RegAlertRule · EU · 27 Apr 2016
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 the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA
Text from publications.europa.eu (text as adopted and published in the Official Journal of the European Union; later amendments are not included). Retrieved 2026-10-25.
4.5.2016
EN
Official Journal of the European Union
L 119/89
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 the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA
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(2) 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 Committee of the Regions ( 1 ) ,
Acting in accordance with the ordinary legislative procedure ( 2 ) ,
Whereas:
(1)
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.
(2)
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 Directive is intended to contribute to the accomplishment of an area of freedom, security and justice.
(3)
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 personal data to be processed on an unprecedented scale in order to pursue activities such as the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties.
(4)
The free flow of personal data between 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 within the Union and the transfer of such personal data to third countries and international organisations, should be facilitated while ensuring a high level of protection of personal data. Those developments require the building of a strong and more coherent framework for the protection of personal data in the Union, backed by strong enforcement.
(5)
Directive 95/46/EC of the European Parliament and of the Council ( 3 ) applies to all processing of personal data in Member States in both the public and the private sectors. However, it does not apply to the processing of personal data in the course of an activity which falls outside the scope of Community law, such as activities in the areas of judicial cooperation in criminal matters and police cooperation.
(6)
Council Framework Decision 2008/977/JHA ( 4 ) applies in the areas of judicial cooperation in criminal matters and police cooperation. The scope of application of that Framework Decision is limited to the processing of personal data transmitted or made available between Member States.
(7)
Ensuring a consistent and high level of protection of the personal data of natural persons and facilitating the exchange of personal data between competent authorities of Members States is crucial in order to ensure effective judicial cooperation in criminal matters and police cooperation. To that end, the level of protection of the rights and freedoms 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, should be equivalent in all Member States. Effective protection of personal data throughout the Union requires the strengthening of the rights of data subjects and of the obligations of those who process personal data, as well as equivalent powers for monitoring and ensuring compliance with the rules for the protection of personal data in the Member States.
(8)
Article 16(2) TFEU mandates the European Parliament and the Council to lay down the rules relating to the protection of natural person s with regard to the processing of personal data and the rules relating to the free movement of personal data.
(9)
On that basis, Regulation (EU) 2016/679 of the European Parliament and of the Council ( 5 ) lays down general rules to protect natural persons in relation to the processing of personal data and to ensure the free movement of personal data within the Union.
(10)
In Declaration No 21 on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation, annexed to the final act of the intergovernmental conference which adopted the Treaty of Lisbon, the conference acknowledged that specific rules on the protection of personal data and the free movement of personal data in the fields of judicial cooperation in criminal matters and police cooperation based on Article 16 TFEU may prove necessary because of the specific nature of those fields.
(11)
It is therefore appropriate for those fields to be addressed by a directive that lays down the specific rules relating to 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, respecting the specific nature of those activities. Such competent authorities may include not only public authorities such as the judicial authorities, the police or other law-enforcement authorities but also any other body or entity entrusted by Member State law to exercise public authority and public powers for the purposes of this Directive. Where such a body or entity processes personal data for purposes other than for the purposes of this Directive, Regulation (EU) 2016/679 applies. Regulation (EU) 2016/679 therefore applies in cases where a body or entity collects personal data for other purposes and further processes those personal data in order to comply with a legal obligation to which it is subject. For example, for the purposes of investigation detection or prosecution of criminal offences financial institutions retain certain personal data which are processed by them, and provide those personal data only to the competent national authorities in specific cases and in accordance with Member State law. A body or entity which processes personal data on behalf of such authorities within the scope of this Directive should be bound by a contract or other legal act and by the provisions applicable to processors pursuant to this Directive, while the application of Regulation (EU) 2016/679 remains unaffected for the processing of personal data by the processor outside the scope of this Directive.
(12)
The activities carried out by the police or other law-enforcement authorities are focused mainly on the prevention, investigation, detection or prosecution of criminal offences, including police activities without prior knowledge if an incident is a criminal offence or not. Such activities can also include the exercise of authority by taking coercive measures such as police activities at demonstrations, major sporting events and riots. They also include maintaining law and order as a task conferred on the police or other law-enforcement authorities where necessary to safeguard against and prevent threats to public security and to fundamental interests of the society protected by law which may lead to a criminal offence. Member States may entrust competent authorities with other tasks which are not necessarily carried out for the purposes of the prevention, investigation, detection or prosecution of criminal offences, including the safeguarding against and the 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 Regulation (EU) 2016/679.
(13)
A criminal offence within the meaning of this Directive should be an autonomous concept of Union law as interpreted by the Court of Justice of the European Union (the ‘Court of Justice’).
(14)
Since this Directive should not apply to the processing of personal data in the course of an activity which falls outside the scope of Union law, activities concerning national security, activities of agencies or units dealing with national security issues and the processing of personal data by the Member States when carrying out activities which fall within the scope of Chapter 2 of Title V of the Treaty on European Union (TEU) should not be considered to be activities falling within the scope of this Directive.
(15)
In order to ensure the same level of protection for natural persons through legally enforceable rights throughout the Union and to prevent divergences hampering the exchange of personal data between competent authorities, this Directive should provide for harmonised rules for the protection and the free movement of personal data processed 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. The approximation of Member States' laws should not result in any lessening of the personal data protection they afford but should, on the contrary, seek to ensure a high level of protection within the Union. Member States should not be precluded from providing higher safeguards than those established in this Directive for the protection of the rights and freedoms of the data subject with regard to the processing of personal data by competent authorities.
(16)
This Directive is without prejudice to the principle of public access to official documents. Under Regulation (EU) 2016/679 personal data in official documents held by a public authority or a public or private body for the performance of a task carried out in the public interest may be disclosed by that 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.
(17)
The protection afforded by this Directive should apply to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data.
(18)
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 Directive.
(19)
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 Regulation (EU) 2016/679.
(20)
This Directive does not preclude Member States from specifying processing operations and processing procedures in national rules on criminal procedures in relation to the processing of personal data by courts and other judicial authorities, in particular as regards personal data contained in a judicial decision or in records in relation to criminal proceedings.
(21)
The principles of data protection should apply to any information concerning an identified or 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 no longer identifiable.
(22)
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.
(23)
Genetic data should be defined as personal data relating to the inherited or acquired genetic characteristics of a natural person which give unique information about the physiology or health of that natural person and 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. Considering the complexity and sensitivity of genetic information, there is a great risk of misuse and re-use for various purposes by the controller. Any discrimination based on genetic features should in principle be prohibited.
(24)
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 ( 7 ) 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.
(25)
All Member States are affiliated to the International Criminal Police Organisation (Interpol). To fulfil its mission, Interpol receives, stores and circulates personal data to assist competent authorities in preventing and combating international crime. It is therefore appropriate to strengthen cooperation between the Union and Interpol by promoting an efficient exchange of personal data whilst ensuring respect for fundamental rights and freedoms regarding the automatic processing of personal data. Where personal data are transferred from the Union to Interpol, and to countries which have delegated members to Interpol, this Directive, in particular the provisions on international transfers, should apply. This Directive should be without prejudice to the specific rules laid down in Council Common Position 2005/69/JHA ( 8 ) and Council Decision 2007/533/JHA ( 9 ) .
(26)
Any processing of personal data must be lawful, fair and transparent in relation to the natural persons concerned, and only processed for specific purposes laid down by law. This does not in itself prevent the law-enforcement authorities from carrying out activities such as covert investigations or video surveillance. Such activities can be done 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, as long as they are laid down by law and constitute a necessary and proportionate measure in a democratic society with due regard for the legitimate interests of the natural person concerned. The data protection principle of fair processing is a distinct notion from the right to a fair trial as defined in Article 47 of the Charter and in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). Natural persons should be made aware of risks, rules, safeguards and rights in relation to the processing of their personal data and how to exercise their rights in relation to the processing. In particular, the specific purposes for which the 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 and relevant for the purposes for which they are processed. It should, in particular, be ensured that the personal data collected are not excessive and not kept longer than is necessary for the purpose for which they are processed. 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 data are not kept longer than necessary, time limits should be established by the controller for erasure or for a periodic review. Member States should lay down appropriate safeguards for personal data stored for longer periods for archiving in the public interest, scientific, statistical or historical use.
(27)
For the prevention, investigation and prosecution of criminal offences, it is necessary for competent authorities to process personal data collected in the context of the prevention, investigation, detection or prosecution of specific criminal offences beyond that context in order to develop an understanding of criminal activities and to make links between different criminal offences detected.
(28)
In order to maintain security in relation to processing and to prevent processing in infringement of this Directive, personal data should be processed in a manner that ensures an appropriate level of security and confidentiality, including by preventing unauthorised access to or use of personal data and the equipment used for the processing, and that takes into account available state of the art and technology, the costs of implementation in relation to the risks and the nature of the personal data to be protected.
(29)
Personal data should be collected for specified, explicit and legitimate purposes within the scope of this Directive and should not be processed for purposes incompatible with 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. If personal data are processed by the same or another controller for a purpose within the scope of this Directive other than that for which it has been collected, such processing should be permitted under the condition that such processing is authorised in accordance with applicable legal provisions and is necessary for and proportionate to that other purpose.
(30)
The principle of accuracy of data should be applied while taking account of the nature and purpose of the processing concerned. In particular in judicial proceedings, statements containing personal data are based on the subjective perception of natural persons and are not always verifiable. Consequently, the requirement of accuracy should not appertain to the accuracy of a statement but merely to the fact that a specific statement has been made.
(31)
It is inherent to the processing of personal data in the areas of judicial cooperation in criminal matters and police cooperation that personal data relating to different categories of data subjects are processed. Therefore, a clear distinction should, where applicable and as far as possible, be made between personal data of different categories of data subjects such as: suspects; persons convicted of a criminal offence; victims and other parties, such as witnesses; persons possessing relevant information or contacts; and associates of suspects and convicted criminals. This should not prevent the application of the right of presumption of innocence as guaranteed by the Charter and by the ECHR, as interpreted in the case-law of the Court of Justice and by the European Court of Human Rights respectively.
(32)
The competent authorities should ensure that personal data which are inaccurate, incomplete or no longer up to date are not transmitted or made available. In order to ensure the protection of natural persons, the accuracy, completeness or the extent to which the personal data are up to date and the reliability of the personal data transmitted or made available, the competent authorities should, as far as possible, add necessary information in all transmissions of personal data.
(33)
Where this Directive refers to Member State law, 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 Member State law, legal basis or legislative measure should be clear and precise and its application foreseeable for those subject to it, as required by the case-law of the Court of Justice and the European Court of Human Rights. Member State law regulating the processing of personal data within the scope of this Directive should specify at least the objectives, the personal data to be processed, the purposes of the processing and procedures for preserving the integrity and confidentiality of personal data and procedures for its destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness.
