GDPR LAW Wording
REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 27 April 2016
on the protection of natural persons with regard to
the processing of personal data and on the free movement of such data,
and repealing Directive 95/46/EC (General Data Protection Regulation)
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 16 thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee (1),
Having regard to the opinion of the Committee of the Regions (2),
Acting in accordance with the ordinary legislative procedure (3),
Whereas:
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(1)
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The protection of natural persons in
relation to the processing of personal data is a fundamental right.
Article 8(1) of the Charter of Fundamental Rights of the European Union
(the ‘Charter’) and Article 16(1) of the Treaty on the Functioning of
the European Union (TFEU) provide that everyone has the right to the
protection of personal data concerning him or her.
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(2)
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The principles of, and rules on the
protection of natural persons with regard to the processing of their
personal data should, whatever their nationality or residence, respect
their fundamental rights and freedoms, in particular their right to the
protection of personal data. This Regulation is intended to contribute
to the accomplishment of an area of freedom, security and justice and of
an economic union, to economic and social progress, to the
strengthening and the convergence of the economies within the internal
market, and to the well-being of natural persons.
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(3)
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Directive 95/46/EC of the European Parliament and of the Council (4)
seeks to harmonise the protection of fundamental rights and freedoms of
natural persons in respect of processing activities and to ensure the
free flow of personal data between Member States.
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(4)
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The processing of personal data should
be designed to serve mankind. The right to the protection of personal
data is not an absolute right; it must be considered in relation to its
function in society and be balanced against other fundamental rights, in
accordance with the principle of proportionality. This Regulation
respects all fundamental rights and observes the freedoms and principles
recognised in the Charter as enshrined in the Treaties, in particular
the respect for private and family life, home and communications, the
protection of personal data, freedom of thought, conscience and
religion, freedom of expression and information, freedom to conduct a
business, the right to an effective remedy and to a fair trial, and
cultural, religious and linguistic diversity.
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(5)
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The economic and social integration
resulting from the functioning of the internal market has led to a
substantial increase in cross-border flows of personal data. The
exchange of personal data between public and private actors, including
natural persons, associations and undertakings across the Union has
increased. National authorities in the Member States are being called
upon by Union law to cooperate and exchange personal data so as to be
able to perform their duties or carry out tasks on behalf of an
authority in another Member State.
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(6)
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Rapid technological developments and
globalisation have brought new challenges for the protection of personal
data. The scale of the collection and sharing of personal data has
increased significantly. Technology allows both private companies and
public authorities to make use of personal data on an unprecedented
scale in order to pursue their activities. Natural persons increasingly
make personal information available publicly and globally. Technology
has transformed both the economy and social life, and should further
facilitate the free flow of personal data within the Union and the
transfer to third countries and international organisations, while
ensuring a high level of the protection of personal data.
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(7)
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Those developments require a strong and
more coherent data protection framework in the Union, backed by strong
enforcement, given the importance of creating the trust that will allow
the digital economy to develop across the internal market. Natural
persons should have control of their own personal data. Legal and
practical certainty for natural persons, economic operators and public
authorities should be enhanced.
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(8)
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Where this Regulation provides for
specifications or restrictions of its rules by Member State law,
Member States may, as far as necessary for coherence and for making the
national provisions comprehensible to the persons to whom they apply,
incorporate elements of this Regulation into their national law.
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(9)
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The objectives and principles of
Directive 95/46/EC remain sound, but it has not prevented fragmentation
in the implementation of data protection across the Union, legal
uncertainty or a widespread public perception that there are significant
risks to the protection of natural persons, in particular with regard
to online activity. Differences in the level of protection of the rights
and freedoms of natural persons, in particular the right to the
protection of personal data, with regard to the processing of personal
data in the Member States may prevent the free flow of personal data
throughout the Union. Those differences may therefore constitute an
obstacle to the pursuit of economic activities at the level of the
Union, distort competition and impede authorities in the discharge of
their responsibilities under Union law. Such a difference in levels of
protection is due to the existence of differences in the implementation
and application of Directive 95/46/EC.
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(10)
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In order to ensure a consistent and
high level of protection of natural persons and to remove the obstacles
to flows of personal data within the Union, the level of protection of
the rights and freedoms of natural persons with regard to the processing
of such data should be equivalent in all Member States. Consistent and
homogenous application of the rules for the protection of the
fundamental rights and freedoms of natural persons with regard to the
processing of personal data should be ensured throughout the Union.
Regarding the processing of personal data for compliance with a legal
obligation, for the performance of a task carried out in the public
interest or in the exercise of official authority vested in the
controller, Member States should be allowed to maintain or introduce
national provisions to further specify the application of the rules of
this Regulation. In conjunction with the general and horizontal law on
data protection implementing Directive 95/46/EC, Member States have
several sector-specific laws in areas that need more specific
provisions. This Regulation also provides a margin of manoeuvre for
Member States to specify its rules, including for the processing of
special categories of personal data (‘sensitive data’). To that extent,
this Regulation does not exclude Member State law that sets out the
circumstances for specific processing situations, including determining
more precisely the conditions under which the processing of personal
data is lawful.
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(11)
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Effective protection of personal data
throughout the Union requires the strengthening and setting out in
detail of the rights of data subjects and the obligations of those who
process and determine the processing of personal data, as well as
equivalent powers for monitoring and ensuring compliance with the rules
for the protection of personal data and equivalent sanctions for
infringements in the Member States.
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(12)
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Article 16(2) TFEU mandates the
European Parliament and the Council to lay down the rules relating to
the protection of natural persons with regard to the processing of
personal data and the rules relating to the free movement of personal
data.
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(13)
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In order to ensure a consistent level
of protection for natural persons throughout the Union and to prevent
divergences hampering the free movement of personal data within the
internal market, a Regulation is necessary to provide legal certainty
and transparency for economic operators, including micro, small and
medium-sized enterprises, and to provide natural persons in all
Member States with the same level of legally enforceable rights and
obligations and responsibilities for controllers and processors, to
ensure consistent monitoring of the processing of personal data, and
equivalent sanctions in all Member States as well as effective
cooperation between the supervisory authorities of different
Member States. The proper functioning of the internal market requires
that the free movement of personal data within the Union is not
restricted or prohibited for reasons connected with the protection of
natural persons with regard to the processing of personal data. To take
account of the specific situation of micro, small and medium-sized
enterprises, this Regulation includes a derogation for organisations
with fewer than 250 employees with regard to record-keeping. In
addition, the Union institutions and bodies, and Member States and their
supervisory authorities, are encouraged to take account of the specific
needs of micro, small and medium-sized enterprises in the application
of this Regulation. The notion of micro, small and medium-sized
enterprises should draw from Article 2 of the Annex to Commission
Recommendation 2003/361/EC (5).
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(14)
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The protection afforded by this
Regulation should apply to natural persons, whatever their nationality
or place of residence, in relation to the processing of their personal
data. This Regulation does not cover the processing of personal data
which concerns legal persons and in particular undertakings established
as legal persons, including the name and the form of the legal person
and the contact details of the legal person.
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(15)
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In order to prevent creating a serious
risk of circumvention, the protection of natural persons should be
technologically neutral and should not depend on the techniques used.
The protection of natural persons should apply to the processing of
personal data by automated means, as well as to manual processing, if
the personal data are contained or are intended to be contained in a
filing system. Files or sets of files, as well as their cover pages,
which are not structured according to specific criteria should not fall
within the scope of this Regulation.
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(16)
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This Regulation does not apply to
issues of protection of fundamental rights and freedoms or the free flow
of personal data related to activities which fall outside the scope of
Union law, such as activities concerning national security. This
Regulation does not apply to the processing of personal data by the
Member States when carrying out activities in relation to the common
foreign and security policy of the Union.
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(17)
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Regulation (EC) No 45/2001 of the European Parliament and of the Council (6)
applies to the processing of personal data by the Union institutions,
bodies, offices and agencies. Regulation (EC) No 45/2001 and other Union
legal acts applicable to such processing of personal data should be
adapted to the principles and rules established in this Regulation and
applied in the light of this Regulation. In order to provide a strong
and coherent data protection framework in the Union, the necessary
adaptations of Regulation (EC) No 45/2001 should follow after the
adoption of this Regulation, in order to allow application at the same
time as this Regulation.
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(18)
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This Regulation does not apply to the
processing of personal data by a natural person in the course of a
purely personal or household activity and thus with no connection to a
professional or commercial activity. Personal or household activities
could include correspondence and the holding of addresses, or social
networking and online activity undertaken within the context of such
activities. However, this Regulation applies to controllers or
processors which provide the means for processing personal data for such
personal or household activities.
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(19)
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The protection of natural persons with
regard to the processing of personal data by competent authorities for
the purposes of the prevention, investigation, detection or prosecution
of criminal offences or the execution of criminal penalties, including
the safeguarding against and the prevention of threats to public
security and the free movement of such data, is the subject of a
specific Union legal act. This Regulation should not, therefore, apply
to processing activities for those purposes. However, personal data
processed by public authorities under this Regulation should, when used
for those purposes, be governed by a more specific Union legal act,
namely Directive (EU) 2016/680 of the European Parliament and of the
Council (7).
Member States may entrust competent authorities within the meaning of
Directive (EU) 2016/680 with tasks which are not necessarily carried out
for the purposes of the prevention, investigation, detection or
prosecution of criminal offences or the execution of criminal penalties,
including the safeguarding against and prevention of threats to public
security, so that the processing of personal data for those other
purposes, in so far as it is within the scope of Union law, falls within
the scope of this Regulation.
With regard to the processing of
personal data by those competent authorities for purposes falling within
scope of this Regulation, Member States should be able to maintain or
introduce more specific provisions to adapt the application of the rules
of this Regulation. Such provisions may determine more precisely
specific requirements for the processing of personal data by those
competent authorities for those other purposes, taking into account the
constitutional, organisational and administrative structure of the
respective Member State. When the processing of personal data by private
bodies falls within the scope of this Regulation, this Regulation
should provide for the possibility for Member States under specific
conditions to restrict by law certain obligations and rights when such a
restriction constitutes a necessary and proportionate measure in a
democratic society to safeguard specific important interests including
public security and the prevention, investigation, detection or
prosecution of criminal offences or the execution of criminal penalties,
including the safeguarding against and the prevention of threats to
public security. This is relevant for instance in the framework of
anti-money laundering or the activities of forensic laboratories.
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(20)
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While this Regulation applies, inter
alia, to the activities of courts and other judicial authorities, Union
or Member State law could specify the processing operations and
processing procedures in relation to the processing of personal data by
courts and other judicial authorities. The competence of the supervisory
authorities should not cover the processing of personal data when
courts are acting in their judicial capacity, in order to safeguard the
independence of the judiciary in the performance of its judicial tasks,
including decision-making. It should be possible to entrust supervision
of such data processing operations to specific bodies within the
judicial system of the Member State, which should, in particular ensure
compliance with the rules of this Regulation, enhance awareness among
members of the judiciary of their obligations under this Regulation and
handle complaints in relation to such data processing operations.
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(21)
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This Regulation is without prejudice to the application of Directive 2000/31/EC of the European Parliament and of the Council (8),
in particular of the liability rules of intermediary service providers
in Articles 12 to 15 of that Directive. That Directive seeks to
contribute to the proper functioning of the internal market by ensuring
the free movement of information society services between Member States.
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(22)
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Any processing of personal data in the
context of the activities of an establishment of a controller or a
processor in the Union should be carried out in accordance with this
Regulation, regardless of whether the processing itself takes place
within the Union. Establishment implies the effective and real exercise
of activity through stable arrangements. The legal form of such
arrangements, whether through a branch or a subsidiary with a legal
personality, is not the determining factor in that respect.
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(23)
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In order to ensure that natural persons
are not deprived of the protection to which they are entitled under
this Regulation, the processing of personal data of data subjects who
are in the Union by a controller or a processor not established in the
Union should be subject to this Regulation where the processing
activities are related to offering goods or services to such data
subjects irrespective of whether connected to a payment. In order to
determine whether such a controller or processor is offering goods or
services to data subjects who are in the Union, it should be ascertained
whether it is apparent that the controller or processor envisages
offering services to data subjects in one or more Member States in the
Union. Whereas the mere accessibility of the controller's, processor's
or an intermediary's website in the Union, of an email address or of
other contact details, or the use of a language generally used in the
third country where the controller is established, is insufficient to
ascertain such intention, factors such as the use of a language or a
currency generally used in one or more Member States with the
possibility of ordering goods and services in that other language, or
the mentioning of customers or users who are in the Union, may make it
apparent that the controller envisages offering goods or services to
data subjects in the Union.
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(24)
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The processing of personal data of data
subjects who are in the Union by a controller or processor not
established in the Union should also be subject to this Regulation when
it is related to the monitoring of the behaviour of such data subjects
in so far as their behaviour takes place within the Union. In order to
determine whether a processing activity can be considered to monitor the
behaviour of data subjects, it should be ascertained whether natural
persons are tracked on the internet including potential subsequent use
of personal data processing techniques which consist of profiling a
natural person, particularly in order to take decisions concerning her
or him or for analysing or predicting her or his personal preferences,
behaviours and attitudes.
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(25)
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Where Member State law applies by
virtue of public international law, this Regulation should also apply to
a controller not established in the Union, such as in a Member State's
diplomatic mission or consular post.
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(26)
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The principles of data protection
should apply to any information concerning an identified or identifiable
natural person. Personal data which have undergone pseudonymisation,
which could be attributed to a natural person by the use of additional
information should be considered to be information on an identifiable
natural person. To determine whether a natural person is identifiable,
account should be taken of all the means reasonably likely to be used,
such as singling out, either by the controller or by another person to
identify the natural person directly or indirectly. To ascertain whether
means are reasonably likely to be used to identify the natural person,
account should be taken of all objective factors, such as the costs of
and the amount of time required for identification, taking into
consideration the available technology at the time of the processing and
technological developments. The principles of data protection should
therefore not apply to anonymous information, namely information which
does not relate to an identified or identifiable natural person or to
personal data rendered anonymous in such a manner that the data subject
is not or no longer identifiable. This Regulation does not therefore
concern the processing of such anonymous information, including for
statistical or research purposes.
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(27)
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This Regulation does not apply to the
personal data of deceased persons. Member States may provide for rules
regarding the processing of personal data of deceased persons.
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(28)
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The application of pseudonymisation to
personal data can reduce the risks to the data subjects concerned and
help controllers and processors to meet their data-protection
obligations. The explicit introduction of ‘pseudonymisation’ in this
Regulation is not intended to preclude any other measures of data
protection.
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(29)
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In order to create incentives to apply
pseudonymisation when processing personal data, measures of
pseudonymisation should, whilst allowing general analysis, be possible
within the same controller when that controller has taken technical and
organisational measures necessary to ensure, for the processing
concerned, that this Regulation is implemented, and that additional
information for attributing the personal data to a specific data subject
is kept separately. The controller processing the personal data should
indicate the authorised persons within the same controller.
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(30)
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Natural persons may be associated with
online identifiers provided by their devices, applications, tools and
protocols, such as internet protocol addresses, cookie identifiers or
other identifiers such as radio frequency identification tags. This may
leave traces which, in particular when combined with unique identifiers
and other information received by the servers, may be used to create
profiles of the natural persons and identify them.
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(31)
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Public authorities to which personal
data are disclosed in accordance with a legal obligation for the
exercise of their official mission, such as tax and customs authorities,
financial investigation units, independent administrative authorities,
or financial market authorities responsible for the regulation and
supervision of securities markets should not be regarded as recipients
if they receive personal data which are necessary to carry out a
particular inquiry in the general interest, in accordance with Union or
Member State law. The requests for disclosure sent by the public
authorities should always be in writing, reasoned and occasional and
should not concern the entirety of a filing system or lead to the
interconnection of filing systems. The processing of personal data by
those public authorities should comply with the applicable
data-protection rules according to the purposes of the processing.
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(32)
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Consent should be given by a clear
affirmative act establishing a freely given, specific, informed and
unambiguous indication of the data subject's agreement to the processing
of personal data relating to him or her, such as by a written
statement, including by electronic means, or an oral statement. This
could include ticking a box when visiting an internet website, choosing
technical settings for information society services or another statement
or conduct which clearly indicates in this context the data subject's
acceptance of the proposed processing of his or her personal data.
Silence, pre-ticked boxes or inactivity should not therefore constitute
consent. Consent should cover all processing activities carried out for
the same purpose or purposes. When the processing has multiple purposes,
consent should be given for all of them. If the data subject's consent
is to be given following a request by electronic means, the request must
be clear, concise and not unnecessarily disruptive to the use of the
service for which it is provided.
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(33)
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It is often not possible to fully
identify the purpose of personal data processing for scientific research
purposes at the time of data collection. Therefore, data subjects
should be allowed to give their consent to certain areas of scientific
research when in keeping with recognised ethical standards for
scientific research. Data subjects should have the opportunity to give
their consent only to certain areas of research or parts of research
projects to the extent allowed by the intended purpose.
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(34)
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Genetic data should be defined as
personal data relating to the inherited or acquired genetic
characteristics of a natural person which result from the analysis of a
biological sample from the natural person in question, in particular
chromosomal, deoxyribonucleic acid (DNA) or ribonucleic acid (RNA)
analysis, or from the analysis of another element enabling equivalent
information to be obtained.
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(35)
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Personal data concerning health should
include all data pertaining to the health status of a data subject which
reveal information relating to the past, current or future physical or
mental health status of the data subject. This includes information
about the natural person collected in the course of the registration
for, or the provision of, health care services as referred to in
Directive 2011/24/EU of the European Parliament and of the Council (9)
to that natural person; a number, symbol or particular assigned to a
natural person to uniquely identify the natural person for health
purposes; information derived from the testing or examination of a body
part or bodily substance, including from genetic data and biological
samples; and any information on, for example, a disease, disability,
disease risk, medical history, clinical treatment or the physiological
or biomedical state of the data subject independent of its source, for
example from a physician or other health professional, a hospital, a
medical device or an in vitro diagnostic test.
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(36)
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The main establishment of a controller
in the Union should be the place of its central administration in the
Union, unless the decisions on the purposes and means of the processing
of personal data are taken in another establishment of the controller in
the Union, in which case that other establishment should be considered
to be the main establishment. The main establishment of a controller in
the Union should be determined according to objective criteria and
should imply the effective and real exercise of management activities
determining the main decisions as to the purposes and means of
processing through stable arrangements. That criterion should not depend
on whether the processing of personal data is carried out at that
location. The presence and use of technical means and technologies for
processing personal data or processing activities do not, in themselves,
constitute a main establishment and are therefore not determining
criteria for a main establishment. The main establishment of the
processor should be the place of its central administration in the Union
or, if it has no central administration in the Union, the place where
the main processing activities take place in the Union. In cases
involving both the controller and the processor, the competent lead
supervisory authority should remain the supervisory authority of the
Member State where the controller has its main establishment, but the
supervisory authority of the processor should be considered to be a
supervisory authority concerned and that supervisory authority should
participate in the cooperation procedure provided for by this
Regulation. In any case, the supervisory authorities of the Member State
or Member States where the processor has one or more establishments
should not be considered to be supervisory authorities concerned where
the draft decision concerns only the controller. Where the processing is
carried out by a group of undertakings, the main establishment of the
controlling undertaking should be considered to be the main
establishment of the group of undertakings, except where the purposes
and means of processing are determined by another undertaking.
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(37)
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A group of undertakings should cover a
controlling undertaking and its controlled undertakings, whereby the
controlling undertaking should be the undertaking which can exert a
dominant influence over the other undertakings by virtue, for example,
of ownership, financial participation or the rules which govern it or
the power to have personal data protection rules implemented. An
undertaking which controls the processing of personal data in
undertakings affiliated to it should be regarded, together with those
undertakings, as a group of undertakings.
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(38)
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Children merit specific protection with
regard to their personal data, as they may be less aware of the risks,
consequences and safeguards concerned and their rights in relation to
the processing of personal data. Such specific protection should, in
particular, apply to the use of personal data of children for the
purposes of marketing or creating personality or user profiles and the
collection of personal data with regard to children when using services
offered directly to a child. The consent of the holder of parental
responsibility should not be necessary in the context of preventive or
counselling services offered directly to a child.
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(39)
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Any processing of personal data should
be lawful and fair. It should be transparent to natural persons that
personal data concerning them are collected, used, consulted or
otherwise processed and to what extent the personal data are or will be
processed. The principle of transparency requires that any information
and communication relating to the processing of those personal data be
easily accessible and easy to understand, and that clear and plain
language be used. That principle concerns, in particular, information to
the data subjects on the identity of the controller and the purposes of
the processing and further information to ensure fair and transparent
processing in respect of the natural persons concerned and their right
to obtain confirmation and communication of personal data concerning
them which are being processed. Natural persons should be made aware of
risks, rules, safeguards and rights in relation to the processing of
personal data and how to exercise their rights in relation to such
processing. In particular, the specific purposes for which personal data
are processed should be explicit and legitimate and determined at the
time of the collection of the personal data. The personal data should be
adequate, relevant and limited to what is necessary for the purposes
for which they are processed. This requires, in particular, ensuring
that the period for which the personal data are stored is limited to a
strict minimum. Personal data should be processed only if the purpose of
the processing could not reasonably be fulfilled by other means. In
order to ensure that the personal data are not kept longer than
necessary, time limits should be established by the controller for
erasure or for a periodic review. Every reasonable step should be taken
to ensure that personal data which are inaccurate are rectified or
deleted. Personal data should be processed in a manner that ensures
appropriate security and confidentiality of the personal data, including
for preventing unauthorised access to or use of personal data and the
equipment used for the processing.
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(40)
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In order for processing to be lawful,
personal data should be processed on the basis of the consent of the
data subject concerned or some other legitimate basis, laid down by law,
either in this Regulation or in other Union or Member State law as
referred to in this Regulation, including the necessity for compliance
with the legal obligation to which the controller is subject or the
necessity for the performance of a contract to which the data subject is
party or in order to take steps at the request of the data subject
prior to entering into a contract.
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(41)
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Where this Regulation refers to a legal
basis or a legislative measure, this does not necessarily require a
legislative act adopted by a parliament, without prejudice to
requirements pursuant to the constitutional order of the Member State
concerned. However, such a legal basis or legislative measure should be
clear and precise and its application should be foreseeable to persons
subject to it, in accordance with the case-law of the Court of Justice
of the European Union (the ‘Court of Justice’) and the European Court of
Human Rights.
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(42)
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Where processing is based on the data
subject's consent, the controller should be able to demonstrate that the
data subject has given consent to the processing operation. In
particular in the context of a written declaration on another matter,
safeguards should ensure that the data subject is aware of the fact that
and the extent to which consent is given. In accordance with Council
Directive 93/13/EEC (10)
a declaration of consent pre-formulated by the controller should be
provided in an intelligible and easily accessible form, using clear and
plain language and it should not contain unfair terms. For consent to be
informed, the data subject should be aware at least of the identity of
the controller and the purposes of the processing for which the personal
data are intended. Consent should not be regarded as freely given if
the data subject has no genuine or free choice or is unable to refuse or
withdraw consent without detriment.
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(43)
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In order to ensure that consent is
freely given, consent should not provide a valid legal ground for the
processing of personal data in a specific case where there is a clear
imbalance between the data subject and the controller, in particular
where the controller is a public authority and it is therefore unlikely
that consent was freely given in all the circumstances of that specific
situation. Consent is presumed not to be freely given if it does not
allow separate consent to be given to different personal data processing
operations despite it being appropriate in the individual case, or if
the performance of a contract, including the provision of a service, is
dependent on the consent despite such consent not being necessary for
such performance.
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(44)
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Processing should be lawful where it is necessary in the context of a contract or the intention to enter into a contract.
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(45)
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Where processing is carried out in
accordance with a legal obligation to which the controller is subject or
where processing is necessary for the performance of a task carried out
in the public interest or in the exercise of official authority, the
processing should have a basis in Union or Member State law. This
Regulation does not require a specific law for each individual
processing. A law as a basis for several processing operations based on a
legal obligation to which the controller is subject or where processing
is necessary for the performance of a task carried out in the public
interest or in the exercise of an official authority may be sufficient.
It should also be for Union or Member State law to determine the purpose
of processing. Furthermore, that law could specify the general
conditions of this Regulation governing the lawfulness of personal data
processing, establish specifications for determining the controller, the
type of personal data which are subject to the processing, the data
subjects concerned, the entities to which the personal data may be
disclosed, the purpose limitations, the storage period and other
measures to ensure lawful and fair processing. It should also be for
Union or Member State law to determine whether the controller performing
a task carried out in the public interest or in the exercise of
official authority should be a public authority or another natural or
legal person governed by public law, or, where it is in the public
interest to do so, including for health purposes such as public health
and social protection and the management of health care services, by
private law, such as a professional association.
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(46)
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The processing of personal data should
also be regarded to be lawful where it is necessary to protect an
interest which is essential for the life of the data subject or that of
another natural person. Processing of personal data based on the vital
interest of another natural person should in principle take place only
where the processing cannot be manifestly based on another legal basis.
Some types of processing may serve both important grounds of public
interest and the vital interests of the data subject as for instance
when processing is necessary for humanitarian purposes, including for
monitoring epidemics and their spread or in situations of humanitarian
emergencies, in particular in situations of natural and man-made
disasters.
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(47)
|
The legitimate interests of a
controller, including those of a controller to which the personal data
may be disclosed, or of a third party, may provide a legal basis for
processing, provided that the interests or the fundamental rights and
freedoms of the data subject are not overriding, taking into
consideration the reasonable expectations of data subjects based on
their relationship with the controller. Such legitimate interest could
exist for example where there is a relevant and appropriate relationship
between the data subject and the controller in situations such as where
the data subject is a client or in the service of the controller. At
any rate the existence of a legitimate interest would need careful
assessment including whether a data subject can reasonably expect at the
time and in the context of the collection of the personal data that
processing for that purpose may take place. The interests and
fundamental rights of the data subject could in particular override the
interest of the data controller where personal data are processed in
circumstances where data subjects do not reasonably expect further
processing. Given that it is for the legislator to provide by law for
the legal basis for public authorities to process personal data, that
legal basis should not apply to the processing by public authorities in
the performance of their tasks. The processing of personal data strictly
necessary for the purposes of preventing fraud also constitutes a
legitimate interest of the data controller concerned. The processing of
personal data for direct marketing purposes may be regarded as carried
out for a legitimate interest.
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(48)
|
Controllers that are part of a group of
undertakings or institutions affiliated to a central body may have a
legitimate interest in transmitting personal data within the group of
undertakings for internal administrative purposes, including the
processing of clients' or employees' personal data. The general
principles for the transfer of personal data, within a group of
undertakings, to an undertaking located in a third country remain
unaffected.
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(49)
|
The processing of personal data to the
extent strictly necessary and proportionate for the purposes of ensuring
network and information security, i.e. the ability of a network or an
information system to resist, at a given level of confidence, accidental
events or unlawful or malicious actions that compromise the
availability, authenticity, integrity and confidentiality of stored or
transmitted personal data, and the security of the related services
offered by, or accessible via, those networks and systems, by public
authorities, by computer emergency response teams (CERTs), computer
security incident response teams (CSIRTs), by providers of electronic
communications networks and services and by providers of security
technologies and services, constitutes a legitimate interest of the data
controller concerned. This could, for example, include preventing
unauthorised access to electronic communications networks and malicious
code distribution and stopping ‘denial of service’ attacks and damage to
computer and electronic communication systems.
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(50)
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The processing of personal data for
purposes other than those for which the personal data were initially
collected should be allowed only where the processing is compatible with
the purposes for which the personal data were initially collected. In
such a case, no legal basis separate from that which allowed the
collection of the personal data is required. If the processing is
necessary for the performance of a task carried out in the public
interest or in the exercise of official authority vested in the
controller, Union or Member State law may determine and specify the
tasks and purposes for which the further processing should be regarded
as compatible and lawful. Further processing for archiving purposes in
the public interest, scientific or historical research purposes or
statistical purposes should be considered to be compatible lawful
processing operations. The legal basis provided by Union or Member State
law for the processing of personal data may also provide a legal basis
for further processing. In order to ascertain whether a purpose of
further processing is compatible with the purpose for which the personal
data are initially collected, the controller, after having met all the
requirements for the lawfulness of the original processing, should take
into account, inter alia: any link between those purposes and the
purposes of the intended further processing; the context in which the
personal data have been collected, in particular the reasonable
expectations of data subjects based on their relationship with the
controller as to their further use; the nature of the personal data; the
consequences of the intended further processing for data subjects; and
the existence of appropriate safeguards in both the original and
intended further processing operations.
Where the data subject has given
consent or the processing is based on Union or Member State law which
constitutes a necessary and proportionate measure in a democratic
society to safeguard, in particular, important objectives of general
public interest, the controller should be allowed to further process the
personal data irrespective of the compatibility of the purposes. In any
case, the application of the principles set out in this Regulation and
in particular the information of the data subject on those other
purposes and on his or her rights including the right to object, should
be ensured. Indicating possible criminal acts or threats to public
security by the controller and transmitting the relevant personal data
in individual cases or in several cases relating to the same criminal
act or threats to public security to a competent authority should be
regarded as being in the legitimate interest pursued by the controller.
However, such transmission in the legitimate interest of the controller
or further processing of personal data should be prohibited if the
processing is not compatible with a legal, professional or other binding
obligation of secrecy.
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(51)
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Personal data which are, by their
nature, particularly sensitive in relation to fundamental rights and
freedoms merit specific protection as the context of their processing
could create significant risks to the fundamental rights and freedoms.
Those personal data should include personal data revealing racial or
ethnic origin, whereby the use of the term ‘racial origin’ in this
Regulation does not imply an acceptance by the Union of theories which
attempt to determine the existence of separate human races. The
processing of photographs should not systematically be considered to be
processing of special categories of personal data as they are covered by
the definition of biometric data only when processed through a specific
technical means allowing the unique identification or authentication of
a natural person. Such personal data should not be processed, unless
processing is allowed in specific cases set out in this Regulation,
taking into account that Member States law may lay down specific
provisions on data protection in order to adapt the application of the
rules of this Regulation for compliance with a legal obligation or for
the performance of a task carried out in the public interest or in the
exercise of official authority vested in the controller. In addition to
the specific requirements for such processing, the general principles
and other rules of this Regulation should apply, in particular as
regards the conditions for lawful processing. Derogations from the
general prohibition for processing such special categories of personal
data should be explicitly provided, inter alia, where the data subject
gives his or her explicit consent or in respect of specific needs in
particular where the processing is carried out in the course of
legitimate activities by certain associations or foundations the purpose
of which is to permit the exercise of fundamental freedoms.
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(52)
|
Derogating from the prohibition on
processing special categories of personal data should also be allowed
when provided for in Union or Member State law and subject to suitable
safeguards, so as to protect personal data and other fundamental rights,
where it is in the public interest to do so, in particular processing
personal data in the field of employment law, social protection law
including pensions and for health security, monitoring and alert
purposes, the prevention or control of communicable diseases and other
serious threats to health. Such a derogation may be made for health
purposes, including public health and the management of health-care
services, especially in order to ensure the quality and
cost-effectiveness of the procedures used for settling claims for
benefits and services in the health insurance system, or for archiving
purposes in the public interest, scientific or historical research
purposes or statistical purposes. A derogation should also allow the
processing of such personal data where necessary for the establishment,
exercise or defence of legal claims, whether in court proceedings or in
an administrative or out-of-court procedure.
