Judgment of the Court of Justice First Chamber, 30 March 2023, Hauptpersonalrat der Lehrerinnen und Lehrer, C-34/21

• Date: 30 March 2023
• Year: 2023

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issuing the letter of formal notice, whether or not the judgment in question has been complied with in

the meantime, but also to allege and establish, prima facie, with clarity, in that letter of formal notice,

that the judgment remains to be complied with on the reference date. A Member State cannot

legitimately be accused of having failed to fulfil its obligation to take the necessary measures to

comply with a judgment of the Court if it is not clear from the letter of formal notice that, on the

reference date, the obligation to comply with that judgment has continued to exist since its delivery.

In the present case, the Court notes that, in the letter of formal notice of 9 November 2018, the

Commission did not, with the requisite clarity, allege or establish, prima facie, that the judgment of

5 April 2017, Commission v Bulgaria, still had to be complied with on the reference date, namely

9 February 2019.

In that letter, the Commission states that the failures to fulfil obligations established up to 2014 in

that judgment continued, in respect of the zones and agglomerations referred to in that letter, in 2015

and 2016. It does not, however, provide detailed explanations or factual analysis indicating that the

situation identified during those two years continued without any significant improvement during the

period between the delivery of the judgment on 5 April 2017 and the reference date, 9 February 2019,

thus making it necessary to take measures to comply with that judgment.

According to the Court, neither the fact that those failures to fulfil obligations continued between the

end of the period covered by the Court’s judgment, namely 2014, and a subsequent period, which

nevertheless preceded the date of delivery of the judgment, namely 2015 and 2016, nor the

systematic and persistent nature of those failures to fulfil obligations established by the Court in that

judgment, automatically means that, both on the date of its delivery and on the reference date, that

judgment still had to be complied with and that Bulgaria could therefore be criticised for not having

taken all the measures necessary to comply with it.

Therefore, by failing, in the letter of formal notice, to allege and establish, prima facie, with the

requisite clarity, the essential prerequisite that the judgment of 5 April 2017, Commission v Bulgaria,

still had to be complied with on the reference date as regards the zones and agglomerations referred

to in that letter, the Commission did not legitimately allege that Bulgaria failed to fulfil its obligation to

take the necessary measures to comply with that judgment. The Court concludes that the

Commission’s action for twofold failure to fulfil obligations is inadmissible.

II. PROTECTION OF PERSONAL DATA

Judgment of the Court of Justice (First Chamber), 30 March 2023, Hauptpersonalrat der

Lehrerinnen und Lehrer, C-34/21

Link to the full text of the judgment

Reference for a preliminary ru ling – Protection of personal data – Regulation (EU) 2016/679 – Article 88(1)

and (2) – Processing of data in the employment context – Regional school system – Teaching by

videoconference due to the COVID-19 pandemic – Implementation without the express consent of

teachers

By two measures adopted in 2020, the Minister for Education and Culture of the Land Hessen

(Germany) established the legal and organisational framework for school education during the

COVID-19 pandemic, providing, inter alia, for the possibility for pupils who could not be present in a

classroom to attend classes live by videoconference. In order to safeguard pupils’ rights in relation to

the protection of personal data, it was established that connection to the videoconference service

would be authorised only with the consent of the pupils themselves or, for those pupils who were