(34)
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, should cover any operation or set of operations which are performed upon personal data or sets of personal data for those purposes, whether by automated means or otherwise, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, alignment or combination, restriction of processing, erasure or destruction. In particular, the rules of this Directive should apply to the transmission of personal data for the purposes of this Directive to a recipient not subject to this Directive. Such a recipient should encompass a natural or legal person, public authority, agency or any other body to which personal data are lawfully disclosed by the competent authority. Where personal data were initially collected by a competent authority for one of the purposes of this Directive, Regulation (EU) 2016/679 should apply to the processing of those data for purposes other than the purposes of this Directive where such processing is authorised by Union or Member State law. In particular, the rules of Regulation (EU) 2016/679 should apply to the transmission of personal data for purposes outside the scope of this Directive. For the processing of personal data by a recipient that is not a competent authority or that is not acting as such within the meaning of this Directive and to which personal data are lawfully disclosed by a competent authority, Regulation (EU) 2016/679 should apply. While implementing this Directive, Member States should also be able to further specify the application of the rules of Regulation (EU) 2016/679, subject to the conditions set out therein.
(35)
In order to be lawful, the processing of personal data under this Directive should be necessary for the performance of a task carried out in the public interest by a competent authority based on Union or Member State law 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. Those activities should cover the protection of vital interests of the data subject. The performance of the tasks of preventing, investigating, detecting or prosecuting criminal offences institutionally conferred by law to the competent authorities allows them to require or order natural persons to comply with requests made. In such a case, the consent of the data subject, as defined in Regulation (EU) 2016/679, should not provide a legal ground for processing personal data by competent authorities. Where the data subject is required to comply with a legal obligation, the data subject has no genuine and free choice, so that the reaction of the data subject could not be considered to be a freely given indication of his or her wishes. This should not preclude Member States from providing, by law, that the data subject may agree to the processing of his or her personal data for the purposes of this Directive, such as DNA tests in criminal investigations or the monitoring of his or her location with electronic tags for the execution of criminal penalties.
(36)
Member States should provide that where Union or Member State law applicable to the transmitting competent authority provides for specific conditions applicable in specific circumstances to the processing of personal data, such as the use of handling codes, the transmitting competent authority should inform the recipient of such personal data of those conditions and the requirement to respect them. Such conditions could, for example, include a prohibition against transmitting the personal data further to others, or using them for purposes other than those for which they were transmitted to the recipient, or informing the data subject in the case of a limitation of the right of information without the prior approval of the transmitting competent authority. Those obligations should also apply to transfers by the transmitting competent authority to recipients in third countries or international organisations. Member States should ensure that the transmitting competent authority does not apply such conditions to recipients in other Member States or to agencies, offices and bodies established pursuant to Chapters 4 and 5 of Title V of the TFEU other than those applicable to similar data transmissions within the Member State of that competent authority.
(37)
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 Directive does not imply an acceptance by the Union of theories which attempt to determine the existence of separate human races. Such personal data should not be processed, unless processing is subject to appropriate safeguards for the rights and freedoms of the data subject laid down by law and is allowed in cases authorised by law; where not already authorised by such a law, the processing is necessary to protect the vital interests of the data subject or of another person; or the processing relates to data which are manifestly made public by the data subject. Appropriate safeguards for the rights and freedoms of the data subject could include the possibility to collect those data only in connection with other data on the natural person concerned, the possibility to secure the data collected adequately, stricter rules on the access of staff of the competent authority to the data and the prohibition of transmission of those data. The processing of such data should also be allowed by law where the data subject has explicitly agreed to the processing that is particularly intrusive to him or her. However, the consent of the data subject should not provide in itself a legal ground for processing such sensitive personal data by competent authorities.
(38)
The data subject should have the right not to be subject to a decision evaluating personal aspects relating to him or her which is based solely on automated processing and which produces adverse legal effects concerning, or significantly affects, him or her. In any case, such processing should be subject to suitable safeguards, including the provision of specific information to the data subject and the right to obtain human intervention, in particular to express his or her point of view, to obtain an explanation of the decision reached after such assessment or to challenge the decision. Profiling that results in discrimination against natural persons on the basis of personal data which are by their nature particularly sensitive in relation to fundamental rights and freedoms should be prohibited under the conditions laid down in Articles 21 and 52 of the Charter.
(39)
In order to enable him or her to exercise his or her rights, any information to the data subject should be easily accessible, including on the website of the controller, and easy to understand, using clear and plain language. Such information should be adapted to the needs of vulnerable persons such as children.
(40)
Modalities should be provided for facilitating the exercise of the data subject's rights under the provisions adopted pursuant to this Directive, including mechanisms to request and, if applicable, obtain, free of charge, in particular, access to and rectification or erasure of personal data and restriction of processing. The controller should be obliged to respond to requests of the data subject without undue delay, unless the controller applies limitations to data subject rights in accordance with this Directive. Moreover, if requests are manifestly unfounded or excessive, such as where the data subject unreasonably and repetitiously requests information or where the data subject abuses his or her right to receive information, for example, by providing false or misleading information when making the request, the controller should be able to charge a reasonable fee or refuse to act on the request.
(41)
Where the controller requests the provision of additional information necessary to confirm the identity of the data subject, that information should be processed only for that specific purpose and should not be stored for longer than needed for that purpose.
(42)
At least the following information should be made available to the data subject: the identity of the controller, the existence of the processing operation, the purposes of the processing, the right to lodge a complaint and the existence of the right to request from the controller access to and rectification or erasure of personal data or restriction of processing. This could take place on the website of the competent authority. In addition, in specific cases and in order to enable the exercise of his or her rights, the data subject should be informed of the legal basis for the processing and of how long the data will be stored, in so far as such further information is necessary, taking into account the specific circumstances in which the data are processed, to guarantee fair processing in respect of the data subject.
(43)
A natural person should have the right of access to data which has been collected concerning him or her, and to exercise this right easily and at reasonable intervals, in order to be aware of and verify the lawfulness of the processing. Every data subject should therefore have the right to know, and obtain communications about, the purposes for which the data are processed, the period during which the data are processed and the recipients of the data, including those in third countries. Where such communications include information as to the origin of the personal data, the information should not reveal the identity of natural persons, in particular confidential sources. For that right to be complied with, it is sufficient that the data subject be in possession of a full summary of those data in an intelligible form, that is to say a form which allows that data subject to become aware of those data and to verify that they are accurate and processed in accordance with this Directive, so that it is possible for him or her to exercise the rights conferred on him or her by this Directive. Such a summary could be provided in the form of a copy of the personal data undergoing processing.
(44)
Member States should be able to adopt legislative measures delaying, restricting or omitting the information to data subjects or restricting, wholly or partly, the access to their personal data to the extent that and as long as such a measure constitutes a necessary and proportionate measure in a democratic society with due regard for the fundamental rights and the legitimate interests of the natural person concerned, to avoid obstructing official or legal inquiries, investigations or procedures, to avoid prejudicing the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, to protect public security or national security, or to protect the rights and freedoms of others. The controller should assess, by way of a concrete and individual examination of each case, whether the right of access should be partially or completely restricted.
(45)
Any refusal or restriction of access should in principle be set out in writing to the data subject and include the factual or legal reasons on which the decision is based.
(46)
Any restriction of the rights of the data subject must comply with the Charter and with the ECHR, as interpreted in the case-law of the Court of Justice and by the European Court of Human Rights respectively, and in particular respect the essence of those rights and freedoms.
(47)
A natural person should have the right to have inaccurate personal data concerning him or her rectified, in particular where it relates to facts, and the right to erasure where the processing of such data infringes this Directive. However, the right to rectification should not affect, for example, the content of a witness testimony. A natural person should also have the right to restriction of processing where he or she contests the accuracy of personal data and its accuracy or inaccuracy cannot be ascertained or where the personal data have to be maintained for purpose of evidence. In particular, instead of erasing personal data, processing should be restricted if in a specific case there are reasonable grounds to believe that erasure could affect the legitimate interests of the data subject. In such a case, restricted data should be processed only for the purpose which prevented their erasure. Methods to restrict the processing of personal data could include, inter alia, moving the selected data to another processing system, for example for archiving purposes, or making the selected data unavailable. In automated filing systems the restriction of processing should in principle be ensured by technical means. The fact that the processing of personal data is restricted should be indicated in the system in such a manner that it is clear that the processing of the personal data is restricted. Such rectification or erasure of personal data or restriction of processing should be communicated to recipients to whom the data have been disclosed and to the competent authorities from which the inaccurate data originated. The controllers should also abstain from further dissemination of such data.
(48)
Where the controller denies a data subject his or her right to information, access to or rectification or erasure of personal data or restriction of processing, the data subject should have the right to request that the national supervisory authority verify the lawfulness of the processing. The data subject should be informed of that right. Where the supervisory authority acts on behalf of the data subject, the data subject should be informed by the supervisory authority at least that all necessary verifications or reviews by the supervisory authority have taken place. The supervisory authority should also inform the data subject of the right to seek a judicial remedy.
(49)
Where the personal data are processed in the course of a criminal investigation and court proceedings in criminal matters, Member States should be able to provide that the exercise the right to information, access to and rectification or erasure of personal data and restriction of processing is carried out in accordance with national rules on judicial proceedings.
(50)
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 should be able to demonstrate that processing activities are in compliance with this Directive. Such 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. The measures taken by the controller should include drawing up and implementing specific safeguards in respect of the treatment of personal data of vulnerable natural persons, such as children.
(51)
The risk to the rights and freedoms of natural persons, of varying likelihood and severity, may result from 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 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 from exercising control over their personal data; where personal data are processed which reveal racial or ethnic origin, political opinions, religion or philosophical beliefs or trade union membership; where genetic data or biometric data are processed in order to uniquely identify a person or where data concerning health or data concerning sex life and sexual orientation or criminal convictions and offences or related security measures are processed; where personal aspects are evaluated, in particular analysing and 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 children, are processed; or where processing involves a large amount of personal data and affects a large number of data subjects.
(52)
The likelihood and severity of the risk 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, through which it is established whether data-processing operations involve a high risk. A high risk is a particular risk of prejudice to the rights and freedoms of data subjects.
(53)
The protection of the rights and freedoms of natural persons with regard to the processing of personal data requires that appropriate technical and organisational measures are taken, to ensure that the requirements of this Directive are met. The implementation of such measures should not depend solely on economic considerations. In order to be able to demonstrate compliance with this Directive, the controller should adopt internal policies and implement measures which adhere in particular to the principles of data protection by design and data protection by default. Where the controller has carried out a data protection impact assessment pursuant to this Directive, the results should be taken into account when developing those measures and procedures. The measures could consist, inter alia, of the use of pseudonymisation, as early as possible. The use of pseudonymisation for the purposes of this Directive can serve as a tool that could facilitate, in particular, the free flow of personal data within the area of freedom, security and justice.
(54)
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 attribution of the responsibilities set out in this Directive, 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.
(55)
The carrying-out of processing by a processor should be governed by a legal act including a contract binding the processor to the controller and stipulating, in particular, that the processor should act only on instructions from the controller. The processor should take into account the principle of data protection by design and by default.