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(53)
|
Special categories of personal data
which merit higher protection should be processed for health-related
purposes only where necessary to achieve those purposes for the benefit
of natural persons and society as a whole, in particular in the context
of the management of health or social care services and systems,
including processing by the management and central national health
authorities of such data for the purpose of quality control, management
information and the general national and local supervision of the health
or social care system, and ensuring continuity of health or social care
and cross-border healthcare or health security, monitoring and alert
purposes, or for archiving purposes in the public interest, scientific
or historical research purposes or statistical purposes, based on Union
or Member State law which has to meet an objective of public interest,
as well as for studies conducted in the public interest in the area of
public health. Therefore, this Regulation should provide for harmonised
conditions for the processing of special categories of personal data
concerning health, in respect of specific needs, in particular where the
processing of such data is carried out for certain health-related
purposes by persons subject to a legal obligation of professional
secrecy. Union or Member State law should provide for specific and
suitable measures so as to protect the fundamental rights and the
personal data of natural persons. Member States should be allowed to
maintain or introduce further conditions, including limitations, with
regard to the processing of genetic data, biometric data or data
concerning health. However, this should not hamper the free flow of
personal data within the Union when those conditions apply to
cross-border processing of such data.
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(54)
|
The processing of special categories of
personal data may be necessary for reasons of public interest in the
areas of public health without consent of the data subject. Such
processing should be subject to suitable and specific measures so as to
protect the rights and freedoms of natural persons. In that context,
‘public health’ should be interpreted as defined in Regulation (EC) No
1338/2008 of the European Parliament and of the Council (11),
namely all elements related to health, namely health status, including
morbidity and disability, the determinants having an effect on that
health status, health care needs, resources allocated to health care,
the provision of, and universal access to, health care as well as health
care expenditure and financing, and the causes of mortality. Such
processing of data concerning health for reasons of public interest
should not result in personal data being processed for other purposes by
third parties such as employers or insurance and banking companies.
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(55)
|
Moreover, the processing of personal
data by official authorities for the purpose of achieving the aims, laid
down by constitutional law or by international public law, of
officially recognised religious associations, is carried out on grounds
of public interest.
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(56)
|
Where in the course of electoral
activities, the operation of the democratic system in a Member State
requires that political parties compile personal data on people's
political opinions, the processing of such data may be permitted for
reasons of public interest, provided that appropriate safeguards are
established.
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(57)
|
If the personal data processed by a
controller do not permit the controller to identify a natural person,
the data controller should not be obliged to acquire additional
information in order to identify the data subject for the sole purpose
of complying with any provision of this Regulation. However, the
controller should not refuse to take additional information provided by
the data subject in order to support the exercise of his or her rights.
Identification should include the digital identification of a data
subject, for example through authentication mechanism such as the same
credentials, used by the data subject to log-in to the on-line service
offered by the data controller.
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(58)
|
The principle of transparency requires
that any information addressed to the public or to the data subject be
concise, easily accessible and easy to understand, and that clear and
plain language and, additionally, where appropriate, visualisation be
used. Such information could be provided in electronic form, for
example, when addressed to the public, through a website. This is of
particular relevance in situations where the proliferation of actors and
the technological complexity of practice make it difficult for the data
subject to know and understand whether, by whom and for what purpose
personal data relating to him or her are being collected, such as in the
case of online advertising. Given that children merit specific
protection, any information and communication, where processing is
addressed to a child, should be in such a clear and plain language that
the child can easily understand.
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(59)
|
Modalities should be provided for
facilitating the exercise of the data subject's rights under this
Regulation, including mechanisms to request and, if applicable, obtain,
free of charge, in particular, access to and rectification or erasure of
personal data and the exercise of the right to object. The controller
should also provide means for requests to be made electronically,
especially where personal data are processed by electronic means. The
controller should be obliged to respond to requests from the data
subject without undue delay and at the latest within one month and to
give reasons where the controller does not intend to comply with any
such requests.
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(60)
|
The principles of fair and transparent
processing require that the data subject be informed of the existence of
the processing operation and its purposes. The controller should
provide the data subject with any further information necessary to
ensure fair and transparent processing taking into account the specific
circumstances and context in which the personal data are processed.
Furthermore, the data subject should be informed of the existence of
profiling and the consequences of such profiling. Where the personal
data are collected from the data subject, the data subject should also
be informed whether he or she is obliged to provide the personal data
and of the consequences, where he or she does not provide such data.
That information may be provided in combination with standardised icons
in order to give in an easily visible, intelligible and clearly legible
manner, a meaningful overview of the intended processing. Where the
icons are presented electronically, they should be machine-readable.
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(61)
|
The information in relation to the
processing of personal data relating to the data subject should be given
to him or her at the time of collection from the data subject, or,
where the personal data are obtained from another source, within a
reasonable period, depending on the circumstances of the case. Where
personal data can be legitimately disclosed to another recipient, the
data subject should be informed when the personal data are first
disclosed to the recipient. Where the controller intends to process the
personal data for a purpose other than that for which they were
collected, the controller should provide the data subject prior to that
further processing with information on that other purpose and other
necessary information. Where the origin of the personal data cannot be
provided to the data subject because various sources have been used,
general information should be provided.
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(62)
|
However, it is not necessary to impose
the obligation to provide information where the data subject already
possesses the information, where the recording or disclosure of the
personal data is expressly laid down by law or where the provision of
information to the data subject proves to be impossible or would involve
a disproportionate effort. The latter could in particular be the case
where processing is carried out for archiving purposes in the public
interest, scientific or historical research purposes or statistical
purposes. In that regard, the number of data subjects, the age of the
data and any appropriate safeguards adopted should be taken into
consideration.
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(63)
|
A data subject should have the right of
access to personal data which have been collected concerning him or
her, and to exercise that right easily and at reasonable intervals, in
order to be aware of, and verify, the lawfulness of the processing. This
includes the right for data subjects to have access to data concerning
their health, for example the data in their medical records containing
information such as diagnoses, examination results, assessments by
treating physicians and any treatment or interventions provided. Every
data subject should therefore have the right to know and obtain
communication in particular with regard to the purposes for which the
personal data are processed, where possible the period for which the
personal data are processed, the recipients of the personal data, the
logic involved in any automatic personal data processing and, at least
when based on profiling, the consequences of such processing. Where
possible, the controller should be able to provide remote access to a
secure system which would provide the data subject with direct access to
his or her personal data. That right should not adversely affect the
rights or freedoms of others, including trade secrets or intellectual
property and in particular the copyright protecting the software.
However, the result of those considerations should not be a refusal to
provide all information to the data subject. Where the controller
processes a large quantity of information concerning the data subject,
the controller should be able to request that, before the information is
delivered, the data subject specify the information or processing
activities to which the request relates.
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(64)
|
The controller should use all
reasonable measures to verify the identity of a data subject who
requests access, in particular in the context of online services and
online identifiers. A controller should not retain personal data for the
sole purpose of being able to react to potential requests.
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(65)
|
A data subject should have the right to
have personal data concerning him or her rectified and a ‘right to be
forgotten’ where the retention of such data infringes this Regulation or
Union or Member State law to which the controller is subject. In
particular, a data subject should have the right to have his or her
personal data erased and no longer processed where the personal data are
no longer necessary in relation to the purposes for which they are
collected or otherwise processed, where a data subject has withdrawn his
or her consent or objects to the processing of personal data concerning
him or her, or where the processing of his or her personal data does
not otherwise comply with this Regulation. That right is relevant in
particular where the data subject has given his or her consent as a
child and is not fully aware of the risks involved by the processing,
and later wants to remove such personal data, especially on the
internet. The data subject should be able to exercise that right
notwithstanding the fact that he or she is no longer a child. However,
the further retention of the personal data should be lawful where it is
necessary, for exercising the right of freedom of expression and
information, for compliance with a legal obligation, for the performance
of a task carried out in the public interest or in the exercise of
official authority vested in the controller, on the grounds of public
interest in the area of public health, for archiving purposes in the
public interest, scientific or historical research purposes or
statistical purposes, or for the establishment, exercise or defence of
legal claims.
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(66)
|
To strengthen the right to be forgotten
in the online environment, the right to erasure should also be extended
in such a way that a controller who has made the personal data public
should be obliged to inform the controllers which are processing such
personal data to erase any links to, or copies or replications of those
personal data. In doing so, that controller should take reasonable
steps, taking into account available technology and the means available
to the controller, including technical measures, to inform the
controllers which are processing the personal data of the data subject's
request.
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(67)
|
Methods by which to restrict the
processing of personal data could include, inter alia, temporarily
moving the selected data to another processing system, making the
selected personal data unavailable to users, or temporarily removing
published data from a website. In automated filing systems, the
restriction of processing should in principle be ensured by technical
means in such a manner that the personal data are not subject to further
processing operations and cannot be changed. The fact that the
processing of personal data is restricted should be clearly indicated in
the system.
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(68)
|
To further strengthen the control over
his or her own data, where the processing of personal data is carried
out by automated means, the data subject should also be allowed to
receive personal data concerning him or her which he or she has provided
to a controller in a structured, commonly used, machine-readable and
interoperable format, and to transmit it to another controller. Data
controllers should be encouraged to develop interoperable formats that
enable data portability. That right should apply where the data subject
provided the personal data on the basis of his or her consent or the
processing is necessary for the performance of a contract. It should not
apply where processing is based on a legal ground other than consent or
contract. By its very nature, that right should not be exercised
against controllers processing personal data in the exercise of their
public duties. It should therefore not apply where the processing of the
personal data is necessary for compliance with a legal obligation to
which the controller is subject or for the performance of a task carried
out in the public interest or in the exercise of an official authority
vested in the controller. The data subject's right to transmit or
receive personal data concerning him or her should not create an
obligation for the controllers to adopt or maintain processing systems
which are technically compatible. Where, in a certain set of personal
data, more than one data subject is concerned, the right to receive the
personal data should be without prejudice to the rights and freedoms of
other data subjects in accordance with this Regulation. Furthermore,
that right should not prejudice the right of the data subject to obtain
the erasure of personal data and the limitations of that right as set
out in this Regulation and should, in particular, not imply the erasure
of personal data concerning the data subject which have been provided by
him or her for the performance of a contract to the extent that and for
as long as the personal data are necessary for the performance of that
contract. Where technically feasible, the data subject should have the
right to have the personal data transmitted directly from one controller
to another.
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(69)
|
Where personal data might lawfully be
processed because processing is necessary for the performance of a task
carried out in the public interest or in the exercise of official
authority vested in the controller, or on grounds of the legitimate
interests of a controller or a third party, a data subject should,
nevertheless, be entitled to object to the processing of any personal
data relating to his or her particular situation. It should be for the
controller to demonstrate that its compelling legitimate interest
overrides the interests or the fundamental rights and freedoms of the
data subject.
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(70)
|
Where personal data are processed for
the purposes of direct marketing, the data subject should have the right
to object to such processing, including profiling to the extent that it
is related to such direct marketing, whether with regard to initial or
further processing, at any time and free of charge. That right should be
explicitly brought to the attention of the data subject and presented
clearly and separately from any other information.
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(71)
|
The data subject should have the right
not to be subject to a decision, which may include a measure, evaluating
personal aspects relating to him or her which is based solely on
automated processing and which produces legal effects concerning him or
her or similarly significantly affects him or her, such as automatic
refusal of an online credit application or e-recruiting practices
without any human intervention. Such processing includes ‘profiling’
that consists of any form of automated processing of personal data
evaluating the personal aspects relating to a natural person, in
particular to analyse or predict aspects concerning the data subject's
performance at work, economic situation, health, personal preferences or
interests, reliability or behaviour, location or movements, where it
produces legal effects concerning him or her or similarly significantly
affects him or her. However, decision-making based on such processing,
including profiling, should be allowed where expressly authorised by
Union or Member State law to which the controller is subject, including
for fraud and tax-evasion monitoring and prevention purposes conducted
in accordance with the regulations, standards and recommendations of
Union institutions or national oversight bodies and to ensure the
security and reliability of a service provided by the controller, or
necessary for the entering or performance of a contract between the data
subject and a controller, or when the data subject has given his or her
explicit consent. In any case, such processing should be subject to
suitable safeguards, which should include specific information to the
data subject and the right to obtain human intervention, to express his
or her point of view, to obtain an explanation of the decision reached
after such assessment and to challenge the decision. Such measure should
not concern a child.
In order to ensure fair and transparent
processing in respect of the data subject, taking into account the
specific circumstances and context in which the personal data are
processed, the controller should use appropriate mathematical or
statistical procedures for the profiling, implement technical and
organisational measures appropriate to ensure, in particular, that
factors which result in inaccuracies in personal data are corrected and
the risk of errors is minimised, secure personal data in a manner that
takes account of the potential risks involved for the interests and
rights of the data subject and that prevents, inter alia, discriminatory
effects on natural persons on the basis of racial or ethnic origin,
political opinion, religion or beliefs, trade union membership, genetic
or health status or sexual orientation, or that result in measures
having such an effect. Automated decision-making and profiling based on
special categories of personal data should be allowed only under
specific conditions.
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(72)
|
Profiling is subject to the rules of
this Regulation governing the processing of personal data, such as the
legal grounds for processing or data protection principles. The European
Data Protection Board established by this Regulation (the ‘Board’)
should be able to issue guidance in that context.
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(73)
|
Restrictions concerning specific
principles and the rights of information, access to and rectification or
erasure of personal data, the right to data portability, the right to
object, decisions based on profiling, as well as the communication of a
personal data breach to a data subject and certain related obligations
of the controllers may be imposed by Union or Member State law, as far
as necessary and proportionate in a democratic society to safeguard
public security, including the protection of human life especially in
response to natural or manmade disasters, the prevention, investigation
and prosecution of criminal offences or the execution of criminal
penalties, including the safeguarding against and the prevention of
threats to public security, or of breaches of ethics for regulated
professions, other important objectives of general public interest of
the Union or of a Member State, in particular an important economic or
financial interest of the Union or of a Member State, the keeping of
public registers kept for reasons of general public interest, further
processing of archived personal data to provide specific information
related to the political behaviour under former totalitarian state
regimes or the protection of the data subject or the rights and freedoms
of others, including social protection, public health and humanitarian
purposes. Those restrictions should be in accordance with the
requirements set out in the Charter and in the European Convention for
the Protection of Human Rights and Fundamental Freedoms.
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(74)
|
The responsibility and liability of the
controller for any processing of personal data carried out by the
controller or on the controller's behalf should be established. In
particular, the controller should be obliged to implement appropriate
and effective measures and be able to demonstrate the compliance of
processing activities with this Regulation, including the effectiveness
of the measures. Those measures should take into account the nature,
scope, context and purposes of the processing and the risk to the rights
and freedoms of natural persons.
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|
(75)
|
The risk to the rights and freedoms of
natural persons, of varying likelihood and severity, may result from
personal data processing which could lead to physical, material or
non-material damage, in particular: where the processing may give rise
to discrimination, identity theft or fraud, financial loss, damage to
the reputation, loss of confidentiality of personal data protected by
professional secrecy, unauthorised reversal of pseudonymisation, or any
other significant economic or social disadvantage; where data subjects
might be deprived of their rights and freedoms or prevented from
exercising control over their personal data; where personal data are
processed which reveal racial or ethnic origin, political opinions,
religion or philosophical beliefs, trade union membership, and the
processing of genetic data, data concerning health or data concerning
sex life or criminal convictions and offences or related security
measures; where personal aspects are evaluated, in particular analysing
or predicting aspects concerning performance at work, economic
situation, health, personal preferences or interests, reliability or
behaviour, location or movements, in order to create or use personal
profiles; where personal data of vulnerable natural persons, in
particular of children, are processed; or where processing involves a
large amount of personal data and affects a large number of data
subjects.
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(76)
|
The likelihood and severity of the risk
to the rights and freedoms of the data subject should be determined by
reference to the nature, scope, context and purposes of the processing.
Risk should be evaluated on the basis of an objective assessment, by
which it is established whether data processing operations involve a
risk or a high risk.
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(77)
|
Guidance on the implementation of
appropriate measures and on the demonstration of compliance by the
controller or the processor, especially as regards the identification of
the risk related to the processing, their assessment in terms of
origin, nature, likelihood and severity, and the identification of best
practices to mitigate the risk, could be provided in particular by means
of approved codes of conduct, approved certifications, guidelines
provided by the Board or indications provided by a data protection
officer. The Board may also issue guidelines on processing operations
that are considered to be unlikely to result in a high risk to the
rights and freedoms of natural persons and indicate what measures may be
sufficient in such cases to address such risk.
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(78)
|
The protection of the rights and
freedoms of natural persons with regard to the processing of personal
data require that appropriate technical and organisational measures be
taken to ensure that the requirements of this Regulation are met. In
order to be able to demonstrate compliance with this Regulation, the
controller should adopt internal policies and implement measures which
meet in particular the principles of data protection by design and data
protection by default. Such measures could consist, inter alia, of
minimising the processing of personal data, pseudonymising personal data
as soon as possible, transparency with regard to the functions and
processing of personal data, enabling the data subject to monitor the
data processing, enabling the controller to create and improve security
features. When developing, designing, selecting and using applications,
services and products that are based on the processing of personal data
or process personal data to fulfil their task, producers of the
products, services and applications should be encouraged to take into
account the right to data protection when developing and designing such
products, services and applications and, with due regard to the state of
the art, to make sure that controllers and processors are able to
fulfil their data protection obligations. The principles of data
protection by design and by default should also be taken into
consideration in the context of public tenders.
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(79)
|
The protection of the rights and
freedoms of data subjects as well as the responsibility and liability of
controllers and processors, also in relation to the monitoring by and
measures of supervisory authorities, requires a clear allocation of the
responsibilities under this Regulation, including where a controller
determines the purposes and means of the processing jointly with other
controllers or where a processing operation is carried out on behalf of a
controller.
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|
(80)
|
Where a controller or a processor not
established in the Union is processing personal data of data subjects
who are in the Union whose processing activities are related to the
offering of goods or services, irrespective of whether a payment of the
data subject is required, to such data subjects in the Union, or to the
monitoring of their behaviour as far as their behaviour takes place
within the Union, the controller or the processor should designate a
representative, unless the processing is occasional, does not include
processing, on a large scale, of special categories of personal data or
the processing of personal data relating to criminal convictions and
offences, and is unlikely to result in a risk to the rights and freedoms
of natural persons, taking into account the nature, context, scope and
purposes of the processing or if the controller is a public authority or
body. The representative should act on behalf of the controller or the
processor and may be addressed by any supervisory authority. The
representative should be explicitly designated by a written mandate of
the controller or of the processor to act on its behalf with regard to
its obligations under this Regulation. The designation of such a
representative does not affect the responsibility or liability of the
controller or of the processor under this Regulation. Such a
representative should perform its tasks according to the mandate
received from the controller or processor, including cooperating with
the competent supervisory authorities with regard to any action taken to
ensure compliance with this Regulation. The designated representative
should be subject to enforcement proceedings in the event of
non-compliance by the controller or processor.
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|
(81)
|
To ensure compliance with the
requirements of this Regulation in respect of the processing to be
carried out by the processor on behalf of the controller, when
entrusting a processor with processing activities, the controller should
use only processors providing sufficient guarantees, in particular in
terms of expert knowledge, reliability and resources, to implement
technical and organisational measures which will meet the requirements
of this Regulation, including for the security of processing. The
adherence of the processor to an approved code of conduct or an approved
certification mechanism may be used as an element to demonstrate
compliance with the obligations of the controller. The carrying-out of
processing by a processor should be governed by a contract or other
legal act under Union or Member State law, binding the processor to the
controller, setting out the subject-matter and duration of the
processing, the nature and purposes of the processing, the type of
personal data and categories of data subjects, taking into account the
specific tasks and responsibilities of the processor in the context of
the processing to be carried out and the risk to the rights and freedoms
of the data subject. The controller and processor may choose to use an
individual contract or standard contractual clauses which are adopted
either directly by the Commission or by a supervisory authority in
accordance with the consistency mechanism and then adopted by the
Commission. After the completion of the processing on behalf of the
controller, the processor should, at the choice of the controller,
return or delete the personal data, unless there is a requirement to
store the personal data under Union or Member State law to which the
processor is subject.
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(82)
|
In order to demonstrate compliance with
this Regulation, the controller or processor should maintain records of
processing activities under its responsibility. Each controller and
processor should be obliged to cooperate with the supervisory authority
and make those records, on request, available to it, so that it might
serve for monitoring those processing operations.
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(83)
|
In order to maintain security and to
prevent processing in infringement of this Regulation, the controller or
processor should evaluate the risks inherent in the processing and
implement measures to mitigate those risks, such as encryption. Those
measures should ensure an appropriate level of security, including
confidentiality, taking into account the state of the art and the costs
of implementation in relation to the risks and the nature of the
personal data to be protected. In assessing data security risk,
consideration should be given to the risks that are presented by
personal data processing, such as accidental or unlawful destruction,
loss, alteration, unauthorised disclosure of, or access to, personal
data transmitted, stored or otherwise processed which may in particular
lead to physical, material or non-material damage.
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|
(84)
|
In order to enhance compliance with
this Regulation where processing operations are likely to result in a
high risk to the rights and freedoms of natural persons, the controller
should be responsible for the carrying-out of a data protection impact
assessment to evaluate, in particular, the origin, nature, particularity
and severity of that risk. The outcome of the assessment should be
taken into account when determining the appropriate measures to be taken
in order to demonstrate that the processing of personal data complies
with this Regulation. Where a data-protection impact assessment
indicates that processing operations involve a high risk which the
controller cannot mitigate by appropriate measures in terms of available
technology and costs of implementation, a consultation of the
supervisory authority should take place prior to the processing.
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|
(85)
|
A personal data breach may, if not
addressed in an appropriate and timely manner, result in physical,
material or non-material damage to natural persons such as loss of
control over their personal data or limitation of their rights,
discrimination, identity theft or fraud, financial loss, unauthorised
reversal of pseudonymisation, damage to reputation, loss of
confidentiality of personal data protected by professional secrecy or
any other significant economic or social disadvantage to the natural
person concerned. Therefore, as soon as the controller becomes aware
that a personal data breach has occurred, the controller should notify
the personal data breach to the supervisory authority without undue
delay and, where feasible, not later than 72 hours after having become
aware of it, unless the controller is able to demonstrate, in accordance
with the accountability principle, that the personal data breach is
unlikely to result in a risk to the rights and freedoms of natural
persons. Where such notification cannot be achieved within 72 hours, the
reasons for the delay should accompany the notification and information
may be provided in phases without undue further delay.
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(86)
|
The controller should communicate to
the data subject a personal data breach, without undue delay, where that
personal data breach is likely to result in a high risk to the rights
and freedoms of the natural person in order to allow him or her to take
the necessary precautions. The communication should describe the nature
of the personal data breach as well as recommendations for the natural
person concerned to mitigate potential adverse effects. Such
communications to data subjects should be made as soon as reasonably
feasible and in close cooperation with the supervisory authority,
respecting guidance provided by it or by other relevant authorities such
as law-enforcement authorities. For example, the need to mitigate an
immediate risk of damage would call for prompt communication with data
subjects whereas the need to implement appropriate measures against
continuing or similar personal data breaches may justify more time for
communication.
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(87)
|
It should be ascertained whether all
appropriate technological protection and organisational measures have
been implemented to establish immediately whether a personal data breach
has taken place and to inform promptly the supervisory authority and
the data subject. The fact that the notification was made without undue
delay should be established taking into account in particular the nature
and gravity of the personal data breach and its consequences and
adverse effects for the data subject. Such notification may result in an
intervention of the supervisory authority in accordance with its tasks
and powers laid down in this Regulation.
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(88)
|
In setting detailed rules concerning
the format and procedures applicable to the notification of personal
data breaches, due consideration should be given to the circumstances of
that breach, including whether or not personal data had been protected
by appropriate technical protection measures, effectively limiting the
likelihood of identity fraud or other forms of misuse. Moreover, such
rules and procedures should take into account the legitimate interests
of law-enforcement authorities where early disclosure could
unnecessarily hamper the investigation of the circumstances of a
personal data breach.
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(89)
|
Directive 95/46/EC provided for a
general obligation to notify the processing of personal data to the
supervisory authorities. While that obligation produces administrative
and financial burdens, it did not in all cases contribute to improving
the protection of personal data. Such indiscriminate general
notification obligations should therefore be abolished, and replaced by
effective procedures and mechanisms which focus instead on those types
of processing operations which are likely to result in a high risk to
the rights and freedoms of natural persons by virtue of their nature,
scope, context and purposes. Such types of processing operations may be
those which in, particular, involve using new technologies, or are of a
new kind and where no data protection impact assessment has been carried
out before by the controller, or where they become necessary in the
light of the time that has elapsed since the initial processing.
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(90)
|
In such cases, a data protection impact
assessment should be carried out by the controller prior to the
processing in order to assess the particular likelihood and severity of
the high risk, taking into account the nature, scope, context and
purposes of the processing and the sources of the risk. That impact
assessment should include, in particular, the measures, safeguards and
mechanisms envisaged for mitigating that risk, ensuring the protection
of personal data and demonstrating compliance with this Regulation.
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(91)
|
This should in particular apply to
large-scale processing operations which aim to process a considerable
amount of personal data at regional, national or supranational level and
which could affect a large number of data subjects and which are likely
to result in a high risk, for example, on account of their sensitivity,
where in accordance with the achieved state of technological knowledge a
new technology is used on a large scale as well as to other processing
operations which result in a high risk to the rights and freedoms of
data subjects, in particular where those operations render it more
difficult for data subjects to exercise their rights. A data protection
impact assessment should also be made where personal data are processed
for taking decisions regarding specific natural persons following any
systematic and extensive evaluation of personal aspects relating to
natural persons based on profiling those data or following the
processing of special categories of personal data, biometric data, or
data on criminal convictions and offences or related security measures. A
data protection impact assessment is equally required for monitoring
publicly accessible areas on a large scale, especially when using
optic-electronic devices or for any other operations where the competent
supervisory authority considers that the processing is likely to result
in a high risk to the rights and freedoms of data subjects, in
particular because they prevent data subjects from exercising a right or
using a service or a contract, or because they are carried out
systematically on a large scale. The processing of personal data should
not be considered to be on a large scale if the processing concerns
personal data from patients or clients by an individual physician, other
health care professional or lawyer. In such cases, a data protection
impact assessment should not be mandatory.
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(92)
|
There are circumstances under which it
may be reasonable and economical for the subject of a data protection
impact assessment to be broader than a single project, for example where
public authorities or bodies intend to establish a common application
or processing platform or where several controllers plan to introduce a
common application or processing environment across an industry sector
or segment or for a widely used horizontal activity.
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(93)
|
In the context of the adoption of the
Member State law on which the performance of the tasks of the public
authority or public body is based and which regulates the specific
processing operation or set of operations in question, Member States may
deem it necessary to carry out such assessment prior to the processing
activities.
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(94)
|
Where a data protection impact
assessment indicates that the processing would, in the absence of
safeguards, security measures and mechanisms to mitigate the risk,
result in a high risk to the rights and freedoms of natural persons and
the controller is of the opinion that the risk cannot be mitigated by
reasonable means in terms of available technologies and costs of
implementation, the supervisory authority should be consulted prior to
the start of processing activities. Such high risk is likely to result
from certain types of processing and the extent and frequency of
processing, which may result also in a realisation of damage or
interference with the rights and freedoms of the natural person. The
supervisory authority should respond to the request for consultation
within a specified period. However, the absence of a reaction of the
supervisory authority within that period should be without prejudice to
any intervention of the supervisory authority in accordance with its
tasks and powers laid down in this Regulation, including the power to
prohibit processing operations. As part of that consultation process,
the outcome of a data protection impact assessment carried out with
regard to the processing at issue may be submitted to the supervisory
authority, in particular the measures envisaged to mitigate the risk to
the rights and freedoms of natural persons.
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|
(95)
|
The processor should assist the
controller, where necessary and upon request, in ensuring compliance
with the obligations deriving from the carrying out of data protection
impact assessments and from prior consultation of the supervisory
authority.
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|
(96)
|
A consultation of the supervisory
authority should also take place in the course of the preparation of a
legislative or regulatory measure which provides for the processing of
personal data, in order to ensure compliance of the intended processing
with this Regulation and in particular to mitigate the risk involved for
the data subject.
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|
(97)
|
Where the processing is carried out by a
public authority, except for courts or independent judicial authorities
when acting in their judicial capacity, where, in the private sector,
processing is carried out by a controller whose core activities consist
of processing operations that require regular and systematic monitoring
of the data subjects on a large scale, or where the core activities of
the controller or the processor consist of processing on a large scale
of special categories of personal data and data relating to criminal
convictions and offences, a person with expert knowledge of data
protection law and practices should assist the controller or processor
to monitor internal compliance with this Regulation. In the private
sector, the core activities of a controller relate to its primary
activities and do not relate to the processing of personal data as
ancillary activities. The necessary level of expert knowledge should be
determined in particular according to the data processing operations
carried out and the protection required for the personal data processed
by the controller or the processor. Such data protection officers,
whether or not they are an employee of the controller, should be in a
position to perform their duties and tasks in an independent manner.
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|
(98)
|
Associations or other bodies
representing categories of controllers or processors should be
encouraged to draw up codes of conduct, within the limits of this
Regulation, so as to facilitate the effective application of this
Regulation, taking account of the specific characteristics of the
processing carried out in certain sectors and the specific needs of
micro, small and medium enterprises. In particular, such codes of
conduct could calibrate the obligations of controllers and processors,
taking into account the risk likely to result from the processing for
the rights and freedoms of natural persons.
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(99)
|
When drawing up a code of conduct, or
when amending or extending such a code, associations and other bodies
representing categories of controllers or processors should consult
relevant stakeholders, including data subjects where feasible, and have
regard to submissions received and views expressed in response to such
consultations.
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|
(100)
|
In order to enhance transparency and
compliance with this Regulation, the establishment of certification
mechanisms and data protection seals and marks should be encouraged,
allowing data subjects to quickly assess the level of data protection of
relevant products and services.
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|
(101)
|
Flows of personal data to and from
countries outside the Union and international organisations are
necessary for the expansion of international trade and international
cooperation. The increase in such flows has raised new challenges and
concerns with regard to the protection of personal data. However, when
personal data are transferred from the Union to controllers, processors
or other recipients in third countries or to international
organisations, the level of protection of natural persons ensured in the
Union by this Regulation should not be undermined, including in cases
of onward transfers of personal data from the third country or
international organisation to controllers, processors in the same or
another third country or international organisation. In any event,
transfers to third countries and international organisations may only be
carried out in full compliance with this Regulation. A transfer could
take place only if, subject to the other provisions of this Regulation,
the conditions laid down in the provisions of this Regulation relating
to the transfer of personal data to third countries or international
organisations are complied with by the controller or processor.
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|
(102)
|
This Regulation is without prejudice to
international agreements concluded between the Union and third
countries regulating the transfer of personal data including appropriate
safeguards for the data subjects. Member States may conclude
international agreements which involve the transfer of personal data to
third countries or international organisations, as far as such
agreements do not affect this Regulation or any other provisions of
Union law and include an appropriate level of protection for the
fundamental rights of the data subjects.
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|
(103)
|
The Commission may decide with effect
for the entire Union that a third country, a territory or specified
sector within a third country, or an international organisation, offers
an adequate level of data protection, thus providing legal certainty and
uniformity throughout the Union as regards the third country or
international organisation which is considered to provide such level of
protection. In such cases, transfers of personal data to that third
country or international organisation may take place without the need to
obtain any further authorisation. The Commission may also decide,
having given notice and a full statement setting out the reasons to the
third country or international organisation, to revoke such a decision.
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|
(104)
|
In line with the fundamental values on
which the Union is founded, in particular the protection of human
rights, the Commission should, in its assessment of the third country,
or of a territory or specified sector within a third country, take into
account how a particular third country respects the rule of law, access
to justice as well as international human rights norms and standards and
its general and sectoral law, including legislation concerning public
security, defence and national security as well as public order and
criminal law. The adoption of an adequacy decision with regard to a
territory or a specified sector in a third country should take into
account clear and objective criteria, such as specific processing
activities and the scope of applicable legal standards and legislation
in force in the third country. The third country should offer guarantees
ensuring an adequate level of protection essentially equivalent to that
ensured within the Union, in particular where personal data are
processed in one or several specific sectors. In particular, the third
country should ensure effective independent data protection supervision
and should provide for cooperation mechanisms with the Member States'
data protection authorities, and the data subjects should be provided
with effective and enforceable rights and effective administrative and
judicial redress.
