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EDPBFirst EDPB Art. 65 Decision
The EDPB adopted its first binding decision on the basis of Art. 65 GDPR on November 9th. This decision concerns a draft decision by the Irish SA on Twitter International Company.
Following publication of the Irish SA's final decision, the EDPB's binding decision has been published here
The final decision taken by the Irish SA is available in the Register for Decisions taken by supervisory authorities and courts on issues handled in the consistency mechanism
Further information on the Art. 65 GDPR procedure is available here
EDPBEuropean Data Protection Board - 43rd Plenary session
Brussels, 16 December - On December 15th, the EDPB met for its 43rd plenary session. During the plenary, a wide range of topics was discussed.
The EDPB adopted its Strategy 2021-2023, which sets out the Board's strategic objectives, grouped around four pillars, as well as three key actions per pillar to help achieve these objectives. The four main pillars of the EDPB Strategy are:
• advancing harmonisation and facilitating compliance;
• supporting effective enforcement and efficient cooperation between national supervisory authorities;
• a fundamental rights approach to new technologies and;
• the global dimension.
The Strategy will also be implemented through a Work Programme, which will further detail the EDPB's actions. This Work Programme will be adopted in early 2021.
As part of its 2021-2023 Strategy, the EDPB decided to establish a Support Pool of Experts (SPE) on the basis of a pilot project. The goal is to provide material support to EDPB Members in the form of expertise that is useful for investigations and enforcement activities and to enhance cooperation and solidarity between EDPB Members by sharing, reinforcing and complementing strengths and addressing operational needs.
The EDPB issued a statement on the end of the Brexit transition period in which it describes the main implications of the end of this period for data controllers and processors. In particular, the EDPB underlined the issue of data transfers to a third country as well as the consequences in the area of regulatory oversight and the One-Stop-Shop (OSS) mechanism. The Brexit transition period, during which the UK Supervisory Authority is still involved in the EDPB's administrative cooperation, expires at the end of 2020. Additionally, the EDPB adopted an information note on data transfers under the GDPR after the Brexit transition period ends.
The EDPB adopted Guidelines on restrictions of data subject rights under Article 23 GDPR. The guidelines aim to recall the conditions surrounding the use of such restrictions in light of the Charter of Fundamental Rights and the GDPR. They provide a thorough analysis of the criteria to apply restrictions, the assessments that need to be observed, how data subjects can exercise their rights after the restrictions are lifted, and the consequences of infringements of Art. 23 GDPR. The EDPB recalls that any restriction needs to respect the essence of the right that is being restricted and that restrictions that are extensive and intrusive to the extent that they void the fundamental right to the protection of personal data of its basic content cannot be justified. Additionally, the guidelines analyse how the legislative measures setting out the restrictions need to meet the foreseeability requirement and examine the grounds for the restrictions listed by Article 23(1) GDPR and the obligations and rights which may be restricted. An explanation of the "necessity and proportionality" test that restrictions need to pass based on Article 23(1) GDPR is also provided. The guidelines will be submitted for public consultation for a period of 8 weeks.
Following public consultation, the EDPB adopted a final version of the Guidelines on the interplay of the Second Payment Services Directive (PSD2) and the GDPR. The guidelines aim to provide further guidance on the data protection aspects in the context of the PSD2, in particular on the relationship between relevant provisions in the GDPR and the PSD2. To address comments received during the public consultation, among others, a section on fraud prevention was included.
Also following public consultation, the EDPB adopted a final version of the Guidelines on articles 46 (2) (a) and 46 (3) (b) of Regulation 2016/679 for transfers of personal data between EEA and non-EEA public authorities and bodies. These articles address transfers of personal data from EEA public authorities or bodies to public bodies in third countries, where these transfers are not covered by an adequacy decision. The final version of the guidelines integrates updated wording, and legal reasoning in order to address comments and feedback received during the public consultation, as well as necessary changes following the Schrems II ruling.
The EDPB also adopted a statement on the protection of personal data processed in relation with the prevention of the use of the financial system for the purposes of money laundering and terrorist financing. The EDPB considers it a matter of the utmost importance that the anti-money laundering measures are compatible with the rights to privacy and data protection enshrined in Articles 7 and 8 of the Charter of Fundamental Rights of the European Union, the principles of necessity of such measures in a democratic society and their proportionality, and the case law of the CJEU. Therefore, the EDPB calls on the European Commission to be involved in the drafting process of any new anti-money laundering legislation from the early stages and states its readiness to contribute to discussions within the Council and the European Parliament, as well as to be consulted in a timely manner by any European or international regulatory body.
