is why it was not to be granted for this reason alone pursuant to § 30 para. 2 VwGG.


European Case Law Identifier
ECLI:AT:BVWG:2021:W256.2235360.1.00