Administrative court Luxembourg - 45128

Administrative court Luxembourg - 45128
Court:	TA Luxembourg (Luxembourg)
Jurisdiction:	Luxembourg
Relevant Law:	Article 6(1)(e) GDPR
Decided:	27.09.2022
Published:	26.10.2022
Parties:
National Case Number/Name:	45128
European Case Law Identifier:
Appeal from:
Appeal to:
Original Language(s):	French
Original Source:	Administrative courts of Luxembourg (in French)
Initial Contributor:	n/a

The Administrative Court in Luxembourg held that a controller, the national Inspectorate of Labour and Mines, did not violate the GDPR in requesting files from an employer about their employees since, pursuant to Article 6(1)(e), it had legal grounds for the processing.

English Summary

Facts

The labour and mines inspection (controller) requested an employer to provide documents about its employees (data subjects) within 8 days. The controller is a public body tasked with supervisory authority to conduct controls and examinations. It has the authority to request documents and information from controllers regarding their employees (Article L.614-4(1)(a) Labour code). These documents had to contain information about, amongst other things, the beginning, end and duration of the daily work, extensions of the normal working time, the hours worked on Sundays, holidays and night work, information about wages, residence – and work permits, medical certificates and training certificates. (Articles L.614-4, paragraph (1) and L.614-5 Labour Code).

The employer provided the requested information to the controller on 11 February 2020. However, the employer didn’t provide all the requested files according to the controller. After the Employer failed to provide the additional files, the controller fined the employer €8000. After objections of the employer, this fine was reduced to €6000.

The employer appealed this fine at the court, stating that the controller was not entitled to demand the documents regarding salaries and proof of payment. It referred to written declarations of its employees, stating that the legal, administrative and contractual requirements in the law had been fulfilled. Therefore, there was no reason for the employer to provide these documents to the controller. According to the employer, its employees had also objected against the transfer of their salary-information to the controller, referring to their right of data protection.

The employer also made an argument justifying the lack of communication regarding a holiday-register. The employer was obliged to keep a register on the legal leave of its employees according to Article L.233-17 of the Labour Code. The controller stated this register was not subject to any particular formalism and that its employees had stated in their written statements that they had no claims to their right to leave, thus confirming that their employer had complied with the law. Therefore, the fine was not justified.

The employer also stated that that the fine imposed should be reversed with regard to the special register according to Article L.211-19 Labour Code, which stated the arrival time, departure time, working on Sundays or public holidays should be registered. According to the employer, the reason the fine should be reversed was the fact that these employees had all declared that they had entered their arrival and departure times on a daily basis in the working time register located at the reception desk and had never worked overtime, nor on Sundays or public holidays.

The employer also provided an argument regarding the lack of medical certificates for recruitment provided to the controller. The employer stated that it relied on good faith that its employees would have been in possession of a certificate drawn up by the occupational health service. When this would not be the case, it affirmed during the proceeding that it would register these employees immediately.

Holding

The court declared the appeal of the employer admissible, but dismissed the appeal and held that the government institution was in its right to fine the employer. The court held that the controller had the authority to conduct controls and examinations when it considered this necessary in order to guarantee that applicable legal and regulatory provisions would be met. This necessarily implied that the controller must be able to obtain the requested documents, without the employer being able to avoid this by producing testimonial certificates from his employees. Therefore, the argument of the employer regarding written declarations of its employees was deemed irrelevant.

The court also considered the argument of the employer where it referred to right of data protection for its employees. The court made a reference the GDPR on its own, without any of the involved parties bringing this up. The court referred to Article 6(1)(e) GDPR and recital 45, and reiterated that processing shall be lawful when the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the Employer. The Court held that the above was applicable in this case, because controller’s authority to request documents form the employer was described in Luxembourg law (Article L.614-4(1)(a) Labour code).

The court also rejected the argument from the employer regarding the lack of formality for the 'holiday-register' (Article L.233-17 of the Labour Code). Although the law did not specify the form of this register, it still required the establishment a material form that should allow the controller to verify the conditions regarding leave of employees.

Based on the provisions above, the court held that the controller was within its right to fine the employer, because it had not provided the requested documents in time.