Finally, the EDPB adopted an Art. 64 opinion on the draft decision regarding Equinix's Controller Binding Corporate Rules (BCRs), submitted to the Board by the Dutch SA. The EDPB would like to recall that the Article 29 WP 256/257 referentials* are currently being revised and that BCR holders will be required to modify their BCRs and incorporate any additional commitments that may need to be included in the BCRs in accordance with such updated referentials.
Please note that all documents adopted during the EDPB Plenary are subject to the necessary legal, linguistic and formatting checks and will be made available on the EDPB website once these have been completed.
*The Article 29 WP 256/257 referentials are available here:
WP256: https://ec.europa.eu/newsroom/article29/item-detail.cfm?item_id=614109
WP257: http://ec.europa.eu/newsroom/article29/item-detail.cfm?item_id=614110
Coordinated Supervision Committee appoints new coordinator
During its third plenary meeting, the Coordinated Supervision Committee (CSC) elected Clara Guerra from the Portuguese supervisory authority (SA) as its new coordinator for a term of two years. Ms. Guerra succeeds former coordinator Giuseppe Busia following his departure from the Italian SA for a new position as President of the Italian Anticorruption Authority. Iris Gnedler from the German Federal SA will stay on as deputy coordinator for another year.
The Coordinated Supervision Committee was established in December 2019 and its primary role is to ensure the coordinated supervision of the large EU Information Systems and of EU bodies, offices and agencies in accordance with Article 62 of Regulation 2018/1725 or with the EU legal act establishing the large scale IT system or EU body, office or agency. The Committee was created within the framework of the European Data Protection Board (EDPB) and brings together the EU supervisory authorities (SAs) and the European Data Protection Supervisor (EDPS), as well as the supervisory authorities of the Non-EU Schengen Member States, when foreseen under EU law.
The Committee will cover IT systems, bodies, offices and agencies in the fields of Border, Asylum and Migration (SIS, EES, ETIAS and VIS), Police and Justice Cooperation (SIS, EPPO, Eurojust, ECRIS-TCN) and the Internal Market (IMI). The Committee currently covers IMI, Eurojust and the EPPO. Supervision of the remaining systems, bodies, offices and agencies will be gradually moved to the Committee over the following years. You can find more information on the Committee in the press release available here: https://edpb.europa.eu/news/news/2019/more-effective-supervision-large-eu-information-systems_en
EDPBEDPB adopted documents - 39th & 40th plenary
During its 39th & 40th plenary session, the EDPB adopted the following documents:
39th plenary session:
Guidelines on the concept of relevant and reasoned objection - version for public consultation
Guidelines on Data Protection by Design & Default (following public consultation)
EDPB document on the Coordinated Enforcement Framework
EDPB letter to Europäische Akademie für Informationsfreiheit und Datenschutz concerning the data protection implications of Art.17 of the Copyright Directive
European Data Protection Board - 42nd Plenary session: Presentation of two new sets of SCCs & EDPB adopts statement on ePrivacy Regulation
Brussels, 20 November - On November 19th, the EDPB met for its 42nd plenary session. During the plenary, the European Commission presented two new sets of draft Standard Contractual Clauses (SCCs) and the EDPB adopted a statement on the future ePrivacy Regulation.
The European Commission presented two draft SCCs: one set of SCCs for contracts between controllers and processors, and another one for data transfers outside the EU. The draft controller-processor SCCs are fully new and have been developed by the Commission in accordance with Art. 28 (7) GDPR and Art. 29 (7) of Regulation 2018/1725. These SCCs will have an EU-wide effect and aim to ensure full harmonisation and legal certainty across the EU when it comes to contracts between controllers and their processors. In addition, the Commission presented another set of SCCs for the transfer of personal data to third countries pursuant to Art. 46 (2) (c) GDPR. These SCCs will replace the existing SCCs for international transfers that were adopted on the basis of Directive 95/46 and needed to be updated to bring them in line with GDPR requirements, as well as with the CJEU's 'Schrems II' ruling, and to better reflect the widespread use of new and more complex processing operations often involving multiple data importers and exporters. The Commission has requested a joint opinion from the EDPB and the EDPS on the implementing acts on both sets of SCCs.