(56)
In order to demonstrate compliance with this Directive, the controller or processor should maintain records regarding all categories of processing activities under its responsibility. Each controller and processor should be obliged to cooperate with the supervisory authority and make those records available to it on request, so that they might serve for monitoring those processing operations. The controller or the processor processing personal data in non-automated processing systems should have in place effective methods of demonstrating the lawfulness of the processing, of enabling self-monitoring and of ensuring data integrity and data security, such as logs or other forms of records.
(57)
Logs should be kept at least for operations in automated processing systems such as collection, alteration, consultation, disclosure including transfers, combination or erasure. The identification of the person who consulted or disclosed personal data should be logged and from that identification it should be possible to establish the justification for the processing operations. The logs should solely be used for the verification of the lawfulness of the processing, self-monitoring, for ensuring data integrity and data security and criminal proceedings. Self-monitoring also includes internal disciplinary proceedings of competent authorities.
(58)
A data protection impact assessment should be carried out by the controller where the processing operations are likely to result in a high risk to the rights and freedoms of data subjects by virtue of their nature, scope or purposes, which should include, in particular, the measures, safeguards and mechanisms envisaged to ensure the protection of personal data and to demonstrate compliance with this Directive. Impact assessments should cover relevant systems and processes of processing operations, but not individual cases.
(59)
In order to ensure effective protection of the rights and freedoms of data subjects, the controller or processor should consult the supervisory authority, in certain cases, prior to the processing.
(60)
In order to maintain security and to prevent processing that infringes this Directive, the controller or processor should evaluate the risks inherent in the processing and should implement measures to mitigate those risks, such as encryption. Such measures should ensure an appropriate level of security, including confidentiality and take into account the state of the art, the costs of implementation in relation to the risk and the nature of the personal data to be protected. In assessing data security risks, consideration should be given to the risks that are presented by data processing, such as the accidental or unlawful destruction, loss, alteration or 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. The controller and processor should ensure that the processing of personal data is not carried out by unauthorised persons.
(61)
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.
(62)
Natural persons should be informed without undue delay where the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons, in order to allow them to take the necessary precautions. The communication should describe the nature of the personal data breach and include recommendations for the natural person concerned to mitigate potential adverse effects. Communication to data subjects should be made as soon as reasonably feasible, in close cooperation with the supervisory authority, and respecting guidance provided by it or other relevant authorities. For example, the need to mitigate an immediate risk of damage would call for a prompt communication to data subjects, whereas the need to implement appropriate measures against continuing or similar data breaches may justify more time for the communication. Where avoiding obstruction of official or legal inquiries, investigations or procedures, avoiding prejudice to the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties, protecting public security, protecting national security or protecting the rights and freedoms of others cannot be achieved by delaying or restricting the communication of a personal data breach to the natural person concerned, such communication could, in exceptional circumstances, be omitted.
(63)
The controller should designate a person who would assist it in monitoring internal compliance with the provisions adopted pursuant to this Directive, except where a Member State decides to exempt courts and other independent judicial authorities when acting in their judicial capacity. That person could be a member of the existing staff of the controller who received special training in data protection law and practice in order to acquire expert knowledge in that field. The necessary level of expert knowledge should be determined, in particular, according to the data processing carried out and the protection required for the personal data processed by the controller. His or her task could be carried out on a part-time or full-time basis. A data protection officer may be appointed jointly by several controllers, taking into account their organisational structure and size, for example in the case of shared resources in central units. That person can also be appointed to different positions within the structure of the relevant controllers. That person should help the controller and the employees processing personal data by informing and advising them on compliance with their relevant data protection obligations. Such data protection officers should be in a position to perform their duties and tasks in an independent manner in accordance with Member State law.
(64)
Member States should ensure that a transfer to a third country or to an international organisation takes place only if necessary for 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 that the controller in the third country or international organisation is an authority competent within the meaning of this Directive. A transfer should be carried out only by competent authorities acting as controllers, except where processors are explicitly instructed to transfer on behalf of controllers. Such a transfer may take place in cases where the Commission has decided that the third country or international organisation in question ensures an adequate level of protection, where appropriate safeguards have been provided, or where derogations for specific situations apply. Where personal data are transferred from the Union to controllers, to processors or to other recipients in third countries or international organisations, the level of protection of natural persons provided for in the Union by this Directive should not be undermined, including in cases of onward transfers of personal data from the third country or international organisation to controllers or processors in the same or in another third country or international organisation.
(65)
Where personal data are transferred from a Member State to third countries or international organisations, such a transfer should, in principle, take place only after the Member State from which the data were obtained has given its authorisation to the transfer. The interests of efficient law-enforcement cooperation require that where the nature of a threat to the public security of a Member State or a third country or to the essential interests of a Member State is so immediate as to render it impossible to obtain prior authorisation in good time, the competent authority should be able to transfer the relevant personal data to the third country or international organisation concerned without such a prior authorisation. Member States should provide that any specific conditions concerning the transfer should be communicated to third countries or international organisations. Onward transfers of personal data should be subject to prior authorisation by the competent authority that carried out the original transfer. When deciding on a request for the authorisation of an onward transfer, the competent authority that carried out the original transfer should take due account of all relevant factors, including the seriousness of the criminal offence, the specific conditions subject to which, and the purpose for which, the data was originally transferred, the nature and conditions of the execution of the criminal penalty, and the level of personal data protection in the third country or an international organisation to which personal data are onward transferred. The competent authority that carried out the original transfer should also be able to subject the onward transfer to specific conditions. Such specific conditions can be described, for example, in handling codes.
(66)
The Commission should be able to decide with effect for the entire Union that certain third countries, a territory or one or more specified sectors within a third country, or an international organisation, offer an adequate level of data protection, thus providing legal certainty and uniformity throughout the Union as regards the third countries or international organisations which are considered to provide such a level of protection. In such cases, transfers of personal data to those countries should be able to take place without the need to obtain any specific authorisation, except where another Member State from which the data were obtained has to give its authorisation to the transfer.
(67)
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 data are processed in one or several specific sectors. In particular, the third country should ensure effective independent data protection supervision and 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.
(68)
Apart from the international commitments the third country or international organisation has entered into, the Commission should also 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 with the European Data Protection Board established by Regulation (EU) 2016/679 (the ‘Board’) when assessing the level of protection in third countries or international organisations. The Commission should also take into account any relevant Commission adequacy decision adopted in accordance with Article 45 of Regulation (EU) 2016/679.
(69)
The Commission should monitor the functioning of decisions on the level of protection in a third country, a territory or a specified sector within a third country, or an international organisation. In its adequacy decisions, the Commission should provide for a periodic review mechanism of their functioning. That periodic review should be undertaken in consultation with the third country or international organisation in question and should take into account all relevant developments in the third country or international organisation.
(70)
The Commission should also be able to 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 Directive relating to transfers subject to appropriate safeguards and derogations for specific situations are fulfilled. Provision should be made for procedures 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.
(71)
Transfers not based on such an adequacy decision should be allowed only where appropriate safeguards have been provided in a legally binding instrument which ensures the protection of personal data or where the controller has assessed all the circumstances surrounding the data transfer and, on the basis of that assessment, considers that appropriate safeguards with regard to the protection of personal data exist. Such legally binding instruments could, for example, be legally binding bilateral agreements which have been concluded by the Member States and implemented in their legal order and which could be enforced by their data subjects, ensuring compliance with data protection requirements and the rights of the data subjects, including the right to obtain effective administrative or judicial redress. The controller should be able to take into account cooperation agreements concluded between Europol or Eurojust and third countries which allow for the exchange of personal data when carrying out the assessment of all the circumstances surrounding the data transfer. The controller should be able to also take into account the fact that the transfer of personal data will be subject to confidentiality obligations and the principle of specificity, ensuring that the data will not be processed for other purposes than for the purposes of the transfer. In addition, the controller should take into account that the personal data will not be used to request, hand down or execute a death penalty or any form of cruel and inhuman treatment. While those conditions could be considered to be appropriate safeguards allowing the transfer of data, the controller should be able to require additional safeguards.
(72)
Where no adequacy decision or appropriate safeguards exist, a transfer or a category of transfers could take place only in specific situations, if necessary to protect the vital interests of the data subject or another person, or to safeguard legitimate interests of the data subject where the law of the Member State transferring the personal data so provides; for the prevention of an immediate and serious threat to the public security of a Member State or a third country; in an individual case 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; or in an individual case for the establishment, exercise or defence of legal claims. Those derogations should be interpreted restrictively and should not allow frequent, massive and structural transfers of personal data, or large-scale transfers of data, but should be limited to data strictly necessary. Such transfers should be documented and should be made available to the supervisory authority on request in order to monitor the lawfulness of the transfer.
(73)
Competent authorities of Member States apply bilateral or multilateral international agreements in force, concluded with third countries in the field of judicial cooperation in criminal matters and police cooperation, for the exchange of relevant information to allow them to perform their legally assigned tasks. In principle, this takes place through, or at least with, the cooperation of the authorities competent in the third countries concerned for the purposes of this Directive, sometimes even in the absence of a bilateral or multilateral international agreement. However, in specific individual cases, the regular procedures requiring contacting such an authority in the third country may be ineffective or inappropriate, in particular because the transfer could not be carried out in a timely manner, or because that authority in the third country does not respect the rule of law or international human rights norms and standards, so that competent authorities of Member States could decide to transfer personal data directly to recipients established in those third countries. This may be the case where there is an urgent need to transfer personal data to save the life of a person who is in danger of becoming a victim of a criminal offence or in the interest of preventing an imminent perpetration of a crime, including terrorism. Even if such a transfer between competent authorities and recipients established in third countries should take place only in specific individual cases, this Directive should provide for conditions to regulate such cases. Those provisions should not be considered to be derogations from any existing bilateral or multilateral international agreements in the field of judicial cooperation in criminal matters and police cooperation. Those rules should apply in addition to the other rules of this Directive, in particular those on the lawfulness of processing and Chapter V.
(74)
Where personal data move across borders it may put at increased risk the ability of natural persons to exercise data protection rights to protect themselves from the unlawful use or disclosure of those data. 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 and inconsistent legal regimes. Therefore, there is a need to promote closer cooperation among data protection supervisory authorities to help them exchange information with their foreign counterparts.
(75)
The establishment in Member States of supervisory authorities that are able to exercise their functions with complete independence is an essential component of the protection of natural persons with regard to the processing of their personal data. The supervisory authorities should monitor the application of the provisions adopted pursuant to this Directive and should contribute to their consistent application throughout the Union in order to protect natural persons with regard to the processing of their personal data. To that end, the supervisory authorities should cooperate with each other and with the Commission.
(76)
Member States may entrust a supervisory authority already established under Regulation (EU) 2016/679 with the responsibility for the tasks to be performed by the national supervisory authorities to be established under this Directive.
(77)
Member States should be allowed to establish more than one supervisory authority to reflect their constitutional, organisational and administrative structure. Each supervisory authority should be provided with the financial and human resources, premises and infrastructure, which are necessary for the effective performance of their tasks, including for the tasks 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.
(78)
Supervisory authorities should be subject to independent control or monitoring mechanisms regarding their financial expenditure, provided that such financial control does not affect their independence.