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English Machine Translation of the Decision

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

Administrative Court No. 45128 of the role
of the Grand Duchy of Luxembourg Registered on October 26, 2020
4 bedroom


                          Public hearing of September 27, 2022

                              Appeal filed by Mrs. ..., ...,
           against a decision of the Director of the Labor and Mines Inspectorate
                              in matters of administrative fines



                                         JUDGEMENT

        Having regard to the request entered under number 45128 of the roll and filed at the court registry
administrative dated October 26, 2020 by Maître David Gross, lawyer at the Court, registered at the

list of the Luxembourg Bar Association, in the name of Maître ..., notary, residing
professionally to L-…, seeking to overturn a decision of the director of
the Labor and Mines Inspectorate of July 27, 2020 reducing, upon opposition, the fine
administrative order pronounced against him by his decision of May 7, 2020 in the amount of 6,000
euros;


        Having regard to the memorandum in response of the government delegate filed at the court registry
administrative dated January 7, 2021;

        Having regard to the memorandum in reply filed at the registry of the administrative tribunal dated 5
February 2021 by Maître David Gross, prequalified, on behalf of his client;


        Having regard to the memorandum in rejoinder of the government delegate filed at the court registry
administrative dated March 4, 2021;

        Considering the documents paid in question and in particular the business decision;

        Heard the judge-rapporteur in his report as well as Maître Franck Simans, in

replacement of Master David Gross, and Government Delegate Yannick Genot
in their respective pleadings at the public hearing of December 14, 2021.
___________________________________________________________________________

        Following the letter from the Labor and Mines Inspectorate, hereinafter referred to as “the ITM”,
of February 3, 2020 inviting Maître ..., in his capacity as a notary, to communicate to him, within a
                                                                                   er
within 8 days, documents concerning 15 of its employees for the period of July 1, 2019
until December 31, 2019, letter to which no follow-up was reserved, the ITM, by injunction
of February 11, 2020, ordered Master ..., on the basis of articles L.614-4, paragraph (1) a) and
L.614-5 of the Labor Code, to communicate to him, within a period of 8 days, for the period
from July 1, 2019 until December 31, 2019, the book concerning legal leave, the register
special or file containing the start, end and duration of the daily work as well as all the

extensions of normal working hours, hours worked on Sundays, public holidays
and night work, the working time register - Transport if applicable, the breakdown
monthly/salary slip, proof of payment of wages, if applicable, for
third-country nationals, residence permit or work permit, medical certificate
of employment and, where applicable, the valid periodical medical certificate, the training certificate



                                               1of the designated employee and this for his employees …, …, …, …, …, …, …, …, …, …, …, …, …, … and
…, while informing him that “(…) Any failure on your part to comply with it risks
to expose you to the administrative measures and sanctions provided for in article L.614-13 of the same
Code which provides that: "In the event of non-compliance within the time limit, the injunctions of the
director or members of the labor inspectorate, duly notified in writing, in accordance

in articles L.614-4 to L.614-6 and L.614-8 to L.614-11, the director of the Labor Inspectorate and
des mines is entitled to impose on the employer, his representative or the employee a fine
administrative, the amount of which is fixed between 25 euros and 25,000 euros. (…)”.

        On February 11, 2020, Maître ... had eleven binders deposited with the ITM.


        By letter dated February 18, 2020, the ITM again requested, from Master ..., the
communication of the salary slip for the month of February 2019 including the hours of leave not
taken as well as a copy of the related debit advice for the employee …, on the basis of articles L.614-
4, paragraph (1) a) and L.614-5 of the Labor Code, within 8 days, while informing him
of the provisions of article L.614-13 of the Labor Code in the event of a breach on his part.

        By letter dated February 26, 2020, the ITM finally requested, from Maître ..., the

communication of the salary slip for the month of January 2019, as well as a copy of the notice of
related debit for employee …, based on Articles L.614-4, paragraph (1) a) and L.614-5 of the
Labor Code, within 8 days, while informing him, again, of the provisions of
Article L.614-13 of the Labor Code in the event of a breach on his part.

        Following the analysis of the documents submitted to him, the director of the ITM, hereinafter referred to as
"the director", on the basis of the finding that Master ... had failed to follow up and take all

the measures required within the time allowed by the injunctions of February 11, 18 and 26
2020, imposed, on May 7, 2020, a fine on the latter in the amount of 8,000 euros on
the basis of article L.614-13 of the Labor Code.