EDPB Chair Andrea Jelinek said: "The new SCCs for the transfer of personal data to third countries have been highly anticipated, and it is important to point out that they are not a catch-all solution for data transfers post-Schrems II. While the updated SCCs are an important piece of the puzzle and a very important development, data exporters should still make the puzzle complete. The step-by-step approach of the EDPB recommendations on supplementary measures is necessary to bring the level of protection of the data transferred up to the EU standard of essential equivalence. Together with the EDPS, the Board will now thoroughly draft a joint opinion on the two sets of draft SCCs as invited by the European Commission."
Recommendations 1/2020 on supplementary measures: During the plenary, the Members of the Board decided to extend the deadline for the public consultation on the Recommendations on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data from 30 November 2020 until 21 December 2020.
The EDPB adopted a statement on the future ePrivacy Regulation and the future role of supervisory authorities and the EDPB in this context. The EDPB expressed concerns about some new orientations of the discussions in the Council concerning the enforcement of the future ePrivacy Regulation, which could lead to fragmented supervision, procedural complexity and a lack of consistency and legal certainty for individuals and companies. The EDPB underlines that many of the provisions of the future ePrivacy Regulation concern processing of personal data and that many provisions of the GDPR and the ePrivacy Regulation are closely intertwined. Consistent interpretation and enforcement of both sets of rules, when covering personal data protection, would therefore be fulfilled in the most efficient way, if the enforcement of those parts of the ePrivacy Regulation and the GDPR would be entrusted to the same authority.
EDPB Chair Andrea Jelinek added: "The oversight of personal data processing activities under the ePrivacy Regulation should be entrusted to the same national authorities that are responsible for the enforcement of the GDPR. This will ensure a high level of data protection, guarantee a level playing field and ensure a harmonised interpretation and enforcement of the personal data processing elements of the ePrivacy Regulation across the EU."
The EDPB also stressed the need to adopt the new Regulation as soon as possible.
The EDPB added that this statement is without prejudice to the Board's previous positions, including its statement of March 2019 and May 2018 and reiterated that the future ePrivacy Regulation should under no circumstance lower the level of protection offered by the current ePrivacy Directive and should complement the GDPR by providing additional strong guarantees for confidentiality and protection of all types of electronic communications.
EDPB_Press Release_2020_19
EDPBEDPB Stakeholder Workshop on Legitimate Interest
***Registration has been closed***
On November 27, the EDPB is organising a remote stakeholder workshop on the topic of Legitimate Interest. Representatives from, among others, individual companies, sector organisations, NGOs, law firms and academia are welcome to express interest in attending.
Places will be allocated on a first come, first served basis, depending on availability. We will contact your organisation in case your registration has been successful.
Detailed information and the programme of the event will be available shortly.
As we would like to have a balanced and representative audience, participation will be limited to one participant per organisation.
When? November 27th 2020, from 10:00 - 16:00
European Data Protection Board - 41st Plenary session: EDPB adopts recommendations on supplementary measures following Schrems II
Brussels, 11 November - During its 41st plenary session, the EDPB adopted recommendations on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data, as well as recommendations on the European Essential Guarantees for surveillance measures.
Both documents were adopted as a follow-up to the CJEU's 'Schrems II' ruling. As a result of the ruling on July 16th, controllers relying on Standard Contractual Clauses (SCCs) are required to verify, on a case-by-case basis and, where appropriate, in collaboration with the recipient of the data in the third country, if the law of the third country ensures a level of protection of the personal data transferred that is essentially equivalent to that guaranteed in the European Economic Area (EEA). The CJEU allowed exporters to add measures that are supplementary to the SCCs to ensure effective compliance with that level of protection where the safeguards contained in SCCs are not sufficient.
The recommendations aim to assist controllers and processors acting as data exporters with their duty to identify and implement appropriate supplementary measures where they are needed to ensure an essentially equivalent level of protection to the data they transfer to third countries. In doing so, the EDPB seeks a consistent application of the GDPR and the Court's ruling across the EEA.
EDPB Chair, Andrea Jelinek said: "The EDPB is acutely aware of the impact of the Schrems II ruling on thousands of EU businesses and the important responsibility it places on data exporters. The EDPB hopes that these recommendations can help data exporters with identifying and implementing effective supplementary measures where they are needed. Our goal is to enable lawful transfers of personal data to third countries while guaranteeing that the data transferred is afforded a level of protection essentially equivalent to that guaranteed within the EEA."