(79)
The general conditions for the member or members of the supervisory authority should be laid down by Member State law and should in particular provide that those members should be either appointed by the parliament or the government or the head of State of the Member State based on a proposal from the government or a member of the government, or the parliament or its chamber, or by an independent body entrusted by Member State law with the appointment by means of a transparent procedure. In order to ensure the independence of the supervisory authority, the member or members should act with integrity, should refrain from any action incompatible with their duties and should not, during their term of office, engage in any incompatible occupation, whether gainful or not. In order to ensure the independence of the supervisory authority, the staff should be chosen by the supervisory authority which may include an intervention by an independent body entrusted by Member State law.
(80)
While this Directive applies also to the activities of national courts and other judicial authorities, the competence of the supervisory authorities should not cover the processing of personal data where courts are acting in their judicial capacity, in order to safeguard the independence of judges in the performance of their judicial tasks. That exemption should be limited to judicial activities in court cases and not apply to other activities where judges might be involved in accordance with Member State law. Member States should also be able to provide that the competence of the supervisory authority does not cover the processing of personal data of other independent judicial authorities when acting in their judicial capacity, for example public prosecutor's office. In any event, the compliance with the rules of this Directive by the courts and other independent judicial authorities is always subject to independent supervision in accordance with Article 8(3) of the Charter.
(81)
Each supervisory authority should handle complaints lodged by any data subject and should investigate the matter or transmit it to the competent supervisory authority. 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 provided to the data subject.
(82)
In order to ensure effective, reliable and consistent monitoring of compliance with and enforcement of this Directive throughout the Union pursuant to the TFEU as interpreted by the Court of Justice, the supervisory authorities should have in each Member State the same tasks and effective powers, including investigative, corrective, and advisory powers which constitute necessary means to perform their tasks. However, their powers should not interfere with specific rules for criminal proceedings, including investigation and prosecution of criminal offences, or the independence of the judiciary. Without prejudice to the powers of prosecutorial authorities under Member State law, supervisory authorities should also have the power to bring infringements of this Directive to the attention of the judicial authorities or to engage in legal proceedings. The powers of supervisory authorities should be exercised in accordance with appropriate procedural safeguards laid down by 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 Directive, taking into account the circumstances of each individual case, respect the right of every person to be heard before any individual measure that would adversely affect the person concerned is taken, and avoiding superfluous costs and excessive inconvenience to the person concerned. Investigative powers as regards access to premises should be exercised in accordance with specific requirements in Member State law, such as the requirement to obtain a prior judicial authorisation. The adoption of a legally binding decision should be subject to judicial review in the Member State of the supervisory authority that adopted the decision.
(83)
The supervisory authorities should assist one another in performing their tasks and provide mutual assistance, so as to ensure the consistent application and enforcement of the provisions adopted pursuant to this Directive.
(84)
The Board should contribute to the consistent application of this Directive throughout the Union, including advising the Commission and promoting the cooperation of the supervisory authorities throughout the Union.
(85)
Every data subject should have the right to lodge a complaint with a single supervisory authority and to an effective judicial remedy in accordance with Article 47 of the Charter where the data subject considers that his or her rights under provisions adopted pursuant to this Directive 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 competent 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 provided 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.
(86)
Each natural or legal person should have the right to 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, that right does not encompass other measures of 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 Member State law. Those courts should exercise full jurisdiction which should include jurisdiction to examine all questions of fact and law relevant to the dispute before it.
(87)
Where a data subject considers that his or her rights under this Directive are infringed, he or she should have the right to mandate a body which aims to protect the rights and interests of data subjects in relation to the protection of their personal data and is constituted according to Member State law to lodge a complaint on his or her behalf with a supervisory authority and to exercise the right to a judicial remedy. The right of representation of data subjects should be without prejudice to Member State procedural law which may require mandatory representation of data subjects by a lawyer, as defined in Council Directive 77/249/EEC ( 10 ) , before national courts.
(88)
Any damage which a person may suffer as a result of processing that infringes the provisions adopted pursuant to this Directive should be compensated by the controller or any other authority competent under Member State law. 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 Directive. This is without prejudice to any claims for damage deriving from the violation of other rules in Union or Member State law. When reference is made to processing that is unlawful or that infringes the provisions adopted pursuant to this Directive it also covers processing that infringes implementing acts adopted pursuant to this Directive. Data subjects should receive full and effective compensation for the damage that they have suffered.
(89)
Penalties should be imposed on any natural or legal person, whether governed by private or public law, who infringes this Directive. Member States should ensure that the penalties are effective, proportionate and dissuasive and should take all measures to implement the penalties.
(90)
In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission with regard to the adequate level of protection afforded by a third country, a territory or a specified sector within a third country, or an international organisation and the format and procedures for mutual assistance and the arrangements for the exchange of information by electronic means between supervisory authorities, and between supervisory authorities and the Board. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council ( 11 ) .
(91)
The examination procedure should be used for the adoption of implementing acts on the adequate level of protection afforded by a third country, a territory or a specified sector within a third country, or an international organisation and on the format and procedures for mutual assistance and the arrangements for the exchange of information by electronic means between supervisory authorities, and between supervisory authorities and the Board, given that those acts are of a general scope.
(92)
The Commission should adopt immediately applicable implementing acts where, in duly justified cases relating to a third country, a territory or a specified sector within a third country, or an international organisation which no longer ensure an adequate level of protection, imperative grounds of urgency so require.
(93)
Since the objectives of this Directive, 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 exchange of personal data by competent authorities within 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 TEU. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives
(94)
Specific provisions of acts of the Union adopted in the field of judicial cooperation in criminal matters and police cooperation which were adopted prior to the date of the adoption of this Directive, regulating the processing of personal data between Member States or the access of designated authorities of Member States to information systems established pursuant to the Treaties, should remain unaffected, such as, for example, the specific provisions concerning the protection of personal data applied pursuant to Council Decision 2008/615/JHA ( 12 ) , or Article 23 of the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union ( 13 ) . Since Article 8 of the Charter and Article 16 TFEU require that the fundamental right to the protection of personal data be ensured in a consistent manner throughout the Union, the Commission should evaluate the situation with regard to the relationship between this Directive and the acts adopted prior to the date of adoption of this Directive regulating the processing of personal data between Member States or the access of designated authorities of Member States to information systems established pursuant to the Treaties, in order to assess the need for alignment of those specific provisions with this Directive. Where appropriate, the Commission should make proposals with a view to ensuring consistent legal rules relating to the processing of personal data.
(95)
In order to ensure a comprehensive and consistent protection of personal data in the Union, international agreements which were concluded by Member States prior to the date of entry into force of this Directive and which comply with the relevant Union law applicable prior to that date should remain in force until amended, replaced or revoked.
(96)
Member States should be allowed a period of not more than two years from the date of entry into force of this Directive to transpose it. Processing already under way on that date should be brought into conformity with this Directive within the period of two years after which this Directive enters into force. However, where such processing complies with the Union law applicable prior to the date of entry into force of this Directive, the requirements of this Directive concerning the prior consultation of the supervisory authority should not apply to the processing operations already under way on that date given that those requirements, by their very nature, are to be met prior to the processing. Where Member States use the longer implementation period expiring seven years after the date of entry into force of this Directive for meeting the logging obligations for automated processing systems set up prior to that date, the controller or the processor should have in place effective methods for demonstrating the lawfulness of the data processing, for enabling self-monitoring and for ensuring data integrity and data security, such as logs or other forms of records.
(97)
This Directive is without prejudice to the rules on combating the sexual abuse and sexual exploitation of children and child pornography as laid down in Directive 2011/93/EU of the European Parliament and of the Council ( 14 ) .
(98)
Framework Decision 2008/977/JHA should therefore be repealed.
(99)
In accordance with Article 6a of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as annexed to the TEU and to the TFEU, the United Kingdom and Ireland are not bound by the rules laid down in this Directive which relate to the processing of personal data by the Member States when carrying out activities which fall within the scope of Chapter 4 or Chapter 5 of Title V of Part Three of the TFEU where the United Kingdom and Ireland are not bound by the rules governing the forms of judicial cooperation in criminal matters or police cooperation which require compliance with the provisions laid down on the basis of Article 16 TFEU.
(100)
In accordance with Articles 2 and 2a of Protocol No 22 on the position of Denmark, as annexed to the TEU and to the TFEU, Denmark is not bound by the rules laid down in this Directive or subject to their application which relate to the processing of personal data by the Member States when carrying out activities which fall within the scope of Chapter 4 or Chapter 5 of Title V of Part Three of the TFEU. Given that this Directive builds upon the Schengen acquis , under Title V of Part Three of the TFEU, Denmark, in accordance with Article 4 of that Protocol, is to decide within six months after adoption of this Directive whether it will implement it in its national law.
(101)
As regards Iceland and Norway, this Directive constitutes a development of provisions of the Schengen acquis , as provided for by the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis
( 15 ) .
(102)
As regards Switzerland, this Directive constitutes a development of provisions of the Schengen acquis , as provided for by the Agreement between the European Union, the European Community and the Swiss Confederation concerning the association of the Swiss Confederation with the implementation, application and development of the Schengen acquis
( 16 ) .
(103)
As regards Liechtenstein, this Directive constitutes a development of provisions of the Schengen acquis , as provided for by the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis
( 17 ) .
(104)
This Directive respects the fundamental rights and observes the principles recognised in the Charter as enshrined in the TFEU, in particular the right to respect for private and family life, the right to the protection of personal data, the right to an effective remedy and to a fair trial. Limitations placed on those rights are in accordance with Article 52(1) of the Charter as they are necessary to meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
(105)
In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents, Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition measures. With regard to this Directive, the legislator considers the transmission of such documents to be justified.
(106)
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 ( 18 ) .
(107)
This Directive should not preclude Member States from implementing the exercise of the rights of data subjects on information, access to and rectification or erasure of personal data and restriction of processing in the course of criminal proceedings, and their possible restrictions thereto, in national rules on criminal procedure,
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
General provisions
Article 1
Subject-matter and objectives
-
This Directive lays down the rules relating to 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.
-
In accordance with this Directive, Member States shall:
(a)
protect the fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data; and
(b)
ensure that the exchange of personal data by competent authorities within the Union, where such exchange is required by Union or Member State law, is neither restricted nor prohibited for reasons connected with the protection of natural persons with regard to the processing of personal data.
- This Directive shall not preclude Member States from providing higher safeguards than those established in this Directive for the protection of the rights and freedoms of the data subject with regard to the processing of personal data by competent authorities.
Article 2
Scope
-
This Directive applies to the processing of personal data by competent authorities for the purposes set out in Article 1(1).
-
This Directive 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.
-
This Directive does not apply to the processing of personal data:
(a)
in the course of an activity which falls outside the scope of Union law;
(b)
by the Union institutions, bodies, offices and agencies.