        By letter dated May 19, 2020, Maître ... lodged an opposition against the director's decision
aforementioned of May 7, 2020.


        By decision of July 27, 2020, the director declared the opposition of Maître ...
partially founded by reducing the fine to an amount of 6,000 euros, while listing the
documents requested by the ITM are still lacking, decision worded in the terms
following:

        “(…) Considering the injunction of February 11, 2020 which was established in accordance with articles
                       er
L.614-4 paragraph 1, point a) and L.614-5 of the Labor Code by …, Principal Inspector of the
Labor, the Labor and Mines Inspectorate;

        Having regard to the decision of May 7, 2020 of the Director of the Labor and Mines Inspectorate
to impose the administrative fine "ITM Amende 20-099-ICE-2020-17160" of 8,000 euros to
against the NOTARY STUDY ..., located at L-... (registration number: ...), in its capacity as employer,
for failing to follow up and failing to take the required measures within the time limit

granted by the injunction of February 11, 2020 which was notified to him by ..., Principal Inspector of the
Labor, the Labor and Mines Inspectorate;






                                                2 Considering the opposition of May 19, 2020 against the said decision of the Director of Inspection of the
work and mines, which has been notified by the NOTARY STUDY ..., prequalified, and which has been
received by the Labor and Mines Inspectorate on May 26, 2020;

        That the opposition of May 19, 2020 against the decision of the Director of Inspection of the

Labor and Mines has been duly notified within a period of fifteen days from the
the date of notification of the administrative fine;

        That Master ..., in his capacity as representative of the NOTARY STUDY ..., prequalified,
considers that the accusations made in the decision of May 7, 2020 of the Director of Inspection
labor and mines would be lacking in fact and in law;


        That Master ..., prequalified, claims to have followed up on the injunctions received and that
all the required documents that can be transmitted legally, would have been communicated to
…, Principal Labor Inspector, of the Labor and Mines Inspectorate dated 11, 12 and
February 13, 2020 by email and by hand;

        That Master ..., prequalified, recognizes that the pay slips and proof of

payment of wages were not transmitted by it following the fact that its employees
would be formally opposed to their transmissions by virtue of their right to confidentiality
of their privacy and invoking the GDPR and that she had no intention of surrendering
criminally guilty of a violation of the rights invoked;

        That in the absence of reform of the decision of May 7, 2020, Maître ..., prequalified,
points out that it will have to exercise the legal recourse provided for, by putting the employees in question

as well as the National Commission for Data Protection in intervention;

        Que Maître ..., prequalified, is of the opinion that its employees deserve respect for their
rights, all the more so as it results from the oppositions formed that the employees would have declared
very expressly to have regularly received their salaries and payslips;

        Que Maître ..., prequalified, maintains that the ratio legis of the articles of the Labor Code

invoked by the Director of the Labor and Mines Inspectorate, would reside in the fact of
ensure that wages are regularly paid, which is precisely what its employees would have
formally attested;

        That Master ..., prequalified, adds that his employees would also have attested to being in
rule with the leave regulations and that therefore there would be no violation of its

charge which would be to be retained;

        That Master ..., prequalified, affirms not to be in possession of the medical certificates
required and assumes that no staff member would have felt concerned to archive
this paperwork;

        That Master ..., prequalified, does not object to a certificate attesting that she would be

in good standing with their procedures is requested from the Occupational Health Service and admits that there is
significant delays between the time of hiring and the check-up appointment by taking
as an example … (registration number: …) engaged in mid-2019 for whom the meeting would not have
yet occurred;




                                                3 That Master ..., pre-qualified, disputes the fact that the employee's training certificate
designated would not have been paid although it would have been sent by email on February 11
2020 at 10.48 a.m.;

        QueMaître..., prequalified, explains that employees not appearing in the central register

hours of work would have attested, like all the others, not having to perform nor
overtime, nor work on Sundays or on public holidays and concludes that they have not
committed an offense under the rules of the Labor Code;

        That Master ..., prequalified, requests the reduction of the amount of the fine because
of the absence of a significant breach on its part and to be taken into consideration, its

loyal and complete collaboration with the Labor and Mines Inspectorate.