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|
(105)
|
Apart from the international
commitments the third country or international organisation has entered
into, the Commission should take account of obligations arising from the
third country's or international organisation's participation in
multilateral or regional systems in particular in relation to the
protection of personal data, as well as the implementation of such
obligations. In particular, the third country's accession to the Council
of Europe Convention of 28 January 1981 for the Protection of
Individuals with regard to the Automatic Processing of Personal Data and
its Additional Protocol should be taken into account. The Commission
should consult the Board when assessing the level of protection in third
countries or international organisations.
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(106)
|
The Commission should monitor the
functioning of decisions on the level of protection in a third country, a
territory or specified sector within a third country, or an
international organisation, and monitor the functioning of decisions
adopted on the basis of Article 25(6) or Article 26(4) of
Directive 95/46/EC. In its adequacy decisions, the Commission should
provide for a periodic review mechanism of their functioning. That
periodic review should be conducted in consultation with the third
country or international organisation in question and take into account
all relevant developments in the third country or international
organisation. For the purposes of monitoring and of carrying out the
periodic reviews, the Commission should take into consideration the
views and findings of the European Parliament and of the Council as well
as of other relevant bodies and sources. The Commission should
evaluate, within a reasonable time, the functioning of the latter
decisions and report any relevant findings to the Committee within the
meaning of Regulation (EU) No 182/2011 of the European Parliament and of
the Council (12) as established under this Regulation, to the European Parliament and to the Council.
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|
(107)
|
The Commission may recognise that a
third country, a territory or a specified sector within a third country,
or an international organisation no longer ensures an adequate level of
data protection. Consequently the transfer of personal data to that
third country or international organisation should be prohibited, unless
the requirements in this Regulation relating to transfers subject to
appropriate safeguards, including binding corporate rules, and
derogations for specific situations are fulfilled. In that case,
provision should be made for consultations between the Commission and
such third countries or international organisations. The Commission
should, in a timely manner, inform the third country or international
organisation of the reasons and enter into consultations with it in
order to remedy the situation.
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(108)
|
In the absence of an adequacy decision,
the controller or processor should take measures to compensate for the
lack of data protection in a third country by way of appropriate
safeguards for the data subject. Such appropriate safeguards may consist
of making use of binding corporate rules, standard data protection
clauses adopted by the Commission, standard data protection clauses
adopted by a supervisory authority or contractual clauses authorised by a
supervisory authority. Those safeguards should ensure compliance with
data protection requirements and the rights of the data subjects
appropriate to processing within the Union, including the availability
of enforceable data subject rights and of effective legal remedies,
including to obtain effective administrative or judicial redress and to
claim compensation, in the Union or in a third country. They should
relate in particular to compliance with the general principles relating
to personal data processing, the principles of data protection by design
and by default. Transfers may also be carried out by public authorities
or bodies with public authorities or bodies in third countries or with
international organisations with corresponding duties or functions,
including on the basis of provisions to be inserted into administrative
arrangements, such as a memorandum of understanding, providing for
enforceable and effective rights for data subjects. Authorisation by the
competent supervisory authority should be obtained when the safeguards
are provided for in administrative arrangements that are not legally
binding.
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(109)
|
The possibility for the controller or
processor to use standard data-protection clauses adopted by the
Commission or by a supervisory authority should prevent controllers or
processors neither from including the standard data-protection clauses
in a wider contract, such as a contract between the processor and
another processor, nor from adding other clauses or additional
safeguards provided that they do not contradict, directly or indirectly,
the standard contractual clauses adopted by the Commission or by a
supervisory authority or prejudice the fundamental rights or freedoms of
the data subjects. Controllers and processors should be encouraged to
provide additional safeguards via contractual commitments that
supplement standard protection clauses.
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(110)
|
A group of undertakings, or a group of
enterprises engaged in a joint economic activity, should be able to make
use of approved binding corporate rules for its international transfers
from the Union to organisations within the same group of undertakings,
or group of enterprises engaged in a joint economic activity, provided
that such corporate rules include all essential principles and
enforceable rights to ensure appropriate safeguards for transfers or
categories of transfers of personal data.
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(111)
|
Provisions should be made for the
possibility for transfers in certain circumstances where the data
subject has given his or her explicit consent, where the transfer is
occasional and necessary in relation to a contract or a legal claim,
regardless of whether in a judicial procedure or whether in an
administrative or any out-of-court procedure, including procedures
before regulatory bodies. Provision should also be made for the
possibility for transfers where important grounds of public interest
laid down by Union or Member State law so require or where the transfer
is made from a register established by law and intended for consultation
by the public or persons having a legitimate interest. In the latter
case, such a transfer should not involve the entirety of the personal
data or entire categories of the data contained in the register and,
when the register is intended for consultation by persons having a
legitimate interest, the transfer should be made only at the request of
those persons or, if they are to be the recipients, taking into full
account the interests and fundamental rights of the data subject.
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(112)
|
Those derogations should in particular
apply to data transfers required and necessary for important reasons of
public interest, for example in cases of international data exchange
between competition authorities, tax or customs administrations, between
financial supervisory authorities, between services competent for
social security matters, or for public health, for example in the case
of contact tracing for contagious diseases or in order to reduce and/or
eliminate doping in sport. A transfer of personal data should also be
regarded as lawful where it is necessary to protect an interest which is
essential for the data subject's or another person's vital interests,
including physical integrity or life, if the data subject is incapable
of giving consent. In the absence of an adequacy decision, Union or
Member State law may, for important reasons of public interest,
expressly set limits to the transfer of specific categories of data to a
third country or an international organisation. Member States should
notify such provisions to the Commission. Any transfer to an
international humanitarian organisation of personal data of a data
subject who is physically or legally incapable of giving consent, with a
view to accomplishing a task incumbent under the Geneva Conventions or
to complying with international humanitarian law applicable in armed
conflicts, could be considered to be necessary for an important reason
of public interest or because it is in the vital interest of the data
subject.
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(113)
|
Transfers which can be qualified as not
repetitive and that only concern a limited number of data subjects,
could also be possible for the purposes of the compelling legitimate
interests pursued by the controller, when those interests are not
overridden by the interests or rights and freedoms of the data subject
and when the controller has assessed all the circumstances surrounding
the data transfer. The controller should give particular consideration
to the nature of the personal data, the purpose and duration of the
proposed processing operation or operations, as well as the situation in
the country of origin, the third country and the country of final
destination, and should provide suitable safeguards to protect
fundamental rights and freedoms of natural persons with regard to the
processing of their personal data. Such transfers should be possible
only in residual cases where none of the other grounds for transfer are
applicable. For scientific or historical research purposes or
statistical purposes, the legitimate expectations of society for an
increase of knowledge should be taken into consideration. The controller
should inform the supervisory authority and the data subject about the
transfer.
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(114)
|
In any case, where the Commission has
taken no decision on the adequate level of data protection in a third
country, the controller or processor should make use of solutions that
provide data subjects with enforceable and effective rights as regards
the processing of their data in the Union once those data have been
transferred so that that they will continue to benefit from fundamental
rights and safeguards.
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(115)
|
Some third countries adopt laws,
regulations and other legal acts which purport to directly regulate the
processing activities of natural and legal persons under the
jurisdiction of the Member States. This may include judgments of courts
or tribunals or decisions of administrative authorities in third
countries requiring a controller or processor to transfer or disclose
personal data, and which are not based on an international agreement,
such as a mutual legal assistance treaty, in force between the
requesting third country and the Union or a Member State. The
extraterritorial application of those laws, regulations and other legal
acts may be in breach of international law and may impede the attainment
of the protection of natural persons ensured in the Union by this
Regulation. Transfers should only be allowed where the conditions of
this Regulation for a transfer to third countries are met. This may be
the case, inter alia, where disclosure is necessary for an important
ground of public interest recognised in Union or Member State law to
which the controller is subject.
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(116)
|
When personal data moves across borders
outside the Union it may put at increased risk the ability of natural
persons to exercise data protection rights in particular to protect
themselves from the unlawful use or disclosure of that information. At
the same time, supervisory authorities may find that they are unable to
pursue complaints or conduct investigations relating to the activities
outside their borders. Their efforts to work together in the
cross-border context may also be hampered by insufficient preventative
or remedial powers, inconsistent legal regimes, and practical obstacles
like resource constraints. Therefore, there is a need to promote closer
cooperation among data protection supervisory authorities to help them
exchange information and carry out investigations with their
international counterparts. For the purposes of developing international
cooperation mechanisms to facilitate and provide international mutual
assistance for the enforcement of legislation for the protection of
personal data, the Commission and the supervisory authorities should
exchange information and cooperate in activities related to the exercise
of their powers with competent authorities in third countries, based on
reciprocity and in accordance with this Regulation.
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(117)
|
The establishment of supervisory
authorities in Member States, empowered to perform their tasks and
exercise their powers with complete independence, is an essential
component of the protection of natural persons with regard to the
processing of their personal data. Member States should be able to
establish more than one supervisory authority, to reflect their
constitutional, organisational and administrative structure.
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(118)
|
The independence of supervisory
authorities should not mean that the supervisory authorities cannot be
subject to control or monitoring mechanisms regarding their financial
expenditure or to judicial review.
|
|
(119)
|
Where a Member State establishes
several supervisory authorities, it should establish by law mechanisms
for ensuring the effective participation of those supervisory
authorities in the consistency mechanism. That Member State should in
particular designate the supervisory authority which functions as a
single contact point for the effective participation of those
authorities in the mechanism, to ensure swift and smooth cooperation
with other supervisory authorities, the Board and the Commission.
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|
(120)
|
Each supervisory authority should be
provided with the financial and human resources, premises and
infrastructure necessary for the effective performance of their tasks,
including those related to mutual assistance and cooperation with other
supervisory authorities throughout the Union. Each supervisory authority
should have a separate, public annual budget, which may be part of the
overall state or national budget.
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(121)
|
The general conditions for the member
or members of the supervisory authority should be laid down by law in
each Member State and should in particular provide that those members
are to be appointed, by means of a transparent procedure, either by the
parliament, government or the head of State of the Member State on the
basis of a proposal from the government, a member of the government, the
parliament or a chamber of the parliament, or by an independent body
entrusted under Member State law. In order to ensure the independence of
the supervisory authority, the member or members should act with
integrity, refrain from any action that is incompatible with their
duties and should not, during their term of office, engage in any
incompatible occupation, whether gainful or not. The supervisory
authority should have its own staff, chosen by the supervisory authority
or an independent body established by Member State law, which should be
subject to the exclusive direction of the member or members of the
supervisory authority.
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(122)
|
Each supervisory authority should be
competent on the territory of its own Member State to exercise the
powers and to perform the tasks conferred on it in accordance with this
Regulation. This should cover in particular the processing in the
context of the activities of an establishment of the controller or
processor on the territory of its own Member State, the processing of
personal data carried out by public authorities or private bodies acting
in the public interest, processing affecting data subjects on its
territory or processing carried out by a controller or processor not
established in the Union when targeting data subjects residing on its
territory. This should include handling complaints lodged by a data
subject, conducting investigations on the application of this Regulation
and promoting public awareness of the risks, rules, safeguards and
rights in relation to the processing of personal data.
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|
(123)
|
The supervisory authorities should
monitor the application of the provisions pursuant to this Regulation
and contribute to its consistent application throughout the Union, in
order to protect natural persons in relation to the processing of their
personal data and to facilitate the free flow of personal data within
the internal market. For that purpose, the supervisory authorities
should cooperate with each other and with the Commission, without the
need for any agreement between Member States on the provision of mutual
assistance or on such cooperation.
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(124)
|
Where the processing of personal data
takes place in the context of the activities of an establishment of a
controller or a processor in the Union and the controller or processor
is established in more than one Member State, or where processing taking
place in the context of the activities of a single establishment of a
controller or processor in the Union substantially affects or is likely
to substantially affect data subjects in more than one Member State, the
supervisory authority for the main establishment of the controller or
processor or for the single establishment of the controller or processor
should act as lead authority. It should cooperate with the other
authorities concerned, because the controller or processor has an
establishment on the territory of their Member State, because data
subjects residing on their territory are substantially affected, or
because a complaint has been lodged with them. Also where a data subject
not residing in that Member State has lodged a complaint, the
supervisory authority with which such complaint has been lodged should
also be a supervisory authority concerned. Within its tasks to issue
guidelines on any question covering the application of this Regulation,
the Board should be able to issue guidelines in particular on the
criteria to be taken into account in order to ascertain whether the
processing in question substantially affects data subjects in more than
one Member State and on what constitutes a relevant and reasoned
objection.
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(125)
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The lead authority should be competent
to adopt binding decisions regarding measures applying the powers
conferred on it in accordance with this Regulation. In its capacity as
lead authority, the supervisory authority should closely involve and
coordinate the supervisory authorities concerned in the decision-making
process. Where the decision is to reject the complaint by the data
subject in whole or in part, that decision should be adopted by the
supervisory authority with which the complaint has been lodged.
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(126)
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The decision should be agreed jointly
by the lead supervisory authority and the supervisory authorities
concerned and should be directed towards the main or single
establishment of the controller or processor and be binding on the
controller and processor. The controller or processor should take the
necessary measures to ensure compliance with this Regulation and the
implementation of the decision notified by the lead supervisory
authority to the main establishment of the controller or processor as
regards the processing activities in the Union.
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(127)
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Each supervisory authority not acting
as the lead supervisory authority should be competent to handle local
cases where the controller or processor is established in more than one
Member State, but the subject matter of the specific processing concerns
only processing carried out in a single Member State and involves only
data subjects in that single Member State, for example, where the
subject matter concerns the processing of employees' personal data in
the specific employment context of a Member State. In such cases, the
supervisory authority should inform the lead supervisory authority
without delay about the matter. After being informed, the lead
supervisory authority should decide, whether it will handle the case
pursuant to the provision on cooperation between the lead supervisory
authority and other supervisory authorities concerned (‘one-stop-shop
mechanism’), or whether the supervisory authority which informed it
should handle the case at local level. When deciding whether it will
handle the case, the lead supervisory authority should take into account
whether there is an establishment of the controller or processor in the
Member State of the supervisory authority which informed it in order to
ensure effective enforcement of a decision vis-à-vis
the controller or processor. Where the lead supervisory authority
decides to handle the case, the supervisory authority which informed it
should have the possibility to submit a draft for a decision, of which
the lead supervisory authority should take utmost account when preparing
its draft decision in that one-stop-shop mechanism.
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(128)
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The rules on the lead supervisory
authority and the one-stop-shop mechanism should not apply where the
processing is carried out by public authorities or private bodies in the
public interest. In such cases the only supervisory authority competent
to exercise the powers conferred to it in accordance with this
Regulation should be the supervisory authority of the Member State where
the public authority or private body is established.
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(129)
|
In order to ensure consistent
monitoring and enforcement of this Regulation throughout the Union, the
supervisory authorities should have in each Member State the same tasks
and effective powers, including powers of investigation, corrective
powers and sanctions, and authorisation and advisory powers, in
particular in cases of complaints from natural persons, and without
prejudice to the powers of prosecutorial authorities under Member State
law, to bring infringements of this Regulation to the attention of the
judicial authorities and engage in legal proceedings. Such powers should
also include the power to impose a temporary or definitive limitation,
including a ban, on processing. Member States may specify other tasks
related to the protection of personal data under this Regulation. The
powers of supervisory authorities should be exercised in accordance with
appropriate procedural safeguards set out in Union and Member State
law, impartially, fairly and within a reasonable time. In particular
each measure should be appropriate, necessary and proportionate in view
of ensuring compliance with this Regulation, taking into account the
circumstances of each individual case, respect the right of every person
to be heard before any individual measure which would affect him or her
adversely is taken and avoid superfluous costs and excessive
inconveniences for the persons concerned. Investigatory powers as
regards access to premises should be exercised in accordance with
specific requirements in Member State procedural law, such as the
requirement to obtain a prior judicial authorisation. Each legally
binding measure of the supervisory authority should be in writing, be
clear and unambiguous, indicate the supervisory authority which has
issued the measure, the date of issue of the measure, bear the signature
of the head, or a member of the supervisory authority authorised by him
or her, give the reasons for the measure, and refer to the right of an
effective remedy. This should not preclude additional requirements
pursuant to Member State procedural law. The adoption of a legally
binding decision implies that it may give rise to judicial review in the
Member State of the supervisory authority that adopted the decision.
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(130)
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Where the supervisory authority with
which the complaint has been lodged is not the lead supervisory
authority, the lead supervisory authority should closely cooperate with
the supervisory authority with which the complaint has been lodged in
accordance with the provisions on cooperation and consistency laid down
in this Regulation. In such cases, the lead supervisory authority
should, when taking measures intended to produce legal effects,
including the imposition of administrative fines, take utmost account of
the view of the supervisory authority with which the complaint has been
lodged and which should remain competent to carry out any investigation
on the territory of its own Member State in liaison with the competent
supervisory authority.
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(131)
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Where another supervisory authority
should act as a lead supervisory authority for the processing activities
of the controller or processor but the concrete subject matter of a
complaint or the possible infringement concerns only processing
activities of the controller or processor in the Member State where the
complaint has been lodged or the possible infringement detected and the
matter does not substantially affect or is not likely to substantially
affect data subjects in other Member States, the supervisory authority
receiving a complaint or detecting or being informed otherwise of
situations that entail possible infringements of this Regulation should
seek an amicable settlement with the controller and, if this proves
unsuccessful, exercise its full range of powers. This should include:
specific processing carried out in the territory of the Member State of
the supervisory authority or with regard to data subjects on the
territory of that Member State; processing that is carried out in the
context of an offer of goods or services specifically aimed at data
subjects in the territory of the Member State of the supervisory
authority; or processing that has to be assessed taking into account
relevant legal obligations under Member State law.
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(132)
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Awareness-raising activities by
supervisory authorities addressed to the public should include specific
measures directed at controllers and processors, including micro, small
and medium-sized enterprises, as well as natural persons in particular
in the educational context.
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(133)
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The supervisory authorities should
assist each other in performing their tasks and provide mutual
assistance, so as to ensure the consistent application and enforcement
of this Regulation in the internal market. A supervisory authority
requesting mutual assistance may adopt a provisional measure if it
receives no response to a request for mutual assistance within one month
of the receipt of that request by the other supervisory authority.
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(134)
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Each supervisory authority should,
where appropriate, participate in joint operations with other
supervisory authorities. The requested supervisory authority should be
obliged to respond to the request within a specified time period.
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(135)
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In order to ensure the consistent
application of this Regulation throughout the Union, a consistency
mechanism for cooperation between the supervisory authorities should be
established. That mechanism should in particular apply where a
supervisory authority intends to adopt a measure intended to produce
legal effects as regards processing operations which substantially
affect a significant number of data subjects in several Member States.
It should also apply where any supervisory authority concerned or the
Commission requests that such matter should be handled in the
consistency mechanism. That mechanism should be without prejudice to any
measures that the Commission may take in the exercise of its powers
under the Treaties.
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(136)
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In applying the consistency mechanism,
the Board should, within a determined period of time, issue an opinion,
if a majority of its members so decides or if so requested by any
supervisory authority concerned or the Commission. The Board should also
be empowered to adopt legally binding decisions where there are
disputes between supervisory authorities. For that purpose, it should
issue, in principle by a two-thirds majority of its members, legally
binding decisions in clearly specified cases where there are conflicting
views among supervisory authorities, in particular in the cooperation
mechanism between the lead supervisory authority and supervisory
authorities concerned on the merits of the case, in particular whether
there is an infringement of this Regulation.
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(137)
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There may be an urgent need to act in
order to protect the rights and freedoms of data subjects, in particular
when the danger exists that the enforcement of a right of a data
subject could be considerably impeded. A supervisory authority should
therefore be able to adopt duly justified provisional measures on its
territory with a specified period of validity which should not exceed
three months.
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(138)
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The application of such mechanism
should be a condition for the lawfulness of a measure intended to
produce legal effects by a supervisory authority in those cases where
its application is mandatory. In other cases of cross-border relevance,
the cooperation mechanism between the lead supervisory authority and
supervisory authorities concerned should be applied and mutual
assistance and joint operations might be carried out between the
supervisory authorities concerned on a bilateral or multilateral basis
without triggering the consistency mechanism.
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(139)
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In order to promote the consistent
application of this Regulation, the Board should be set up as an
independent body of the Union. To fulfil its objectives, the Board
should have legal personality. The Board should be represented by its
Chair. It should replace the Working Party on the Protection of
Individuals with Regard to the Processing of Personal Data established
by Directive 95/46/EC. It should consist of the head of a supervisory
authority of each Member State and the European Data Protection
Supervisor or their respective representatives. The Commission should
participate in the Board's activities without voting rights and the
European Data Protection Supervisor should have specific voting rights.
The Board should contribute to the consistent application of this
Regulation throughout the Union, including by advising the Commission,
in particular on the level of protection in third countries or
international organisations, and promoting cooperation of the
supervisory authorities throughout the Union. The Board should act
independently when performing its tasks.
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(140)
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The Board should be assisted by a
secretariat provided by the European Data Protection Supervisor. The
staff of the European Data Protection Supervisor involved in carrying
out the tasks conferred on the Board by this Regulation should perform
its tasks exclusively under the instructions of, and report to, the
Chair of the Board.
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(141)
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Every data subject should have the
right to lodge a complaint with a single supervisory authority, in
particular in the Member State of his or her habitual residence, and the
right to an effective judicial remedy in accordance with Article 47 of
the Charter if the data subject considers that his or her rights under
this Regulation are infringed or where the supervisory authority does
not act on a complaint, partially or wholly rejects or dismisses a
complaint or does not act where such action is necessary to protect the
rights of the data subject. The investigation following a complaint
should be carried out, subject to judicial review, to the extent that is
appropriate in the specific case. The supervisory authority should
inform the data subject of the progress and the outcome of the complaint
within a reasonable period. If the case requires further investigation
or coordination with another supervisory authority, intermediate
information should be given to the data subject. In order to facilitate
the submission of complaints, each supervisory authority should take
measures such as providing a complaint submission form which can also be
completed electronically, without excluding other means of
communication.
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(142)
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Where a data subject considers that his
or her rights under this Regulation are infringed, he or she should
have the right to mandate a not-for-profit body, organisation or
association which is constituted in accordance with the law of a
Member State, has statutory objectives which are in the public interest
and is active in the field of the protection of personal data to lodge a
complaint on his or her behalf with a supervisory authority, exercise
the right to a judicial remedy on behalf of data subjects or, if
provided for in Member State law, exercise the right to receive
compensation on behalf of data subjects. A Member State may provide for
such a body, organisation or association to have the right to lodge a
complaint in that Member State, independently of a data subject's
mandate, and the right to an effective judicial remedy where it has
reasons to consider that the rights of a data subject have been
infringed as a result of the processing of personal data which infringes
this Regulation. That body, organisation or association may not be
allowed to claim compensation on a data subject's behalf independently
of the data subject's mandate.
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(143)
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Any natural or legal person has the
right to bring an action for annulment of decisions of the Board before
the Court of Justice under the conditions provided for in
Article 263 TFEU. As addressees of such decisions, the supervisory
authorities concerned which wish to challenge them have to bring action
within two months of being notified of them, in accordance with
Article 263 TFEU. Where decisions of the Board are of direct and
individual concern to a controller, processor or complainant, the latter
may bring an action for annulment against those decisions within two
months of their publication on the website of the Board, in accordance
with Article 263 TFEU. Without prejudice to this right under
Article 263 TFEU, each natural or legal person should have an effective
judicial remedy before the competent national court against a decision
of a supervisory authority which produces legal effects concerning that
person. Such a decision concerns in particular the exercise of
investigative, corrective and authorisation powers by the supervisory
authority or the dismissal or rejection of complaints. However, the
right to an effective judicial remedy does not encompass measures taken
by supervisory authorities which are not legally binding, such as
opinions issued by or advice provided by the supervisory authority.
Proceedings against a supervisory authority should be brought before the
courts of the Member State where the supervisory authority is
established and should be conducted in accordance with that
Member State's procedural law. Those courts should exercise full
jurisdiction, which should include jurisdiction to examine all questions
of fact and law relevant to the dispute before them.
Where a complaint has been rejected or
dismissed by a supervisory authority, the complainant may bring
proceedings before the courts in the same Member State. In the context
of judicial remedies relating to the application of this Regulation,
national courts which consider a decision on the question necessary to
enable them to give judgment, may, or in the case provided for in
Article 267 TFEU, must, request the Court of Justice to give a
preliminary ruling on the interpretation of Union law, including this
Regulation. Furthermore, where a decision of a supervisory authority
implementing a decision of the Board is challenged before a national
court and the validity of the decision of the Board is at issue, that
national court does not have the power to declare the Board's decision
invalid but must refer the question of validity to the Court of Justice
in accordance with Article 267 TFEU as interpreted by the Court of
Justice, where it considers the decision invalid. However, a national
court may not refer a question on the validity of the decision of the
Board at the request of a natural or legal person which had the
opportunity to bring an action for annulment of that decision, in
particular if it was directly and individually concerned by that
decision, but had not done so within the period laid down in
Article 263 TFEU.
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(144)
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Where a court seized of proceedings
against a decision by a supervisory authority has reason to believe that
proceedings concerning the same processing, such as the same subject
matter as regards processing by the same controller or processor, or the
same cause of action, are brought before a competent court in another
Member State, it should contact that court in order to confirm the
existence of such related proceedings. If related proceedings are
pending before a court in another Member State, any court other than the
court first seized may stay its proceedings or may, on request of one
of the parties, decline jurisdiction in favour of the court first seized
if that court has jurisdiction over the proceedings in question and its
law permits the consolidation of such related proceedings. Proceedings
are deemed to be related where they are so closely connected that it is
expedient to hear and determine them together in order to avoid the risk
of irreconcilable judgments resulting from separate proceedings.
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(145)
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For proceedings against a controller or
processor, the plaintiff should have the choice to bring the action
before the courts of the Member States where the controller or processor
has an establishment or where the data subject resides, unless the
controller is a public authority of a Member State acting in the
exercise of its public powers.
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(146)
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The controller or processor should
compensate any damage which a person may suffer as a result of
processing that infringes this Regulation. The controller or processor
should be exempt from liability if it proves that it is not in any way
responsible for the damage. The concept of damage should be broadly
interpreted in the light of the case-law of the Court of Justice in a
manner which fully reflects the objectives of this Regulation. This is
without prejudice to any claims for damage deriving from the violation
of other rules in Union or Member State law. Processing that infringes
this Regulation also includes processing that infringes delegated and
implementing acts adopted in accordance with this Regulation and
Member State law specifying rules of this Regulation. Data subjects
should receive full and effective compensation for the damage they have
suffered. Where controllers or processors are involved in the same
processing, each controller or processor should be held liable for the
entire damage. However, where they are joined to the same judicial
proceedings, in accordance with Member State law, compensation may be
apportioned according to the responsibility of each controller or
processor for the damage caused by the processing, provided that full
and effective compensation of the data subject who suffered the damage
is ensured. Any controller or processor which has paid full compensation
may subsequently institute recourse proceedings against other
controllers or processors involved in the same processing.
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(147)
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Where specific rules on jurisdiction
are contained in this Regulation, in particular as regards proceedings
seeking a judicial remedy including compensation, against a controller
or processor, general jurisdiction rules such as those of Regulation
(EU) No 1215/2012 of the European Parliament and of the Council (13) should not prejudice the application of such specific rules.
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(148)
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In order to strengthen the enforcement
of the rules of this Regulation, penalties including administrative
fines should be imposed for any infringement of this Regulation, in
addition to, or instead of appropriate measures imposed by the
supervisory authority pursuant to this Regulation. In a case of a minor
infringement or if the fine likely to be imposed would constitute a
disproportionate burden to a natural person, a reprimand may be issued
instead of a fine. Due regard should however be given to the nature,
gravity and duration of the infringement, the intentional character of
the infringement, actions taken to mitigate the damage suffered, degree
of responsibility or any relevant previous infringements, the manner in
which the infringement became known to the supervisory authority,
compliance with measures ordered against the controller or processor,
adherence to a code of conduct and any other aggravating or mitigating
factor. The imposition of penalties including administrative fines
should be subject to appropriate procedural safeguards in accordance
with the general principles of Union law and the Charter, including
effective judicial protection and due process.
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(149)
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Member States should be able to lay
down the rules on criminal penalties for infringements of this
Regulation, including for infringements of national rules adopted
pursuant to and within the limits of this Regulation. Those criminal
penalties may also allow for the deprivation of the profits obtained
through infringements of this Regulation. However, the imposition of
criminal penalties for infringements of such national rules and of
administrative penalties should not lead to a breach of the principle of
ne bis in idem, as interpreted by the Court of Justice.
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(150)
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In order to strengthen and harmonise
administrative penalties for infringements of this Regulation, each
supervisory authority should have the power to impose administrative
fines. This Regulation should indicate infringements and the upper limit
and criteria for setting the related administrative fines, which should
be determined by the competent supervisory authority in each individual
case, taking into account all relevant circumstances of the specific
situation, with due regard in particular to the nature, gravity and
duration of the infringement and of its consequences and the measures
taken to ensure compliance with the obligations under this Regulation
and to prevent or mitigate the consequences of the infringement. Where
administrative fines are imposed on an undertaking, an undertaking
should be understood to be an undertaking in accordance with
Articles 101 and 102 TFEU for those purposes. Where administrative fines
are imposed on persons that are not an undertaking, the supervisory
authority should take account of the general level of income in the
Member State as well as the economic situation of the person in
considering the appropriate amount of the fine. The consistency
mechanism may also be used to promote a consistent application of
administrative fines. It should be for the Member States to determine
whether and to which extent public authorities should be subject to
administrative fines. Imposing an administrative fine or giving a
warning does not affect the application of other powers of the
supervisory authorities or of other penalties under this Regulation.
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(151)
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The legal systems of Denmark and
Estonia do not allow for administrative fines as set out in this
Regulation. The rules on administrative fines may be applied in such a
manner that in Denmark the fine is imposed by competent national courts
as a criminal penalty and in Estonia the fine is imposed by the
supervisory authority in the framework of a misdemeanour procedure,
provided that such an application of the rules in those Member States
has an equivalent effect to administrative fines imposed by supervisory
authorities. Therefore the competent national courts should take into
account the recommendation by the supervisory authority initiating the
fine. In any event, the fines imposed should be effective, proportionate
and dissuasive.
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(152)
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Where this Regulation does not
harmonise administrative penalties or where necessary in other cases,
for example in cases of serious infringements of this Regulation,
Member States should implement a system which provides for effective,
proportionate and dissuasive penalties. The nature of such penalties,
criminal or administrative, should be determined by Member State law.
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(153)
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Member States law should reconcile the
rules governing freedom of expression and information, including
journalistic, academic, artistic and or literary expression with the
right to the protection of personal data pursuant to this Regulation.
The processing of personal data solely for journalistic purposes, or for
the purposes of academic, artistic or literary expression should be
subject to derogations or exemptions from certain provisions of this
Regulation if necessary to reconcile the right to the protection of
personal data with the right to freedom of expression and information,
as enshrined in Article 11 of the Charter. This should apply in
particular to the processing of personal data in the audiovisual field
and in news archives and press libraries. Therefore, Member States
should adopt legislative measures which lay down the exemptions and
derogations necessary for the purpose of balancing those fundamental
rights. Member States should adopt such exemptions and derogations on
general principles, the rights of the data subject, the controller and
the processor, the transfer of personal data to third countries or
international organisations, the independent supervisory authorities,
cooperation and consistency, and specific data-processing situations.