The recommendations contain a roadmap of the steps data exporters must take to find out if they need to put in place supplementary measures to be able to transfer data outside the EEA in accordance with EU law, and help them identify those that could be effective. To assist data exporters, the recommendations also contain a non-exhaustive list of examples of supplementary measures and some of the conditions they would require to be effective.
However, in the end data exporters are responsible for making the concrete assessment in the context of the transfer, the third country law and the transfer tool they are relying on. Data exporters must proceed with due diligence and document their process thoroughly, as they will be held accountable to the decisions they take on that basis, in line with the GDPR principle of accountability. Moreover, data exporters should know that it may not be possible to implement sufficient supplementary measures in every case.
The recommendations on the supplementary measures will be submitted to public consultation. They will be applicable immediately following their publication.
In addition, the EDPB adopted recommendations on the European Essential Guarantees for surveillance measures. The recommendations on the European Essential Guarantees are complementary to the recommendations on supplementary measures. The European Essential Guarantees recommendations provide data exporters with elements to determine if the legal framework governing public authorities' access to data for surveillance purposes in third countries can be regarded as a justifiable interference with the rights to privacy and the protection of personal data, and therefore as not impinging on the commitments of the Article 46 GDPR transfer tool the data exporter and importer rely on.
The Chair added: "The implications of the Schrems II judgment extend to all transfers to third countries. Therefore, there are no quick fixes, nor a one-size-fits-all solution for all transfers, as this would be ignoring the wide diversity of situations data exporters face. Data exporters will need to evaluate their data processing operations and transfers and take effective measures bearing in mind the legal order of the third countries to which they transfer or intend to transfer data."
The EEA data protection supervisory authorities will continue coordinating their actions in the EDPB to ensure consistency in the application of EU data protection law.
The agenda of the forty-first plenary is available here.
EDPB adopts first Art. 65 decision
Brussels, 10 November - During its 41st plenary session, the EDPB adopted by a 2/3 majority of its members its first dispute resolution decision on the basis of Art. 65 GDPR. The binding decision seeks to address the dispute arisen following a draft decision issued by the Irish SA as lead supervisory authority (LSA) regarding Twitter International Company and the subsequent relevant and reasoned objections (RROs) expressed by a number of concerned supervisory authorities (CSAs).
The Irish SA issued the draft decision following an own-volition inquiry and investigations into Twitter International Company, after the company notified the Irish SA of a personal data breach on 8 January 2019. In May 2020, the Irish SA shared its draft decision with the CSAs in accordance with Art. 60 (3) GDPR. The CSAs then had four weeks to submit their RROs. Among others, the CSAs issued RROs on the infringements of the GDPR identified by the LSA, the role of Twitter International Company as the (sole) data controller, and the quantification of the proposed fine.
As the LSA rejected the objections and/or considered they were not "relevant and reasoned", it referred the matter to the EDPB in accordance with Art 60 (4) GDPR, thereby initiating the dispute resolution procedure.
Following the submission by the LSA, the completeness of the file was assessed, resulting in the formal launch of the Art. 65 procedure on 8 September 2020. In compliance with Article 65 (3) GDPR and in conjunction with Article 11.4 of the EDPB Rules of Procedure, the default adoption timeline of one month was extended by a further month because of the complexity of the subject matter.
On 9 November 2020, the EDPB adopted its binding decision and will shortly notify it formally to the Irish SA.
The Irish SA shall adopt its final decision on the basis of the EDPB decision, which will be addressed to the controller, without undue delay and at the latest one month after the EDPB has notified its decision. The LSA and CSAs shall notify the EDPB of the date the final decision was notified to the controller. Following this notification, the EDPB will publish its decision on its website.
For further information see: Art. 65 FAQ
European Data Protection Board - 40th Plenary session: Guidelines on Data Protection by Design & Default, Coordinated Enforcement Framework, Letter on Copyright Directive
Brussels, 21 October - On October 20th, the EDPB met for its 40th plenary session. During the plenary, a wide range of topics was discussed.