        Whereas the training certificate of the designated employee, respectively the copy of
the registration for the training of the designated employee has been notified by the NOTARY STUDY ...,
prequalified, in support of its opposition of May 19, 2020;

        That the pay slips for the months of July 2019 to December 2019 of the employees, ...

(serial number: ...), ... (serial number: ...), ... (serial number ...), ... (serial number: ...), ... (serial number: ...) , ...
(serial number: ...), ... (serial number: ...), ... (serial number: ...), ... (serial number: ...), ... (serial number: ... ), ...
(registration number: ...), ... (registration number: ...), have not been notified by the NOTARY STUDY ...,
prequalified, within the time limit set by the injunction of February 11, 2020 and that these are
always default;

        That proof of payment of salaries for the months of July 2019 to December 2019 of

employees, ... (registration number: ...), ... (registration number: ...), ... (registration number: ...), ... (registration number: ...), ...
(serial number: ...), ... (serial number: ...), ... (serial number: ...), ... (serial number: ...), ... (serial number: ... ), ...
(registration number: ...), ... (registration number: ...), ... (registration number: ...), were not notified by the STUDY
NOTARY ..., prequalified, within the time limit set by the injunction of February 11, 2020 and that
these are always lacking;

        That the pay slips for the months of August 2019 to December 2019 of the employee ...

(matricule: ...), have not been notified by the NOTARY STUDY ..., prequalified, within the
time limit set by the injunction of February 11, 2020 and that these are still lacking;

        That proof of payment of salaries for the months of August 2019 to December 2019 of the
employee ... (registration number: ...), have not been notified by the NOTARY STUDY ..., prequalified,
within the time limit set by the injunction of February 11, 2020 and that these are still lacking

;

        That the pay slips for the months of September 2019 to December 2019 of the employee ...
(matricule: ...), have not been notified by the NOTARY STUDY ..., prequalified, within the
time limit set by the injunction of February 11, 2020 and that these are still lacking;

        That proof of payment of salaries for the months of September 2019 to December 2019

of the employee ... (registration number: ...), have not been notified by the NOTARY STUDY ..., prequalified,
within the time limit set by the injunction of February 11, 2020 and that these are still lacking
;





                                                 4 Maître ..., prequalified, claims in her opposition that the pay slips and
proof of salary payment was not sent by him following the fact that his
employees would have formally opposed their transmissions by virtue of their right to
confidentiality of their privacy and invoking the GDPR;


        That Master ..., prequalified, communicated oppositions only from part of the
employees concerned, namely employees ... (registration number: ...), ... (registration number: ...),
        ... (serial number: ...), ... (serial number ...), ... (serial number: ...) and ... (serial number: ...);

        That the pay slips and related proof of payment for other employees do not
not opposing their transmissions, have not been notified by the NOTARY STUDY ...,

prequalified, within the time limit set by the injunction of February 11, 2020 and that these are
always default;

        That in any case, the request of the Labor and Mines Inspectorate to see
communicate the salary slips and the related proof of payment of employees is
in accordance with Article 6 (1) e) of the GDPR, while the processing of personal data in
the cash is necessary for the performance of a task in the public interest or relating to the exercise of

the public authority vested in the controller, namely the Labor Inspectorate
and mines;

        What mission of the Labor and Mining Inspectorate is provided for in article L.612-1
of the Labor Code is in particular that of monitoring and ensuring the application of the
legislation including, in particular, working conditions and the protection of employees;


        That for this purpose, it is necessary for the Labor and Mines Inspectorate to have the
payslips and related proof of payment of employees in order to verify compliance
by the employer of the provisions of the Labor Code;

        In addition to this, the medical certificates of employment for employees, ...
(serial number: ...), ... (serial number: ...), ... (serial number: ...), ... (serial number: ...), ... (serial number: ... ), ...
(serial number: ...), ... (serial number: ...), ... (serial number: ...), ... (serial number: ...), ... (serial number: ... ), ...

