A service provider in the health care sector argued that it was being discriminated against by the Federal Act on the Obligation to Vaccinate against COVID-19 (COVID-19-Impfpflichtgesetz – COVID-19-IG), BGBl. I No. 4/2022 as amended by BGBl. I No. 22/2022, on the data controller for the personal processing of exemptions from the general COVID-19 vaccination requirement in the Central Vaccination Register and for the transmission of vaccination data and exemptions to the Minister of Health (inter alia, for imposing penalties on non-vaccinated persons). In the course of the COVID-19-IG review process, no data protection impact assessment had been conducted. The high risk could also not be contained by appropriate measures. The data protection authority would be asked to decide whether or under which circumstances the processing activities provided for in COVID-19-IG can be carried out in compliance with the GDPR.
By decision of 21.4.2022, the data protection authority rejected the request for prior consultation, as the requirements for this were not met. The concerns raised by the data controller essentially relate to the legal basis of the intended data processing with regard to its feared unconstitutionality or illegality under EU law. However, the alleged unconstitutionality or unlawfulness of a law cannot be the subject of a consultation procedure primarily because, in the case of data processing provided for by law, it is not at all possible for a data controller to influence it and to factually mitigate any residual risks. The powers of a supervisory authority are also aimed at being able to exert a de facto influence on data processing. The competence to decide on the unconstitutionality of a law or to examine whether it complies with Union law does not lie with the supervisory authority.
The decision is not legally binding.
Source: DSB Austria