Where such exemptions or derogations differ from one Member State to
another, the law of the Member State to which the controller is subject
should apply. In order to take account of the importance of the right to
freedom of expression in every democratic society, it is necessary to
interpret notions relating to that freedom, such as journalism, broadly.
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(154)
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This Regulation allows the principle of
public access to official documents to be taken into account when
applying this Regulation. Public access to official documents may be
considered to be in the public interest. Personal data in documents held
by a public authority or a public body should be able to be publicly
disclosed by that authority or body if the disclosure is provided for by
Union or Member State law to which the public authority or public body
is subject. Such laws should reconcile public access to official
documents and the reuse of public sector information with the right to
the protection of personal data and may therefore provide for the
necessary reconciliation with the right to the protection of personal
data pursuant to this Regulation. The reference to public authorities
and bodies should in that context include all authorities or other
bodies covered by Member State law on public access to documents.
Directive 2003/98/EC of the European Parliament and of the Council (14)
leaves intact and in no way affects the level of protection of natural
persons with regard to the processing of personal data under the
provisions of Union and Member State law, and in particular does not
alter the obligations and rights set out in this Regulation. In
particular, that Directive should not apply to documents to which access
is excluded or restricted by virtue of the access regimes on the
grounds of protection of personal data, and parts of documents
accessible by virtue of those regimes which contain personal data the
re-use of which has been provided for by law as being incompatible with
the law concerning the protection of natural persons with regard to the
processing of personal data.
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(155)
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Member State law or collective
agreements, including ‘works agreements’, may provide for specific rules
on the processing of employees' personal data in the employment
context, in particular for the conditions under which personal data in
the employment context may be processed on the basis of the consent of
the employee, the purposes of the recruitment, the performance of the
contract of employment, including discharge of obligations laid down by
law or by collective agreements, management, planning and organisation
of work, equality and diversity in the workplace, health and safety at
work, and for the purposes of the exercise and enjoyment, on an
individual or collective basis, of rights and benefits related to
employment, and for the purpose of the termination of the employment
relationship.
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(156)
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The processing of personal data for
archiving purposes in the public interest, scientific or historical
research purposes or statistical purposes should be subject to
appropriate safeguards for the rights and freedoms of the data subject
pursuant to this Regulation. Those safeguards should ensure that
technical and organisational measures are in place in order to ensure,
in particular, the principle of data minimisation. The further
processing of personal data for archiving purposes in the public
interest, scientific or historical research purposes or statistical
purposes is to be carried out when the controller has assessed the
feasibility to fulfil those purposes by processing data which do not
permit or no longer permit the identification of data subjects, provided
that appropriate safeguards exist (such as, for instance,
pseudonymisation of the data). Member States should provide for
appropriate safeguards for the processing of personal data for archiving
purposes in the public interest, scientific or historical research
purposes or statistical purposes. Member States should be authorised to
provide, under specific conditions and subject to appropriate safeguards
for data subjects, specifications and derogations with regard to the
information requirements and rights to rectification, to erasure, to be
forgotten, to restriction of processing, to data portability, and to
object when processing personal data for archiving purposes in the
public interest, scientific or historical research purposes or
statistical purposes. The conditions and safeguards in question may
entail specific procedures for data subjects to exercise those rights if
this is appropriate in the light of the purposes sought by the specific
processing along with technical and organisational measures aimed at
minimising the processing of personal data in pursuance of the
proportionality and necessity principles. The processing of personal
data for scientific purposes should also comply with other relevant
legislation such as on clinical trials.
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(157)
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By coupling information from
registries, researchers can obtain new knowledge of great value with
regard to widespread medical conditions such as cardiovascular disease,
cancer and depression. On the basis of registries, research results can
be enhanced, as they draw on a larger population. Within social science,
research on the basis of registries enables researchers to obtain
essential knowledge about the long-term correlation of a number of
social conditions such as unemployment and education with other life
conditions. Research results obtained through registries provide solid,
high-quality knowledge which can provide the basis for the formulation
and implementation of knowledge-based policy, improve the quality of
life for a number of people and improve the efficiency of social
services. In order to facilitate scientific research, personal data can
be processed for scientific research purposes, subject to appropriate
conditions and safeguards set out in Union or Member State law.
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(158)
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Where personal data are processed for
archiving purposes, this Regulation should also apply to that
processing, bearing in mind that this Regulation should not apply to
deceased persons. Public authorities or public or private bodies that
hold records of public interest should be services which, pursuant to
Union or Member State law, have a legal obligation to acquire, preserve,
appraise, arrange, describe, communicate, promote, disseminate and
provide access to records of enduring value for general public interest.
Member States should also be authorised to provide for the further
processing of personal data for archiving purposes, for example with a
view to providing specific information related to the political
behaviour under former totalitarian state regimes, genocide, crimes
against humanity, in particular the Holocaust, or war crimes.
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(159)
|
Where personal data are processed for
scientific research purposes, this Regulation should also apply to that
processing. For the purposes of this Regulation, the processing of
personal data for scientific research purposes should be interpreted in a
broad manner including for example technological development and
demonstration, fundamental research, applied research and privately
funded research. In addition, it should take into account the Union's
objective under Article 179(1) TFEU of achieving a European Research
Area. Scientific research purposes should also include studies conducted
in the public interest in the area of public health. To meet the
specificities of processing personal data for scientific research
purposes, specific conditions should apply in particular as regards the
publication or otherwise disclosure of personal data in the context of
scientific research purposes. If the result of scientific research in
particular in the health context gives reason for further measures in
the interest of the data subject, the general rules of this Regulation
should apply in view of those measures.
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(160)
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Where personal data are processed for
historical research purposes, this Regulation should also apply to that
processing. This should also include historical research and research
for genealogical purposes, bearing in mind that this Regulation should
not apply to deceased persons.
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(161)
|
For the purpose of consenting to the
participation in scientific research activities in clinical trials, the
relevant provisions of Regulation (EU) No 536/2014 of the European
Parliament and of the Council (15) should apply.
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(162)
|
Where personal data are processed for
statistical purposes, this Regulation should apply to that processing.
Union or Member State law should, within the limits of this Regulation,
determine statistical content, control of access, specifications for the
processing of personal data for statistical purposes and appropriate
measures to safeguard the rights and freedoms of the data subject and
for ensuring statistical confidentiality. Statistical purposes mean any
operation of collection and the processing of personal data necessary
for statistical surveys or for the production of statistical results.
Those statistical results may further be used for different purposes,
including a scientific research purpose. The statistical purpose implies
that the result of processing for statistical purposes is not personal
data, but aggregate data, and that this result or the personal data are
not used in support of measures or decisions regarding any particular
natural person.
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(163)
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The confidential information which the
Union and national statistical authorities collect for the production of
official European and official national statistics should be protected.
European statistics should be developed, produced and disseminated in
accordance with the statistical principles as set out in Article 338(2)
TFEU, while national statistics should also comply with Member State
law. Regulation (EC) No 223/2009 of the European Parliament and of the
Council (16) provides further specifications on statistical confidentiality for European statistics.
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(164)
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As regards the powers of the
supervisory authorities to obtain from the controller or processor
access to personal data and access to their premises, Member States may
adopt by law, within the limits of this Regulation, specific rules in
order to safeguard the professional or other equivalent secrecy
obligations, in so far as necessary to reconcile the right to the
protection of personal data with an obligation of professional secrecy.
This is without prejudice to existing Member State obligations to adopt
rules on professional secrecy where required by Union law.
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(165)
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This Regulation respects and does not
prejudice the status under existing constitutional law of churches and
religious associations or communities in the Member States, as
recognised in Article 17 TFEU.
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(166)
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In order to fulfil the objectives of
this Regulation, namely to protect the fundamental rights and freedoms
of natural persons and in particular their right to the protection of
personal data and to ensure the free movement of personal data within
the Union, the power to adopt acts in accordance with Article 290 TFEU
should be delegated to the Commission. In particular, delegated acts
should be adopted in respect of criteria and requirements for
certification mechanisms, information to be presented by standardised
icons and procedures for providing such icons. It is of particular
importance that the Commission carry out appropriate consultations
during its preparatory work, including at expert level. The Commission,
when preparing and drawing-up delegated acts, should ensure a
simultaneous, timely and appropriate transmission of relevant documents
to the European Parliament and to the Council.
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(167)
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In order to ensure uniform conditions
for the implementation of this Regulation, implementing powers should be
conferred on the Commission when provided for by this Regulation. Those
powers should be exercised in accordance with Regulation (EU)
No 182/2011. In that context, the Commission should consider specific
measures for micro, small and medium-sized enterprises.
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(168)
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The examination procedure should be
used for the adoption of implementing acts on standard contractual
clauses between controllers and processors and between processors; codes
of conduct; technical standards and mechanisms for certification; the
adequate level of protection afforded by a third country, a territory or
a specified sector within that third country, or an international
organisation; standard protection clauses; formats and procedures for
the exchange of information by electronic means between controllers,
processors and supervisory authorities for binding corporate rules;
mutual assistance; and arrangements for the exchange of information by
electronic means between supervisory authorities, and between
supervisory authorities and the Board.
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(169)
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The Commission should adopt immediately
applicable implementing acts where available evidence reveals that a
third country, a territory or a specified sector within that third
country, or an international organisation does not ensure an adequate
level of protection, and imperative grounds of urgency so require.
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(170)
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Since the objective of this Regulation,
namely to ensure an equivalent level of protection of natural persons
and the free flow of personal data throughout the Union, cannot be
sufficiently achieved by the Member States and can rather, by reason of
the scale or effects of the action, be better achieved at Union level,
the Union may adopt measures, in accordance with the principle of
subsidiarity as set out in Article 5 of the Treaty on European Union
(TEU). In accordance with the principle of proportionality as set out in
that Article, this Regulation does not go beyond what is necessary in
order to achieve that objective.
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(171)
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Directive 95/46/EC should be repealed
by this Regulation. Processing already under way on the date of
application of this Regulation should be brought into conformity with
this Regulation within the period of two years after which this
Regulation enters into force. Where processing is based on consent
pursuant to Directive 95/46/EC, it is not necessary for the data subject
to give his or her consent again if the manner in which the consent has
been given is in line with the conditions of this Regulation, so as to
allow the controller to continue such processing after the date of
application of this Regulation. Commission decisions adopted and
authorisations by supervisory authorities based on Directive 95/46/EC
remain in force until amended, replaced or repealed.
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(172)
|
The European Data Protection Supervisor
was consulted in accordance with Article 28(2) of Regulation (EC) No
45/2001 and delivered an opinion on 7 March 2012 (17).
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(173)
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This Regulation should apply to all matters concerning the protection of fundamental rights and freedoms vis-à-vis
the processing of personal data which are not subject to specific
obligations with the same objective set out in Directive 2002/58/EC of
the European Parliament and of the Council (18),
including the obligations on the controller and the rights of natural
persons. In order to clarify the relationship between this Regulation
and Directive 2002/58/EC, that Directive should be amended accordingly.
Once this Regulation is adopted, Directive 2002/58/EC should be reviewed
in particular in order to ensure consistency with this Regulation,
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HAVE ADOPTED THIS REGULATION:
CHAPTER I
General provisions
Article 1
Subject-matter and objectives
1. This Regulation lays down rules relating to
the protection of natural persons with regard to the processing of
personal data and rules relating to the free movement of personal data.
2. This Regulation protects fundamental rights
and freedoms of natural persons and in particular their right to the
protection of personal data.
3. The free movement of personal data within the
Union shall be neither restricted nor prohibited for reasons connected
with the protection of natural persons with regard to the processing of
personal data.
Article 2
Material scope
1. This Regulation applies to the processing of
personal data wholly or partly by automated means and to the processing
other than by automated means of personal data which form part of a
filing system or are intended to form part of a filing system.
2. This Regulation does not apply to the processing of personal data:
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(a)
|
in the course of an activity which falls outside the scope of Union law;
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(b)
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by the Member States when carrying out activities which fall within the scope of Chapter 2 of Title V of the TEU;
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(c)
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by a natural person in the course of a purely personal or household activity;
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(d)
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by competent authorities for the
purposes of the prevention, investigation, detection or prosecution of
criminal offences or the execution of criminal penalties, including the
safeguarding against and the prevention of threats to public security.
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3. For the processing of personal data by the
Union institutions, bodies, offices and agencies, Regulation (EC) No
45/2001 applies. Regulation (EC) No 45/2001 and other Union legal acts
applicable to such processing of personal data shall be adapted to the
principles and rules of this Regulation in accordance with Article 98.
4. This Regulation shall be without prejudice to
the application of Directive 2000/31/EC, in particular of the liability
rules of intermediary service providers in Articles 12 to 15 of that
Directive.
Article 3
Territorial scope
1. This Regulation applies to the processing of
personal data in the context of the activities of an establishment of a
controller or a processor in the Union, regardless of whether the
processing takes place in the Union or not.
2. This Regulation applies to the processing of
personal data of data subjects who are in the Union by a controller or
processor not established in the Union, where the processing activities
are related to:
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(a)
|
the offering of goods or services,
irrespective of whether a payment of the data subject is required, to
such data subjects in the Union; or
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(b)
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the monitoring of their behaviour as far as their behaviour takes place within the Union.
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3. This Regulation applies to the processing of
personal data by a controller not established in the Union, but in a
place where Member State law applies by virtue of public international
law.
Article 4
Definitions
For the purposes of this Regulation:
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(1)
|
‘personal data’ means any information
relating to an identified or identifiable natural person (‘data
subject’); an identifiable natural person is one who can be identified,
directly or indirectly, in particular by reference to an identifier such
as a name, an identification number, location data, an online
identifier or to one or more factors specific to the physical,
physiological, genetic, mental, economic, cultural or social identity of
that natural person;
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(2)
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‘processing’ means any operation or set
of operations which is performed on personal data or on sets of
personal data, whether or not by automated means, such as collection,
recording, organisation, structuring, storage, adaptation or alteration,
retrieval, consultation, use, disclosure by transmission, dissemination
or otherwise making available, alignment or combination, restriction,
erasure or destruction;
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(3)
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‘restriction of processing’ means the marking of stored personal data with the aim of limiting their processing in the future;
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(4)
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‘profiling’ means any form of automated
processing of personal data consisting of the use of personal data to
evaluate certain personal aspects relating to a natural person, in
particular to analyse or predict aspects concerning that natural
person's performance at work, economic situation, health, personal
preferences, interests, reliability, behaviour, location or movements;
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(5)
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‘pseudonymisation’ means the processing
of personal data in such a manner that the personal data can no longer
be attributed to a specific data subject without the use of additional
information, provided that such additional information is kept
separately and is subject to technical and organisational measures to
ensure that the personal data are not attributed to an identified or
identifiable natural person;
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(6)
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‘filing system’ means any structured
set of personal data which are accessible according to specific
criteria, whether centralised, decentralised or dispersed on a
functional or geographical basis;
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(7)
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‘controller’ means the natural or legal
person, public authority, agency or other body which, alone or jointly
with others, determines the purposes and means of the processing of
personal data; where the purposes and means of such processing are
determined by Union or Member State law, the controller or the specific
criteria for its nomination may be provided for by Union or Member State
law;
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(8)
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‘processor’ means a natural or legal
person, public authority, agency or other body which processes personal
data on behalf of the controller;
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(9)
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‘recipient’ means a natural or legal
person, public authority, agency or another body, to which the personal
data are disclosed, whether a third party or not. However, public
authorities which may receive personal data in the framework of a
particular inquiry in accordance with Union or Member State law shall
not be regarded as recipients; the processing of those data by those
public authorities shall be in compliance with the applicable data
protection rules according to the purposes of the processing;
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(10)
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‘third party’ means a natural or legal
person, public authority, agency or body other than the data subject,
controller, processor and persons who, under the direct authority of the
controller or processor, are authorised to process personal data;
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(11)
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‘consent’ of the data subject means any
freely given, specific, informed and unambiguous indication of the data
subject's wishes by which he or she, by a statement or by a clear
affirmative action, signifies agreement to the processing of personal
data relating to him or her;
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(12)
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‘personal data breach’ means a breach
of security leading to the accidental or unlawful destruction, loss,
alteration, unauthorised disclosure of, or access to, personal data
transmitted, stored or otherwise processed;
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(13)
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‘genetic data’ means personal data
relating to the inherited or acquired genetic characteristics of a
natural person which give unique information about the physiology or the
health of that natural person and which result, in particular, from an
analysis of a biological sample from the natural person in question;
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(14)
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‘biometric data’ means personal data
resulting from specific technical processing relating to the physical,
physiological or behavioural characteristics of a natural person, which
allow or confirm the unique identification of that natural person, such
as facial images or dactyloscopic data;
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(15)
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‘data concerning health’ means personal
data related to the physical or mental health of a natural person,
including the provision of health care services, which reveal
information about his or her health status;
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(16)
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‘main establishment’ means:
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(17)
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‘representative’ means a natural or
legal person established in the Union who, designated by the controller
or processor in writing pursuant to Article 27, represents the
controller or processor with regard to their respective obligations
under this Regulation;
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(18)
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‘enterprise’ means a natural or legal
person engaged in an economic activity, irrespective of its legal form,
including partnerships or associations regularly engaged in an economic
activity;
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(19)
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‘group of undertakings’ means a controlling undertaking and its controlled undertakings;
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(20)
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‘binding corporate rules’ means
personal data protection policies which are adhered to by a controller
or processor established on the territory of a Member State for
transfers or a set of transfers of personal data to a controller or
processor in one or more third countries within a group of undertakings,
or group of enterprises engaged in a joint economic activity;
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(21)
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‘supervisory authority’ means an independent public authority which is established by a Member State pursuant to Article 51;
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(22)
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‘supervisory authority concerned’ means a supervisory authority which is concerned by the processing of personal data because:
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(23)
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‘cross-border processing’ means either:
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(24)
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‘relevant and reasoned objection’ means
an objection to a draft decision as to whether there is an infringement
of this Regulation, or whether envisaged action in relation to the
controller or processor complies with this Regulation, which clearly
demonstrates the significance of the risks posed by the draft decision
as regards the fundamental rights and freedoms of data subjects and,
where applicable, the free flow of personal data within the Union;
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(25)
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‘information society service’ means a
service as defined in point (b) of Article 1(1) of Directive (EU)
2015/1535 of the European Parliament and of the Council (19);
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(26)
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‘international organisation’ means an
organisation and its subordinate bodies governed by public international
law, or any other body which is set up by, or on the basis of, an
agreement between two or more countries.
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CHAPTER II
Principles
Article 5
Principles relating to processing of personal data
1. Personal data shall be:
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(a)
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processed lawfully, fairly and in a
transparent manner in relation to the data subject (‘lawfulness,
fairness and transparency’);
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(b)
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collected for specified, explicit and
legitimate purposes and not further processed in a manner that is
incompatible with those purposes; further processing for archiving
purposes in the public interest, scientific or historical research
purposes or statistical purposes shall, in accordance with Article
89(1), not be considered to be incompatible with the initial purposes
(‘purpose limitation’);
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(c)
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adequate, relevant and limited to what
is necessary in relation to the purposes for which they are processed
(‘data minimisation’);
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(d)
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accurate and, where necessary, kept up
to date; every reasonable step must be taken to ensure that personal
data that are inaccurate, having regard to the purposes for which they
are processed, are erased or rectified without delay (‘accuracy’);
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(e)
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kept in a form which permits
identification of data subjects for no longer than is necessary for the
purposes for which the personal data are processed; personal data may be
stored for longer periods insofar as the personal data will be
processed solely for archiving purposes in the public interest,
scientific or historical research purposes or statistical purposes in
accordance with Article 89(1) subject to implementation of the
appropriate technical and organisational measures required by this
Regulation in order to safeguard the rights and freedoms of the data
subject (‘storage limitation’);
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(f)
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processed in a manner that ensures
appropriate security of the personal data, including protection against
unauthorised or unlawful processing and against accidental loss,
destruction or damage, using appropriate technical or organisational
measures (‘integrity and confidentiality’).
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2. The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’).
Article 6
Lawfulness of processing
1. Processing shall be lawful only if and to the extent that at least one of the following applies:
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(a)
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the data subject has given consent to the processing of his or her personal data for one or more specific purposes;
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(b)
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processing is necessary for the
performance of a contract to which the data subject is party or in order
to take steps at the request of the data subject prior to entering into
a contract;
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(c)
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processing is necessary for compliance with a legal obligation to which the controller is subject;
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(d)
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processing is necessary in order to protect the vital interests of the data subject or of another natural person;
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(e)
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processing is necessary for the
performance of a task carried out in the public interest or in the
exercise of official authority vested in the controller;
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(f)
|
processing is necessary for the
purposes of the legitimate interests pursued by the controller or by a
third party, except where such interests are overridden by the interests
or fundamental rights and freedoms of the data subject which require
protection of personal data, in particular where the data subject is a
child.
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Point (f) of the first subparagraph shall not apply
to processing carried out by public authorities in the performance of
their tasks.
2. Member States may maintain or introduce more
specific provisions to adapt the application of the rules of this
Regulation with regard to processing for compliance with points (c)
and (e) of paragraph 1 by determining more precisely specific
requirements for the processing and other measures to ensure lawful and
fair processing including for other specific processing situations as
provided for in Chapter IX.
3. The basis for the processing referred to in point (c) and (e) of paragraph 1 shall be laid down by:
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(a)
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Union law; or
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(b)
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Member State law to which the controller is subject.
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The purpose of the processing shall be determined
in that legal basis or, as regards the processing referred to in point
(e) of paragraph 1, shall be necessary for the performance of a task
carried out in the public interest or in the exercise of official
authority vested in the controller. That legal basis may contain
specific provisions to adapt the application of rules of this
Regulation, inter alia: the general conditions governing the lawfulness
of processing by the controller; the types of data which are subject to
the processing; the data subjects concerned; the entities to, and the
purposes for which, the personal data may be disclosed; the purpose
limitation; storage periods; and processing operations and processing
procedures, including measures to ensure lawful and fair processing such
as those for other specific processing situations as provided for in
Chapter IX. The Union or the Member State law shall meet an objective of
public interest and be proportionate to the legitimate aim pursued.
4. Where the processing for a purpose other than
that for which the personal data have been collected is not based on the
data subject's consent or on a Union or Member State law which
constitutes a necessary and proportionate measure in a democratic
society to safeguard the objectives referred to in Article 23(1), the
controller shall, in order to ascertain whether processing for another
purpose is compatible with the purpose for which the personal data are
initially collected, take into account, inter alia:
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(a)
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any link between the purposes for which
the personal data have been collected and the purposes of the intended
further processing;
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(b)
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the context in which the personal data
have been collected, in particular regarding the relationship between
data subjects and the controller;
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(c)
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the nature of the personal data, in
particular whether special categories of personal data are processed,
pursuant to Article 9, or whether personal data related to criminal
convictions and offences are processed, pursuant to Article 10;
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(d)
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the possible consequences of the intended further processing for data subjects;
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(e)
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the existence of appropriate safeguards, which may include encryption or pseudonymisation.
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Article 7
Conditions for consent
1. Where processing is based on consent, the
controller shall be able to demonstrate that the data subject has
consented to processing of his or her personal data.
2. If the data subject's consent is given in the
context of a written declaration which also concerns other matters, the
request for consent shall be presented in a manner which is clearly
distinguishable from the other matters, in an intelligible and easily
accessible form, using clear and plain language. Any part of such a
declaration which constitutes an infringement of this Regulation shall
not be binding.
3. The data subject shall have the right to
withdraw his or her consent at any time. The withdrawal of consent shall
not affect the lawfulness of processing based on consent before its
withdrawal. Prior to giving consent, the data subject shall be informed
thereof. It shall be as easy to withdraw as to give consent.
4. When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia,
the performance of a contract, including the provision of a service, is
conditional on consent to the processing of personal data that is not
necessary for the performance of that contract.
Article 8
Conditions applicable to child's consent in relation to information society services
1. Where point (a) of Article 6(1) applies, in
relation to the offer of information society services directly to a
child, the processing of the personal data of a child shall be lawful
where the child is at least 16 years old. Where the child is below the
age of 16 years, such processing shall be lawful only if and to the
extent that consent is given or authorised by the holder of parental
responsibility over the child.
Member States may provide by law for a lower age for those purposes provided that such lower age is not below 13 years.
2. The controller shall make reasonable efforts
to verify in such cases that consent is given or authorised by the
holder of parental responsibility over the child, taking into
consideration available technology.
3. Paragraph 1 shall not affect the general
contract law of Member States such as the rules on the validity,
formation or effect of a contract in relation to a child.
Article 9
Processing of special categories of personal data
1. Processing of personal data revealing racial
or ethnic origin, political opinions, religious or philosophical
beliefs, or trade union membership, and the processing of genetic data,
biometric data for the purpose of uniquely identifying a natural person,
data concerning health or data concerning a natural person's sex life
or sexual orientation shall be prohibited.
2. Paragraph 1 shall not apply if one of the following applies:
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(a)
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the data subject has given explicit
consent to the processing of those personal data for one or more
specified purposes, except where Union or Member State law provide that
the prohibition referred to in paragraph 1 may not be lifted by the data
subject;
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(b)
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processing is necessary for the
purposes of carrying out the obligations and exercising specific rights
of the controller or of the data subject in the field of employment and
social security and social protection law in so far as it is authorised
by Union or Member State law or a collective agreement pursuant to
Member State law providing for appropriate safeguards for the
fundamental rights and the interests of the data subject;
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(c)
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processing is necessary to protect the
vital interests of the data subject or of another natural person where
the data subject is physically or legally incapable of giving consent;
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(d)
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processing is carried out in the course
of its legitimate activities with appropriate safeguards by a
foundation, association or any other not-for-profit body with a
political, philosophical, religious or trade union aim and on condition
that the processing relates solely to the members or to former members
of the body or to persons who have regular contact with it in connection
with its purposes and that the personal data are not disclosed outside
that body without the consent of the data subjects;
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(e)
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processing relates to personal data which are manifestly made public by the data subject;
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(f)
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processing is necessary for the
establishment, exercise or defence of legal claims or whenever courts
are acting in their judicial capacity;
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(g)
|
processing is necessary for reasons of
substantial public interest, on the basis of Union or Member State law
which shall be proportionate to the aim pursued, respect the essence of
the right to data protection and provide for suitable and specific
measures to safeguard the fundamental rights and the interests of the
data subject;
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(h)
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processing is necessary for the
purposes of preventive or occupational medicine, for the assessment of
the working capacity of the employee, medical diagnosis, the provision
of health or social care or treatment or the management of health or
social care systems and services on the basis of Union or Member State
law or pursuant to contract with a health professional and subject to
the conditions and safeguards referred to in paragraph 3;
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|
(i)
|
processing is necessary for reasons of
public interest in the area of public health, such as protecting against
serious cross-border threats to health or ensuring high standards of
quality and safety of health care and of medicinal products or medical
devices, on the basis of Union or Member State law which provides for
suitable and specific measures to safeguard the rights and freedoms of
the data subject, in particular professional secrecy;
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(j)
|
processing is necessary for archiving
purposes in the public interest, scientific or historical research
purposes or statistical purposes in accordance with Article 89(1) based
on Union or Member State law which shall be proportionate to the aim
pursued, respect the essence of the right to data protection and provide
for suitable and specific measures to safeguard the fundamental rights
and the interests of the data subject.
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3. Personal data referred to in paragraph 1 may
be processed for the purposes referred to in point (h) of paragraph 2
when those data are processed by or under the responsibility of a
professional subject to the obligation of professional secrecy under
Union or Member State law or rules established by national competent
bodies or by another person also subject to an obligation of secrecy
under Union or Member State law or rules established by national
competent bodies.
4. Member States may maintain or introduce
further conditions, including limitations, with regard to the processing
of genetic data, biometric data or data concerning health.
Article 10
Processing of personal data relating to criminal convictions and offences
Processing of personal data relating to criminal
convictions and offences or related security measures based on
Article 6(1) shall be carried out only under the control of official
authority or when the processing is authorised by Union or Member State
law providing for appropriate safeguards for the rights and freedoms of
data subjects. Any comprehensive register of criminal convictions shall
be kept only under the control of official authority.
Article 11
Processing which does not require identification
1. If the purposes for which a controller
processes personal data do not or do no longer require the
identification of a data subject by the controller, the controller shall
not be obliged to maintain, acquire or process additional information
in order to identify the data subject for the sole purpose of complying
with this Regulation.
2. Where, in cases referred to in paragraph 1 of
this Article, the controller is able to demonstrate that it is not in a
position to identify the data subject, the controller shall inform the
data subject accordingly, if possible. In such cases, Articles 15 to 20
shall not apply except where the data subject, for the purpose of
exercising his or her rights under those articles, provides additional
information enabling his or her identification.
CHAPTER III
Rights of the data subject
Article 12
Transparent information, communication and modalities for the exercise of the rights of the data subject
1. The controller shall take appropriate measures
to provide any information referred to in Articles 13 and 14 and any
communication under Articles 15 to 22 and 34 relating to processing to
the data subject in a concise, transparent, intelligible and easily
accessible form, using clear and plain language, in particular for any
information addressed specifically to a child. The information shall be
provided in writing, or by other means, including, where appropriate, by
electronic means. When requested by the data subject, the information
may be provided orally, provided that the identity of the data subject
is proven by other means.
2. The controller shall facilitate the exercise
of data subject rights under Articles 15 to 22. In the cases referred to
in Article 11(2), the controller shall not refuse to act on the request
of the data subject for exercising his or her rights under Articles 15
to 22, unless the controller demonstrates that it is not in a position
to identify the data subject.
3. The controller shall provide information on
action taken on a request under Articles 15 to 22 to the data subject
without undue delay and in any event within one month of receipt of the
request. That period may be extended by two further months where
necessary, taking into account the complexity and number of the
requests. The controller shall inform the data subject of any such
extension within one month of receipt of the request, together with the
reasons for the delay. Where the data subject makes the request by
electronic form means, the information shall be provided by electronic
means where possible, unless otherwise requested by the data subject.
4. If the controller does not take action on the
request of the data subject, the controller shall inform the data
subject without delay and at the latest within one month of receipt of
the request of the reasons for not taking action and on the possibility
of lodging a complaint with a supervisory authority and seeking a
judicial remedy.
5. Information provided under Articles 13 and 14
and any communication and any actions taken under Articles 15 to 22 and
34 shall be provided free of charge. Where requests from a data subject
are manifestly unfounded or excessive, in particular because of their
repetitive character, the controller may either:
|
(a)
|
charge a reasonable fee taking into
account the administrative costs of providing the information or
communication or taking the action requested; or
|
|
(b)
|
refuse to act on the request.
|
The controller shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.
6. Without prejudice to Article 11, where the
controller has reasonable doubts concerning the identity of the natural
person making the request referred to in Articles 15 to 21, the
controller may request the provision of additional information necessary
to confirm the identity of the data subject.
7. The information to be provided to data
subjects pursuant to Articles 13 and 14 may be provided in combination
with standardised icons in order to give in an easily visible,
intelligible and clearly legible manner a meaningful overview of the
intended processing. Where the icons are presented electronically they
shall be machine-readable.
8. The Commission shall be empowered to adopt
delegated acts in accordance with Article 92 for the purpose of
determining the information to be presented by the icons and the
procedures for providing standardised icons.