(matricule: ...), have not been notified by the NOTARY STUDY ..., prequalified, within the deadline
granted by the injunction of February 11, 2020 and that these are still lacking;

        That the Multisectoral Occupational Health Service has confirmed to the Labor Inspectorate
and mines that no employer request has been made by the NOTARY STUDY ...,
prequalified, for the aforementioned employees, with the exception of Mrs.... (registration number:...);


        That the book concerning the legal leave for the months of July 2019 to December 2019 for
the employees ... (registration number: ...), ... (registration number: ...), ... (registration number: ...), has not been notified by
the NOTARY STUDY ..., prequalified, within the time limit set by the injunction of February 26
2020 and that this is still lacking;

        That the special register referred to in article L.211-29 of the Labor Code indicating the start,

the end and the duration of the daily work as well as all the extensions of the normal duration
of work, the hours worked on Sundays, legal holidays or at night as well as the
fees paid under either of these heads, for the period of July 2019
to December 2019 for employees ... (registration number: ...), ... (registration number: ...), ... (registration number: ...), ...
(registration number: ...), ... (registration number: ...), has not been notified by the NOTARY STUDY ..., prequalified,



                                                 5within the time limit set by the injunction of February 11, 2020 and that it is still lacking
;

        That the special register referred to in article L.211-29 of the Labor Code indicating the start,
the end and the duration of the daily work as well as all the extensions of the normal duration

of work, the hours worked on Sundays, legal holidays or at night as well as the
fees paid under either of these heads, for the period of the months of September
2019 to December 2019 for the employee ... (registration number: ...), was not notified by the STUDY
NOTARY ..., prequalified, within the time limit set by the injunction of February 11, 2020 and that
this is always lacking;


        That the reasons invoked by the NOTARY STUDY ..., prequalified, in its opposition
are therefore capable of justifying only a partial discharge of the administrative fine
;

                                         For these reasons
                       the Director of the Labor and Mines Inspectorate


        declares itself competent to hear the opposition introduced by the NOTARY STUDY
... located at L-… (registration number: ...), in its capacity as employer;

        said admissible and partially founded;

        reduced the amount of the administrative fine imposed by decision of 7 May 2020 of
Director of the Labor and Mines Inspectorate for the sum of 6,000 euros (…)”.


        By motion filed at the registry of the administrative court on October 26, 2020,
Maître...has lodged an appeal seeking the reversal of the aforementioned management decision
of July 27, 2020.

        Pursuant to Article L.614-14 of the Labor Code, “all decisions
administrative measures taken on the basis of the provisions of this law are subject to appeal

reform referred to in article 3 of the amended law of 7 November 1996 on the organization of
administrative courts”.

        In this case, the decision referred was taken on the basis of article L.614-13 of the Code of
work and it relates to the fixing of an administrative fine decided against Master
... as an employer. It follows that the administrative court has jurisdiction to

hear the appeal for reversal lodged against the contested decision.

        In his brief in response and as an introductory statement, the government delegate
reports to prudence of justice as to the admissibility of the appeal, as to the interest in acting of
Maître ..., as to compliance with the time limit for action and as to the form, without however providing the
any argument about it.


        It is up to the court to specify that if it is true that the fact, for a party, of
report to prudence of justice is equivalent to a challenge, the fact remains that a
non-substantiated dispute is to be dismissed, since it is not up to the judge
administrative authority to make up for the shortcomings of the parties to the dispute and to find the means
legal issues that may have formed the basis of their conclusions.



                                                6 Therefore, given that the state party failed to specify in which
extent the interest in acting would be lacking, respectively to what extent the form,
respectively the deadline for lodging the appeal would not have been respected, the means
of inadmissibility relating incur the rejection, it being noted that the court does not foresee either

cause of inadmissibility of public order which would have to be raised ex officio.

        It follows that the appeal for reversal is still to be declared admissible for having, by
elsewhere, been introduced in the forms and time of the law.

        In support of its appeal and in fact, the plaintiff, reviews the retroactions

cited above as the basis of this dispute.

        In law, the plaintiff claims, first of all, to have the contested decision overturned,
with regard to pay slips, as well as proof of payment of said wages, such as
listed in the contested decision of July 27, 2020, arguing that the ITM would not have
not been justified in claiming the said documents. It argues, in this context, that in the eyes
written declarations from the employees concerned attesting that all the legal provisions,

regulations, administrative and contractual agreements would have been respected with regard to them,
the intervention of the ITM would be pointless and that there would no longer be any need to communicate the
disputed documents. The plaintiff still avails itself, in this context, of the opposition
of its employees regarding the communication to the ITM of their pay slips, as well as
proof of related payments, the latter invoking the protection of their data
personal.