Following public consultation, the EDPB adopted a final version of the Guidelines on Data Protection by Design & Default. The guidelines focus on the obligation of Data Protection by Design and by Default (DPbDD) as set forth in Art. 25 GDPR. The core obligation enshrined in Art.25 is the effective implementation of the data protection principles and data subjects' rights and freedoms by design and by default. This means that controllers have to implement appropriate technical and organisational measures and the necessary safeguards, designed to ascertain data protection principles in practice and to protect the rights and freedoms of data subjects. In addition, controllers should be able to demonstrate that the implemented measures are effective.
The Guidelines also contain guidance on how to effectively implement the data protection principles in Article 5 GDR, listing key design and default elements, as well as practical cases for illustration. They further provide recommendations on how controllers, processors and producers can cooperate to achieve DPbDD.
The final guidelines integrate updated wording and further legal reasoning in order to address comments and feedback received during the public consultation.
The EDPB decided to set up a Coordinated Enforcement Framework (CEF). The CEF provides a structure for coordinating recurring annual activities by EDPB Supervisory Authorities (SAs). The objective of the CEF is to facilitate joint actions in a flexible and coordinated manner, ranging from joint awareness raising and information gathering to enforcement sweeps and joint investigations. The purpose of recurring annual coordinated actions is to promote compliance, to empower data subjects to exercise their rights and to raise awareness.
The EDPB adopted a letter in response to the Europäische Akademie für Informationsfreiheit und Datenschutz concerning the data protection implications of Art.17 of the Copyright Directive, in particular concerning upload filters. In the letter, the EDPB states that any processing of personal data for the purpose of upload filters must be proportionate and necessary and that, as far possible, no personal data should be processed when Art. 17 Copyright Directive is implemented. Where the processing of personal data is necessary, such as for the redress mechanism, such data should only concern data necessary for this specific purpose, while applying all the other principles of the GDPR. The EDPB further highlighted that it is in continuous exchange with the European Commission on this topic and that it has indicated its availability for further collaboration.
You can read the agenda of the EDPB's fortieth plenary here.
Thirty-ninth plenary session: EDPB adopts guidelines on the concept of relevant and reasoned objection
Brussels, 12 October - During its 39th plenary session, the EDPB adopted guidelines on the concept of relevant and reasoned objection. The guidelines will contribute to a unified interpretation of the concept, which will help streamline future Art. 65 GDPR procedures.
Within the cooperation mechanism set out by the GDPR, the supervisory authorities (SAs) have a duty to "exchange all relevant information with each other" and cooperate "in an endeavour to reach consensus". According to Article 60(3) and (4)GDPR, the lead supervisory authority (LSA) is required to submit a draft decision to the concerned supervisory authorities (CSAs), which may then raise a relevant and reasoned objection within a specific timeframe. Upon receipt of a relevant and reasoned objection, the LSA has two options. If it does not follow the relevant and reasoned objection or is of the opinion that the objection is not reasoned or relevant, it shall submit the matter to the Board within the consistency mechanism (Art. 65 GDPR). If the LSA, on the contrary, follows the objection and issues the revised draft decision, the CSAs may express a relevant and reasoned objection on the revised draft decision within a period of two weeks.
The guidelines aim to establish a common understanding of the notion 'relevant and reasoned', including what should be taken into consideration when assessing whether an objection "clearly demonstrates the significance of the risks posed by the draft decision" (Article 4(24) GDPR).
The agenda of the thirty-ninth plenary is available here.
EDPBEDPB adopted documents - 37th plenary
During its 37th plenary, the EDPB adopted the following documents:
Guidelines on the concepts of controller and processor - version for public consultation
Guidelines on the targeting of social media users - version for public consultation
European Data Protection Board - Thirty-seventh Plenary session: Guidelines controller-processor, Guidelines targeting social media users, taskforce complaints CJEU Schrems II judgement, taskforce supplementary measures
The Board adopted Guidelines on the concepts of controller and processor in the GDPR and Guidelines on the targeting of social media users. In addition, the EDPB created a taskforce on complaints following the CJEU Schrems II judgement and a taskforce devoted to the supplementary measures that data exporters and importers can be required to take to ensure adequate protection when transferring data in light of the CJEU Schrems II judgement.
The Board adopted Guidelines on the concepts of controller and processor in the GDPR. Since the entry into application of the GDPR, questions have been raised as to what extent the GDPR brought changes to these concepts, particularly regarding the concept of joint controllership (as laid down in Article 26 GDPR and following several CJEU rulings), as well as the obligations for processors (in particular Article 28 GDPR) laid down in Chapter IV of the GDPR.