Article 13
Information to be provided where personal data are collected from the data subject
1. Where personal data relating to a data subject
are collected from the data subject, the controller shall, at the time
when personal data are obtained, provide the data subject with all of
the following information:
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(a)
|
the identity and the contact details of the controller and, where applicable, of the controller's representative;
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|
(b)
|
the contact details of the data protection officer, where applicable;
|
|
(c)
|
the purposes of the processing for which the personal data are intended as well as the legal basis for the processing;
|
|
(d)
|
where the processing is based on point
(f) of Article 6(1), the legitimate interests pursued by the controller
or by a third party;
|
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(e)
|
the recipients or categories of recipients of the personal data, if any;
|
|
(f)
|
where applicable, the fact that the
controller intends to transfer personal data to a third country or
international organisation and the existence or absence of an adequacy
decision by the Commission, or in the case of transfers referred to in
Article 46 or 47, or the second subparagraph of Article 49(1), reference
to the appropriate or suitable safeguards and the means by which to
obtain a copy of them or where they have been made available.
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2. In addition to the information referred to in
paragraph 1, the controller shall, at the time when personal data are
obtained, provide the data subject with the following further
information necessary to ensure fair and transparent processing:
|
(a)
|
the period for which the personal data will be stored, or if that is not possible, the criteria used to determine that period;
|
|
(b)
|
the existence of the right to request
from the controller access to and rectification or erasure of personal
data or restriction of processing concerning the data subject or to
object to processing as well as the right to data portability;
|
|
(c)
|
where the processing is based on point
(a) of Article 6(1) or point (a) of Article 9(2), the existence of the
right to withdraw consent at any time, without affecting the lawfulness
of processing based on consent before its withdrawal;
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(d)
|
the right to lodge a complaint with a supervisory authority;
|
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(e)
|
whether the provision of personal data
is a statutory or contractual requirement, or a requirement necessary to
enter into a contract, as well as whether the data subject is obliged
to provide the personal data and of the possible consequences of failure
to provide such data;
|
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(f)
|
the existence of automated
decision-making, including profiling, referred to in Article 22(1) and
(4) and, at least in those cases, meaningful information about the logic
involved, as well as the significance and the envisaged consequences of
such processing for the data subject.
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3. Where the controller intends to further
process the personal data for a purpose other than that for which the
personal data were collected, the controller shall provide the data
subject prior to that further processing with information on that other
purpose and with any relevant further information as referred to in
paragraph 2.
4. Paragraphs 1, 2 and 3 shall not apply where and insofar as the data subject already has the information.
Article 14
Information to be provided where personal data have not been obtained from the data subject
1. Where personal data have not been obtained
from the data subject, the controller shall provide the data subject
with the following information:
|
(a)
|
the identity and the contact details of the controller and, where applicable, of the controller's representative;
|
|
(b)
|
the contact details of the data protection officer, where applicable;
|
|
(c)
|
the purposes of the processing for which the personal data are intended as well as the legal basis for the processing;
|
|
(d)
|
the categories of personal data concerned;
|
|
(e)
|
the recipients or categories of recipients of the personal data, if any;
|
|
(f)
|
where applicable, that the controller
intends to transfer personal data to a recipient in a third country or
international organisation and the existence or absence of an adequacy
decision by the Commission, or in the case of transfers referred to in
Article 46 or 47, or the second subparagraph of Article 49(1), reference
to the appropriate or suitable safeguards and the means to obtain a
copy of them or where they have been made available.
|
2. In addition to the information referred to in
paragraph 1, the controller shall provide the data subject with the
following information necessary to ensure fair and transparent
processing in respect of the data subject:
|
(a)
|
the period for which the personal data will be stored, or if that is not possible, the criteria used to determine that period;
|
|
(b)
|
where the processing is based on point
(f) of Article 6(1), the legitimate interests pursued by the controller
or by a third party;
|
|
(c)
|
the existence of the right to request
from the controller access to and rectification or erasure of personal
data or restriction of processing concerning the data subject and to
object to processing as well as the right to data portability;
|
|
(d)
|
where processing is based on point (a)
of Article 6(1) or point (a) of Article 9(2), the existence of the right
to withdraw consent at any time, without affecting the lawfulness of
processing based on consent before its withdrawal;
|
|
(e)
|
the right to lodge a complaint with a supervisory authority;
|
|
(f)
|
from which source the personal data originate, and if applicable, whether it came from publicly accessible sources;
|
|
(g)
|
the existence of automated
decision-making, including profiling, referred to in Article 22(1) and
(4) and, at least in those cases, meaningful information about the logic
involved, as well as the significance and the envisaged consequences of
such processing for the data subject.
|
3. The controller shall provide the information referred to in paragraphs 1 and 2:
|
(a)
|
within a reasonable period after
obtaining the personal data, but at the latest within one month, having
regard to the specific circumstances in which the personal data are
processed;
|
|
(b)
|
if the personal data are to be used for
communication with the data subject, at the latest at the time of the
first communication to that data subject; or
|
|
(c)
|
if a disclosure to another recipient is envisaged, at the latest when the personal data are first disclosed.
|
4. Where the controller intends to further
process the personal data for a purpose other than that for which the
personal data were obtained, the controller shall provide the data
subject prior to that further processing with information on that other
purpose and with any relevant further information as referred to in
paragraph 2.
5. Paragraphs 1 to 4 shall not apply where and insofar as:
|
(a)
|
the data subject already has the information;
|
|
(b)
|
the provision of such information
proves impossible or would involve a disproportionate effort, in
particular for processing for archiving purposes in the public interest,
scientific or historical research purposes or statistical purposes,
subject to the conditions and safeguards referred to in Article 89(1) or
in so far as the obligation referred to in paragraph 1 of this Article
is likely to render impossible or seriously impair the achievement of
the objectives of that processing. In such cases the controller shall
take appropriate measures to protect the data subject's rights and
freedoms and legitimate interests, including making the information
publicly available;
|
|
(c)
|
obtaining or disclosure is expressly
laid down by Union or Member State law to which the controller is
subject and which provides appropriate measures to protect the data
subject's legitimate interests; or
|
|
(d)
|
where the personal data must remain
confidential subject to an obligation of professional secrecy regulated
by Union or Member State law, including a statutory obligation of
secrecy.
|
Article 15
Right of access by the data subject
1. The data subject shall have the right to
obtain from the controller confirmation as to whether or not personal
data concerning him or her are being processed, and, where that is the
case, access to the personal data and the following information:
|
(a)
|
the purposes of the processing;
|
|
(b)
|
the categories of personal data concerned;
|
|
(c)
|
the recipients or categories of
recipient to whom the personal data have been or will be disclosed, in
particular recipients in third countries or international organisations;
|
|
(d)
|
where possible, the envisaged period
for which the personal data will be stored, or, if not possible, the
criteria used to determine that period;
|
|
(e)
|
the existence of the right to request
from the controller rectification or erasure of personal data or
restriction of processing of personal data concerning the data subject
or to object to such processing;
|
|
(f)
|
the right to lodge a complaint with a supervisory authority;
|
|
(g)
|
where the personal data are not collected from the data subject, any available information as to their source;
|
|
(h)
|
the existence of automated
decision-making, including profiling, referred to in Article 22(1) and
(4) and, at least in those cases, meaningful information about the logic
involved, as well as the significance and the envisaged consequences of
such processing for the data subject.
|
2. Where personal data are transferred to a third
country or to an international organisation, the data subject shall
have the right to be informed of the appropriate safeguards pursuant to
Article 46 relating to the transfer.
3. The controller shall provide a copy of the
personal data undergoing processing. For any further copies requested by
the data subject, the controller may charge a reasonable fee based on
administrative costs. Where the data subject makes the request by
electronic means, and unless otherwise requested by the data subject,
the information shall be provided in a commonly used electronic form.
4. The right to obtain a copy referred to in paragraph 3 shall not adversely affect the rights and freedoms of others.
Article 16
Right to rectification
The data subject shall have the right to obtain
from the controller without undue delay the rectification of inaccurate
personal data concerning him or her. Taking into account the purposes of
the processing, the data subject shall have the right to have
incomplete personal data completed, including by means of providing a
supplementary statement.
Article 17
Right to erasure (‘right to be forgotten’)
1. The data subject shall have the right to
obtain from the controller the erasure of personal data concerning him
or her without undue delay and the controller shall have the obligation
to erase personal data without undue delay where one of the following
grounds applies:
|
(a)
|
the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;
|
|
(b)
|
the data subject withdraws consent on
which the processing is based according to point (a) of Article 6(1), or
point (a) of Article 9(2), and where there is no other legal ground for
the processing;
|
|
(c)
|
the data subject objects to the
processing pursuant to Article 21(1) and there are no overriding
legitimate grounds for the processing, or the data subject objects to
the processing pursuant to Article 21(2);
|
|
(d)
|
the personal data have been unlawfully processed;
|
|
(e)
|
the personal data have to be erased for
compliance with a legal obligation in Union or Member State law to
which the controller is subject;
|
|
(f)
|
the personal data have been collected in relation to the offer of information society services referred to in Article 8(1).
|
2. Where the controller has made the personal
data public and is obliged pursuant to paragraph 1 to erase the personal
data, the controller, taking account of available technology and the
cost of implementation, shall take reasonable steps, including technical
measures, to inform controllers which are processing the personal data
that the data subject has requested the erasure by such controllers of
any links to, or copy or replication of, those personal data.
3. Paragraphs 1 and 2 shall not apply to the extent that processing is necessary:
|
(a)
|
for exercising the right of freedom of expression and information;
|
|
(b)
|
for compliance with a legal obligation
which requires processing by Union or Member State law to which the
controller is subject or for the performance of a task carried out in
the public interest or in the exercise of official authority vested in
the controller;
|
|
(c)
|
for reasons of public interest in the
area of public health in accordance with points (h) and (i) of Article
9(2) as well as Article 9(3);
|
|
(d)
|
for archiving purposes in the public
interest, scientific or historical research purposes or statistical
purposes in accordance with Article 89(1) in so far as the right
referred to in paragraph 1 is likely to render impossible or seriously
impair the achievement of the objectives of that processing; or
|
|
(e)
|
for the establishment, exercise or defence of legal claims.
|
Article 18
Right to restriction of processing
1. The data subject shall have the right to
obtain from the controller restriction of processing where one of the
following applies:
|
(a)
|
the accuracy of the personal data is
contested by the data subject, for a period enabling the controller to
verify the accuracy of the personal data;
|
|
(b)
|
the processing is unlawful and the data
subject opposes the erasure of the personal data and requests the
restriction of their use instead;
|
|
(c)
|
the controller no longer needs the
personal data for the purposes of the processing, but they are required
by the data subject for the establishment, exercise or defence of legal
claims;
|
|
(d)
|
the data subject has objected to
processing pursuant to Article 21(1) pending the verification whether
the legitimate grounds of the controller override those of the data
subject.
|
2. Where processing has been restricted under
paragraph 1, such personal data shall, with the exception of storage,
only be processed with the data subject's consent or for the
establishment, exercise or defence of legal claims or for the protection
of the rights of another natural or legal person or for reasons of
important public interest of the Union or of a Member State.
3. A data subject who has obtained restriction of
processing pursuant to paragraph 1 shall be informed by the controller
before the restriction of processing is lifted.
Article 19
Notification obligation regarding rectification or erasure of personal data or restriction of processing
The controller shall communicate any rectification
or erasure of personal data or restriction of processing carried out in
accordance with Article 16, Article 17(1) and Article 18 to each
recipient to whom the personal data have been disclosed, unless this
proves impossible or involves disproportionate effort. The controller
shall inform the data subject about those recipients if the data subject
requests it.
Article 20
Right to data portability
1. The data subject shall have the right to
receive the personal data concerning him or her, which he or she has
provided to a controller, in a structured, commonly used and
machine-readable format and have the right to transmit those data to
another controller without hindrance from the controller to which the
personal data have been provided, where:
|
(a)
|
the processing is based on consent
pursuant to point (a) of Article 6(1) or point (a) of Article 9(2) or on
a contract pursuant to point (b) of Article 6(1); and
|
|
(b)
|
the processing is carried out by automated means.
|
2. In exercising his or her right to data
portability pursuant to paragraph 1, the data subject shall have the
right to have the personal data transmitted directly from one controller
to another, where technically feasible.
3. The exercise of the right referred to in
paragraph 1 of this Article shall be without prejudice to Article 17.
That right shall not apply to processing necessary for the performance
of a task carried out in the public interest or in the exercise of
official authority vested in the controller.
4. The right referred to in paragraph 1 shall not adversely affect the rights and freedoms of others.
Article 21
Right to object
1. The data subject shall have the right to
object, on grounds relating to his or her particular situation, at any
time to processing of personal data concerning him or her which is based
on point (e) or (f) of Article 6(1), including profiling based on those
provisions. The controller shall no longer process the personal data
unless the controller demonstrates compelling legitimate grounds for the
processing which override the interests, rights and freedoms of the
data subject or for the establishment, exercise or defence of legal
claims.
2. Where personal data are processed for direct
marketing purposes, the data subject shall have the right to object at
any time to processing of personal data concerning him or her for such
marketing, which includes profiling to the extent that it is related to
such direct marketing.
3. Where the data subject objects to processing
for direct marketing purposes, the personal data shall no longer be
processed for such purposes.
4. At the latest at the time of the first
communication with the data subject, the right referred to in
paragraphs 1 and 2 shall be explicitly brought to the attention of the
data subject and shall be presented clearly and separately from any
other information.
5. In the context of the use of information
society services, and notwithstanding Directive 2002/58/EC, the data
subject may exercise his or her right to object by automated means using
technical specifications.
6. Where personal data are processed for
scientific or historical research purposes or statistical purposes
pursuant to Article 89(1), the data subject, on grounds relating to his
or her particular situation, shall have the right to object to
processing of personal data concerning him or her, unless the processing
is necessary for the performance of a task carried out for reasons of
public interest.
Article 22
Automated individual decision-making, including profiling
1. The data subject shall have the right not to
be subject to a decision based solely on automated processing, including
profiling, which produces legal effects concerning him or her or
similarly significantly affects him or her.
2. Paragraph 1 shall not apply if the decision:
|
(a)
|
is necessary for entering into, or performance of, a contract between the data subject and a data controller;
|
|
(b)
|
is authorised by Union or Member State
law to which the controller is subject and which also lays down suitable
measures to safeguard the data subject's rights and freedoms and
legitimate interests; or
|
|
(c)
|
is based on the data subject's explicit consent.
|
3. In the cases referred to in points (a) and (c)
of paragraph 2, the data controller shall implement suitable measures
to safeguard the data subject's rights and freedoms and legitimate
interests, at least the right to obtain human intervention on the part
of the controller, to express his or her point of view and to contest
the decision.
4. Decisions referred to in paragraph 2 shall not
be based on special categories of personal data referred to in
Article 9(1), unless point (a) or (g) of Article 9(2) applies and
suitable measures to safeguard the data subject's rights and freedoms
and legitimate interests are in place.
Article 23
Restrictions
1. Union or Member State law to which the data
controller or processor is subject may restrict by way of a legislative
measure the scope of the obligations and rights provided for in
Articles 12 to 22 and Article 34, as well as Article 5 in so far as its
provisions correspond to the rights and obligations provided for in
Articles 12 to 22, when such a restriction respects the essence of the
fundamental rights and freedoms and is a necessary and proportionate
measure in a democratic society to safeguard:
|
(a)
|
national security;
|
|
(b)
|
defence;
|
|
(c)
|
public security;
|
|
(d)
|
the prevention, investigation,
detection or prosecution of criminal offences or the execution of
criminal penalties, including the safeguarding against and the
prevention of threats to public security;
|
|
(e)
|
other important objectives of general
public interest of the Union or of a Member State, in particular an
important economic or financial interest of the Union or of a
Member State, including monetary, budgetary and taxation a matters,
public health and social security;
|
|
(f)
|
the protection of judicial independence and judicial proceedings;
|
|
(g)
|
the prevention, investigation, detection and prosecution of breaches of ethics for regulated professions;
|
|
(h)
|
a monitoring, inspection or regulatory
function connected, even occasionally, to the exercise of official
authority in the cases referred to in points (a) to (e) and (g);
|
|
(i)
|
the protection of the data subject or the rights and freedoms of others;
|
|
(j)
|
the enforcement of civil law claims.
|
2. In particular, any legislative measure
referred to in paragraph 1 shall contain specific provisions at least,
where relevant, as to:
|
(a)
|
the purposes of the processing or categories of processing;
|
|
(b)
|
the categories of personal data;
|
|
(c)
|
the scope of the restrictions introduced;
|
|
(d)
|
the safeguards to prevent abuse or unlawful access or transfer;
|
|
(e)
|
the specification of the controller or categories of controllers;
|
|
(f)
|
the storage periods and the applicable
safeguards taking into account the nature, scope and purposes of the
processing or categories of processing;
|
|
(g)
|
the risks to the rights and freedoms of data subjects; and
|
|
(h)
|
the right of data subjects to be
informed about the restriction, unless that may be prejudicial to the
purpose of the restriction.
|
CHAPTER IV
Controller and processor
Article 24
Responsibility of the controller
1. Taking into account the nature, scope, context
and purposes of processing as well as the risks of varying likelihood
and severity for the rights and freedoms of natural persons, the
controller shall implement appropriate technical and organisational
measures to ensure and to be able to demonstrate that processing is
performed in accordance with this Regulation. Those measures shall be
reviewed and updated where necessary.
2. Where proportionate in relation to processing
activities, the measures referred to in paragraph 1 shall include the
implementation of appropriate data protection policies by the
controller.
3. Adherence to approved codes of conduct as
referred to in Article 40 or approved certification mechanisms as
referred to in Article 42 may be used as an element by which to
demonstrate compliance with the obligations of the controller.
Article 25
Data protection by design and by default
1. Taking into account the state of the art, the
cost of implementation and the nature, scope, context and purposes of
processing as well as the risks of varying likelihood and severity for
rights and freedoms of natural persons posed by the processing, the
controller shall, both at the time of the determination of the means for
processing and at the time of the processing itself, implement
appropriate technical and organisational measures, such as
pseudonymisation, which are designed to implement data-protection
principles, such as data minimisation, in an effective manner and to
integrate the necessary safeguards into the processing in order to meet
the requirements of this Regulation and protect the rights of data
subjects.
2. The controller shall implement appropriate
technical and organisational measures for ensuring that, by default,
only personal data which are necessary for each specific purpose of the
processing are processed. That obligation applies to the amount of
personal data collected, the extent of their processing, the period of
their storage and their accessibility. In particular, such measures
shall ensure that by default personal data are not made accessible
without the individual's intervention to an indefinite number of natural
persons.
3. An approved certification mechanism pursuant
to Article 42 may be used as an element to demonstrate compliance with
the requirements set out in paragraphs 1 and 2 of this Article.
Article 26
Joint controllers
1. Where two or more controllers jointly
determine the purposes and means of processing, they shall be joint
controllers. They shall in a transparent manner determine their
respective responsibilities for compliance with the obligations under
this Regulation, in particular as regards the exercising of the rights
of the data subject and their respective duties to provide the
information referred to in Articles 13 and 14, by means of an
arrangement between them unless, and in so far as, the respective
responsibilities of the controllers are determined by Union or
Member State law to which the controllers are subject. The arrangement
may designate a contact point for data subjects.
2. The arrangement referred to in paragraph 1
shall duly reflect the respective roles and relationships of the joint
controllers vis-à-vis the data subjects. The essence of the arrangement shall be made available to the data subject.
3. Irrespective of the terms of the arrangement
referred to in paragraph 1, the data subject may exercise his or her
rights under this Regulation in respect of and against each of the
controllers.
Article 27
Representatives of controllers or processors not established in the Union
1. Where Article 3(2) applies, the controller or the processor shall designate in writing a representative in the Union.
2. The obligation laid down in paragraph 1 of this Article shall not apply to:
|
(a)
|
processing which is occasional, does
not include, on a large scale, processing of special categories of data
as referred to in Article 9(1) or processing of personal data relating
to criminal convictions and offences referred to in Article 10, and is
unlikely to result in a risk to the rights and freedoms of natural
persons, taking into account the nature, context, scope and purposes of
the processing; or
|
|
(b)
|
a public authority or body.
|
3. The representative shall be established in one
of the Member States where the data subjects, whose personal data are
processed in relation to the offering of goods or services to them, or
whose behaviour is monitored, are.
4. The representative shall be mandated by the
controller or processor to be addressed in addition to or instead of the
controller or the processor by, in particular, supervisory authorities
and data subjects, on all issues related to processing, for the purposes
of ensuring compliance with this Regulation.
5. The designation of a representative by the
controller or processor shall be without prejudice to legal actions
which could be initiated against the controller or the processor
themselves.
Article 28
Processor
1. Where processing is to be carried out on
behalf of a controller, the controller shall use only processors
providing sufficient guarantees to implement appropriate technical and
organisational measures in such a manner that processing will meet the
requirements of this Regulation and ensure the protection of the rights
of the data subject.
2. The processor shall not engage another
processor without prior specific or general written authorisation of the
controller. In the case of general written authorisation, the processor
shall inform the controller of any intended changes concerning the
addition or replacement of other processors, thereby giving the
controller the opportunity to object to such changes.
3. Processing by a processor shall be governed by
a contract or other legal act under Union or Member State law, that is
binding on the processor with regard to the controller and that sets out
the subject-matter and duration of the processing, the nature and
purpose of the processing, the type of personal data and categories of
data subjects and the obligations and rights of the controller. That
contract or other legal act shall stipulate, in particular, that the
processor:
|
(a)
|
processes the personal data only on
documented instructions from the controller, including with regard to
transfers of personal data to a third country or an international
organisation, unless required to do so by Union or Member State law to
which the processor is subject; in such a case, the processor shall
inform the controller of that legal requirement before processing,
unless that law prohibits such information on important grounds of
public interest;
|
|
(b)
|
ensures that persons authorised to
process the personal data have committed themselves to confidentiality
or are under an appropriate statutory obligation of confidentiality;
|
|
(c)
|
takes all measures required pursuant to Article 32;
|
|
(d)
|
respects the conditions referred to in paragraphs 2 and 4 for engaging another processor;
|
|
(e)
|
taking into account the nature of the
processing, assists the controller by appropriate technical and
organisational measures, insofar as this is possible, for the fulfilment
of the controller's obligation to respond to requests for exercising
the data subject's rights laid down in Chapter III;
|
|
(f)
|
assists the controller in ensuring
compliance with the obligations pursuant to Articles 32 to 36 taking
into account the nature of processing and the information available to
the processor;
|
|
(g)
|
at the choice of the controller,
deletes or returns all the personal data to the controller after the end
of the provision of services relating to processing, and deletes
existing copies unless Union or Member State law requires storage of the
personal data;
|
|
(h)
|
makes available to the controller all
information necessary to demonstrate compliance with the obligations
laid down in this Article and allow for and contribute to audits,
including inspections, conducted by the controller or another auditor
mandated by the controller.
|
With regard to point (h) of the first subparagraph,
the processor shall immediately inform the controller if, in its
opinion, an instruction infringes this Regulation or other Union or
Member State data protection provisions.
4. Where a processor engages another processor
for carrying out specific processing activities on behalf of the
controller, the same data protection obligations as set out in the
contract or other legal act between the controller and the processor as
referred to in paragraph 3 shall be imposed on that other processor by
way of a contract or other legal act under Union or Member State law, in
particular providing sufficient guarantees to implement appropriate
technical and organisational measures in such a manner that the
processing will meet the requirements of this Regulation. Where that
other processor fails to fulfil its data protection obligations, the
initial processor shall remain fully liable to the controller for the
performance of that other processor's obligations.
5. Adherence of a processor to an approved code
of conduct as referred to in Article 40 or an approved certification
mechanism as referred to in Article 42 may be used as an element by
which to demonstrate sufficient guarantees as referred to in
paragraphs 1 and 4 of this Article.
6. Without prejudice to an individual contract
between the controller and the processor, the contract or the other
legal act referred to in paragraphs 3 and 4 of this Article may be
based, in whole or in part, on standard contractual clauses referred to
in paragraphs 7 and 8 of this Article, including when they are part of a
certification granted to the controller or processor pursuant to
Articles 42 and 43.
7. The Commission may lay down standard
contractual clauses for the matters referred to in paragraph 3 and 4 of
this Article and in accordance with the examination procedure referred
to in Article 93(2).
8. A supervisory authority may adopt standard
contractual clauses for the matters referred to in paragraph 3 and 4 of
this Article and in accordance with the consistency mechanism referred
to in Article 63.
9. The contract or the other legal act referred to in paragraphs 3 and 4 shall be in writing, including in electronic form.
10. Without prejudice to Articles 82, 83 and 84,
if a processor infringes this Regulation by determining the purposes and
means of processing, the processor shall be considered to be a
controller in respect of that processing.
Article 29
Processing under the authority of the controller or processor
The processor and any person acting under the
authority of the controller or of the processor, who has access to
personal data, shall not process those data except on instructions from
the controller, unless required to do so by Union or Member State law.
Article 30
Records of processing activities
1. Each controller and, where applicable, the
controller's representative, shall maintain a record of processing
activities under its responsibility. That record shall contain all of
the following information:
|
(a)
|
the name and contact details of the
controller and, where applicable, the joint controller, the controller's
representative and the data protection officer;
|
|
(b)
|
the purposes of the processing;
|
|
(c)
|
a description of the categories of data subjects and of the categories of personal data;
|
|
(d)
|
the categories of recipients to whom
the personal data have been or will be disclosed including recipients in
third countries or international organisations;
|
|
(e)
|
where applicable, transfers of personal
data to a third country or an international organisation, including the
identification of that third country or international organisation and,
in the case of transfers referred to in the second subparagraph of
Article 49(1), the documentation of suitable safeguards;
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(f)
|
where possible, the envisaged time limits for erasure of the different categories of data;
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(g)
|
where possible, a general description of the technical and organisational security measures referred to in Article 32(1).
|
2. Each processor and, where applicable, the
processor's representative shall maintain a record of all categories of
processing activities carried out on behalf of a controller, containing:
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(a)
|
the name and contact details of the
processor or processors and of each controller on behalf of which the
processor is acting, and, where applicable, of the controller's or the
processor's representative, and the data protection officer;
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|
(b)
|
the categories of processing carried out on behalf of each controller;
|
|
(c)
|
where applicable, transfers of personal
data to a third country or an international organisation, including the
identification of that third country or international organisation and,
in the case of transfers referred to in the second subparagraph of
Article 49(1), the documentation of suitable safeguards;
|
|
(d)
|
where possible, a general description of the technical and organisational security measures referred to in Article 32(1).
|
3. The records referred to in paragraphs 1 and 2 shall be in writing, including in electronic form.
4. The controller or the processor and, where
applicable, the controller's or the processor's representative, shall
make the record available to the supervisory authority on request.
5. The obligations referred to in paragraphs 1
and 2 shall not apply to an enterprise or an organisation employing
fewer than 250 persons unless the processing it carries out is likely to
result in a risk to the rights and freedoms of data subjects, the
processing is not occasional, or the processing includes special
categories of data as referred to in Article 9(1) or personal data
relating to criminal convictions and offences referred to in Article 10.
Article 31
Cooperation with the supervisory authority
The controller and the processor and, where
applicable, their representatives, shall cooperate, on request, with the
supervisory authority in the performance of its tasks.
Article 32
Security of processing
1. Taking into account the state of the art, the
costs of implementation and the nature, scope, context and purposes of
processing as well as the risk of varying likelihood and severity for
the rights and freedoms of natural persons, the controller and the
processor shall implement appropriate technical and organisational
measures to ensure a level of security appropriate to the risk,
including inter alia as appropriate:
|
(a)
|
the pseudonymisation and encryption of personal data;
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|
(b)
|
the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
|
|
(c)
|
the ability to restore the availability
and access to personal data in a timely manner in the event of a
physical or technical incident;
|
|
(d)
|
a process for regularly testing,
assessing and evaluating the effectiveness of technical and
organisational measures for ensuring the security of the processing.
|
2. In assessing the appropriate level of security
account shall be taken in particular of the risks that are presented by
processing, in particular from accidental or unlawful destruction,
loss, alteration, unauthorised disclosure of, or access to personal data
transmitted, stored or otherwise processed.
3. Adherence to an approved code of conduct as
referred to in Article 40 or an approved certification mechanism as
referred to in Article 42 may be used as an element by which to
demonstrate compliance with the requirements set out in paragraph 1 of
this Article.
4. The controller and processor shall take steps
to ensure that any natural person acting under the authority of the
controller or the processor who has access to personal data does not
process them except on instructions from the controller, unless he or
she is required to do so by Union or Member State law.
Article 33
Notification of a personal data breach to the supervisory authority
1. In the case of a personal data breach, the
controller shall without undue delay and, where feasible, not later than
72 hours after having become aware of it, notify the personal data
breach to the supervisory authority competent in accordance with
Article 55, unless the personal data breach is unlikely to result in a
risk to the rights and freedoms of natural persons. Where the
notification to the supervisory authority is not made within 72 hours,
it shall be accompanied by reasons for the delay.
2. The processor shall notify the controller without undue delay after becoming aware of a personal data breach.
3. The notification referred to in paragraph 1 shall at least:
|
(a)
|
describe the nature of the personal
data breach including where possible, the categories and approximate
number of data subjects concerned and the categories and approximate
number of personal data records concerned;
|
|
(b)
|
communicate the name and contact
details of the data protection officer or other contact point where more
information can be obtained;
|
|
(c)
|
describe the likely consequences of the personal data breach;
|
|
(d)
|
describe the measures taken or proposed
to be taken by the controller to address the personal data breach,
including, where appropriate, measures to mitigate its possible adverse
effects.
|
4. Where, and in so far as, it is not possible to
provide the information at the same time, the information may be
provided in phases without undue further delay.
5. The controller shall document any personal
data breaches, comprising the facts relating to the personal data
breach, its effects and the remedial action taken. That documentation
shall enable the supervisory authority to verify compliance with this
Article.
Article 34
Communication of a personal data breach to the data subject
1. When the personal data breach is likely to
result in a high risk to the rights and freedoms of natural persons, the
controller shall communicate the personal data breach to the data
subject without undue delay.
2. The communication to the data subject referred
to in paragraph 1 of this Article shall describe in clear and plain
language the nature of the personal data breach and contain at least the
information and measures referred to in points (b), (c) and (d) of
Article 33(3).
3. The communication to the data subject referred
to in paragraph 1 shall not be required if any of the following
conditions are met:
|
(a)
|
the controller has implemented
appropriate technical and organisational protection measures, and those
measures were applied to the personal data affected by the personal data
breach, in particular those that render the personal data
unintelligible to any person who is not authorised to access it, such as
encryption;
|
|
(b)
|
the controller has taken subsequent
measures which ensure that the high risk to the rights and freedoms of
data subjects referred to in paragraph 1 is no longer likely to
materialise;
|
|
(c)
|
it would involve disproportionate
effort. In such a case, there shall instead be a public communication or
similar measure whereby the data subjects are informed in an equally
effective manner.
|
4. If the controller has not already communicated
the personal data breach to the data subject, the supervisory
authority, having considered the likelihood of the personal data breach
resulting in a high risk, may require it to do so or may decide that any
of the conditions referred to in paragraph 3 are met.
Article 35
Data protection impact assessment
1. Where a type of processing in particular using
new technologies, and taking into account the nature, scope, context
and purposes of the processing, is likely to result in a high risk to
the rights and freedoms of natural persons, the controller shall, prior
to the processing, carry out an assessment of the impact of the
envisaged processing operations on the protection of personal data. A
single assessment may address a set of similar processing operations
that present similar high risks.
2. The controller shall seek the advice of the
data protection officer, where designated, when carrying out a data
protection impact assessment.
3. A data protection impact assessment referred to in paragraph 1 shall in particular be required in the case of:
|
(a)
|
a systematic and extensive evaluation
of personal aspects relating to natural persons which is based on
automated processing, including profiling, and on which decisions are
based that produce legal effects concerning the natural person or
similarly significantly affect the natural person;
|
|
(b)
|
processing on a large scale of special
categories of data referred to in Article 9(1), or of personal data
relating to criminal convictions and offences referred to in Article 10;
or
|
|
(c)
|
a systematic monitoring of a publicly accessible area on a large scale.
|
4. The supervisory authority shall establish and
make public a list of the kind of processing operations which are
subject to the requirement for a data protection impact assessment
pursuant to paragraph 1. The supervisory authority shall communicate
those lists to the Board referred to in Article 68.