        With regard to the communication of the leave book, as provided for in article L.233-
17 of the Labor Code, the plaintiff, to justify the failure to communicate said
document, maintains, on the one hand, that it would not be subject to any particular formalism,
and, on the other hand, that the employees concerned, in their written declarations, allegedly claimed not to
not have claims as to their right to leave, so as to have thus confirmed the respect
legal provisions in force by their employer. She concludes that both the injunction
that the fine imposed on him under this head would not be justified.


        On the basis of the same written declarations of its employees, the plaintiff considers that
the fine imposed on him, with regard to the special register provided for in article L.211-
19 of the Labor Code, should incur the reform, insofar as the said employees
would all have stated that they enter their arrival time and their departure time on a daily basis
on the working time register located at the reception and never work hours

overtime, no work on Sundays or public holidays.

        Finally, with regard to the medical certificates of employment, the plaintiff
relies on its good faith by asserting that it believed that its employees would have been in possession
of a certificate established by occupational medicine, and faced with the observation that this would not have been the
case, it claims to proceed, in an imminent manner, to the registration of the employees concerned with
of the multisectoral occupational health service, hereinafter referred to as the “STM”, in order to pass the

medical examination, while specifying not to carry out these procedures for two of its employees, in
Mrs ... and Mrs ... on the grounds that their relationship would have ended, respectively
would be coming to an end.





                                                 7 In its reply, the plaintiff, with regard to the salary slips
disputes, still insists on the probative value of the written declarations of its employees in
arguing that it would be for the court seised to assess whether these would prevail
their conviction on the factual elements to be proven, even if the said documents do not
would not respect all the formal conditions of article 402 of the New Code of

Civil Procedure. Furthermore, the existence of a relationship of subordination cannot defeat the
taking into consideration the statements of employees, insofar as the system lasts close
of the witness would have been abolished and that only the parties to a trial could not have the quality
of witness. It still disputes the assertions of the State party according to which there would be
a doubt as to the employees' free consent to draw up their written statements, while
noting that there would be no legal proceedings between it and its employees and

asking, in case of doubt, to proceed with a hearing, as witnesses, of the said employees.
The plaintiff finally specifies that it would be impossible to pay
declarations of two of its employees due to the end of their employment relationship.

        As for the medical certificates, the plaintiff refutes the state argument founded
on a July 23, 2020 email from the STM that no employer demand
for making an appointment with said service has not yet been received, with respect to said

e-mail would not have been tendered by the State party as an exhibit, the
plaintiff specifying that such a request would have, in the meantime, been introduced.

        The government delegate concludes that the appeal should be dismissed as unfounded.

        Under the terms of Article L.614-4, paragraph (1), point a) of the Labor Code:
        “(1) Members of the labor inspectorate are also authorized:

        (a) to carry out any examinations, checks or investigations deemed necessary to
ensure that the legal, regulatory, administrative and contractual provisions are
actually observed and in particular: (…)
        - to request communication as soon as possible of all books, registers, files,
documents and information relating to working conditions, with a view to verifying compliance
with the legal, regulatory, administrative and contractual provisions, of
reproduce or establish extracts; (…)”.


        It follows from the said legal provision that the members of the ITM can proceed
the checks and examinations they deem necessary to guarantee compliance with the
legal and regulatory provisions, respectively applicable agreements, and that they
may for this purpose in particular request communication of all documents and information
relating to the working conditions of employees of a company within a certain period, which

necessarily implies that they must obtain, directly, effective communication
documents requested, without the employer being able to evade them by producing
testimonial certificates from its employees confirming, indirectly, compliance with the
legal, regulatory, administrative and conventional provisions in the matter, being
given that in the absence of the requested documents, no control of compliance with the law can
be done by the ITM. Therefore, plaintiff's argument must be rejected at the outset.
based on the written statements of its employees to be irrelevant. In effect,

the disputed point concerns a sanction for non-communication of documents and not a
penalty for non-payment of wages.

