Public Employment Service Austria (respondent in the initial trial before the DSB) – Court Ruling (Austria, 2023)

The Public Employment Service (AMS) is a service provider under public law with its own legal personality, which 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 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, AMAS 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, sex, 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. The results of the AMAS ought to be used in the guidance process and be a starting point for the counsellors to determine, together with the client, the optimal support strategy (subsidies and support services). The final decision on the assignment to a client group is always made by the counsellors. Originally, 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. In the contested decision, the Austrian Federal Administrative Court held that the Public Employment Service could lawfully process personal data belonging to jobseekers according to Article 9(2)(g) GDPR as this was necessary in order to guarantee a well-functioning labour market and outlined in Austrian law. The automated processing of the personal data of the jobseekers concerned (in AMAS) based on a mathematical-statistical program falls under the definition of "profiling" according to Art. 4(4) GDPR in accordance with the case law of the CJEU in C-634/21. The automatied processing - in this case the determination a value, which determines the probability of integration into the labor market - is itself (already) to be regarded as an "automated decision" within the meaning of Art. 22 para. 1 GDPR, provided that this value significantly determines the allocation to one of the groups and thus has a legal effect on the jobseekers concerned or significantly affects them in a similar way. The fact, that the final decision on the group assignment of the jobseekers lies with the employees of the Public Employment Service, does not necessarily prevent the algorithm (AMAS) from being qualified as an automated decision within the meaning of Art. 22(1) GDPR [they could, indeed, still draw strongly upon the calculated value]. The fact that the employees undergo training and follow instructions to ensure they do not accept the result of the algorithm without questioning does not exclude the possibility that AMAS - as an automated decision - is ultimately decisive for this classification. The previous instance court will thus have to investigate the exact use of the value calculated with AMAS, in particular which other parameters are taken into account and to what extent, or which procedure is envisaged for the utilization of AMAS. If the use of AMAS falls under the scope of Art. 22(1) GDPR (as will have to be decided by the previous instance court), it would be prohibited unless one of the exceptions listed in Art. 22(2) GDPR applies and the special requirements of Art. 22(3) and (4) GDPR are met.