Article 3
Definitions
For the purposes of this Directive:
(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;
(2)
‘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;
(3)
‘restriction of processing’ means the marking of stored personal data with the aim of limiting their processing in the future;
(4)
‘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;
(5)
‘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;
(6)
‘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;
(7)
‘competent authority’ means:
(a)
any public authority competent for 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; or
(b)
any other body or entity entrusted by Member State law to exercise public authority and public powers 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;
(8)
‘controller’ means the competent authority 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;
(9)
‘processor’ means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller;
(10)
‘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 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;
(11)
‘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;
(12)
‘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;
(13)
‘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;
(14)
‘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;
(15)
‘supervisory authority’ means an independent public authority which is established by a Member State pursuant to Article 41;
(16)
‘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.
CHAPTER II
Principles
Article 4
Principles relating to processing of personal data
- Member States shall provide for personal data to be:
(a)
processed lawfully and fairly;
(b)
collected for specified, explicit and legitimate purposes and not processed in a manner that is incompatible with those purposes;
(c)
adequate, relevant and not excessive in relation to the purposes for which they are processed;
(d)
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;
(e)
kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which they are processed;
(f)
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.
- Processing by the same or another controller for any of the purposes set out in Article 1(1) other than that for which the personal data are collected shall be permitted in so far as:
(a)
the controller is authorised to process such personal data for such a purpose in accordance with Union or Member State law; and
(b)
processing is necessary and proportionate to that other purpose in accordance with Union or Member State law.
-
Processing by the same or another controller may include archiving in the public interest, scientific, statistical or historical use, for the purposes set out in Article 1(1), subject to appropriate safeguards for the rights and freedoms of data subjects.
-
The controller shall be responsible for, and be able to demonstrate compliance with, paragraphs 1, 2 and 3.
Article 5
Time-limits for storage and review
Member States shall provide for appropriate time limits to be established for the erasure of personal data or for a periodic review of the need for the storage of personal data. Procedural measures shall ensure that those time limits are observed.
Article 6
Distinction between different categories of data subject
Member States shall provide for the controller, where applicable and as far as possible, to make a clear distinction between personal data of different categories of data subjects, such as:
(a)
persons with regard to whom there are serious grounds for believing that they have committed or are about to commit a criminal offence;
(b)
persons convicted of a criminal offence;
(c)
victims of a criminal offence or persons with regard to whom certain facts give rise to reasons for believing that he or she could be the victim of a criminal offence; and
(d)
other parties to a criminal offence, such as persons who might be called on to testify in investigations in connection with criminal offences or subsequent criminal proceedings, persons who can provide information on criminal offences, or contacts or associates of one of the persons referred to in points (a) and (b).
Article 7
Distinction between personal data and verification of quality of personal data
-
Member States shall provide for personal data based on facts to be distinguished, as far as possible, from personal data based on personal assessments.
-
Member States shall provide for the competent authorities to take all reasonable steps to ensure that personal data which are inaccurate, incomplete or no longer up to date are not transmitted or made available. To that end, each competent authority shall, as far as practicable, verify the quality of personal data before they are transmitted or made available. As far as possible, in all transmissions of personal data, necessary information enabling the receiving competent authority to assess the degree of accuracy, completeness and reliability of personal data, and the extent to which they are up to date shall be added.
-
If it emerges that incorrect personal data have been transmitted or personal data have been unlawfully transmitted, the recipient shall be notified without delay. In such a case, the personal data shall be rectified or erased or processing shall be restricted in accordance with Article 16.
Article 8
Lawfulness of processing
-
Member States shall provide for processing to be lawful only if and to the extent that processing is necessary for the performance of a task carried out by a competent authority for the purposes set out in Article 1(1) and that it is based on Union or Member State law.
-
Member State law regulating processing within the scope of this Directive shall specify at least the objectives of processing, the personal data to be processed and the purposes of the processing.
Article 9
Specific processing conditions
-
Personal data collected by competent authorities for the purposes set out in Article 1(1) shall not be processed for purposes other than those set out in Article 1(1) unless such processing is authorised by Union or Member State law. Where personal data are processed for such other purposes, Regulation (EU) 2016/679 shall apply unless the processing is carried out in an activity which falls outside the scope of Union law.
-
Where competent authorities are entrusted by Member State law with the performance of tasks other than those performed for the purposes set out in Article 1(1), Regulation (EU) 2016/679 shall apply to processing for such purposes, including for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, unless the processing is carried out in an activity which falls outside the scope of Union law.
-
Member States shall, where Union or Member State law applicable to the transmitting competent authority provides specific conditions for processing, provide for the transmitting competent authority to inform the recipient of such personal data of those conditions and the requirement to comply with them.
-
Member States shall provide for the transmitting competent authority not to apply conditions pursuant to paragraph 3 to recipients in other Member States or to agencies, offices and bodies established pursuant to Chapters 4 and 5 of Title V of the TFEU other than those applicable to similar transmissions of data within the Member State of the transmitting competent authority.
Article 10
Processing of special categories of personal data
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 allowed only where strictly necessary, subject to appropriate safeguards for the rights and freedoms of the data subject, and only:
(a)
where authorised by Union or Member State law;
(b)
to protect the vital interests of the data subject or of another natural person; or
(c)
where such processing relates to data which are manifestly made public by the data subject.
Article 11
Automated individual decision-making
-
Member States shall provide for a decision based solely on automated processing, including profiling, which produces an adverse legal effect concerning the data subject or significantly affects him or her, to be prohibited unless authorised by Union or Member State law to which the controller is subject and which provides appropriate safeguards for the rights and freedoms of the data subject, at least the right to obtain human intervention on the part of the controller.
-
Decisions referred to in paragraph 1 of this Article shall not be based on special categories of personal data referred to in Article 10, unless suitable measures to safeguard the data subject's rights and freedoms and legitimate interests are in place.
-
Profiling that results in discrimination against natural persons on the basis of special categories of personal data referred to in Article 10 shall be prohibited, in accordance with Union law.
CHAPTER III
Rights of the data subject
Article 12
Communication and modalities for exercising the rights of the data subject
-
Member States shall provide for the controller to take reasonable steps to provide any information referred to in Article 13 and make any communication with regard to Articles 11, 14 to 18 and 31 relating to processing to the data subject in a concise, intelligible and easily accessible form, using clear and plain language. The information shall be provided by any appropriate means, including by electronic means. As a general rule, the controller shall provide the information in the same form as the request.
-
Member States shall provide for the controller to facilitate the exercise of the rights of the data subject under Articles 11 and 14 to 18.
-
Member States shall provide for the controller to inform the data subject in writing about the follow up to his or her request without undue delay.
-
Member States shall provide for the information provided under Article 13 and any communication made or action taken pursuant to Articles 11, 14 to 18 and 31 to 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.
- Where the controller has reasonable doubts concerning the identity of the natural person making a request referred to in Article 14 or 16, the controller may request the provision of additional information necessary to confirm the identity of the data subject.
Article 13
Information to be made available or given to the data subject
- Member States shall provide for the controller to make available to the data subject at least the following information:
(a)
the identity and the contact details of the controller;
(b)
the contact details of the data protection officer, where applicable;
(c)
the purposes of the processing for which the personal data are intended;
(d)
the right to lodge a complaint with a supervisory authority and the contact details of the supervisory authority;
(e)
the existence of the right to request from the controller access to and rectification or erasure of personal data and restriction of processing of the personal data concerning the data subject.
- In addition to the information referred to in paragraph 1, Member States shall provide by law for the controller to give to the data subject, in specific cases, the following further information to enable the exercise of his or her rights:
(a)
the legal basis for the processing;
(b)
the period for which the personal data will be stored, or, where that is not possible, the criteria used to determine that period;
(c)
where applicable, the categories of recipients of the personal data, including in third countries or international organisations;
(d)
where necessary, further information, in particular where the personal data are collected without the knowledge of the data subject.
- Member States may adopt legislative measures delaying, restricting or omitting the provision of the information to the data subject pursuant to paragraph 2 to the extent that, and for as long as, such a measure constitutes a necessary and proportionate measure in a democratic society with due regard for the fundamental rights and the legitimate interests of the natural person concerned, in order to:
(a)
avoid obstructing official or legal inquiries, investigations or procedures;
(b)
avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties;
(c)
protect public security;
(d)
protect national security;
(e)
protect the rights and freedoms of others.
- Member States may adopt legislative measures in order to determine categories of processing which may wholly or partly fall under any of the points listed in paragraph 3.
Article 14
Right of access by the data subject
Subject to Article 15, Member States shall provide for the right of the data subject 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 and legal basis for the processing;
(b)
the categories of personal data concerned;
(c)
the recipients or categories of recipients to whom the personal data have been 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;
(f)
the right to lodge a complaint with the supervisory authority and the contact details of the supervisory authority;
(g)
communication of the personal data undergoing processing and of any available information as to their origin.
Article 15
Limitations to the right of access
- Member States may adopt legislative measures restricting, wholly or partly, the data subject's right of access to the extent that, and for as long as such a partial or complete restriction constitutes a necessary and proportionate measure in a democratic society with due regard for the fundamental rights and legitimate interests of the natural person concerned, in order to:
(a)
avoid obstructing official or legal inquiries, investigations or procedures;
(b)
avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties;
(c)
protect public security;
(d)
protect national security;
(e)
protect the rights and freedoms of others.
-
Member States may adopt legislative measures in order to determine categories of processing which may wholly or partly fall under points (a) to (e) of paragraph 1.
-
In the cases referred to in paragraphs 1 and 2, Member States shall provide for the controller to inform the data subject, without undue delay, in writing of any refusal or restriction of access and of the reasons for the refusal or the restriction. Such information may be omitted where the provision thereof would undermine a purpose under paragraph 1. Member States shall provide for the controller to inform the data subject of the possibility of lodging a complaint with a supervisory authority or seeking a judicial remedy.
-
Member States shall provide for the controller to document the factual or legal reasons on which the decision is based. That information shall be made available to the supervisory authorities.
Article 16
Right to rectification or erasure of personal data and restriction of processing
-
Member States shall provide for the right of the data subject to obtain from the controller without undue delay the rectification of inaccurate personal data relating to him or her. Taking into account the purposes of the processing, Member States shall provide for the data subject to have the right to have incomplete personal data completed, including by means of providing a supplementary statement.
-
Member States shall require the controller to erase personal data without undue delay and provide for the right of the data subject to obtain from the controller the erasure of personal data concerning him or her without undue delay where processing infringes the provisions adopted pursuant to Article 4, 8 or 10, or where personal data must be erased in order to comply with a legal obligation to which the controller is subject.
-
Instead of erasure, the controller shall restrict processing where:
(a)
the accuracy of the personal data is contested by the data subject and their accuracy or inaccuracy cannot be ascertained; or
(b)
the personal data must be maintained for the purposes of evidence.
Where processing is restricted pursuant to point (a) of the first subparagraph, the controller shall inform the data subject before lifting the restriction of processing.
- Member States shall provide for the controller to inform the data subject in writing of any refusal of rectification or erasure of personal data or restriction of processing and of the reasons for the refusal. Member States may adopt legislative measures restricting, wholly or partly, the obligation to provide such information to the extent that such a restriction constitutes a necessary and proportionate measure in a democratic society with due regard for the fundamental rights and legitimate interests of the natural person concerned in order to:
(a)
avoid obstructing official or legal inquiries, investigations or procedures;
(b)
avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties;
(c)
protect public security;
(d)
protect national security;
(e)
protect the rights and freedoms of others.