        It is still necessary to note, in this context, as to the ground of the plaintiff based
on respect for the protection of the personal data of its employees, that pursuant to Article



                                                86, paragraph (1), point e) of Regulation (EU) 2016/679 of the European Parliament and of the Council
of April 27, 2016 on the protection of individuals with regard to the processing of
personal data and the free movement of such data, hereinafter referred to as "the
GDPR”: “1. Processing is only lawful if and insofar as at least one of the
following conditions is met: (…) e) the processing is necessary for the performance of a task

in the public interest or in the exercise of official authority vested in the controller
treatment (…)”.

        Point 45 of the preamble to the GDPR provides in this regard: “When the processing is
carried out in accordance with a legal obligation to which the controller is
submitted or when it is necessary for the performance of a mission of public interest or falling within the

exercise of official authority, the processing should have a basis in the right to
the Union or in the law of a Member State. This Regulation does not require any provision
specific law for each individual treatment. A legal provision may suffice to
base several processing operations based on a legal obligation to which the
controller is subject or where the processing is necessary for the execution
of a task in the public interest or in the exercise of official authority. (…)”.


        It follows that the processing of data is only lawful on the basis of Article 6, paragraph
(1), point e) of the GDPR only if it is necessary for the performance in particular of a task falling
of the exercise of official authority vested in the controller and whether it is based
on a national legislative provision, as is the case here, with regard to Article
L.614-4, paragraph (1), point a) of the Labor Code.

        The court must ultimately reject the plaintiff's argument relating to

the absence of formalism, with regard to the keeping of the leave book, as provided for in
Article L.233-17 of the Labor Code, according to which “The employer is obliged to keep
on the legal leave of the employees who are in its service. The agents of the Labor Inspectorate and
of the mines have the right to require the presentation of the register or file to control it”, in
to the extent that said legal provision, although not expressly specifying the form to be
putting on the “leave book”, nevertheless requires the establishment of a material support in front of
allow the ITM to be able to verify compliance with the legal conditions in terms of leave by

the controlled employer.

        It follows from all of the foregoing considerations that the plaintiff was in
the obligation to communicate the documents required by the ITM and could not validly
oppose said communication on the basis of the written declarations of its employees,
respectively on the grounds of the protection of the personal data of said employees, so that

the director was able, rightly, on the basis of the finding of the failure to communicate the documents
more specifically listed in the contested decision of July 27, 2020, impose a fine on it
administrative on the basis of Article L.614-13 of the Labor Code under which “(1) In the event
of non-compliance within the time allowed, with the injunctions of the director or the members of
the labor inspectorate, duly notified in writing, in accordance with articles L.614-4 to L.614-
6 and L.614-8 to L.614-11, the Director of the Labor and Mines Inspectorate is entitled
impose an administrative fine on the employer, his delegate or the employee.


        (2) Notification of the fine to the employer, his representative or the employee to whom it is addressed
is made by registered letter or against signature affixed to the duplicate of the
decision.




                                                9 (3) In the event of disagreement, the employer, his delegate or the recipient employee must form

objection in writing with reasons within a period of fifteen days from the date of
notification of the administrative fine, subject to notification, by registered letter or
against signature on the duplicate of his complaint, to the director of the Labor and
mines.


        (4) In the event of opposition, the Director of the Labor and Mines Inspectorate shall take
given the written motivation notified to him by the employer, his representative or the recipient employee
a new reasoned decision, of a contradictory nature, which is in turn notified as
provided for in paragraph (2) of this article. (…)


        (5) The amount of the administrative fine is fixed according to the degree of gravity of the
the violation by the Director of the Labor and Mines Inspectorate of:

        a) between 25 euros and 25,000 euros for injunctions which have been notified in
application of article L.614-4;


        (…)

        To set the amount of the fine, the Director of the Labor and Mines Inspectorate

takes into account the circumstances and seriousness of the breach as well as the behavior of
his author. (…)”.