In March 2019, the EDPB together with its Secretariat organised a stakeholder event, which made clear that there was a need for more practical guidance and allowed the Board to better understand the needs and concerns in the field. The new Guidelines consist of two main parts: one explaining the different concepts; the other including detailed guidance on the main consequences of these concepts for controllers, processors and joint controllers. The Guidelines include a flow chart to provide further practical guidance. The Guidelines will be subject to public consultation.
The EDPB adopted Guidelines on the targeting of social media users. The Guidelines aim to provide practical guidance to stakeholders and contain various examples of different situations so that stakeholders can quickly identify the 'scenario' that is closest to the targeting practice they intend to deploy. The main aim of the Guidelines is to clarify the roles and responsibilities of the social media provider and the targeted individual. To this purpose, the Guidelines, among others, identify the potential risks for the freedoms of individual, the main actors and their roles, the application of key data protection requirements, such as lawfulness and transparency and DPIA, as well as key elements of arrangements between social media providers and the targeted individuals. In addition, the Guidelines focus on the different targeting mechanisms, the processing of special categories of data and the obligation for joint controllers to put in place an appropriate arrangement pursuant to Article 26 GDPR. The Plenary will submit the Guidelines for public consultation.
The Board has created a taskforce to look into complaints filed in the aftermath of the CJEU Schrems II judgement. A total of 101 identical complaints have been lodged with EEA Data Protection Authorities against several controllers in the EEA member states regarding their use of Google / Facebook services which involve the transfer of personal data. Specifically the complainants, represented by the NGO NOYB, claim that Google/Facebook transfer personal data to the U.S. relying on the EU-U.S. Privacy Shield or Standard Contractual Clauses and that according to the recent CJEU judgment in case C-311/18 the controller is unable to ensure an adequate protection of the complainants' personal data. The taskforce will analyse the matter and ensure a close cooperation among the members of the Board.
As a follow-up to the CJEU's Schrems II ruling and in addition to the FAQ adopted on 23 July, the Board has created a taskforce. This taskforce will prepare recommendations to assist controllers and processors with their duty to identify and implement appropriate supplementary measures to ensure adequate protection when transferring data to third countries.
Andrea Jelinek, Chair of the EDPB: "The EDPB is well aware that the Schrems II ruling gives controllers an important responsibility. In addition to the statement and the FAQ we put out shortly following the judgment, we will prepare recommendations to support controllers and processors regarding their duty in identifying and implementing appropriate supplementary measures of a legal, technical and organizational nature to meet the essential equivalence standard when transferring personal data to third countries. However, the implications of the judgment are wide-ranging, and the contexts of data transfers to third countries very diverse. Therefore, there cannot be a one-size-fits-all, quick fix solution. Each organisation will need to evaluate its own data processing operations and transfers and take appropriate measures."
The agenda to the thirthy-seventh plenary is available here.
EDPBEDPB adopted documents - 34th, 35th & 36th plenary
During its 34th, 35th & 36th plenary session, the EDPB adopted the following documents:
Statement on the Court of Justice of the European Union Judgment in Case C-311/18 - Data Protection Commissioner v Facebook Ireland and Maximillian Schrems
Guidelines 06/2020 on the interplay of the Second Payment Services Directive and the GDPR - version for public consultation
letter to MEP Ďuriš Nicholsonová on contact tracing, interoperability of apps and DPIAs
Information note on Binding Corporate Rules for Groups of undertakings / enterprises which have ICO as Lead Authority
FAQ on CJEU judgment C-311/18 (Schrems II)
European Data Protection Board publishes FAQ document on CJEU judgment C-311/18 (Schrems II)
Following the judgment of the Court of Justice of the European Union in Case C-311/18 - Data Protection Commissioner v Facebook Ireland Ltd and Maximillian Schrems, the EDPB has adopted a 'Frequently Asked Questions' document to provide initial clarification and give preliminary guidance to stakeholders on the use of legal instruments for the transfer of personal data to third countries, including the U.S. This document will be developed and complemented, along with further guidance, as the EDPB continues to examine and assess the judgment of the Court.
The FAQ document on the CJEU judgement C-311/18 can be found here.