Member States shall provide for the controller to inform the data subject of the possibility of lodging a complaint with a supervisory authority or seeking a judicial remedy.
-
Member States shall provide for the controller to communicate the rectification of inaccurate personal data to the competent authority from which the inaccurate personal data originate.
-
Member States shall, where personal data has been rectified or erased or processing has been restricted pursuant to paragraphs 1, 2 and 3, provide for the controller to notify the recipients and that the recipients shall rectify or erase the personal data or restrict processing of the personal data under their responsibility.
Article 17
Exercise of rights by the data subject and verification by the supervisory authority
-
In the cases referred to in Article 13(3), Article 15(3) and Article 16(4) Member States shall adopt measures providing that the rights of the data subject may also be exercised through the competent supervisory authority.
-
Member States shall provide for the controller to inform the data subject of the possibility of exercising his or her rights through the supervisory authority pursuant to paragraph 1.
-
Where the right referred to in paragraph 1 is exercised, the supervisory authority shall inform the data subject at least that all necessary verifications or a review by the supervisory authority have taken place. The supervisory authority shall also inform the data subject of his or her right to seek a judicial remedy.
Article 18
Rights of the data subject in criminal investigations and proceedings
Member States may provide for the exercise of the rights referred to in Articles 13, 14 and 16 to be carried out in accordance with Member State law where the personal data are contained in a judicial decision or record or case file processed in the course of criminal investigations and proceedings.
CHAPTER IV
Controller and processor
Section 1
General obligations
Article 19
Obligations of the controller
-
Member States shall provide for the controller, 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, to implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in accordance with this Directive. Those measures shall be reviewed and updated where necessary.
-
Where proportionate in relation to the processing activities, the measures referred to in paragraph 1 shall include the implementation of appropriate data protection policies by the controller.
Article 20
Data protection by design and by default
-
Member States shall provide for the controller, 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, both at the time of the determination of the means for processing and at the time of the processing itself, to 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 Directive and protect the rights of data subjects.
-
Member States shall provide for the controller to implement appropriate technical and organisational measures 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.
Article 21
Joint controllers
-
Member States shall, where two or more controllers jointly determine the purposes and means of processing, provide for them to be joint controllers. They shall, in a transparent manner, determine their respective responsibilities for compliance with this Directive, in particular as regards the exercise of the rights of the data subject and their respective duties to provide the information referred to in Article 13, 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 shall designate the contact point for data subjects. Member States may designate which of the joint controllers can act as a single contact point for data subjects to exercise their rights.
-
Irrespective of the terms of the arrangement referred to in paragraph 1, Member States may provide for the data subject to exercise his or her rights under the provisions adopted pursuant to this Directive in respect of and against each of the controllers.
Article 22
Processor
-
Member States shall, where processing is to be carried out on behalf of a controller, provide for the controller to use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of this Directive and ensure the protection of the rights of the data subject.
-
Member States shall provide for the processor not to engage another processor without prior specific or general written authorisation by 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.
-
Member States shall provide for the processing by a processor to 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)
acts only on instructions from the controller;
(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)
assists the controller by any appropriate means to ensure compliance with the provisions on the data subject's rights;
(d)
at the choice of the controller, deletes or returns all the personal data to the controller after the end of the provision of data processing services, and deletes existing copies unless Union or Member State law requires storage of the personal data;
(e)
makes available to the controller all information necessary to demonstrate compliance with this Article;
(f)
complies with the conditions referred to in paragraphs 2 and 3 for engaging another processor.
-
The contract or the other legal act referred to in paragraph 3 shall be in writing, including in an electronic form.
-
If a processor determines, in infringement of this Directive, the purposes and means of processing, that processor shall be considered to be a controller in respect of that processing.
Article 23
Processing under the authority of the controller or processor
Member States shall provide for the processor and any person acting under the authority of the controller or of the processor, who has access to personal data, not to process those data except on instructions from the controller, unless required to do so by Union or Member State law.
Article 24
Records of processing activities
- Member States shall provide for controllers to maintain a record of all categories of processing activities under their 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 and the data protection officer;
(b)
the purposes of the processing;
(c)
the categories of recipients to whom the personal data have been or will be disclosed including recipients in third countries or international organisations;
(d)
a description of the categories of data subject and of the categories of personal data;
(e)
where applicable, the use of profiling;
(f)
where applicable, the categories of transfers of personal data to a third country or an international organisation;
(g)
an indication of the legal basis for the processing operation, including transfers, for which the personal data are intended;
(h)
where possible, the envisaged time limits for erasure of the different categories of personal data;
(i)
where possible, a general description of the technical and organisational security measures referred to in Article 29(1).
- Member States shall provide for each processor to maintain a record of all categories of processing activities carried out on behalf of a controller, containing:
(a)
the name and contact details of the processor or processors, of each controller on behalf of which the processor is acting and, where applicable, the data protection officer;
(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 where explicitly instructed to do so by the controller, including the identification of that third country or international organisation;
(d)
where possible, a general description of the technical and organisational security measures referred to in Article 29(1).
- The records referred to in paragraphs 1 and 2 shall be in writing, including in electronic form.
The controller and the processor shall make those records available to the supervisory authority on request.
Article 25
Logging
-
Member States shall provide for logs to be kept for at least the following processing operations in automated processing systems: collection, alteration, consultation, disclosure including transfers, combination and erasure. The logs of consultation and disclosure shall make it possible to establish the justification, date and time of such operations and, as far as possible, the identification of the person who consulted or disclosed personal data, and the identity of the recipients of such personal data.
-
The logs shall be used solely for verification of the lawfulness of processing, self-monitoring, ensuring the integrity and security of the personal data, and for criminal proceedings.
-
The controller and the processor shall make the logs available to the supervisory authority on request.
Article 26
Cooperation with the supervisory authority
Member States shall provide for the controller and the processor to cooperate, on request, with the supervisory authority in the performance of its tasks on request.
Article 27
Data protection impact assessment
-
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, Member States shall provide for the controller to carry out, prior to the processing, an assessment of the impact of the envisaged processing operations on the protection of personal data.
-
The assessment referred to in paragraph 1 shall contain at least a general description of the envisaged processing operations, an assessment of the risks to the rights and freedoms of data subjects, the measures envisaged to address those risks, safeguards, security measures and mechanisms to ensure the protection of personal data and to demonstrate compliance with this Directive, taking into account the rights and legitimate interests of the data subjects and other persons concerned.
Article 28
Prior consultation of the supervisory authority
- Member States shall provide for the controller or processor to consult the supervisory authority prior to processing which will form part of a new filing system to be created, where:
(a)
a data protection impact assessment as provided for in Article 27 indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk; or
(b)
the type of processing, in particular, where using new technologies, mechanisms or procedures, involves a high risk to the rights and freedoms of data subjects.
-
Member States shall provide for the supervisory authority to be consulted 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.
-
Member States shall provide that the supervisory authority may establish a list of the processing operations which are subject to prior consultation pursuant to paragraph 1.
-
Member States shall provide for the controller to provide the supervisory authority with the data protection impact assessment pursuant to Article 27 and, on request, with any other information to allow the supervisory authority to make an assessment of the compliance of the processing and in particular of the risks for the protection of personal data of the data subject and of the related safeguards.
-
Member States shall, where the supervisory authority is of the opinion that the intended processing referred to in paragraph 1 of this Article would infringe the provisions adopted pursuant to this Directive, in particular where the controller has insufficiently identified or mitigated the risk, provide for the supervisory authority to provide, within a period of up to six weeks of receipt of the request for consultation, written advice to the controller and, where applicable, to the processor, and may use any of its powers referred to in Article 47. That period may be extended by a month, 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.
Section 2
Security of personal data
Article 29
Security of processing
-
Member States shall provide for the controller and the processor, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, to implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, in particular as regards the processing of special categories of personal data referred to in Article 10.
-
In respect of automated processing, each Member State shall provide for the controller or processor, following an evaluation of the risks, to implement measures designed to:
(a)
deny unauthorised persons access to processing equipment used for processing (‘equipment access control’);
(b)
prevent the unauthorised reading, copying, modification or removal of data media (‘data media control’);
(c)
prevent the unauthorised input of personal data and the unauthorised inspection, modification or deletion of stored personal data (‘storage control’);
(d)
prevent the use of automated processing systems by unauthorised persons using data communication equipment (‘user control’);
(e)
ensure that persons authorised to use an automated processing system have access only to the personal data covered by their access authorisation (‘data access control’);
(f)
ensure that it is possible to verify and establish the bodies to which personal data have been or may be transmitted or made available using data communication equipment (‘communication control’);
(g)
ensure that it is subsequently possible to verify and establish which personal data have been input into automated processing systems and when and by whom the personal data were input (‘input control’);
(h)
prevent the unauthorised reading, copying, modification or deletion of personal data during transfers of personal data or during transportation of data media (‘transport control’);
(i)
ensure that installed systems may, in the case of interruption, be restored (‘recovery’);
(j)
ensure that the functions of the system perform, that the appearance of faults in the functions is reported (‘reliability’) and that stored personal data cannot be corrupted by means of a malfunctioning of the system (‘integrity’).
Article 30
Notification of a personal data breach to the supervisory authority
-
Member States shall, in the case of a personal data breach, provide for the controller to notify without undue delay and, where feasible, not later than 72 hours after having become aware of it, the personal data breach to the supervisory authority, 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.
-
The processor shall notify the controller without undue delay after becoming aware of a personal data breach.
-
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.
-
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.
-
Member States shall provide for the controller to document any personal data breaches referred to in paragraph 1, 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.
-
Member States shall, where the personal data breach involves personal data that have been transmitted by or to the controller of another Member State, provide for the information referred to in paragraph 3 to be communicated to the controller of that Member State without undue delay.
Article 31
Communication of a personal data breach to the data subject
-
Member States shall, where the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons, provide for the controller to communicate the personal data breach to the data subject without undue delay.
-
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 shall contain at least the information and measures referred to in points (b), (c) and (d) of Article 30(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 technological 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 a disproportionate effort. In such a case, there shall instead be a public communication or a similar measure whereby the data subjects are informed in an equally effective manner.
-
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.
-
The communication to the data subject referred to in paragraph 1 of this Article may be delayed, restricted or omitted subject to the conditions and on the grounds referred to in Article 13(3).
Section 3
Data protection officer
Article 32
Designation of the data protection officer
-
Member States shall provide for the controller to designate a data protection officer. Member States may exempt courts and other independent judicial authorities when acting in their judicial capacity from that obligation.
-
The data protection officer shall be designated on the basis of his or her professional qualities and, in particular, his or her expert knowledge of data protection law and practice and ability to fulfil the tasks referred to in Article 34.
-
A single data protection officer may be designated for several competent authorities, taking account of their organisational structure and size.
-
Member States shall provide for the controller to publish the contact details of the data protection officer and communicate them to the supervisory authority.