        As for the amount of the disputed fine, with regard to the subsidiary request of Maître
... to have the amount of 6,000 euros withheld at his expense reduced through the decision referred by the

July 27, 2020, it is, first of all, necessary to recall that in this matter the court, being
seized of an appeal for reversal, is called upon to assess the decision referred as to his well-being
founded and as to its appropriateness, with the power to substitute its own decision, involving
that this analysis takes place at the time when it is called upon to rule, it is necessary to rule according to the
elements of fact and law currently acquired .2


        In this context, the court must note that almost all of the documents identified
in the appealed decision of July 27, 2020 as not having been communicated by the
plaintiff, are still missing, at the present time, apart from the medical certificates of

three of its employees, in this case Mr. ..., Mr. ... and Mrs. ..., as well as
employers' requests, all dated October 19, 2020, for the summons to the exam
medical fitness for work for five other employees, it being noted that the plaintiff did not
not submit to the court the result of the said examinations which should have taken place in the meantime.


        Furthermore, the documents requested by the ITM, through the injunctions of 11, 18 and
February 26, 2020 are a priori standard documents that the employer should have at his disposal.
disposal as of the end of the relevant month, respectively within a certain period following
the hiring of the employee concerned, so that the 8-day period imposed on the plaintiff,
through the predicted injunctions, does not lend itself to criticism.




1Trib. adm., October 1, 1997, No. 9699 of the roll, Not adm. 2021, V° Complaints, n° 16 and the others
references cited therein.
2Trib. adm., July 8, 2002, No. 13600 of the roll, Not adm. 2021, V° Complaints, n° 17 and the others
references cited therein.



                                                10 In this context, it is also necessary to recall, in accordance with the wishes of the aforementioned article L.614-13
of the Labor Code, that the mere delay in following up on an injunction is already
liable to a fine, so that the mere fact that certain documents, as specified below,
before, relating to the medical certificate of 8 of the 14 employees mentioned in the management decision
referred, were only communicated following the introduction of the contentious appeal,

respectively with the brief in reply, beyond the observation that there is always almost
completeness of the missing documents, implies that the director's decision to impose a
fine to the plaintiff is still justified in principle, it being noted, in this context, that
the plaintiff, instead of complying within the time limit given to him by the injunction of February 11
2019, i.e. a period of 8 days, apart from the fact that these documents have already been requested from him
since February 11, 18 and 26, 2020, waited until November 12, 2020, respectively 5

February 2021, the day of the filing of its memorandum in reply, to finally pay that part of the
disputed documents in relation to some of the employees concerned by the injunction of February 11
2020, so that the delay noted by the director in the appealed decision of July 27, 2020
further increased by at least another 3 months, further delaying the
control by the ITM of compliance with the working conditions of the plaintiff's employees,
initially scheduled to be carried out in February 2020, as announced by the aforementioned letter from
the ITM of February 3, 2020.


        In view of these considerations and in view of the observation made above that almost all of the
documents are still lacking, it is up to the court to hold that at present, the amount
of the fine of 6,000 euros imposed by the decision referred cannot be considered as
being disproportionate with regard to the criteria set by the 5th paragraph of Article L.614-13 of the
Labor Code, namely the circumstances and the seriousness of the breach, as well as the
behavior of its author.


        It follows that in the absence of any other means, the action must be dismissed in order not to be
based.

        In view of the outcome of the dispute, it is necessary to reject the request of Maître ... for an allowance
procedural compensation in the amount of 1,000 euros on the basis of Article 33 of
the amended law of 21 June 1999 on the rules of procedure before the courts

administrative.

                                             For these reasons,

        the administrative court, fourth chamber, ruling contradictorily;


        receives in form the appeal for reversal lodged against the decision of the director of
the Labor and Mines Inspectorate of July 27, 2020 having reduced the administrative fine
imposed on Master ... at 6,000 euros;

        basically, declares it unfounded, therefore dismisses it;

        rejects the request for the allocation of procedural compensation of 1,000 euros presented

by the plaintiff;

        orders the plaintiff to pay the costs and expenses of the proceedings.





                                                11Thus judged and delivered at the public hearing of September 27, 2022 by:

Paul Nourissier, vice-president,
Olivier Poos, first judge,

Emilie Da Cruz De Sousa, judge,

in the presence of the clerk Marc Warken.

        sr Marc Warken sr Paul Nourissier
                    Reproduction certified true to the original

                        Luxembourg, September 27, 2022
                        The clerk of the administrative court















































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