CJEU case C-34/21 Hauptpersonalrat der Lehrerinnen und Lehrer – CJEU Judgment (European Union, 2023)

During the Covid-19 pandemic, the Minister for Education and Culture of the Land Hessen established a legal framework to enable remote education through video-calls. According to this framework, pupils (or pupils’ parents) should give their consent to the processing of personal data. However, no similar provision applied to teachers. A Committee of teachers brought an action before the Wiesbaden Administrative Court. According to the defendant, the provision that enabled the regional government to process data without teachers’ consent was § 23 of the Hessisches Datenschutz- und Informationsfreiheitsgesetz (Law on data protection and freedom of information of the Land Hessen). This provision would set “more specific rules” concerning workers’ data protection rights in accordance with Article 88 GDPR and in derogation to GDPR itself. However, the Administrative Court suspected that the controller did not comply with Article 88(2) GDPR, as the latter provision requires “suitable and specific legislative provisions” to be adopted in order to protect data subjects’ rights. The German court wondered whether a national provision that does not meet this requirement, such as § 23 of the German data protection law, could be seen as a legitimate implementation of Article 88 GDPR. Moreover, the court was not certain about the faith of such a provision, in case a national judge found it in contrast with Article 88(2) GDPR. In order to better clarify the relationship between paragraphs (1) and (2) of Article 88 GDPR, the German court issued a preliminary reference to the CJEU. In the first place, the CJEU clarified that Article 88 GDPR covered the facts at issue in the main proceeding and more in general public employment, as this provision is not specific to the private sector. According to the CJEU, it is the existence of a relationship of subordination between the employee and the employer and not the legal nature of this relationship that justifies the open clause provid