5. The supervisory authority may also establish
and make public a list of the kind of processing operations for which no
data protection impact assessment is required. The supervisory
authority shall communicate those lists to the Board.
6. Prior to the adoption of the lists referred to
in paragraphs 4 and 5, the competent supervisory authority shall apply
the consistency mechanism referred to in Article 63 where such lists
involve processing activities which are related to the offering of goods
or services to data subjects or to the monitoring of their behaviour in
several Member States, or may substantially affect the free movement of
personal data within the Union.
7. The assessment shall contain at least:
|
(a)
|
a systematic description of the
envisaged processing operations and the purposes of the processing,
including, where applicable, the legitimate interest pursued by the
controller;
|
|
(b)
|
an assessment of the necessity and proportionality of the processing operations in relation to the purposes;
|
|
(c)
|
an assessment of the risks to the rights and freedoms of data subjects referred to in paragraph 1; and
|
|
(d)
|
the measures envisaged to address the
risks, including safeguards, security measures and mechanisms to ensure
the protection of personal data and to demonstrate compliance with this
Regulation taking into account the rights and legitimate interests of
data subjects and other persons concerned.
|
8. Compliance with approved codes of conduct
referred to in Article 40 by the relevant controllers or processors
shall be taken into due account in assessing the impact of the
processing operations performed by such controllers or processors, in
particular for the purposes of a data protection impact assessment.
9. Where appropriate, the controller shall seek
the views of data subjects or their representatives on the intended
processing, without prejudice to the protection of commercial or public
interests or the security of processing operations.
10. Where processing pursuant to point (c) or (e)
of Article 6(1) has a legal basis in Union law or in the law of the
Member State to which the controller is subject, that law regulates the
specific processing operation or set of operations in question, and a
data protection impact assessment has already been carried out as part
of a general impact assessment in the context of the adoption of that
legal basis, paragraphs 1 to 7 shall not apply unless Member States deem
it to be necessary to carry out such an assessment prior to processing
activities.
11. Where necessary, the controller shall carry
out a review to assess if processing is performed in accordance with the
data protection impact assessment at least when there is a change of
the risk represented by processing operations.
Article 36
Prior consultation
1. The controller shall consult the supervisory
authority prior to processing where a data protection impact assessment
under Article 35 indicates that the processing would result in a high
risk in the absence of measures taken by the controller to mitigate the
risk.
2. Where the supervisory authority is of the
opinion that the intended processing referred to in paragraph 1 would
infringe this Regulation, in particular where the controller has
insufficiently identified or mitigated the risk, the supervisory
authority shall, within period of up to eight weeks of receipt of the
request for consultation, provide written advice to the controller and,
where applicable to the processor, and may use any of its powers
referred to in Article 58. That period may be extended by six weeks,
taking into account the complexity of the intended processing. The
supervisory authority shall inform the controller and, where applicable,
the processor, of any such extension within one month of receipt of the
request for consultation together with the reasons for the delay. Those
periods may be suspended until the supervisory authority has obtained
information it has requested for the purposes of the consultation.
3. When consulting the supervisory authority
pursuant to paragraph 1, the controller shall provide the supervisory
authority with:
|
(a)
|
where applicable, the respective
responsibilities of the controller, joint controllers and processors
involved in the processing, in particular for processing within a group
of undertakings;
|
|
(b)
|
the purposes and means of the intended processing;
|
|
(c)
|
the measures and safeguards provided to protect the rights and freedoms of data subjects pursuant to this Regulation;
|
|
(d)
|
where applicable, the contact details of the data protection officer;
|
|
(e)
|
the data protection impact assessment provided for in Article 35; and
|
|
(f)
|
any other information requested by the supervisory authority.
|
4. Member States shall consult the supervisory
authority during the preparation of a proposal for a legislative measure
to be adopted by a national parliament, or of a regulatory measure
based on such a legislative measure, which relates to processing.
5. Notwithstanding paragraph 1, Member State law
may require controllers to consult with, and obtain prior authorisation
from, the supervisory authority in relation to processing by a
controller for the performance of a task carried out by the controller
in the public interest, including processing in relation to social
protection and public health.
Article 37
Designation of the data protection officer
1. The controller and the processor shall designate a data protection officer in any case where:
|
(a)
|
the processing is carried out by a public authority or body, except for courts acting in their judicial capacity;
|
|
(b)
|
the core activities of the controller
or the processor consist of processing operations which, by virtue of
their nature, their scope and/or their purposes, require regular and
systematic monitoring of data subjects on a large scale; or
|
|
(c)
|
the core activities of the controller
or the processor consist of processing on a large scale of special
categories of data pursuant to Article 9 and personal data relating to
criminal convictions and offences referred to in Article 10.
|
2. A group of undertakings may appoint a single
data protection officer provided that a data protection officer is
easily accessible from each establishment.
3. Where the controller or the processor is a
public authority or body, a single data protection officer may be
designated for several such authorities or bodies, taking account of
their organisational structure and size.
4. In cases other than those referred to in
paragraph 1, the controller or processor or associations and other
bodies representing categories of controllers or processors may or,
where required by Union or Member State law shall, designate a data
protection officer. The data protection officer may act for such
associations and other bodies representing controllers or processors.
5. The data protection officer shall be
designated on the basis of professional qualities and, in particular,
expert knowledge of data protection law and practices and the ability to
fulfil the tasks referred to in Article 39.
6. The data protection officer may be a staff
member of the controller or processor, or fulfil the tasks on the basis
of a service contract.
7. The controller or the processor shall publish
the contact details of the data protection officer and communicate them
to the supervisory authority.
Article 38
Position of the data protection officer
1. The controller and the processor shall ensure
that the data protection officer is involved, properly and in a timely
manner, in all issues which relate to the protection of personal data.
2. The controller and processor shall support the
data protection officer in performing the tasks referred to in
Article 39 by providing resources necessary to carry out those tasks and
access to personal data and processing operations, and to maintain his
or her expert knowledge.
3. The controller and processor shall ensure that
the data protection officer does not receive any instructions regarding
the exercise of those tasks. He or she shall not be dismissed or
penalised by the controller or the processor for performing his tasks.
The data protection officer shall directly report to the highest
management level of the controller or the processor.
4. Data subjects may contact the data protection
officer with regard to all issues related to processing of their
personal data and to the exercise of their rights under this Regulation.
5. The data protection officer shall be bound by
secrecy or confidentiality concerning the performance of his or her
tasks, in accordance with Union or Member State law.
6. The data protection officer may fulfil other
tasks and duties. The controller or processor shall ensure that any such
tasks and duties do not result in a conflict of interests.
Article 39
Tasks of the data protection officer
1. The data protection officer shall have at least the following tasks:
|
(a)
|
to inform and advise the controller or
the processor and the employees who carry out processing of their
obligations pursuant to this Regulation and to other Union or Member
State data protection provisions;
|
|
(b)
|
to monitor compliance with this
Regulation, with other Union or Member State data protection provisions
and with the policies of the controller or processor in relation to the
protection of personal data, including the assignment of
responsibilities, awareness-raising and training of staff involved in
processing operations, and the related audits;
|
|
(c)
|
to provide advice where requested as
regards the data protection impact assessment and monitor its
performance pursuant to Article 35;
|
|
(d)
|
to cooperate with the supervisory authority;
|
|
(e)
|
to act as the contact point for the
supervisory authority on issues relating to processing, including the
prior consultation referred to in Article 36, and to consult, where
appropriate, with regard to any other matter.
|
2. The data protection officer shall in the
performance of his or her tasks have due regard to the risk associated
with processing operations, taking into account the nature, scope,
context and purposes of processing.
Article 40
Codes of conduct
1. The Member States, the supervisory
authorities, the Board and the Commission shall encourage the drawing up
of codes of conduct intended to contribute to the proper application of
this Regulation, taking account of the specific features of the various
processing sectors and the specific needs of micro, small and
medium-sized enterprises.
2. Associations and other bodies representing
categories of controllers or processors may prepare codes of conduct, or
amend or extend such codes, for the purpose of specifying the
application of this Regulation, such as with regard to:
|
(a)
|
fair and transparent processing;
|
|
(b)
|
the legitimate interests pursued by controllers in specific contexts;
|
|
(c)
|
the collection of personal data;
|
|
(d)
|
the pseudonymisation of personal data;
|
|
(e)
|
the information provided to the public and to data subjects;
|
|
(f)
|
the exercise of the rights of data subjects;
|
|
(g)
|
the information provided to, and the
protection of, children, and the manner in which the consent of the
holders of parental responsibility over children is to be obtained;
|
|
(h)
|
the measures and procedures referred to
in Articles 24 and 25 and the measures to ensure security of processing
referred to in Article 32;
|
|
(i)
|
the notification of personal data
breaches to supervisory authorities and the communication of such
personal data breaches to data subjects;
|
|
(j)
|
the transfer of personal data to third countries or international organisations; or
|
|
(k)
|
out-of-court proceedings and other
dispute resolution procedures for resolving disputes between controllers
and data subjects with regard to processing, without prejudice to the
rights of data subjects pursuant to Articles 77 and 79.
|
3. In addition to adherence by controllers or
processors subject to this Regulation, codes of conduct approved
pursuant to paragraph 5 of this Article and having general validity
pursuant to paragraph 9 of this Article may also be adhered to by
controllers or processors that are not subject to this Regulation
pursuant to Article 3 in order to provide appropriate safeguards within
the framework of personal data transfers to third countries or
international organisations under the terms referred to in point (e) of
Article 46(2). Such controllers or processors shall make binding and
enforceable commitments, via contractual or other legally binding
instruments, to apply those appropriate safeguards including with regard
to the rights of data subjects.
4. A code of conduct referred to in paragraph 2
of this Article shall contain mechanisms which enable the body referred
to in Article 41(1) to carry out the mandatory monitoring of compliance
with its provisions by the controllers or processors which undertake to
apply it, without prejudice to the tasks and powers of supervisory
authorities competent pursuant to Article 55 or 56.
5. Associations and other bodies referred to in
paragraph 2 of this Article which intend to prepare a code of conduct or
to amend or extend an existing code shall submit the draft code,
amendment or extension to the supervisory authority which is competent
pursuant to Article 55. The supervisory authority shall provide an
opinion on whether the draft code, amendment or extension complies with
this Regulation and shall approve that draft code, amendment or
extension if it finds that it provides sufficient appropriate
safeguards.
6. Where the draft code, or amendment or
extension is approved in accordance with paragraph 5, and where the code
of conduct concerned does not relate to processing activities in
several Member States, the supervisory authority shall register and
publish the code.
7. Where a draft code of conduct relates to
processing activities in several Member States, the supervisory
authority which is competent pursuant to Article 55 shall, before
approving the draft code, amendment or extension, submit it in the
procedure referred to in Article 63 to the Board which shall provide an
opinion on whether the draft code, amendment or extension complies with
this Regulation or, in the situation referred to in paragraph 3 of this
Article, provides appropriate safeguards.
8. Where the opinion referred to in paragraph 7
confirms that the draft code, amendment or extension complies with this
Regulation, or, in the situation referred to in paragraph 3, provides
appropriate safeguards, the Board shall submit its opinion to the
Commission.
9. The Commission may, by way of implementing
acts, decide that the approved code of conduct, amendment or extension
submitted to it pursuant to paragraph 8 of this Article have general
validity within the Union. Those implementing acts shall be adopted in
accordance with the examination procedure set out in Article 93(2).
10. The Commission shall ensure appropriate
publicity for the approved codes which have been decided as having
general validity in accordance with paragraph 9.
11. The Board shall collate all approved codes of
conduct, amendments and extensions in a register and shall make them
publicly available by way of appropriate means.
Article 41
Monitoring of approved codes of conduct
1. Without prejudice to the tasks and powers of
the competent supervisory authority under Articles 57 and 58, the
monitoring of compliance with a code of conduct pursuant to Article 40
may be carried out by a body which has an appropriate level of expertise
in relation to the subject-matter of the code and is accredited for
that purpose by the competent supervisory authority.
2. A body as referred to in paragraph 1 may be accredited to monitor compliance with a code of conduct where that body has:
|
(a)
|
demonstrated its independence and
expertise in relation to the subject-matter of the code to the
satisfaction of the competent supervisory authority;
|
|
(b)
|
established procedures which allow it
to assess the eligibility of controllers and processors concerned to
apply the code, to monitor their compliance with its provisions and to
periodically review its operation;
|
|
(c)
|
established procedures and structures
to handle complaints about infringements of the code or the manner in
which the code has been, or is being, implemented by a controller or
processor, and to make those procedures and structures transparent to
data subjects and the public; and
|
|
(d)
|
demonstrated to the satisfaction of the
competent supervisory authority that its tasks and duties do not result
in a conflict of interests.
|
3. The competent supervisory authority shall
submit the draft criteria for accreditation of a body as referred to in
paragraph 1 of this Article to the Board pursuant to the consistency
mechanism referred to in Article 63.
4. Without prejudice to the tasks and powers of
the competent supervisory authority and the provisions of Chapter VIII, a
body as referred to in paragraph 1 of this Article shall, subject to
appropriate safeguards, take appropriate action in cases of infringement
of the code by a controller or processor, including suspension or
exclusion of the controller or processor concerned from the code. It
shall inform the competent supervisory authority of such actions and the
reasons for taking them.
5. The competent supervisory authority shall
revoke the accreditation of a body as referred to in paragraph 1 if the
conditions for accreditation are not, or are no longer, met or where
actions taken by the body infringe this Regulation.
6. This Article shall not apply to processing carried out by public authorities and bodies.
Article 42
Certification
1. The Member States, the supervisory
authorities, the Board and the Commission shall encourage, in particular
at Union level, the establishment of data protection certification
mechanisms and of data protection seals and marks, for the purpose of
demonstrating compliance with this Regulation of processing operations
by controllers and processors. The specific needs of micro, small and
medium-sized enterprises shall be taken into account.
2. In addition to adherence by controllers or
processors subject to this Regulation, data protection certification
mechanisms, seals or marks approved pursuant to paragraph 5 of this
Article may be established for the purpose of demonstrating the
existence of appropriate safeguards provided by controllers or
processors that are not subject to this Regulation pursuant to Article 3
within the framework of personal data transfers to third countries or
international organisations under the terms referred to in point (f) of
Article 46(2). Such controllers or processors shall make binding and
enforceable commitments, via contractual or other legally binding
instruments, to apply those appropriate safeguards, including with
regard to the rights of data subjects.
3. The certification shall be voluntary and available via a process that is transparent.
4. A certification pursuant to this Article does
not reduce the responsibility of the controller or the processor for
compliance with this Regulation and is without prejudice to the tasks
and powers of the supervisory authorities which are competent pursuant
to Article 55 or 56.
5. A certification pursuant to this Article shall
be issued by the certification bodies referred to in Article 43 or by
the competent supervisory authority, on the basis of criteria approved
by that competent supervisory authority pursuant to Article 58(3) or by
the Board pursuant to Article 63. Where the criteria are approved by the
Board, this may result in a common certification, the European Data
Protection Seal.
6. The controller or processor which submits its
processing to the certification mechanism shall provide the
certification body referred to in Article 43, or where applicable, the
competent supervisory authority, with all information and access to its
processing activities which are necessary to conduct the certification
procedure.
7. Certification shall be issued to a controller
or processor for a maximum period of three years and may be renewed,
under the same conditions, provided that the relevant requirements
continue to be met. Certification shall be withdrawn, as applicable, by
the certification bodies referred to in Article 43 or by the competent
supervisory authority where the requirements for the certification are
not or are no longer met.
8. The Board shall collate all certification
mechanisms and data protection seals and marks in a register and shall
make them publicly available by any appropriate means.
Article 43
Certification bodies
1. Without prejudice to the tasks and powers of
the competent supervisory authority under Articles 57 and 58,
certification bodies which have an appropriate level of expertise in
relation to data protection shall, after informing the supervisory
authority in order to allow it to exercise its powers pursuant to point
(h) of Article 58(2) where necessary, issue and renew certification.
Member States shall ensure that those certification bodies are
accredited by one or both of the following:
|
(a)
|
the supervisory authority which is competent pursuant to Article 55 or 56;
|
|
(b)
|
the national accreditation body named
in accordance with Regulation (EC) No 765/2008 of the European
Parliament and of the Council (20)
in accordance with EN-ISO/IEC 17065/2012 and with the additional
requirements established by the supervisory authority which is competent
pursuant to Article 55 or 56.
|
2. Certification bodies referred to in paragraph 1 shall be accredited in accordance with that paragraph only where they have:
|
(a)
|
demonstrated their independence and
expertise in relation to the subject-matter of the certification to the
satisfaction of the competent supervisory authority;
|
|
(b)
|
undertaken to respect the criteria
referred to in Article 42(5) and approved by the supervisory authority
which is competent pursuant to Article 55 or 56 or by the Board pursuant
to Article 63;
|
|
(c)
|
established procedures for the issuing, periodic review and withdrawal of data protection certification, seals and marks;
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|
(d)
|
established procedures and structures
to handle complaints about infringements of the certification or the
manner in which the certification has been, or is being, implemented by
the controller or processor, and to make those procedures and structures
transparent to data subjects and the public; and
|
|
(e)
|
demonstrated, to the satisfaction of
the competent supervisory authority, that their tasks and duties do not
result in a conflict of interests.
|
3. The accreditation of certification bodies as
referred to in paragraphs 1 and 2 of this Article shall take place on
the basis of criteria approved by the supervisory authority which is
competent pursuant to Article 55 or 56 or by the Board pursuant to
Article 63. In the case of accreditation pursuant to point (b) of
paragraph 1 of this Article, those requirements shall complement those
envisaged in Regulation (EC) No 765/2008 and the technical rules that
describe the methods and procedures of the certification bodies.
4. The certification bodies referred to in
paragraph 1 shall be responsible for the proper assessment leading to
the certification or the withdrawal of such certification without
prejudice to the responsibility of the controller or processor for
compliance with this Regulation. The accreditation shall be issued for a
maximum period of five years and may be renewed on the same conditions
provided that the certification body meets the requirements set out in
this Article.
5. The certification bodies referred to in
paragraph 1 shall provide the competent supervisory authorities with the
reasons for granting or withdrawing the requested certification.
6. The requirements referred to in paragraph 3 of
this Article and the criteria referred to in Article 42(5) shall be
made public by the supervisory authority in an easily accessible form.
The supervisory authorities shall also transmit those requirements and
criteria to the Board. The Board shall collate all certification
mechanisms and data protection seals in a register and shall make them
publicly available by any appropriate means.
7. Without prejudice to Chapter VIII, the
competent supervisory authority or the national accreditation body shall
revoke an accreditation of a certification body pursuant to paragraph 1
of this Article where the conditions for the accreditation are not, or
are no longer, met or where actions taken by a certification body
infringe this Regulation.
8. The Commission shall be empowered to adopt
delegated acts in accordance with Article 92 for the purpose of
specifying the requirements to be taken into account for the data
protection certification mechanisms referred to in Article 42(1).
9. The Commission may adopt implementing acts
laying down technical standards for certification mechanisms and data
protection seals and marks, and mechanisms to promote and recognise
those certification mechanisms, seals and marks. Those implementing acts
shall be adopted in accordance with the examination procedure referred
to in Article 93(2).
CHAPTER V
Transfers of personal data to third countries or international organisations
Article 44
General principle for transfers
Any transfer of personal data which are undergoing
processing or are intended for processing after transfer to a third
country or to an international organisation shall take place only if,
subject to the other provisions of this Regulation, the conditions laid
down in this Chapter are complied with by the controller and processor,
including for onward transfers of personal data from the third country
or an international organisation to another third country or to another
international organisation. All provisions in this Chapter shall be
applied in order to ensure that the level of protection of natural
persons guaranteed by this Regulation is not undermined.
Article 45
Transfers on the basis of an adequacy decision
1. A transfer of personal data to a third country
or an international organisation may take place where the Commission
has decided that the third country, a territory or one or more specified
sectors within that third country, or the international organisation in
question ensures an adequate level of protection. Such a transfer shall
not require any specific authorisation.
2. When assessing the adequacy of the level of
protection, the Commission shall, in particular, take account of the
following elements:
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(a)
|
the rule of law, respect for human
rights and fundamental freedoms, relevant legislation, both general and
sectoral, including concerning public security, defence, national
security and criminal law and the access of public authorities to
personal data, as well as the implementation of such legislation, data
protection rules, professional rules and security measures, including
rules for the onward transfer of personal data to another third country
or international organisation which are complied with in that country or
international organisation, case-law, as well as effective and
enforceable data subject rights and effective administrative and
judicial redress for the data subjects whose personal data are being
transferred;
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|
(b)
|
the existence and effective functioning
of one or more independent supervisory authorities in the third country
or to which an international organisation is subject, with
responsibility for ensuring and enforcing compliance with the data
protection rules, including adequate enforcement powers, for assisting
and advising the data subjects in exercising their rights and for
cooperation with the supervisory authorities of the Member States; and
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|
(c)
|
the international commitments the third
country or international organisation concerned has entered into, or
other obligations arising from legally binding conventions or
instruments as well as from its participation in multilateral or
regional systems, in particular in relation to the protection of
personal data.
|
3. The Commission, after assessing the adequacy
of the level of protection, may decide, by means of implementing act,
that a third country, a territory or one or more specified sectors
within a third country, or an international organisation ensures an
adequate level of protection within the meaning of paragraph 2 of this
Article. The implementing act shall provide for a mechanism for a
periodic review, at least every four years, which shall take into
account all relevant developments in the third country or international
organisation. The implementing act shall specify its territorial and
sectoral application and, where applicable, identify the supervisory
authority or authorities referred to in point (b) of paragraph 2 of this
Article. The implementing act shall be adopted in accordance with the
examination procedure referred to in Article 93(2).
4. The Commission shall, on an ongoing basis,
monitor developments in third countries and international organisations
that could affect the functioning of decisions adopted pursuant to
paragraph 3 of this Article and decisions adopted on the basis of
Article 25(6) of Directive 95/46/EC.
5. The Commission shall, where available
information reveals, in particular following the review referred to in
paragraph 3 of this Article, that a third country, a territory or one or
more specified sectors within a third country, or an international
organisation no longer ensures an adequate level of protection within
the meaning of paragraph 2 of this Article, to the extent necessary,
repeal, amend or suspend the decision referred to in paragraph 3 of this
Article by means of implementing acts without retro-active effect.
Those implementing acts shall be adopted in accordance with the
examination procedure referred to in Article 93(2).
On duly justified imperative grounds of urgency,
the Commission shall adopt immediately applicable implementing acts in
accordance with the procedure referred to in Article 93(3).
6. The Commission shall enter into consultations
with the third country or international organisation with a view to
remedying the situation giving rise to the decision made pursuant to
paragraph 5.
7. A decision pursuant to paragraph 5 of this
Article is without prejudice to transfers of personal data to the third
country, a territory or one or more specified sectors within that third
country, or the international organisation in question pursuant to
Articles 46 to 49.
8. The Commission shall publish in the Official Journal of the European Union
and on its website a list of the third countries, territories and
specified sectors within a third country and international organisations
for which it has decided that an adequate level of protection is or is
no longer ensured.
9. Decisions adopted by the Commission on the
basis of Article 25(6) of Directive 95/46/EC shall remain in force until
amended, replaced or repealed by a Commission Decision adopted in
accordance with paragraph 3 or 5 of this Article.
Article 46
Transfers subject to appropriate safeguards
1. In the absence of a decision pursuant to
Article 45(3), a controller or processor may transfer personal data to a
third country or an international organisation only if the controller
or processor has provided appropriate safeguards, and on condition that
enforceable data subject rights and effective legal remedies for data
subjects are available.
2. The appropriate safeguards referred to in
paragraph 1 may be provided for, without requiring any specific
authorisation from a supervisory authority, by:
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(a)
|
a legally binding and enforceable instrument between public authorities or bodies;
|
|
(b)
|
binding corporate rules in accordance with Article 47;
|
|
(c)
|
standard data protection clauses
adopted by the Commission in accordance with the examination procedure
referred to in Article 93(2);
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|
(d)
|
standard data protection clauses
adopted by a supervisory authority and approved by the Commission
pursuant to the examination procedure referred to in Article 93(2);
|
|
(e)
|
an approved code of conduct pursuant to
Article 40 together with binding and enforceable commitments of the
controller or processor in the third country to apply the appropriate
safeguards, including as regards data subjects' rights; or
|
|
(f)
|
an approved certification mechanism
pursuant to Article 42 together with binding and enforceable commitments
of the controller or processor in the third country to apply the
appropriate safeguards, including as regards data subjects' rights.
|
3. Subject to the authorisation from the
competent supervisory authority, the appropriate safeguards referred to
in paragraph 1 may also be provided for, in particular, by:
|
(a)
|
contractual clauses between the
controller or processor and the controller, processor or the recipient
of the personal data in the third country or international organisation;
or
|
|
(b)
|
provisions to be inserted into
administrative arrangements between public authorities or bodies which
include enforceable and effective data subject rights.
|
4. The supervisory authority shall apply the
consistency mechanism referred to in Article 63 in the cases referred to
in paragraph 3 of this Article.
5. Authorisations by a Member State or
supervisory authority on the basis of Article 26(2) of Directive
95/46/EC shall remain valid until amended, replaced or repealed, if
necessary, by that supervisory authority. Decisions adopted by the
Commission on the basis of Article 26(4) of Directive 95/46/EC shall
remain in force until amended, replaced or repealed, if necessary, by a
Commission Decision adopted in accordance with paragraph 2 of this
Article.
Article 47
Binding corporate rules
1. The competent supervisory authority shall
approve binding corporate rules in accordance with the consistency
mechanism set out in Article 63, provided that they:
|
(a)
|
are legally binding and apply to and
are enforced by every member concerned of the group of undertakings, or
group of enterprises engaged in a joint economic activity, including
their employees;
|
|
(b)
|
expressly confer enforceable rights on data subjects with regard to the processing of their personal data; and
|
|
(c)
|
fulfil the requirements laid down in paragraph 2.
|
2. The binding corporate rules referred to in paragraph 1 shall specify at least:
|
(a)
|
the structure and contact details of
the group of undertakings, or group of enterprises engaged in a joint
economic activity and of each of its members;
|
|
(b)
|
the data transfers or set of transfers,
including the categories of personal data, the type of processing and
its purposes, the type of data subjects affected and the identification
of the third country or countries in question;
|
|
(c)
|
their legally binding nature, both internally and externally;
|
|
(d)
|
the application of the general data
protection principles, in particular purpose limitation, data
minimisation, limited storage periods, data quality, data protection by
design and by default, legal basis for processing, processing of special
categories of personal data, measures to ensure data security, and the
requirements in respect of onward transfers to bodies not bound by the
binding corporate rules;
|
|
(e)
|
the rights of data subjects in regard
to processing and the means to exercise those rights, including the
right not to be subject to decisions based solely on automated
processing, including profiling in accordance with Article 22, the right
to lodge a complaint with the competent supervisory authority and
before the competent courts of the Member States in accordance with
Article 79, and to obtain redress and, where appropriate, compensation
for a breach of the binding corporate rules;
|
|
(f)
|
the acceptance by the controller or
processor established on the territory of a Member State of liability
for any breaches of the binding corporate rules by any member concerned
not established in the Union; the controller or the processor shall be
exempt from that liability, in whole or in part, only if it proves that
that member is not responsible for the event giving rise to the damage;
|
|
(g)
|
how the information on the binding
corporate rules, in particular on the provisions referred to in points
(d), (e) and (f) of this paragraph is provided to the data subjects in
addition to Articles 13 and 14;
|
|
(h)
|
the tasks of any data protection
officer designated in accordance with Article 37 or any other person or
entity in charge of the monitoring compliance with the binding corporate
rules within the group of undertakings, or group of enterprises engaged
in a joint economic activity, as well as monitoring training and
complaint-handling;
|
|
(i)
|
the complaint procedures;
|
|
(j)
|
the mechanisms within the group of
undertakings, or group of enterprises engaged in a joint economic
activity for ensuring the verification of compliance with the binding
corporate rules. Such mechanisms shall include data protection audits
and methods for ensuring corrective actions to protect the rights of the
data subject. Results of such verification should be communicated to
the person or entity referred to in point (h) and to the board of the
controlling undertaking of a group of undertakings, or of the group of
enterprises engaged in a joint economic activity, and should be
available upon request to the competent supervisory authority;
|
|
(k)
|
the mechanisms for reporting and recording changes to the rules and reporting those changes to the supervisory authority;
|
|
(l)
|
the cooperation mechanism with the
supervisory authority to ensure compliance by any member of the group of
undertakings, or group of enterprises engaged in a joint economic
activity, in particular by making available to the supervisory authority
the results of verifications of the measures referred to in point (j);
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|
(m)
|
the mechanisms for reporting to the
competent supervisory authority any legal requirements to which a member
of the group of undertakings, or group of enterprises engaged in a
joint economic activity is subject in a third country which are likely
to have a substantial adverse effect on the guarantees provided by the
binding corporate rules; and
|
|
(n)
|
the appropriate data protection training to personnel having permanent or regular access to personal data.
|
3. The Commission may specify the format and
procedures for the exchange of information between controllers,
processors and supervisory authorities for binding corporate rules
within the meaning of this Article. Those implementing acts shall be
adopted in accordance with the examination procedure set out in
Article 93(2).
Article 48
Transfers or disclosures not authorised by Union law
Any judgment of a court or tribunal and any
decision of an administrative authority of a third country requiring a
controller or processor to transfer or disclose personal data may only
be recognised or enforceable in any manner if based on an international
agreement, such as a mutual legal assistance treaty, in force between
the requesting third country and the Union or a Member State, without
prejudice to other grounds for transfer pursuant to this Chapter.
Article 49
Derogations for specific situations
1. In the absence of an adequacy decision
pursuant to Article 45(3), or of appropriate safeguards pursuant to
Article 46, including binding corporate rules, a transfer or a set of
transfers of personal data to a third country or an international
organisation shall take place only on one of the following conditions:
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(a)
|
the data subject has explicitly
consented to the proposed transfer, after having been informed of the
possible risks of such transfers for the data subject due to the absence
of an adequacy decision and appropriate safeguards;
|
|
(b)
|
the transfer is necessary for the
performance of a contract between the data subject and the controller or
the implementation of pre-contractual measures taken at the data
subject's request;
|
|
(c)
|
the transfer is necessary for the
conclusion or performance of a contract concluded in the interest of the
data subject between the controller and another natural or legal
person;
|
|
(d)
|
the transfer is necessary for important reasons of public interest;
|
|
(e)
|
the transfer is necessary for the establishment, exercise or defence of legal claims;
|
|
(f)
|
the transfer is necessary in order to
protect the vital interests of the data subject or of other persons,
where the data subject is physically or legally incapable of giving
consent;
|
|
(g)
|
the transfer is made from a register
which according to Union or Member State law is intended to provide
information to the public and which is open to consultation either by
the public in general or by any person who can demonstrate a legitimate
interest, but only to the extent that the conditions laid down by Union
or Member State law for consultation are fulfilled in the particular
case.
|
Where a transfer could not be based on a provision
in Article 45 or 46, including the provisions on binding corporate
rules, and none of the derogations for a specific situation referred to
in the first subparagraph of this paragraph is applicable, a transfer to
a third country or an international organisation may take place only if
the transfer is not repetitive, concerns only a limited number of data
subjects, is necessary for the purposes of compelling legitimate
interests pursued by the controller which are not overridden by the
interests or rights and freedoms of the data subject, and the controller
has assessed all the circumstances surrounding the data transfer and
has on the basis of that assessment provided suitable safeguards with
regard to the protection of personal data. The controller shall inform
the supervisory authority of the transfer. The controller shall, in
addition to providing the information referred to in Articles 13 and 14,
inform the data subject of the transfer and on the compelling
legitimate interests pursued.