Article 33
Position of the data protection officer
-
Member States shall provide for the controller to 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.
-
The controller shall support the data protection officer in performing the tasks referred to in Article 34 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.
Article 34
Tasks of the data protection officer
Member States shall provide for the controller to entrust the data protection officer at least with the following tasks:
(a)
to inform and advise the controller and the employees who carry out processing of their obligations pursuant to this Directive and to other Union or Member State data protection provisions;
(b)
to monitor compliance with this Directive, with other Union or Member State data protection provisions and with the policies of the controller 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 27;
(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 28, and to consult, where appropriate, with regard to any other matter.
CHAPTER V
Transfers of personal data to third countries or international organisations
Article 35
General principles for transfers of personal data
- Member States shall provide for any transfer by competent authorities of personal data which are undergoing processing or are intended for processing after transfer to a third country or to an international organisation including for onward transfers to another third country or international organisation to take place, subject to compliance with the national provisions adopted pursuant to other provisions of this Directive, only where the conditions laid down in this Chapter are met, namely:
(a)
the transfer is necessary for the purposes set out in Article 1(1);
(b)
the personal data are transferred to a controller in a third country or international organisation that is an authority competent for the purposes referred to in Article 1(1);
(c)
where personal data are transmitted or made available from another Member State, that Member State has given its prior authorisation to the transfer in accordance with its national law;
(d)
the Commission has adopted an adequacy decision pursuant to Article 36, or, in the absence of such a decision, appropriate safeguards have been provided or exist pursuant to Article 37, or, in the absence of an adequacy decision pursuant to Article 36 and of appropriate safeguards in accordance with Article 37, derogations for specific situations apply pursuant to Article 38; and
(e)
in the case of an onward transfer to another third country or international organisation, the competent authority that carried out the original transfer or another competent authority of the same Member State authorises the onward transfer, after taking into due account all relevant factors, including the seriousness of the criminal offence, the purpose for which the personal data was originally transferred and the level of personal data protection in the third country or an international organisation to which personal data are onward transferred.
-
Member States shall provide for transfers without the prior authorisation by another Member State in accordance with point (c) of paragraph 1 to be permitted only if the transfer of the personal data is necessary for the prevention of an immediate and serious threat to public security of a Member State or a third country or to essential interests of a Member State and the prior authorisation cannot be obtained in good time. The authority responsible for giving prior authorisation shall be informed without delay.
-
All provisions in this Chapter shall be applied in order to ensure that the level of protection of natural persons ensured by this Directive is not undermined.
Article 36
Transfers on the basis of an adequacy decision
-
Member States shall provide that 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.
-
When assessing the adequacy of the level of protection, the Commission shall, in particular, take account of the following elements:
(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 transferred;
(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 data protection rules, including adequate enforcement powers, for assisting and advising data subjects in exercising their rights and for cooperation with the supervisory authorities of the Member States; and
(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.
-
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 a mechanism for 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 58(2).
-
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.
-
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 58(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 58(3).
-
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.
-
Member States shall provide for a decision pursuant to paragraph 5 to be without prejudice to transfers of personal data to the third country, the territory or one or more specified sectors within that third country, or the international organisation in question pursuant to Articles 37 and 38.
-
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.
Article 37
Transfers subject to appropriate safeguards
- In the absence of a decision pursuant to Article 36(3), Member States shall provide that a transfer of personal data to a third country or an international organisation may take place where:
(a)
appropriate safeguards with regard to the protection of personal data are provided for in a legally binding instrument; or
(b)
the controller has assessed all the circumstances surrounding the transfer of personal data and concludes that appropriate safeguards exist with regard to the protection of personal data.
-
The controller shall inform the supervisory authority about categories of transfers under point (b) of paragraph 1.
-
When a transfer is based on point (b) of paragraph 1, such a transfer shall be documented and the documentation shall be made available to the supervisory authority on request, including the date and time of the transfer, information about the receiving competent authority, the justification for the transfer and the personal data transferred.
Article 38
Derogations for specific situations
- In the absence of an adequacy decision pursuant to Article 36, or of appropriate safeguards pursuant to Article 37, Member States shall provide that a transfer or a category of transfers of personal data to a third country or an international organisation may take place only on the condition that the transfer is necessary:
(a)
in order to protect the vital interests of the data subject or another person;
(b)
to safeguard legitimate interests of the data subject, where the law of the Member State transferring the personal data so provides;
(c)
for the prevention of an immediate and serious threat to public security of a Member State or a third country;
(d)
in individual cases for the purposes set out in Article 1(1); or
(e)
in an individual case for the establishment, exercise or defence of legal claims relating to the purposes set out in Article 1(1).
-
Personal data shall not be transferred if the transferring competent authority determines that fundamental rights and freedoms of the data subject concerned override the public interest in the transfer set out in points (d) and (e) of paragraph 1.
-
Where a transfer is based on paragraph 1, such a transfer shall be documented and the documentation shall be made available to the supervisory authority on request, including the date and time of the transfer, information about the receiving competent authority, the justification for the transfer and the personal data transferred.
Article 39
Transfers of personal data to recipients established in third countries
- By way of derogation from point (b) of Article 35(1) and without prejudice to any international agreement referred to in paragraph 2 of this Article, Union or Member State law may provide for the competent authorities referred to in point (7)(a) of Article 3, in individual and specific cases, to transfer personal data directly to recipients established in third countries only if the other provisions of this Directive are complied with and all of the following conditions are fulfilled:
(a)
the transfer is strictly necessary for the performance of a task of the transferring competent authority as provided for by Union or Member State law for the purposes set out in Article 1(1);
(b)
the transferring competent authority determines that no fundamental rights and freedoms of the data subject concerned override the public interest necessitating the transfer in the case at hand;
(c)
the transferring competent authority considers that the transfer to an authority that is competent for the purposes referred to in Article 1(1) in the third country is ineffective or inappropriate, in particular because the transfer cannot be achieved in good time;
(d)
the authority that is competent for the purposes referred to in Article 1(1) in the third country is informed without undue delay, unless this is ineffective or inappropriate;
(e)
the transferring competent authority informs the recipient of the specified purpose or purposes for which the personal data are only to be processed by the latter provided that such processing is necessary.
-
An international agreement referred to in paragraph 1 shall be any bilateral or multilateral international agreement in force between Member States and third countries in the field of judicial cooperation in criminal matters and police cooperation.
-
The transferring competent authority shall inform the supervisory authority about transfers under this Article.
-
Where a transfer is based on paragraph 1, such a transfer shall be documented.
Article 40
International cooperation for the protection of personal data
In relation to third countries and international organisations, the Commission and Member States 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
Section 1
Independent status
Article 41
Supervisory authority
-
Each Member State shall provide for one or more independent public authorities to be responsible for monitoring the application of this Directive, 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’).
-
Each supervisory authority shall contribute to the consistent application of this Directive throughout the Union. For that purpose, the supervisory authorities shall cooperate with each other and with the Commission in accordance with Chapter VII.
-
Member States may provide for a supervisory authority established under Regulation (EU) 2016/679 to be the supervisory authority referred to in this Directive and to assume responsibility for the tasks of the supervisory authority to be established under paragraph 1 of this Article.
-
Where more than one supervisory authority is established in a Member State, that Member State shall designate the supervisory authority which are to represent those authorities in the Board referred to in Article 51.
Article 42
Independence
-
Each Member State shall provide for each supervisory authority to act with complete independence in performing its tasks and exercising its powers in accordance with this Directive.
-
Member States shall provide for the member or members of their supervisory authorities in the performance of their tasks and exercise of their powers in accordance with this Directive, to remain free from external influence, whether direct or indirect, and that they shall neither seek nor take instructions from anybody.
-
Members of Member States' supervisory authorities 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.
-
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.
-
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.
-
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 43
General conditions for the members of the supervisory authority
- Member States shall provide for each member of their supervisory authorities to be appointed by means of a transparent procedure by:
—
their parliament;
—
their government;
—
their head of State; or
—
an independent body entrusted with the appointment under Member State law.
-
Each member shall have the qualifications, experience and skills, in particular in the area of the protection of personal data, required to perform their duties and exercise their powers.
-
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.
-
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 44
Rules on the establishment of the supervisory authority
- 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 a 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 not less than four years, except for the first appointment after 6 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.
- 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 the 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 Directive.
Section 2
Competence, tasks and powers
Article 45
Competence
-
Each Member State shall provide for each supervisory authority to be competent for the performance of the tasks assigned to, and for the exercise of the powers conferred on, it in accordance with this Directive on the territory of its own Member State.
-
Each Member State shall provide for each supervisory authority not to be competent for the supervision of processing operations of courts when acting in their judicial capacity. Member States may provide for their supervisory authority not to be competent to supervise processing operations of other independent judicial authorities when acting in their judicial capacity.
Article 46
Tasks
- Each Member State shall provide, on its territory, for each supervisory authority to:
(a)
monitor and enforce the application of the provisions adopted pursuant to this Directive and its implementing measures;
(b)
promote public awareness and understanding of the risks, rules, safeguards and rights in relation to processing;
(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 Directive;
(e)
upon request, provide information to any data subject concerning the exercise of their rights under this Directive and, if appropriate, cooperate with the supervisory authorities in other Member States to that end;
(f)
deal with complaints lodged by a data subject, or by a body, organisation or association in accordance with Article 55, 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)
check the lawfulness of processing pursuant to Article 17, and inform the data subject within a reasonable period of the outcome of the check pursuant to paragraph 3 of that Article or of the reasons why the check has not been carried out;
(h)
cooperate with, including by sharing information, and provide mutual assistance to other supervisory authorities, with a view to ensuring the consistency of application and enforcement of this Directive;
(i)
conduct investigations on the application of this Directive, including on the basis of information received from another supervisory authority or other public authority;
(j)
monitor relevant developments insofar as they have an impact on the protection of personal data, in particular the development of information and communication technologies;
(k)
provide advice on the processing operations referred to in Article 28; and
(l)
contribute to the activities of the Board.
-
Each supervisory authority shall facilitate the submission of complaints referred to in point (f) of paragraph 1 by measures such as providing a complaint submission form which can also be completed electronically, without excluding other means of communication.
-
The performance of the tasks of each supervisory authority shall be free of charge for the data subject and for the data protection officer.
-
Where a request is manifestly unfounded or excessive, in particular because it is repetitive, the supervisory authority may charge a reasonable fee based on its administrative costs, or may refuse to act on the request. The supervisory authority shall bear the burden of demonstrating that the request is manifestly unfounded or excessive.
Article 47
Powers
-
Each Member State shall provide by law for each supervisory authority to have effective investigative powers. Those powers shall include at least the power to obtain from the controller and the processor access to all personal data that are being processed and to all information necessary for the performance of its tasks.
-
Each Member State shall provide by law for each supervisory authority to have effective corrective powers such as, for example:
(a)
to issue warnings to a controller or processor that intended processing operations are likely to infringe the provisions adopted pursuant to this Directive;
(b)
to order the controller or processor to bring processing operations into compliance with the provisions adopted pursuant to this Directive, where appropriate, in a specified manner and within a specified period, in particular by ordering the rectification or erasure of personal data or restriction of processing pursuant to Article 16;
(c)
to impose a temporary or definitive limitation, including a ban, on processing.
