The procedure surrounding the admissibility of the disputed AMS algorithm is likely to take even longer. The Administrative Court (VwGH) sees a need for further clarification, as evidenced by a recent judgment. Specifically, the question is whether the digital tool, intended to determine the labor market prospects of the unemployed, would have a significant influence on the decisions of AMS personnel.
The Labor Market Assistance System (AMAS) was set to be introduced nationwide in Austria at the beginning of 2021, but in August 2020, the data protection authority stopped the project by means of a notice. At the time, the authority criticized, among other things, the lack of legal basis for the project and identified prohibited individual decisions (“profiling”).
The Federal Administrative Court (BVwG) overturned the data protection authority’s decision, which subsequently challenged the ruling at the Administrative Court, which has now made a decision – after almost three years.
The AMS wanted to make the allocation of funding measures more efficient by dividing unemployed people into categories with high, medium, and low labor market opportunities using a computer algorithm. Unemployed people with medium labor market prospects should have received the most support. However, the responsible advisors should continue to make the final decision about unemployment support, for example, whether someone gets expensive skilled worker training or not.
The Court certifies that the algorithm is in the “significant public interest” – in this case a prerequisite for justifying the use of the personal data used. However, the VwGH also confirmed the existence of so-called “profiling”. The question of admissibility here depends on “whether the decision of the AMS employees about the assignment of job seekers is largely determined by the automatically calculated labor market opportunities”. If this were to be the case, a separate legal basis would have to be created for this.
The Federal Administrative Court did not deal with this controversial question, the VwGH stated. It must be clarified in a new procedure, which means it remains unclear when and in what form the program could be used. The AMS now wants to “examine the decision in detail and decide on the further course of action,” as it told the WHAT was called. The Court of Justice’s ruling was initially reported by the Standard (online).