ECJ: Teachers’ Consent for Live Video Classes?

May 5, 2023 Benn-Ibler Rechtsanwälte

The European Court of Justice (ECJ) took up the issue of data processing in employment relationships. Do national regulations violate the General Data Protection Regulation (GDPR)?

Backdrop of the case was the introduction of live streaming of video classes at Hessian schools during the COVID-19 pandemic. Consent was obtained from parents and pupils of legal age for the processing of their personal data, but not from the teachers. According to both Hessian and German federal data protection law, this was not necessary. Even without prior consent of the individuals concerned, their personal data may be processed insofar as this is necessary for the purpose of establishing and executing employment relationships. The state of Hesse argued that this was the case. The principal staff committee of teachers then brought an action before the competent national administrative court. The court doubted whether the German provisions would be considered more specific under Article 88 of the General Data Protection Regulation (GDPR). The case was then referred to the ECJ for a preliminary ruling.

According to Art 88 (1) GDPR, Member States may provide for more specific rules regarding the processing of data in an employment context, insofar as they include ‘appropriate and specific measures to safeguard the human dignity, legitimate interests and fundamental rights of the data subject’.

The ECJ emphasised that in order to be a ‘more specific rule’ under Art 88 GDPR, a provision must not merely repeat the provisions of the GDPR. Thus, such a provision must comply with the previously mentioned requirements and include suitable and specific measures to safeguard the human dignity, legitimate interests and fundamental rights of the data subject. In the present case, according to the ECJ, the national provisions seem to merely reiterate the principles for the general lawfulness of data processing already laid down in the GDPR without adding any specific provisions.

EuGH, C-34/21 (30.03.23)