Hauptpersonalrat der Lehrerinnen: Article 88 GDPR and the Interplay between EU and Member State Employee Data Protection Rules

Abstract

On 30 March 2023, the European Court of Justice ruled for the first time on the interpretation of Article 88 GDPR, which gives Member States the power to provide for more specific rules on employee data processing. In response to a request from the Administrative Court of Wiesbaden (Hauptpersonalrat der Lehrerinnen) concerning the live streaming of video classes, the CJEU found the German law regulating personal data processing in the employment context to be incompatible with the GDPR. This note examines the far‐reaching implications of the ruling, not least given that similar provisions have been enacted at the state and federal levels in Germany as well as in several other Member States. It further identifies guidelines for the appropriate use of Article 88. Notably, national laws making use of Article 88 GDPR must provide normative content that is distinct from, but compatible with, the GDPR.