2. A transfer pursuant to point (g) of the first
subparagraph of paragraph 1 shall not involve the entirety of the
personal data or entire categories of the personal data contained in the
register. Where the register is intended for consultation by persons
having a legitimate interest, the transfer shall be made only at the
request of those persons or if they are to be the recipients.
3. Points (a), (b) and (c) of the first
subparagraph of paragraph 1 and the second subparagraph thereof shall
not apply to activities carried out by public authorities in the
exercise of their public powers.
4. The public interest referred to in point (d)
of the first subparagraph of paragraph 1 shall be recognised in Union
law or in the law of the Member State to which the controller is
subject.
5. In the absence of an adequacy decision, Union
or Member State law may, for important reasons of public interest,
expressly set limits to the transfer of specific categories of personal
data to a third country or an international organisation. Member States
shall notify such provisions to the Commission.
6. The controller or processor shall document the
assessment as well as the suitable safeguards referred to in the second
subparagraph of paragraph 1 of this Article in the records referred to
in Article 30.
Article 50
International cooperation for the protection of personal data
In relation to third countries and international
organisations, the Commission and supervisory authorities shall take
appropriate steps to:
|
(a)
|
develop international cooperation
mechanisms to facilitate the effective enforcement of legislation for
the protection of personal data;
|
|
(b)
|
provide international mutual assistance
in the enforcement of legislation for the protection of personal data,
including through notification, complaint referral, investigative
assistance and information exchange, subject to appropriate safeguards
for the protection of personal data and other fundamental rights and
freedoms;
|
|
(c)
|
engage relevant stakeholders in
discussion and activities aimed at furthering international cooperation
in the enforcement of legislation for the protection of personal data;
|
|
(d)
|
promote the exchange and documentation
of personal data protection legislation and practice, including on
jurisdictional conflicts with third countries.
|
CHAPTER VI
Independent supervisory authorities
Article 51
Supervisory authority
1. Each Member State shall provide for one or
more independent public authorities to be responsible for monitoring the
application of this Regulation, in order to protect the fundamental
rights and freedoms of natural persons in relation to processing and to
facilitate the free flow of personal data within the Union (‘supervisory
authority’).
2. Each supervisory authority shall contribute to
the consistent application of this Regulation throughout the Union. For
that purpose, the supervisory authorities shall cooperate with each
other and the Commission in accordance with Chapter VII.
3. Where more than one supervisory authority is
established in a Member State, that Member State shall designate the
supervisory authority which is to represent those authorities in the
Board and shall set out the mechanism to ensure compliance by the other
authorities with the rules relating to the consistency mechanism
referred to in Article 63.
4. Each Member State shall notify to the
Commission the provisions of its law which it adopts pursuant to this
Chapter, by 25 May 2018 and, without delay, any subsequent amendment
affecting them.
Article 52
Independence
1. Each supervisory authority shall act with
complete independence in performing its tasks and exercising its powers
in accordance with this Regulation.
2. The member or members of each supervisory
authority shall, in the performance of their tasks and exercise of their
powers in accordance with this Regulation, remain free from external
influence, whether direct or indirect, and shall neither seek nor take
instructions from anybody.
3. Member or members of each supervisory
authority shall refrain from any action incompatible with their duties
and shall not, during their term of office, engage in any incompatible
occupation, whether gainful or not.
4. Each Member State shall ensure that each
supervisory authority is provided with the human, technical and
financial resources, premises and infrastructure necessary for the
effective performance of its tasks and exercise of its powers, including
those to be carried out in the context of mutual assistance,
cooperation and participation in the Board.
5. Each Member State shall ensure that each
supervisory authority chooses and has its own staff which shall be
subject to the exclusive direction of the member or members of the
supervisory authority concerned.
6. Each Member State shall ensure that each
supervisory authority is subject to financial control which does not
affect its independence and that it has separate, public annual budgets,
which may be part of the overall state or national budget.
Article 53
General conditions for the members of the supervisory authority
1. Member States shall provide for each member of
their supervisory authorities to be appointed by means of a transparent
procedure by:
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—
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their parliament;
|
|
—
|
their government;
|
|
—
|
their head of State; or
|
|
—
|
an independent body entrusted with the appointment under Member State law.
|
2. Each member shall have the qualifications,
experience and skills, in particular in the area of the protection of
personal data, required to perform its duties and exercise its powers.
3. The duties of a member shall end in the event
of the expiry of the term of office, resignation or compulsory
retirement, in accordance with the law of the Member State concerned.
4. A member shall be dismissed only in cases of
serious misconduct or if the member no longer fulfils the conditions
required for the performance of the duties.
Article 54
Rules on the establishment of the supervisory authority
1. Each Member State shall provide by law for all of the following:
|
(a)
|
the establishment of each supervisory authority;
|
|
(b)
|
the qualifications and eligibility conditions required to be appointed as member of each supervisory authority;
|
|
(c)
|
the rules and procedures for the appointment of the member or members of each supervisory authority;
|
|
(d)
|
the duration of the term of the member
or members of each supervisory authority of no less than four years,
except for the first appointment after 24 May 2016, part of which may
take place for a shorter period where that is necessary to protect the
independence of the supervisory authority by means of a staggered
appointment procedure;
|
|
(e)
|
whether and, if so, for how many terms the member or members of each supervisory authority is eligible for reappointment;
|
|
(f)
|
the conditions governing the
obligations of the member or members and staff of each supervisory
authority, prohibitions on actions, occupations and benefits
incompatible therewith during and after the term of office and rules
governing the cessation of employment.
|
2. The member or members and the staff of each
supervisory authority shall, in accordance with Union or Member State
law, be subject to a duty of professional secrecy both during and after
their term of office, with regard to any confidential information which
has come to their knowledge in the course of the performance of their
tasks or exercise of their powers. During their term of office, that
duty of professional secrecy shall in particular apply to reporting by
natural persons of infringements of this Regulation.
Article 55
Competence
1. Each supervisory authority shall be competent
for the performance of the tasks assigned to and the exercise of the
powers conferred on it in accordance with this Regulation on the
territory of its own Member State.
2. Where processing is carried out by public
authorities or private bodies acting on the basis of point (c) or (e) of
Article 6(1), the supervisory authority of the Member State concerned
shall be competent. In such cases Article 56 does not apply.
3. Supervisory authorities shall not be competent
to supervise processing operations of courts acting in their judicial
capacity.
Article 56
Competence of the lead supervisory authority
1. Without prejudice to Article 55, the
supervisory authority of the main establishment or of the single
establishment of the controller or processor shall be competent to act
as lead supervisory authority for the cross-border processing carried
out by that controller or processor in accordance with the procedure
provided in Article 60.
2. By derogation from paragraph 1, each
supervisory authority shall be competent to handle a complaint lodged
with it or a possible infringement of this Regulation, if the subject
matter relates only to an establishment in its Member State or
substantially affects data subjects only in its Member State.
3. In the cases referred to in paragraph 2 of
this Article, the supervisory authority shall inform the lead
supervisory authority without delay on that matter. Within a period of
three weeks after being informed the lead supervisory authority shall
decide whether or not it will handle the case in accordance with the
procedure provided in Article 60, taking into account whether or not
there is an establishment of the controller or processor in the Member
State of which the supervisory authority informed it.
4. Where the lead supervisory authority decides
to handle the case, the procedure provided in Article 60 shall apply.
The supervisory authority which informed the lead supervisory authority
may submit to the lead supervisory authority a draft for a decision. The
lead supervisory authority shall take utmost account of that draft when
preparing the draft decision referred to in Article 60(3).
5. Where the lead supervisory authority decides
not to handle the case, the supervisory authority which informed the
lead supervisory authority shall handle it according to Articles 61 and
62.
6. The lead supervisory authority shall be the
sole interlocutor of the controller or processor for the cross-border
processing carried out by that controller or processor.
Article 57
Tasks
1. Without prejudice to other tasks set out under this Regulation, each supervisory authority shall on its territory:
|
(a)
|
monitor and enforce the application of this Regulation;
|
|
(b)
|
promote public awareness and
understanding of the risks, rules, safeguards and rights in relation to
processing. Activities addressed specifically to children shall receive
specific attention;
|
|
(c)
|
advise, in accordance with Member State
law, the national parliament, the government, and other institutions
and bodies on legislative and administrative measures relating to the
protection of natural persons' rights and freedoms with regard to
processing;
|
|
(d)
|
promote the awareness of controllers and processors of their obligations under this Regulation;
|
|
(e)
|
upon request, provide information to
any data subject concerning the exercise of their rights under this
Regulation and, if appropriate, cooperate with the supervisory
authorities in other Member States to that end;
|
|
(f)
|
handle complaints lodged by a data
subject, or by a body, organisation or association in accordance with
Article 80, and investigate, to the extent appropriate, the subject
matter of the complaint and inform the complainant of the progress and
the outcome of the investigation within a reasonable period, in
particular if further investigation or coordination with another
supervisory authority is necessary;
|
|
(g)
|
cooperate with, including sharing
information and provide mutual assistance to, other supervisory
authorities with a view to ensuring the consistency of application and
enforcement of this Regulation;
|
|
(h)
|
conduct investigations on the
application of this Regulation, including on the basis of information
received from another supervisory authority or other public authority;
|
|
(i)
|
monitor relevant developments, insofar
as they have an impact on the protection of personal data, in particular
the development of information and communication technologies and
commercial practices;
|
|
(j)
|
adopt standard contractual clauses referred to in Article 28(8) and in point (d) of Article 46(2);
|
|
(k)
|
establish and maintain a list in relation to the requirement for data protection impact assessment pursuant to Article 35(4);
|
|
(l)
|
give advice on the processing operations referred to in Article 36(2);
|
|
(m)
|
encourage the drawing up of codes of
conduct pursuant to Article 40(1) and provide an opinion and approve
such codes of conduct which provide sufficient safeguards, pursuant to
Article 40(5);
|
|
(n)
|
encourage the establishment of data
protection certification mechanisms and of data protection seals and
marks pursuant to Article 42(1), and approve the criteria of
certification pursuant to Article 42(5);
|
|
(o)
|
where applicable, carry out a periodic review of certifications issued in accordance with Article 42(7);
|
|
(p)
|
draft and publish the criteria for
accreditation of a body for monitoring codes of conduct pursuant to
Article 41 and of a certification body pursuant to Article 43;
|
|
(q)
|
conduct the accreditation of a body for
monitoring codes of conduct pursuant to Article 41 and of a
certification body pursuant to Article 43;
|
|
(r)
|
authorise contractual clauses and provisions referred to in Article 46(3);
|
|
(s)
|
approve binding corporate rules pursuant to Article 47;
|
|
(t)
|
contribute to the activities of the Board;
|
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(u)
|
keep internal records of infringements of this Regulation and of measures taken in accordance with Article 58(2); and
|
|
(v)
|
fulfil any other tasks related to the protection of personal data.
|
2. Each supervisory authority shall facilitate
the submission of complaints referred to in point (f) of paragraph 1 by
measures such as a complaint submission form which can also be completed
electronically, without excluding other means of communication.
3. The performance of the tasks of each
supervisory authority shall be free of charge for the data subject and,
where applicable, for the data protection officer.
4. Where requests are manifestly unfounded or
excessive, in particular because of their repetitive character, the
supervisory authority may charge a reasonable fee based on
administrative costs, or refuse to act on the request. The supervisory
authority shall bear the burden of demonstrating the manifestly
unfounded or excessive character of the request.
Article 58
Powers
1. Each supervisory authority shall have all of the following investigative powers:
|
(a)
|
to order the controller and the
processor, and, where applicable, the controller's or the processor's
representative to provide any information it requires for the
performance of its tasks;
|
|
(b)
|
to carry out investigations in the form of data protection audits;
|
|
(c)
|
to carry out a review on certifications issued pursuant to Article 42(7);
|
|
(d)
|
to notify the controller or the processor of an alleged infringement of this Regulation;
|
|
(e)
|
to obtain, from the controller and the
processor, access to all personal data and to all information necessary
for the performance of its tasks;
|
|
(f)
|
to obtain access to any premises of the
controller and the processor, including to any data processing
equipment and means, in accordance with Union or Member State procedural
law.
|
2. Each supervisory authority shall have all of the following corrective powers:
|
(a)
|
to issue warnings to a controller or
processor that intended processing operations are likely to infringe
provisions of this Regulation;
|
|
(b)
|
to issue reprimands to a controller or a processor where processing operations have infringed provisions of this Regulation;
|
|
(c)
|
to order the controller or the
processor to comply with the data subject's requests to exercise his or
her rights pursuant to this Regulation;
|
|
(d)
|
to order the controller or processor to
bring processing operations into compliance with the provisions of this
Regulation, where appropriate, in a specified manner and within a
specified period;
|
|
(e)
|
to order the controller to communicate a personal data breach to the data subject;
|
|
(f)
|
to impose a temporary or definitive limitation including a ban on processing;
|
|
(g)
|
to order the rectification or erasure
of personal data or restriction of processing pursuant to Articles 16,
17 and 18 and the notification of such actions to recipients to whom the
personal data have been disclosed pursuant to Article 17(2) and Article
19;
|
|
(h)
|
to withdraw a certification or to order
the certification body to withdraw a certification issued pursuant to
Articles 42 and 43, or to order the certification body not to issue
certification if the requirements for the certification are not or are
no longer met;
|
|
(i)
|
to impose an administrative fine
pursuant to Article 83, in addition to, or instead of measures referred
to in this paragraph, depending on the circumstances of each individual
case;
|
|
(j)
|
to order the suspension of data flows to a recipient in a third country or to an international organisation.
|
3. Each supervisory authority shall have all of the following authorisation and advisory powers:
|
(a)
|
to advise the controller in accordance with the prior consultation procedure referred to in Article 36;
|
|
(b)
|
to issue, on its own initiative or on
request, opinions to the national parliament, the Member State
government or, in accordance with Member State law, to other
institutions and bodies as well as to the public on any issue related to
the protection of personal data;
|
|
(c)
|
to authorise processing referred to in Article 36(5), if the law of the Member State requires such prior authorisation;
|
|
(d)
|
to issue an opinion and approve draft codes of conduct pursuant to Article 40(5);
|
|
(e)
|
to accredit certification bodies pursuant to Article 43;
|
|
(f)
|
to issue certifications and approve criteria of certification in accordance with Article 42(5);
|
|
(g)
|
to adopt standard data protection clauses referred to in Article 28(8) and in point (d) of Article 46(2);
|
|
(h)
|
to authorise contractual clauses referred to in point (a) of Article 46(3);
|
|
(i)
|
to authorise administrative arrangements referred to in point (b) of Article 46(3);
|
|
(j)
|
to approve binding corporate rules pursuant to Article 47.
|
4. The exercise of the powers conferred on the
supervisory authority pursuant to this Article shall be subject to
appropriate safeguards, including effective judicial remedy and due
process, set out in Union and Member State law in accordance with the
Charter.
5. Each Member State shall provide by law that
its supervisory authority shall have the power to bring infringements of
this Regulation to the attention of the judicial authorities and where
appropriate, to commence or engage otherwise in legal proceedings, in
order to enforce the provisions of this Regulation.
6. Each Member State may provide by law that its
supervisory authority shall have additional powers to those referred to
in paragraphs 1, 2 and 3. The exercise of those powers shall not impair
the effective operation of Chapter VII.
Article 59
Activity reports
Each supervisory authority shall draw up an annual
report on its activities, which may include a list of types of
infringement notified and types of measures taken in accordance with
Article 58(2). Those reports shall be transmitted to the national
parliament, the government and other authorities as designated by
Member State law. They shall be made available to the public, to the
Commission and to the Board.
CHAPTER VII
Cooperation and consistency
Article 60
Cooperation between the lead supervisory authority and the other supervisory authorities concerned
1. The lead supervisory authority shall cooperate
with the other supervisory authorities concerned in accordance with
this Article in an endeavour to reach consensus. The lead supervisory
authority and the supervisory authorities concerned shall exchange all
relevant information with each other.
2. The lead supervisory authority may request at
any time other supervisory authorities concerned to provide mutual
assistance pursuant to Article 61 and may conduct joint operations
pursuant to Article 62, in particular for carrying out investigations or
for monitoring the implementation of a measure concerning a controller
or processor established in another Member State.
3. The lead supervisory authority shall, without
delay, communicate the relevant information on the matter to the other
supervisory authorities concerned. It shall without delay submit a draft
decision to the other supervisory authorities concerned for their
opinion and take due account of their views.
4. Where any of the other supervisory authorities
concerned within a period of four weeks after having been consulted in
accordance with paragraph 3 of this Article, expresses a relevant and
reasoned objection to the draft decision, the lead supervisory authority
shall, if it does not follow the relevant and reasoned objection or is
of the opinion that the objection is not relevant or reasoned, submit
the matter to the consistency mechanism referred to in Article 63.
5. Where the lead supervisory authority intends
to follow the relevant and reasoned objection made, it shall submit to
the other supervisory authorities concerned a revised draft decision for
their opinion. That revised draft decision shall be subject to the
procedure referred to in paragraph 4 within a period of two weeks.
6. Where none of the other supervisory
authorities concerned has objected to the draft decision submitted by
the lead supervisory authority within the period referred to in
paragraphs 4 and 5, the lead supervisory authority and the supervisory
authorities concerned shall be deemed to be in agreement with that draft
decision and shall be bound by it.
7. The lead supervisory authority shall adopt and
notify the decision to the main establishment or single establishment
of the controller or processor, as the case may be and inform the other
supervisory authorities concerned and the Board of the decision in
question, including a summary of the relevant facts and grounds. The
supervisory authority with which a complaint has been lodged shall
inform the complainant on the decision.
8. By derogation from paragraph 7, where a
complaint is dismissed or rejected, the supervisory authority with which
the complaint was lodged shall adopt the decision and notify it to the
complainant and shall inform the controller thereof.
9. Where the lead supervisory authority and the
supervisory authorities concerned agree to dismiss or reject parts of a
complaint and to act on other parts of that complaint, a separate
decision shall be adopted for each of those parts of the matter. The
lead supervisory authority shall adopt the decision for the part
concerning actions in relation to the controller, shall notify it to the
main establishment or single establishment of the controller or
processor on the territory of its Member State and shall inform the
complainant thereof, while the supervisory authority of the complainant
shall adopt the decision for the part concerning dismissal or rejection
of that complaint, and shall notify it to that complainant and shall
inform the controller or processor thereof.
10. After being notified of the decision of the
lead supervisory authority pursuant to paragraphs 7 and 9, the
controller or processor shall take the necessary measures to ensure
compliance with the decision as regards processing activities in the
context of all its establishments in the Union. The controller or
processor shall notify the measures taken for complying with the
decision to the lead supervisory authority, which shall inform the other
supervisory authorities concerned.
11. Where, in exceptional circumstances, a
supervisory authority concerned has reasons to consider that there is an
urgent need to act in order to protect the interests of data subjects,
the urgency procedure referred to in Article 66 shall apply.
12. The lead supervisory authority and the other
supervisory authorities concerned shall supply the information required
under this Article to each other by electronic means, using a
standardised format.
Article 61
Mutual assistance
1. Supervisory authorities shall provide each
other with relevant information and mutual assistance in order to
implement and apply this Regulation in a consistent manner, and shall
put in place measures for effective cooperation with one another. Mutual
assistance shall cover, in particular, information requests and
supervisory measures, such as requests to carry out prior authorisations
and consultations, inspections and investigations.
2. Each supervisory authority shall take all
appropriate measures required to reply to a request of another
supervisory authority without undue delay and no later than one month
after receiving the request. Such measures may include, in particular,
the transmission of relevant information on the conduct of an
investigation.
3. Requests for assistance shall contain all the
necessary information, including the purpose of and reasons for the
request. Information exchanged shall be used only for the purpose for
which it was requested.
4. The requested supervisory authority shall not refuse to comply with the request unless:
|
(a)
|
it is not competent for the subject-matter of the request or for the measures it is requested to execute; or
|
|
(b)
|
compliance with the request would
infringe this Regulation or Union or Member State law to which the
supervisory authority receiving the request is subject.
|
5. The requested supervisory authority shall
inform the requesting supervisory authority of the results or, as the
case may be, of the progress of the measures taken in order to respond
to the request. The requested supervisory authority shall provide
reasons for any refusal to comply with a request pursuant to
paragraph 4.
6. Requested supervisory authorities shall, as a
rule, supply the information requested by other supervisory authorities
by electronic means, using a standardised format.
7. Requested supervisory authorities shall not
charge a fee for any action taken by them pursuant to a request for
mutual assistance. Supervisory authorities may agree on rules to
indemnify each other for specific expenditure arising from the provision
of mutual assistance in exceptional circumstances.
8. Where a supervisory authority does not provide
the information referred to in paragraph 5 of this Article within one
month of receiving the request of another supervisory authority, the
requesting supervisory authority may adopt a provisional measure on the
territory of its Member State in accordance with Article 55(1). In that
case, the urgent need to act under Article 66(1) shall be presumed to be
met and require an urgent binding decision from the Board pursuant to
Article 66(2).
9. The Commission may, by means of implementing
acts, specify the format and procedures for mutual assistance referred
to in this Article and the arrangements for the exchange of information
by electronic means between supervisory authorities, and between
supervisory authorities and the Board, in particular the standardised
format referred to in paragraph 6 of this Article. Those implementing
acts shall be adopted in accordance with the examination procedure
referred to in Article 93(2).
Article 62
Joint operations of supervisory authorities
1. The supervisory authorities shall, where
appropriate, conduct joint operations including joint investigations and
joint enforcement measures in which members or staff of the supervisory
authorities of other Member States are involved.
2. Where the controller or processor has
establishments in several Member States or where a significant number of
data subjects in more than one Member State are likely to be
substantially affected by processing operations, a supervisory authority
of each of those Member States shall have the right to participate in
joint operations. The supervisory authority which is competent pursuant
to Article 56(1) or (4) shall invite the supervisory authority of each
of those Member States to take part in the joint operations and shall
respond without delay to the request of a supervisory authority to
participate.
3. A supervisory authority may, in accordance
with Member State law, and with the seconding supervisory authority's
authorisation, confer powers, including investigative powers on the
seconding supervisory authority's members or staff involved in joint
operations or, in so far as the law of the Member State of the host
supervisory authority permits, allow the seconding supervisory
authority's members or staff to exercise their investigative powers in
accordance with the law of the Member State of the seconding supervisory
authority. Such investigative powers may be exercised only under the
guidance and in the presence of members or staff of the host supervisory
authority. The seconding supervisory authority's members or staff shall
be subject to the Member State law of the host supervisory authority.
4. Where, in accordance with paragraph 1, staff
of a seconding supervisory authority operate in another Member State,
the Member State of the host supervisory authority shall assume
responsibility for their actions, including liability, for any damage
caused by them during their operations, in accordance with the law of
the Member State in whose territory they are operating.
5. The Member State in whose territory the damage
was caused shall make good such damage under the conditions applicable
to damage caused by its own staff. The Member State of the seconding
supervisory authority whose staff has caused damage to any person in the
territory of another Member State shall reimburse that other
Member State in full any sums it has paid to the persons entitled on
their behalf.
6. Without prejudice to the exercise of its rights vis-à-vis
third parties and with the exception of paragraph 5, each Member State
shall refrain, in the case provided for in paragraph 1, from requesting
reimbursement from another Member State in relation to damage referred
to in paragraph 4.
7. Where a joint operation is intended and a
supervisory authority does not, within one month, comply with the
obligation laid down in the second sentence of paragraph 2 of this
Article, the other supervisory authorities may adopt a provisional
measure on the territory of its Member State in accordance with Article
55. In that case, the urgent need to act under Article 66(1) shall be
presumed to be met and require an opinion or an urgent binding decision
from the Board pursuant to Article 66(2).
Article 63
Consistency mechanism
In order to contribute to the consistent
application of this Regulation throughout the Union, the supervisory
authorities shall cooperate with each other and, where relevant, with
the Commission, through the consistency mechanism as set out in this
Section.
Article 64
Opinion of the Board
1. The Board shall issue an opinion where a
competent supervisory authority intends to adopt any of the measures
below. To that end, the competent supervisory authority shall
communicate the draft decision to the Board, when it:
|
(a)
|
aims to adopt a list of the processing
operations subject to the requirement for a data protection impact
assessment pursuant to Article 35(4);
|
|
(b)
|
concerns a matter pursuant to
Article 40(7) whether a draft code of conduct or an amendment or
extension to a code of conduct complies with this Regulation;
|
|
(c)
|
aims to approve the criteria for
accreditation of a body pursuant to Article 41(3) or a certification
body pursuant to Article 43(3);
|
|
(d)
|
aims to determine standard data protection clauses referred to in point (d) of Article 46(2) and in Article 28(8);
|
|
(e)
|
aims to authorise contractual clauses referred to in point (a) of Article 46(3); or
|
|
(f)
|
aims to approve binding corporate rules within the meaning of Article 47.
|
2. Any supervisory authority, the Chair of the
Board or the Commission may request that any matter of general
application or producing effects in more than one Member State be
examined by the Board with a view to obtaining an opinion, in particular
where a competent supervisory authority does not comply with the
obligations for mutual assistance in accordance with Article 61 or for
joint operations in accordance with Article 62.
3. In the cases referred to in paragraphs 1 and
2, the Board shall issue an opinion on the matter submitted to it
provided that it has not already issued an opinion on the same matter.
That opinion shall be adopted within eight weeks by simple majority of
the members of the Board. That period may be extended by a further six
weeks, taking into account the complexity of the subject matter.
Regarding the draft decision referred to in paragraph 1 circulated to
the members of the Board in accordance with paragraph 5, a member which
has not objected within a reasonable period indicated by the Chair,
shall be deemed to be in agreement with the draft decision.
4. Supervisory authorities and the Commission
shall, without undue delay, communicate by electronic means to the
Board, using a standardised format any relevant information, including
as the case may be a summary of the facts, the draft decision, the
grounds which make the enactment of such measure necessary, and the
views of other supervisory authorities concerned.
5. The Chair of the Board shall, without undue, delay inform by electronic means:
|
(a)
|
the members of the Board and the
Commission of any relevant information which has been communicated to it
using a standardised format. The secretariat of the Board shall, where
necessary, provide translations of relevant information; and
|
|
(b)
|
the supervisory authority referred to,
as the case may be, in paragraphs 1 and 2, and the Commission of the
opinion and make it public.
|
6. The competent supervisory authority shall not
adopt its draft decision referred to in paragraph 1 within the period
referred to in paragraph 3.
7. The supervisory authority referred to in
paragraph 1 shall take utmost account of the opinion of the Board and
shall, within two weeks after receiving the opinion, communicate to the
Chair of the Board by electronic means whether it will maintain or amend
its draft decision and, if any, the amended draft decision, using a
standardised format.
8. Where the supervisory authority concerned
informs the Chair of the Board within the period referred to in
paragraph 7 of this Article that it does not intend to follow the
opinion of the Board, in whole or in part, providing the relevant
grounds, Article 65(1) shall apply.
Article 65
Dispute resolution by the Board
1. In order to ensure the correct and consistent
application of this Regulation in individual cases, the Board shall
adopt a binding decision in the following cases:
|
(a)
|
where, in a case referred to in Article
60(4), a supervisory authority concerned has raised a relevant and
reasoned objection to a draft decision of the lead authority or the lead
authority has rejected such an objection as being not relevant or
reasoned. The binding decision shall concern all the matters which are
the subject of the relevant and reasoned objection, in particular
whether there is an infringement of this Regulation;
|
|
(b)
|
where there are conflicting views on which of the supervisory authorities concerned is competent for the main establishment;
|
|
(c)
|
where a competent supervisory authority
does not request the opinion of the Board in the cases referred to in
Article 64(1), or does not follow the opinion of the Board issued under
Article 64. In that case, any supervisory authority concerned or the
Commission may communicate the matter to the Board.
|
2. The decision referred to in paragraph 1 shall
be adopted within one month from the referral of the subject-matter by a
two-thirds majority of the members of the Board. That period may be
extended by a further month on account of the complexity of the
subject-matter. The decision referred to in paragraph 1 shall be
reasoned and addressed to the lead supervisory authority and all the
supervisory authorities concerned and binding on them.
3. Where the Board has been unable to adopt a
decision within the periods referred to in paragraph 2, it shall adopt
its decision within two weeks following the expiration of the second
month referred to in paragraph 2 by a simple majority of the members of
the Board. Where the members of the Board are split, the decision shall
by adopted by the vote of its Chair.
4. The supervisory authorities concerned shall
not adopt a decision on the subject matter submitted to the Board under
paragraph 1 during the periods referred to in paragraphs 2 and 3.
5. The Chair of the Board shall notify, without
undue delay, the decision referred to in paragraph 1 to the supervisory
authorities concerned. It shall inform the Commission thereof. The
decision shall be published on the website of the Board without delay
after the supervisory authority has notified the final decision referred
to in paragraph 6.
6. The lead supervisory authority or, as the case
may be, the supervisory authority with which the complaint has been
lodged shall adopt its final decision on the basis of the decision
referred to in paragraph 1 of this Article, without undue delay and at
the latest by one month after the Board has notified its decision. The
lead supervisory authority or, as the case may be, the supervisory
authority with which the complaint has been lodged, shall inform the
Board of the date when its final decision is notified respectively to
the controller or the processor and to the data subject. The final
decision of the supervisory authorities concerned shall be adopted under
the terms of Article 60(7), (8) and (9). The final decision shall refer
to the decision referred to in paragraph 1 of this Article and shall
specify that the decision referred to in that paragraph will be
published on the website of the Board in accordance with paragraph 5 of
this Article. The final decision shall attach the decision referred to
in paragraph 1 of this Article.
Article 66
Urgency procedure
1. In exceptional circumstances, where a
supervisory authority concerned considers that there is an urgent need
to act in order to protect the rights and freedoms of data subjects, it
may, by way of derogation from the consistency mechanism referred to in
Articles 63, 64 and 65 or the procedure referred to in Article 60,
immediately adopt provisional measures intended to produce legal effects
on its own territory with a specified period of validity which shall
not exceed three months. The supervisory authority shall, without delay,
communicate those measures and the reasons for adopting them to the
other supervisory authorities concerned, to the Board and to the
Commission.
2. Where a supervisory authority has taken a
measure pursuant to paragraph 1 and considers that final measures need
urgently be adopted, it may request an urgent opinion or an urgent
binding decision from the Board, giving reasons for requesting such
opinion or decision.
3. Any supervisory authority may request an
urgent opinion or an urgent binding decision, as the case may be, from
the Board where a competent supervisory authority has not taken an
appropriate measure in a situation where there is an urgent need to act,
in order to protect the rights and freedoms of data subjects, giving
reasons for requesting such opinion or decision, including for the
urgent need to act.
4. By derogation from Article 64(3) and Article
65(2), an urgent opinion or an urgent binding decision referred to in
paragraphs 2 and 3 of this Article shall be adopted within two weeks by
simple majority of the members of the Board.
Article 67
Exchange of information
The Commission may adopt implementing acts of
general scope in order to specify the arrangements for the exchange of
information by electronic means between supervisory authorities, and
between supervisory authorities and the Board, in particular the
standardised format referred to in Article 64.
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 93(2).
Article 68
European Data Protection Board
1. The European Data Protection Board (the
‘Board’) is hereby established as a body of the Union and shall have
legal personality.
2. The Board shall be represented by its Chair.
3. The Board shall be composed of the head of one
supervisory authority of each Member State and of the European Data
Protection Supervisor, or their respective representatives.
4. Where in a Member State more than one
supervisory authority is responsible for monitoring the application of
the provisions pursuant to this Regulation, a joint representative shall
be appointed in accordance with that Member State's law.