EDPB_Press Release_statement_2020_06
European Data Protection Board - Thirty-fifth Plenary session: Information note on Binding Corporate Rules with UK SA as Lead Authority
Brussels, 23 July - In light of the upcoming end to the Brexit transition period, the EDPB has adopted an information note outlining the actions that need to be taken by Supervisory Authorities (SAs), the holders of approved Binding Corporate Rules (BCRs) and organisations that have BCRs pending with the UK SA to ensure that these BCRs can still be used as a valid transfer tool, following the end of the transition period. As the UK SA will no longer qualify as a competent SA under the GDPR at the end of the transition period, the approval decisions of the UK SA taken under the GDPR will no longer have legal effect in the EEA. In addition, the content of the BCRs in question may need to be amended before the transition period ends, as these BCRs generally contain references to the UK legal order. This also applies to BCRs already approved under Directive 94/46/EC.
BCR holders who have the UK SA as their BCR Lead SA need to put in place all organisational arrangements to identify a new BCR Lead SA in the EEA. The change of BCR Lead SA will have to take place before the end of the Brexit transition period.
Current BCR applicants are encouraged to put in place all organisational arrangements to identify a new BCR Lead SA in the EEA well in advance of the end of the Brexit transition period, including contacting the SA in question to provide all necessary information as to why this SA is being considered as the new BCR Lead SA. The latter will then take over the application and formally initiate an approval procedure subject to an opinion of the EDPB. Any BCR approved by the UK SA under the GDPR will require the new EEA BCR Lead SA to issue a new approval decision before the end of the transition period, following an opinion from the EDPB. The EDPB also adopted an annex containing a checklist of elements to be amended in BCR documents in the context of Brexit.
This information note is without prejudice to the analysis currently undertaken by the EDPB on the consequences of the CJEU judgment DPC v Facebook Ireland and Schrems for BCRs as transfer tools.
The agenda to the thirty-fifth plenary is available here.
European Data Protection Board - Thirty-fourth Plenary session: Schrems II, Interplay PSD2 and GDPR and letter to MEP Ďuriš Nicholsonová on contact tracing, interoperability of apps and DPIAs
Brussels, 20 July - During its 34th plenary session, the EDPB adopted a statement on the CJEU's ruling in Facebook Ireland v Schrems. The Board adopted Guidelines on the interplay between the second Payment Services Directive (PSD2) and the GDPR, as well as a response letter to MEP Ďuriš Nicholsonová on contact tracing, interoperability of apps and DPIAs.
The EDPB adopted a statement on the judgment of the Court of Justice of the European Union in Case C-311/18 - Data Protection Commissioner v Facebook Ireland and Maximillian Schrems, which invalidates Decision 2016/1250 on the adequacy of the protection provided by the EU-US Privacy Shield and considers Commission Decision 2010/87 on Standard Contractual Clauses (SCC) for the transfer of personal data to processors established in third countries valid.
With regard to the Privacy Shield, the EDPB points out that the EU and the U.S. should achieve a complete and effective framework guaranteeing that the level of protection granted to personal data in the U.S. is essentially equivalent to that guaranteed within the EU, in line with the judgment. The EDPB intends to continue playing a constructive part in securing a transatlantic transfer of personal data that benefits EEA citizens and organisations and stands ready to provide the European Commission with assistance and guidance to help it build, together with the U.S., a new framework that fully complies with EU data protection law.
As regards Standard Contractual Clauses, the EDPB takes note of the primary responsibility of the exporter and the importer, when considering whether to enter into SCCs, to ensure that these maintain a level of protection that is essentially equivalent to the one guaranteed by the GDPR in light of the EU Charter. When performing such prior assessment, the exporter (if necessary, with the assistance of the importer) shall take into consideration the content of the SCCs, the specific circumstances of the transfer, as well as the legal regime applicable in the importer's country. The Court underlines that the exporter may have to consider putting in place additional measures to those included in the SCCs. The EDPB will be looking further into what these additional measures could consist of.
The EDPB also takes note of the competent supervisory authorities' (SAs) duties to suspend or prohibit a transfer of data to a third country pursuant to SCCs, if, in the view of the competent SA and in light of all the circumstances of that transfer, those clauses are not or cannot be complied with in that third country, and the protection of the data transferred cannot be ensured by other means, in particular where the controller or processor has not already itself suspended or put an end to the transfer.
The EDPB recalls that it adopted Guidelines on Article 49 GDPR and that such derogations must be applied on a case-by-case basis.