-
Each Member State shall provide by law for each supervisory authority to have effective advisory powers to advise the controller in accordance with the prior consultation procedure referred to in Article 28 and to issue, on its own initiative or on request, opinions to its national parliament and its government or, in accordance with its national law, to other institutions and bodies as well as to the public on any issue related to the protection of personal data.
-
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, as set out in Union and Member State law in accordance with the Charter.
-
Each Member State shall provide by law for each supervisory authority to have the power to bring infringements of provisions adopted pursuant to this Directive to the attention of judicial authorities and, where appropriate, to commence or otherwise engage in legal proceedings, in order to enforce the provisions adopted pursuant to this Directive.
Article 48
Reporting of infringements
Member States shall provide for competent authorities to put in place effective mechanisms to encourage confidential reporting of infringements of this Directive.
Article 49
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 penalties imposed. 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, the Commission and the Board.
CHAPTER VII
Cooperation
Article 50
Mutual assistance
-
Each Member State shall provide for their supervisory authorities to provide each other with relevant information and mutual assistance in order to implement and apply this Directive in a consistent manner, and to 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 consultations, inspections and investigations.
-
Each Member States shall provide for each supervisory authority to 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.
-
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.
-
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 Directive or Union or Member State law to which the supervisory authority receiving the request is subject.
-
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.
-
Requested supervisory authorities shall, as a rule, supply the information requested by other supervisory authorities by electronic means, using a standardised format.
-
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.
-
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. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 58(2).
Article 51
Tasks of the Board
- The Board established by Regulation (EU) 2016/679 shall perform all of the following tasks in relation to processing within the scope of this Directive:
(a)
advise the Commission on any issue related to the protection of personal data in the Union, including on any proposed amendment of this Directive;
(b)
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 Directive and issue guidelines, recommendations and best practices in order to encourage consistent application of this Directive;
(c)
draw up guidelines for supervisory authorities concerning the application of measures referred to in Article 47(1) and (3);
(d)
issue guidelines, recommendations and best practices in accordance with point (b) of this subparagraph for establishing personal data breaches and determining the undue delay referred to in Article 30(1) and (2) and for the particular circumstances in which a controller or a processor is required to notify the personal data breach;
(e)
issue guidelines, recommendations and best practices in accordance with point (b) of this subparagraph as to the circumstances in which a personal data breach is likely to result in a high risk to the rights and freedoms of natural persons as referred to in Article 31(1);
(f)
review the practical application of the guidelines, recommendations and best practices referred to in points (b) and (c);
(g)
provide the Commission with an opinion for the assessment of the adequacy of the level of protection in a third country, a territory or one or more specified sectors within a third country, or an international organisation, including for the assessment whether such a third country, territory, specified sector, or international organisation no longer ensures an adequate level of protection;
(h)
promote the cooperation and the effective bilateral and multilateral exchange of information and best practices between the supervisory authorities;
(i)
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;
(j)
promote the exchange of knowledge and documentation on data protection law and practice with data protection supervisory authorities worldwide.
With regard to point (g) of the first subparagraph, the Commission shall provide the Board with all necessary documentation, including correspondence with the government of the third country, with the territory or specified sector within that third country, or with the international organisation.
-
Where the Commission requests advice from the Board, it may indicate a time limit, taking into account the urgency of the matter.
-
The Board shall forward its opinions, guidelines, recommendations and best practices to the Commission and to the committee referred to in Article 58(1) and make them public.
-
The Commission shall inform the Board of the action it has taken following opinions, guidelines, recommendations and best practices issued by the Board.
CHAPTER VIII
Remedies, liability and penalties
Article 52
Right to lodge a complaint with a supervisory authority
-
Without prejudice to any other administrative or judicial remedy, Member States shall provide for every data subject to have the right to lodge a complaint with a single supervisory authority, if the data subject considers that the processing of personal data relating to him or her infringes provisions adopted pursuant to this Directive.
-
Member States shall provide for the supervisory authority with which the complaint has been lodged to transmit it to the competent supervisory authority, without undue delay if the complaint is not lodged with the supervisory authority that is competent pursuant to Article 45(1). The data subject shall be informed about the transmission.
-
Member States shall provide for the supervisory authority with which the complaint has been lodged to provide further assistance on request of the data subject.
-
The data subject shall be informed by the competent supervisory authority of the progress and the outcome of the complaint, including of the possibility of a judicial remedy pursuant to Article 53.
Article 53
Right to an effective judicial remedy against a supervisory authority
-
Without prejudice to any other administrative or non-judicial remedy, Member States shall provide for the right of a natural or legal person to an effective judicial remedy against a legally binding decision of a supervisory authority concerning them.
-
Without prejudice to any other administrative or non-judicial remedy, each data subject shall have the right to an effective judicial remedy where the supervisory authority which is competent pursuant to Article 45(1) does not handle a complaint or does not inform the data subject within three months of the progress or outcome of the complaint lodged pursuant to Article 52.
-
Member States shall provide for proceedings against a supervisory authority to be brought before the courts of the Member State where the supervisory authority is established.
Article 54
Right to an effective judicial remedy against a controller or processor
Without prejudice to any available administrative or non-judicial remedy, including the right to lodge a complaint with a supervisory authority pursuant to Article 52, Member States shall provide for the right of a data subject to an effective judicial remedy where he or she considers that his or her rights laid down in provisions adopted pursuant to this Directive have been infringed as a result of the processing of his or her personal data in non-compliance with those provisions.
Article 55
Representation of data subjects
Member States shall, in accordance with Member State procedural law, provide for the data subject to have the right to mandate a not-for-profit body, organisation or association which has been properly constituted in accordance with Member State law, has statutory objectives which are in the public interest and is active in the field of protection of data subject's rights and freedoms with regard to the protection of their personal data to lodge the complaint on his or her behalf and to exercise the rights referred to in Articles 52, 53 and 54 on his or her behalf.
Article 56
Right to compensation
Member States shall provide for any person who has suffered material or non-material damage as a result of an unlawful processing operation or of any act infringing national provisions adopted pursuant to this Directive to have the right to receive compensation for the damage suffered from the controller or any other authority competent under Member State law.
Article 57
Penalties
Member States shall lay down the rules on penalties applicable to infringements of the provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive.
CHAPTER IX
Implementing acts
Article 58
Committee procedure
-
The Commission shall be assisted by the committee established by Article 93 of Regulation (EU) 2016/679. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
-
Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
-
Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.
CHAPTER X
Final provisions
Article 59
Repeal of Framework Decision 2008/977/JHA
-
Framework Decision 2008/977/JHA is repealed with effect from 6 May 2018.
-
References to the repealed Decision referred to in paragraph 1 shall be construed as references to this Directive.
Article 60
Union legal acts already in force
The specific provisions for the protection of personal data in Union legal acts that entered into force on or before 6 May 2016 in the field of judicial cooperation in criminal matters and police cooperation, which regulate processing between Member States and the access of designated authorities of Member States to information systems established pursuant to the Treaties within the scope of this Directive, shall remain unaffected.
Article 61
Relationship with previously concluded international agreements in the field of judicial cooperation in criminal matters and police cooperation
International agreements involving the transfer of personal data to third countries or international organisations which were concluded by Member States prior to 6 May 2016 and which comply with Union law as applicable prior to that date shall remain in force until amended, replaced or revoked.
Article 62
Commission reports
-
By 6 May 2022, and every four years thereafter, the Commission shall submit a report on the evaluation and review of this Directive to the European Parliament and to the Council. The reports shall be made public.
-
In the context of the evaluations and reviews referred to in paragraph 1, the Commission shall examine, in particular, the application and functioning of Chapter V on the transfer of personal data to third countries or international organisations with particular regard to decisions adopted pursuant to Article 36(3) and Article 39.
-
For the purposes of paragraphs 1 and 2, the Commission may request information from Member States and supervisory authorities.
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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.
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The Commission shall, if necessary, submit appropriate proposals with a view to amending this Directive, in particular taking account of developments in information technology and in the light of the state of progress in the information society.
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By 6 May 2019, the Commission shall review other legal acts adopted by the Union which regulate processing by the competent authorities for the purposes set out in Article 1(1) including those referred to in Article 60, in order to assess the need to align them with this Directive and to make, where appropriate, the necessary proposals to amend those acts to ensure a consistent approach to the protection of personal data within the scope of this Directive.
Article 63
Transposition
- Member States shall adopt and publish, by 6 May 2018, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith notify to the Commission the text of those provisions. They shall apply those provisions from 6 May 2018.
When Member States adopt those provisions, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
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By way of derogation from paragraph 1, a Member State may provide, exceptionally, where it involves disproportionate effort, for automated processing systems set up before 6 May 2016 to be brought into conformity with Article 25(1) by 6 May 2023.
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By way of derogation from paragraphs 1 and 2 of this Article, a Member State may, in exceptional circumstances, bring an automated processing system as referred to in paragraph 2 of this Article into conformity with Article 25(1) within a specified period after the period referred to in paragraph 2 of this Article, if it would otherwise cause serious difficulties for the operation of that particular automated processing system. The Member State concerned shall notify the Commission of the grounds for those serious difficulties and the grounds for the specified period within which it shall bring that particular automated processing system into conformity with Article 25(1). The specified period shall in any event not be later than 6 May 2026.
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Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 64
Entry into force
This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union .
Article 65
Addressees
This Directive is addressed to the 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
( 1 )
OJ C 391, 18.12.2012, p. 127 .
( 2 ) 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.
( 3 ) 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 ).
( 4 ) Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters ( OJ L 350, 30.12.2008, p. 60 ).
( 5 ) 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) (see page 1 of this Official Journal).
( 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 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 ).
( 8 ) Council Common Position 2005/69/JHA of 24 January 2005 on exchanging certain data with Interpol ( OJ L 27, 29.1.2005, p. 61 ).
( 9 ) Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) ( OJ L 205, 7.8.2007, p. 63 ).
( 10 ) Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services ( OJ L 78, 26.3.1977, p. 17 ).
( 11 ) 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 the Member States of the Commission's exercise of implementing powers ( OJ L 55, 28.2.2011, p. 13 ).
( 12 ) Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime ( OJ L 210, 6.8.2008, p. 1 ).
( 13 ) Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union ( OJ C 197, 12.7.2000, p. 1 ).
( 14 ) Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA ( OJ L 335, 17.12.2011, p. 1 ).
( 15 )
OJ L 176, 10.7.1999, p. 36 .
( 16 )
OJ L 53, 27.2.2008, p. 52 .
( 17 )
OJ L 160, 18.6.2011, p. 21 .
( 18 )
OJ C 192, 30.6.2012, p. 7 .
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The links and the sentences they come from (2)
- Supersedes
- Council Framework Decision 2008/977/JHANot in RegAlert
“repealing Council Framework Decision 2008/977/JHA”
- Basis for
“Transposes Directive (EU) 2016/680 (EUR-Lex national measure 72016L0680ESP_202103754)”
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