5. The Commission shall have the right to
participate in the activities and meetings of the Board without voting
right. The Commission shall designate a representative. The Chair of the
Board shall communicate to the Commission the activities of the Board.
6. In the cases referred to in Article 65, the
European Data Protection Supervisor shall have voting rights only on
decisions which concern principles and rules applicable to the Union
institutions, bodies, offices and agencies which correspond in substance
to those of this Regulation.
Article 69
Independence
1. The Board shall act independently when performing its tasks or exercising its powers pursuant to Articles 70 and 71.
2. Without prejudice to requests by the
Commission referred to in point (b) of Article 70(1) and in Article
70(2), the Board shall, in the performance of its tasks or the exercise
of its powers, neither seek nor take instructions from anybody.
Article 70
Tasks of the Board
1. The Board shall ensure the consistent
application of this Regulation. To that end, the Board shall, on its own
initiative or, where relevant, at the request of the Commission, in
particular:
|
(a)
|
monitor and ensure the correct
application of this Regulation in the cases provided for in Articles 64
and 65 without prejudice to the tasks of national supervisory
authorities;
|
|
(b)
|
advise the Commission on any issue
related to the protection of personal data in the Union, including on
any proposed amendment of this Regulation;
|
|
(c)
|
advise the Commission on the format and
procedures for the exchange of information between controllers,
processors and supervisory authorities for binding corporate rules;
|
|
(d)
|
issue guidelines, recommendations, and
best practices on procedures for erasing links, copies or replications
of personal data from publicly available communication services as
referred to in Article 17(2);
|
|
(e)
|
examine, on its own initiative, on
request of one of its members or on request of the Commission, any
question covering the application of this Regulation and issue
guidelines, recommendations and best practices in order to encourage
consistent application of this Regulation;
|
|
(f)
|
issue guidelines, recommendations and
best practices in accordance with point (e) of this paragraph for
further specifying the criteria and conditions for decisions based on
profiling pursuant to Article 22(2);
|
|
(g)
|
issue guidelines, recommendations and
best practices in accordance with point (e) of this paragraph for
establishing the personal data breaches and determining the undue delay
referred to in Article 33(1) and (2) and for the particular
circumstances in which a controller or a processor is required to notify
the personal data breach;
|
|
(h)
|
issue guidelines, recommendations and
best practices in accordance with point (e) of this paragraph as to the
circumstances in which a personal data breach is likely to result in a
high risk to the rights and freedoms of the natural persons referred to
in Article 34(1).
|
|
(i)
|
issue guidelines, recommendations and
best practices in accordance with point (e) of this paragraph for the
purpose of further specifying the criteria and requirements for personal
data transfers based on binding corporate rules adhered to by
controllers and binding corporate rules adhered to by processors and on
further necessary requirements to ensure the protection of personal data
of the data subjects concerned referred to in Article 47;
|
|
(j)
|
issue guidelines, recommendations and
best practices in accordance with point (e) of this paragraph for the
purpose of further specifying the criteria and requirements for the
personal data transfers on the basis of Article 49(1);
|
|
(k)
|
draw up guidelines for supervisory
authorities concerning the application of measures referred to in
Article 58(1), (2) and (3) and the setting of administrative fines
pursuant to Article 83;
|
|
(l)
|
review the practical application of the guidelines, recommendations and best practices referred to in points (e) and (f);
|
|
(m)
|
issue guidelines, recommendations and
best practices in accordance with point (e) of this paragraph for
establishing common procedures for reporting by natural persons of
infringements of this Regulation pursuant to Article 54(2);
|
|
(n)
|
encourage the drawing-up of codes of
conduct and the establishment of data protection certification
mechanisms and data protection seals and marks pursuant to Articles 40
and 42;
|
|
(o)
|
carry out the accreditation of
certification bodies and its periodic review pursuant to Article 43 and
maintain a public register of accredited bodies pursuant to
Article 43(6) and of the accredited controllers or processors
established in third countries pursuant to Article 42(7);
|
|
(p)
|
specify the requirements referred to in Article 43(3) with a view to the accreditation of certification bodies under Article 42;
|
|
(q)
|
provide the Commission with an opinion on the certification requirements referred to in Article 43(8);
|
|
(r)
|
provide the Commission with an opinion on the icons referred to in Article 12(7);
|
|
(s)
|
provide the Commission with an opinion
for the assessment of the adequacy of the level of protection in a third
country or international organisation, including for the assessment
whether a third country, a territory or one or more specified sectors
within that third country, or an international organisation no longer
ensures an adequate level of protection. To that end, the Commission
shall provide the Board with all necessary documentation, including
correspondence with the government of the third country, with regard to
that third country, territory or specified sector, or with the
international organisation.
|
|
(t)
|
issue opinions on draft decisions of
supervisory authorities pursuant to the consistency mechanism referred
to in Article 64(1), on matters submitted pursuant to Article 64(2) and
to issue binding decisions pursuant to Article 65, including in cases
referred to in Article 66;
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|
(u)
|
promote the cooperation and the
effective bilateral and multilateral exchange of information and best
practices between the supervisory authorities;
|
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(v)
|
promote common training programmes and
facilitate personnel exchanges between the supervisory authorities and,
where appropriate, with the supervisory authorities of third countries
or with international organisations;
|
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(w)
|
promote the exchange of knowledge and
documentation on data protection legislation and practice with data
protection supervisory authorities worldwide.
|
|
(x)
|
issue opinions on codes of conduct drawn up at Union level pursuant to Article 40(9); and
|
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(y)
|
maintain a publicly accessible
electronic register of decisions taken by supervisory authorities and
courts on issues handled in the consistency mechanism.
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2. Where the Commission requests advice from the
Board, it may indicate a time limit, taking into account the urgency of
the matter.
3. The Board shall forward its opinions,
guidelines, recommendations, and best practices to the Commission and to
the committee referred to in Article 93 and make them public.
4. The Board shall, where appropriate, consult
interested parties and give them the opportunity to comment within a
reasonable period. The Board shall, without prejudice to Article 76,
make the results of the consultation procedure publicly available.
Article 71
Reports
1. The Board shall draw up an annual report
regarding the protection of natural persons with regard to processing in
the Union and, where relevant, in third countries and international
organisations. The report shall be made public and be transmitted to the
European Parliament, to the Council and to the Commission.
2. The annual report shall include a review of
the practical application of the guidelines, recommendations and best
practices referred to in point (l) of Article 70(1) as well as of the
binding decisions referred to in Article 65.
Article 72
Procedure
1. The Board shall take decisions by a simple majority of its members, unless otherwise provided for in this Regulation.
2. The Board shall adopt its own rules of
procedure by a two-thirds majority of its members and organise its own
operational arrangements.
Article 73
Chair
1. The Board shall elect a chair and two deputy chairs from amongst its members by simple majority.
2. The term of office of the Chair and of the deputy chairs shall be five years and be renewable once.
Article 74
Tasks of the Chair
1. The Chair shall have the following tasks:
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(a)
|
to convene the meetings of the Board and prepare its agenda;
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(b)
|
to notify decisions adopted by the
Board pursuant to Article 65 to the lead supervisory authority and the
supervisory authorities concerned;
|
|
(c)
|
to ensure the timely performance of the
tasks of the Board, in particular in relation to the consistency
mechanism referred to in Article 63.
|
2. The Board shall lay down the allocation of tasks between the Chair and the deputy chairs in its rules of procedure.
Article 75
Secretariat
1. The Board shall have a secretariat, which shall be provided by the European Data Protection Supervisor.
2. The secretariat shall perform its tasks exclusively under the instructions of the Chair of the Board.
3. The staff of the European Data Protection
Supervisor involved in carrying out the tasks conferred on the Board by
this Regulation shall be subject to separate reporting lines from the
staff involved in carrying out tasks conferred on the European Data
Protection Supervisor.
4. Where appropriate, the Board and the European
Data Protection Supervisor shall establish and publish a Memorandum of
Understanding implementing this Article, determining the terms of their
cooperation, and applicable to the staff of the European Data Protection
Supervisor involved in carrying out the tasks conferred on the Board by
this Regulation.
5. The secretariat shall provide analytical, administrative and logistical support to the Board.
6. The secretariat shall be responsible in particular for:
|
(a)
|
the day-to-day business of the Board;
|
|
(b)
|
communication between the members of the Board, its Chair and the Commission;
|
|
(c)
|
communication with other institutions and the public;
|
|
(d)
|
the use of electronic means for the internal and external communication;
|
|
(e)
|
the translation of relevant information;
|
|
(f)
|
the preparation and follow-up of the meetings of the Board;
|
|
(g)
|
the preparation, drafting and
publication of opinions, decisions on the settlement of disputes between
supervisory authorities and other texts adopted by the Board.
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Article 76
Confidentiality
1. The discussions of the Board shall be
confidential where the Board deems it necessary, as provided for in its
rules of procedure.
2. Access to documents submitted to members of
the Board, experts and representatives of third parties shall be
governed by Regulation (EC) No 1049/2001 of the European Parliament and
of the Council (21).
CHAPTER VIII
Remedies, liability and penalties
Article 77
Right to lodge a complaint with a supervisory authority
1. Without prejudice to any other administrative
or judicial remedy, every data subject shall have the right to lodge a
complaint with a supervisory authority, in particular in the Member
State of his or her habitual residence, place of work or place of the
alleged infringement if the data subject considers that the processing
of personal data relating to him or her infringes this Regulation.
2. The supervisory authority with which the
complaint has been lodged shall inform the complainant on the progress
and the outcome of the complaint including the possibility of a judicial
remedy pursuant to Article 78.
Article 78
Right to an effective judicial remedy against a supervisory authority
1. Without prejudice to any other administrative
or non-judicial remedy, each natural or legal person shall have the
right to an effective judicial remedy against a legally binding decision
of a supervisory authority concerning them.
2. Without prejudice to any other administrative
or non-judicial remedy, each data subject shall have the right to a an
effective judicial remedy where the supervisory authority which is
competent pursuant to Articles 55 and 56 does not handle a complaint or
does not inform the data subject within three months on the progress or
outcome of the complaint lodged pursuant to Article 77.
3. Proceedings against a supervisory authority
shall be brought before the courts of the Member State where the
supervisory authority is established.
4. Where proceedings are brought against a
decision of a supervisory authority which was preceded by an opinion or a
decision of the Board in the consistency mechanism, the supervisory
authority shall forward that opinion or decision to the court.
Article 79
Right to an effective judicial remedy against a controller or processor
1. Without prejudice to any available
administrative or non-judicial remedy, including the right to lodge a
complaint with a supervisory authority pursuant to Article 77, each data
subject shall have the right to an effective judicial remedy where he
or she considers that his or her rights under this Regulation have been
infringed as a result of the processing of his or her personal data in
non-compliance with this Regulation.
2. Proceedings against a controller or a
processor shall be brought before the courts of the Member State where
the controller or processor has an establishment. Alternatively, such
proceedings may be brought before the courts of the Member State where
the data subject has his or her habitual residence, unless the
controller or processor is a public authority of a Member State acting
in the exercise of its public powers.
Article 80
Representation of data subjects
1. The data subject shall have the right to
mandate a not-for-profit body, organisation or association which has
been properly constituted in accordance with the law of a Member State,
has statutory objectives which are in the public interest, and is active
in the field of the protection of data subjects' rights and freedoms
with regard to the protection of their personal data to lodge the
complaint on his or her behalf, to exercise the rights referred to in
Articles 77, 78 and 79 on his or her behalf, and to exercise the right
to receive compensation referred to in Article 82 on his or her behalf
where provided for by Member State law.
2. Member States may provide that any body,
organisation or association referred to in paragraph 1 of this Article,
independently of a data subject's mandate, has the right to lodge, in
that Member State, a complaint with the supervisory authority which is
competent pursuant to Article 77 and to exercise the rights referred to
in Articles 78 and 79 if it considers that the rights of a data subject
under this Regulation have been infringed as a result of the processing.
Article 81
Suspension of proceedings
1. Where a competent court of a Member State has
information on proceedings, concerning the same subject matter as
regards processing by the same controller or processor, that are pending
in a court in another Member State, it shall contact that court in the
other Member State to confirm the existence of such proceedings.
2. Where proceedings concerning the same subject
matter as regards processing of the same controller or processor are
pending in a court in another Member State, any competent court other
than the court first seized may suspend its proceedings.
3. Where those proceedings are pending at first
instance, any court other than the court first seized may also, on the
application of one of the parties, decline jurisdiction if the court
first seized has jurisdiction over the actions in question and its law
permits the consolidation thereof.
Article 82
Right to compensation and liability
1. Any person who has suffered material or
non-material damage as a result of an infringement of this Regulation
shall have the right to receive compensation from the controller or
processor for the damage suffered.
2. Any controller involved in processing shall be
liable for the damage caused by processing which infringes this
Regulation. A processor shall be liable for the damage caused by
processing only where it has not complied with obligations of this
Regulation specifically directed to processors or where it has acted
outside or contrary to lawful instructions of the controller.
3. A controller or processor shall be exempt from
liability under paragraph 2 if it proves that it is not in any way
responsible for the event giving rise to the damage.
4. Where more than one controller or processor,
or both a controller and a processor, are involved in the same
processing and where they are, under paragraphs 2 and 3, responsible for
any damage caused by processing, each controller or processor shall be
held liable for the entire damage in order to ensure effective
compensation of the data subject.
5. Where a controller or processor has, in
accordance with paragraph 4, paid full compensation for the damage
suffered, that controller or processor shall be entitled to claim back
from the other controllers or processors involved in the same processing
that part of the compensation corresponding to their part of
responsibility for the damage, in accordance with the conditions set out
in paragraph 2.
6. Court proceedings for exercising the right to
receive compensation shall be brought before the courts competent under
the law of the Member State referred to in Article 79(2).
Article 83
General conditions for imposing administrative fines
1. Each supervisory authority shall ensure that
the imposition of administrative fines pursuant to this Article in
respect of infringements of this Regulation referred to in paragraphs 4,
5 and 6 shall in each individual case be effective, proportionate and
dissuasive.
2. Administrative fines shall, depending on the
circumstances of each individual case, be imposed in addition to, or
instead of, measures referred to in points (a) to (h) and (j) of
Article 58(2). When deciding whether to impose an administrative fine
and deciding on the amount of the administrative fine in each individual
case due regard shall be given to the following:
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(a)
|
the nature, gravity and duration of the
infringement taking into account the nature scope or purpose of the
processing concerned as well as the number of data subjects affected and
the level of damage suffered by them;
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(b)
|
the intentional or negligent character of the infringement;
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(c)
|
any action taken by the controller or processor to mitigate the damage suffered by data subjects;
|
|
(d)
|
the degree of responsibility of the
controller or processor taking into account technical and organisational
measures implemented by them pursuant to Articles 25 and 32;
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(e)
|
any relevant previous infringements by the controller or processor;
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(f)
|
the degree of cooperation with the
supervisory authority, in order to remedy the infringement and mitigate
the possible adverse effects of the infringement;
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(g)
|
the categories of personal data affected by the infringement;
|
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(h)
|
the manner in which the infringement
became known to the supervisory authority, in particular whether, and if
so to what extent, the controller or processor notified the
infringement;
|
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(i)
|
where measures referred to in Article
58(2) have previously been ordered against the controller or processor
concerned with regard to the same subject-matter, compliance with those
measures;
|
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(j)
|
adherence to approved codes of conduct pursuant to Article 40 or approved certification mechanisms pursuant to Article 42; and
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(k)
|
any other aggravating or mitigating
factor applicable to the circumstances of the case, such as financial
benefits gained, or losses avoided, directly or indirectly, from the
infringement.
|
3. If a controller or processor intentionally or
negligently, for the same or linked processing operations, infringes
several provisions of this Regulation, the total amount of the
administrative fine shall not exceed the amount specified for the
gravest infringement.
4. Infringements of the following provisions
shall, in accordance with paragraph 2, be subject to administrative
fines up to 10 000 000 EUR, or in the case of an undertaking, up to 2 %
of the total worldwide annual turnover of the preceding financial year,
whichever is higher:
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(a)
|
the obligations of the controller and the processor pursuant to Articles 8, 11, 25 to 39 and 42 and 43;
|
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(b)
|
the obligations of the certification body pursuant to Articles 42 and 43;
|
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(c)
|
the obligations of the monitoring body pursuant to Article 41(4).
|
5. Infringements of the following provisions
shall, in accordance with paragraph 2, be subject to administrative
fines up to 20 000 000 EUR, or in the case of an undertaking, up to 4 %
of the total worldwide annual turnover of the preceding financial year,
whichever is higher:
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(a)
|
the basic principles for processing, including conditions for consent, pursuant to Articles 5, 6, 7 and 9;
|
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(b)
|
the data subjects' rights pursuant to Articles 12 to 22;
|
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(c)
|
the transfers of personal data to a recipient in a third country or an international organisation pursuant to Articles 44 to 49;
|
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(d)
|
any obligations pursuant to Member State law adopted under Chapter IX;
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(e)
|
non-compliance with an order or a
temporary or definitive limitation on processing or the suspension of
data flows by the supervisory authority pursuant to Article 58(2) or
failure to provide access in violation of Article 58(1).
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6. Non-compliance with an order by the
supervisory authority as referred to in Article 58(2) shall, in
accordance with paragraph 2 of this Article, be subject to
administrative fines up to 20 000 000 EUR, or in the case of an
undertaking, up to 4 % of the total worldwide annual turnover of the
preceding financial year, whichever is higher.
7. Without prejudice to the corrective powers of
supervisory authorities pursuant to Article 58(2), each Member State may
lay down the rules on whether and to what extent administrative fines
may be imposed on public authorities and bodies established in that
Member State.
8. The exercise by the supervisory authority of
its powers under this Article shall be subject to appropriate procedural
safeguards in accordance with Union and Member State law, including
effective judicial remedy and due process.
9. Where the legal system of the Member State
does not provide for administrative fines, this Article may be applied
in such a manner that the fine is initiated by the competent supervisory
authority and imposed by competent national courts, while ensuring that
those legal remedies are effective and have an equivalent effect to the
administrative fines imposed by supervisory authorities. In any event,
the fines imposed shall be effective, proportionate and dissuasive.
Those Member States shall notify to the Commission the provisions of
their laws which they adopt pursuant to this paragraph by 25 May 2018
and, without delay, any subsequent amendment law or amendment affecting
them.
Article 84
Penalties
1. Member States shall lay down the rules on
other penalties applicable to infringements of this Regulation in
particular for infringements which are not subject to administrative
fines pursuant to Article 83, and shall take all measures necessary to
ensure that they are implemented. Such penalties shall be effective,
proportionate and dissuasive.
2. Each Member State shall notify to the
Commission the provisions of its law which it adopts pursuant to
paragraph 1, by 25 May 2018 and, without delay, any subsequent amendment
affecting them.
CHAPTER IX
Provisions relating to specific processing situations
Article 85
Processing and freedom of expression and information
1. Member States shall by law reconcile the right
to the protection of personal data pursuant to this Regulation with the
right to freedom of expression and information, including processing
for journalistic purposes and the purposes of academic, artistic or
literary expression.
2. For processing carried out for journalistic
purposes or the purpose of academic artistic or literary expression,
Member States shall provide for exemptions or derogations from Chapter
II (principles), Chapter III (rights of the data subject), Chapter IV
(controller and processor), Chapter V (transfer of personal data to
third countries or international organisations), Chapter VI (independent
supervisory authorities), Chapter VII (cooperation and consistency) and
Chapter IX (specific data processing situations) if they are necessary
to reconcile the right to the protection of personal data with the
freedom of expression and information.
3. Each Member State shall notify to the
Commission the provisions of its law which it has adopted pursuant to
paragraph 2 and, without delay, any subsequent amendment law or
amendment affecting them.
Article 86
Processing and public access to official documents
Personal data in official documents held by a
public authority or a public body or a private body for the performance
of a task carried out in the public interest may be disclosed by the
authority or body in accordance with Union or Member State law to which
the public authority or body is subject in order to reconcile public
access to official documents with the right to the protection of
personal data pursuant to this Regulation.
Article 87
Processing of the national identification number
Member States may further determine the specific
conditions for the processing of a national identification number or any
other identifier of general application. In that case the national
identification number or any other identifier of general application
shall be used only under appropriate safeguards for the rights and
freedoms of the data subject pursuant to this Regulation.
Article 88
Processing in the context of employment
1. Member States may, by law or by collective
agreements, provide for more specific rules to ensure the protection of
the rights and freedoms in respect of the processing of employees'
personal data in the employment context, in particular for the purposes
of the recruitment, the performance of the contract of employment,
including discharge of obligations laid down by law or by collective
agreements, management, planning and organisation of work, equality and
diversity in the workplace, health and safety at work, protection of
employer's or customer's property and for the purposes of the exercise
and enjoyment, on an individual or collective basis, of rights and
benefits related to employment, and for the purpose of the termination
of the employment relationship.
2. Those rules shall include suitable and
specific measures to safeguard the data subject's human dignity,
legitimate interests and fundamental rights, with particular regard to
the transparency of processing, the transfer of personal data within a
group of undertakings, or a group of enterprises engaged in a joint
economic activity and monitoring systems at the work place.
3. Each Member State shall notify to the
Commission those provisions of its law which it adopts pursuant to
paragraph 1, by 25 May 2018 and, without delay, any subsequent amendment
affecting them.
Article 89
Safeguards and derogations relating to processing
for archiving purposes in the public interest, scientific or historical
research purposes or statistical purposes
1. Processing for archiving purposes in the
public interest, scientific or historical research purposes or
statistical purposes, shall be subject to appropriate safeguards, in
accordance with this Regulation, for the rights and freedoms of the data
subject. Those safeguards shall ensure that technical and
organisational measures are in place in particular in order to ensure
respect for the principle of data minimisation. Those measures may
include pseudonymisation provided that those purposes can be fulfilled
in that manner. Where those purposes can be fulfilled by further
processing which does not permit or no longer permits the identification
of data subjects, those purposes shall be fulfilled in that manner.
2. Where personal data are processed for
scientific or historical research purposes or statistical purposes,
Union or Member State law may provide for derogations from the rights
referred to in Articles 15, 16, 18 and 21 subject to the conditions and
safeguards referred to in paragraph 1 of this Article in so far as such
rights are likely to render impossible or seriously impair the
achievement of the specific purposes, and such derogations are necessary
for the fulfilment of those purposes.
3. Where personal data are processed for
archiving purposes in the public interest, Union or Member State law may
provide for derogations from the rights referred to in Articles 15, 16,
18, 19, 20 and 21 subject to the conditions and safeguards referred to
in paragraph 1 of this Article in so far as such rights are likely to
render impossible or seriously impair the achievement of the specific
purposes, and such derogations are necessary for the fulfilment of those
purposes.
4. Where processing referred to in paragraphs 2
and 3 serves at the same time another purpose, the derogations shall
apply only to processing for the purposes referred to in those
paragraphs.
Article 90
Obligations of secrecy
1. Member States may adopt specific rules to set
out the powers of the supervisory authorities laid down in points (e)
and (f) of Article 58(1) in relation to controllers or processors that
are subject, under Union or Member State law or rules established by
national competent bodies, to an obligation of professional secrecy or
other equivalent obligations of secrecy where this is necessary and
proportionate to reconcile the right of the protection of personal data
with the obligation of secrecy. Those rules shall apply only with regard
to personal data which the controller or processor has received as a
result of or has obtained in an activity covered by that obligation of
secrecy.
2. Each Member State shall notify to the
Commission the rules adopted pursuant to paragraph 1, by 25 May 2018
and, without delay, any subsequent amendment affecting them.
Article 91
Existing data protection rules of churches and religious associations
1. Where in a Member State, churches and
religious associations or communities apply, at the time of entry into
force of this Regulation, comprehensive rules relating to the protection
of natural persons with regard to processing, such rules may continue
to apply, provided that they are brought into line with this Regulation.
2. Churches and religious associations which
apply comprehensive rules in accordance with paragraph 1 of this Article
shall be subject to the supervision of an independent supervisory
authority, which may be specific, provided that it fulfils the
conditions laid down in Chapter VI of this Regulation.
CHAPTER X
Delegated acts and implementing acts
Article 92
Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2. The delegation of power referred to in Article
12(8) and Article 43(8) shall be conferred on the Commission for an
indeterminate period of time from 24 May 2016.
3. The delegation of power referred to in Article
12(8) and Article 43(8) may be revoked at any time by the European
Parliament or by the Council. A decision of revocation shall put an end
to the delegation of power specified in that decision. It shall take
effect the day following that of its publication in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. As soon as it adopts a delegated act, the
Commission shall notify it simultaneously to the European Parliament and
to the Council.
5. A delegated act adopted pursuant to Article
12(8) and Article 43(8) shall enter into force only if no objection has
been expressed by either the European Parliament or the Council within a
period of three months of notification of that act to the European
Parliament and the Council or if, before the expiry of that period, the
European Parliament and the Council have both informed the Commission
that they will not object. That period shall be extended by three months
at the initiative of the European Parliament or of the Council.
Article 93
Committee procedure
1. The Commission shall be assisted by a
committee. That committee shall be a committee within the meaning of
Regulation (EU) No 182/2011.
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
3. Where reference is made to this paragraph,
Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5
thereof, shall apply.
CHAPTER XI
Final provisions
Article 94
Repeal of Directive 95/46/EC
1. Directive 95/46/EC is repealed with effect from 25 May 2018.
2. References to the repealed Directive shall be
construed as references to this Regulation. References to the Working
Party on the Protection of Individuals with regard to the Processing of
Personal Data established by Article 29 of Directive 95/46/EC shall be
construed as references to the European Data Protection Board
established by this Regulation.
Article 95
Relationship with Directive 2002/58/EC
This Regulation shall not impose additional
obligations on natural or legal persons in relation to processing in
connection with the provision of publicly available electronic
communications services in public communication networks in the Union in
relation to matters for which they are subject to specific obligations
with the same objective set out in Directive 2002/58/EC.
Article 96
Relationship with previously concluded Agreements
International agreements involving the transfer of
personal data to third countries or international organisations which
were concluded by Member States prior to 24 May 2016, and which comply
with Union law as applicable prior to that date, shall remain in force
until amended, replaced or revoked.
Article 97
Commission reports
1. By 25 May 2020 and every four years
thereafter, the Commission shall submit a report on the evaluation and
review of this Regulation to the European Parliament and to the Council.
The reports shall be made public.
2. In the context of the evaluations and reviews
referred to in paragraph 1, the Commission shall examine, in particular,
the application and functioning of:
|
(a)
|
Chapter V on the transfer of personal
data to third countries or international organisations with particular
regard to decisions adopted pursuant to Article 45(3) of this Regulation
and decisions adopted on the basis of Article 25(6) of
Directive 95/46/EC;
|
|
(b)
|
Chapter VII on cooperation and consistency.
|
3. For the purpose of paragraph 1, the Commission may request information from Member States and supervisory authorities.
4. In carrying out the evaluations and reviews
referred to in paragraphs 1 and 2, the Commission shall take into
account the positions and findings of the European Parliament, of the
Council, and of other relevant bodies or sources.
5. The Commission shall, if necessary, submit
appropriate proposals to amend this Regulation, in particular taking
into account of developments in information technology and in the light
of the state of progress in the information society.
Article 98
Review of other Union legal acts on data protection
The Commission shall, if appropriate, submit
legislative proposals with a view to amending other Union legal acts on
the protection of personal data, in order to ensure uniform and
consistent protection of natural persons with regard to processing. This
shall in particular concern the rules relating to the protection of
natural persons with regard to processing by Union institutions, bodies,
offices and agencies and on the free movement of such data.
Article 99
Entry into force and application
1. This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
2. It shall apply from 25 May 2018.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 April 2016.
For the European Parliament
The President
M. SCHULZ
For the Council
The President
J.A. HENNIS-PLASSCHAERT
(3) Position
of the European Parliament of 12 March 2014 (not yet published in the
Official Journal) and position of the Council at first reading of 8
April 2016 (not yet published in the Official Journal). Position of the
European Parliament of 14 April 2016.
(4) Directive
95/46/EC of the European Parliament and of the Council of
24 October 1995 on the protection of individuals with regard to the
processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31).
(5) Commission
Recommendation of 6 May 2003 concerning the definition of micro, small
and medium-sized enterprises (C(2003) 1422) (OJ L 124, 20.5.2003, p. 36).
(6) Regulation
(EC) No 45/2001 of the European Parliament and of the Council of
18 December 2000 on the protection of individuals with regard to the
processing of personal data by the Community institutions and bodies and
on the free movement of such data (OJ L 8, 12.1.2001, p. 1).
(7) Directive
(EU) 2016/680 of the European Parliament and of the Council of 27 April
2016 on the protection of natural persons with regard to the processing
of personal data by competent authorities for the purposes of
prevention, investigation, detection or prosecution of criminal offences
or the execution of criminal penalties, and the free movement of such
data and repealing Council Framework Decision 2008/977/JHA (see page 89
of this Official Journal).
(8) Directive
2000/31/EC of the European Parliament and of the Council of 8 June 2000
on certain legal aspects of information society services, in particular
electronic commerce, in the Internal Market (‘Directive on electronic
commerce’) (OJ L 178, 17.7.2000, p. 1).
(9) Directive
2011/24/EU of the European Parliament and of the Council of
9 March 2011 on the application of patients' rights in cross-border
healthcare (OJ L 88, 4.4.2011, p. 45).
(10) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29).
(11) Regulation
(EC) No 1338/2008 of the European Parliament and of the Council of
16 December 2008 on Community statistics on public health and health and
safety at work (OJ L 354, 31.12.2008, p. 70).
(12) Regulation
(EU) No 182/2011 of the European Parliament and of the Council of
16 February 2011 laying down the rules and general principles concerning
mechanisms for control by Member States of the Commission's exercise of
implementing powers (OJ L 55, 28.2.2011, p. 13).
(13) Regulation
(EU) No 1215/2012 of the European Parliament and of the Council of
12 December 2012 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).
(14) Directive
2003/98/EC of the European Parliament and of the Council of
17 November 2003 on the re-use of public sector information (OJ L 345, 31.12.2003, p. 90).
(15) Regulation
(EU) No 536/2014 of the European Parliament and of the Council of
16 April 2014 on clinical trials on medicinal products for human use,
and repealing Directive 2001/20/EC (OJ L 158, 27.5.2014, p. 1).
(16) Regulation
(EC) No 223/2009 of the European Parliament and of the Council of
11 March 2009 on European statistics and repealing Regulation (EC,
Euratom) No 1101/2008 of the European Parliament and of the Council on
the transmission of data subject to statistical confidentiality to the
Statistical Office of the European Communities, Council Regulation (EC)
No 322/97 on Community Statistics, and Council Decision 89/382/EEC,
Euratom establishing a Committee on the Statistical Programmes of the
European Communities (OJ L 87, 31.3.2009, p. 164).
(18) Directive
2002/58/EC of the European Parliament and of the Council of
12 July 2002 concerning the processing of personal data and the
protection of privacy in the electronic communications sector (Directive
on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37).
(19) Directive
(EU) 2015/1535 of the European Parliament and of the Council of
9 September 2015 laying down a procedure for the provision of
information in the field of technical regulations and of rules on
Information Society services (OJ L 241, 17.9.2015, p. 1).
(20) Regulation
(EC) No 765/2008 of the European Parliament and of the Council of
9 July 2008 setting out the requirements for accreditation and market
surveillance relating to the marketing of products and repealing
Regulation (EEC) No 339/93 (OJ L 218, 13.8.2008, p. 30).
(21) Regulation
(EC) No 1049/2001 of the European Parliament and of the Council of
30 May 2001 regarding public access to European Parliament, Council and
Commission documents (OJ L 145, 31.5.2001, p. 43).
4.5.2016
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EN
|
Official Journal of the European Union
|
L 119/1
|
GDPR LAW Wording
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November 26, 2019
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