Court case W256 2235360-1 – Court Ruling (Austria, 2025)

The Public Employment Service (the controller) is a body responsible for implementing the federal government’s labour market policy. The controller developed a model for calculating jobseekers’ labour market opportunities (“AMAS”), as a tool for advisors to use in assessing jobseekers’ labour opportunities. This model uses data subjects’ personal characteristics (e.g. age, gender, education, previous career) to predict their future chances of integrating into the labour market. The controller planned on making its use mandatory from 2021 onwards. However, it also implemented measures to ensure that AMAS was used as a secondary opinion only; for example, advisors were trained to use AMAS and assess labour market opportunities independently. Advisors were also obliged to explain data subjects the conclusions reached by AMAS, and discuss any possible concerns. The DPA initiated an ex officio investigation, and prohibited the controller from processing personal data using AMAS because the controller did not have a suitable legal basis. Furthermore, the processing was profiling within the meaning of Article 4(4) GDPR, and the prohibition of automated decision-making under Article 22 GDPR applied in any case. The controller appealed the decision to the Federal Administrative Court (BVwG), who annulled the decision of the DPA. According to the BVwG, the controller is allowed to carry out this processing of personal data in accordance with national law. The DPA appealed the case to the Supreme Administrative Court (VwGH)You can read the GDPRhub summary here: VwGH - Ro 2021/04/0010-11. The VwGH stated that there was a possibility that AMAS constituted automated decision-making within the meaning of Article 22(1) GDPR. This was the task of the BVwG to investigate; according to the VwGH, the processing would be prohibited if there was automated decision-making unless the exceptions under Article 22(2) GDPR were met. The Court first stated that AMAS engaged in profiling in