The EDPB will assess the judgment in more detail and provide further clarification for stakeholders and guidance on the use of instruments for the transfer of personal data to third countries pursuant to the judgment. The EDPB and its European SAs also stand ready, as stated by the CJEU, to ensure consistency across the EEA.
The full statement is available here: https://edpb.europa.eu/news/news/2020/statement-court-justice-european-union-judgment-case-c-31118-data-protection_en
The EDPB adopted Guidelines on the second Payment Services Directive (PSD2). PSD2 modernises the legal framework for the payment services market. Importantly, PSD2 introduces a legal framework for new payment initiation services (PISP) and account information services (AISP). Users can request that these new payment service providers are granted access to their payment accounts. Following a stakeholders workshop in February 2019, the EDPB developed Guidelines on the application of the GDPR to these new payment services.
The Guidelines point out that in this context the processing of special categories of personal data is generally prohibited (in line with Article 9 (1) GDPR), except when explicit consent is given by the data subject (Article 9 (2) (a) GDPR) or processing is necessary for reasons of substantial public interest (Article 9 (2) (g) GDPR).
The Guidelines also address conditions under which Account Servicing Payment Service Providers (ASPSPs) grant access to payment account information to PISPs and AISPs, especially granular access to payment accounts.
The Guidelines clarify that neither Article 66 (3) (g) nor Article 67 (2) (f) of the PSD2 allow for any further processing, unless the data subject has given consent pursuant to Article 6 (1) (a) of the GDPR or the processing is laid down by Union law or Member State law. The Guidelines will be submitted for public consultation.
Finally, the Board adopted a letter in response to MEP Ďuriš Nicholsonová's questions on data protection in the context of the fight against COVID-19. The letter addresses questions on the harmonisation and interoperability of contact tracing applications, the requirement of a DPIA for such processing and the duration for which processing may be put in place.
The agenda to the thirty-fourth plenary is available here.
The European Data Protection Board has adopted the following statement:
The EDPB welcomes the CJEU's judgment, which highlights the fundamental right to privacy in the context of the transfer of personal data to third countries. The CJEU's decision is one of great importance. The European Data Protection Board (EDPB) has taken note of the fact that the Court of Justice invalidates Decision 2016/1250 on the adequacy of the protection provided by the EU-US Privacy Shield, and of the fact that it considers Commission Decision 2010/87 on Standard Contractual Clauses (SCCs) for the transfer of personal data to processors established in third countries valid.
The EDPB discussed the Court's ruling during its 34th plenary session of 17 July 2020.
With regard to the Privacy Shield, the EDPB points out that the EU and the U.S. should achieve a complete and effective framework guaranteeing that the level of protection granted to personal data in the U.S. is essentially equivalent to that guaranteed within the EU, in line with the judgment.
The EDPB identified in the past some of the main flaws of the Privacy Shield on which the CJEU grounds its decision to declare it invalid.
The EDPB questioned in its reports on the annual joint reviews of Privacy Shield the compliance with the data protection principles of necessity and proportionality in the application of U.S. law. (1)
The EDPB intends to continue playing a constructive part in securing a transatlantic transfer of personal data that benefits EEA citizens and organisations and stands ready to provide the European Commission with assistance and guidance to help it build, together with the U.S., a new framework that fully complies with EU data protection law.
While the SCCs remain valid, the CJEU underlines the need to ensure that these maintain, in practice, a level of protection that is essentially equivalent to the one guaranteed by the GDPR in light of the EU Charter. The assessment of whether the countries to which data are sent offer adequate protection is primarily the responsibility of the exporter and the importer, when considering whether to enter into SCCs. When performing such prior assessment, the exporter (if necessary, with the assistance of the importer) shall take into consideration the content of the SCCs, the specific circumstances of the transfer, as well as the legal regime applicable in the importer's country. The examination of the latter shall be done in light of the non-exhaustive factors set out under Art 45(2) GDPR.
If the result of this assessment is that the country of the importer does not provide an essentially equivalent level of protection, the exporter may have to consider putting in place additional measures to those included in the SCCs. The EDPB is looking further into what these additional measures could consist of.
The CJEU's judgment also recalls the importance for the exporter and importer to comply with their obligations included in the SCCs, in particular the information obligations in relation to change of legislation in the importer's country. When those contractual obligations are not or cannot be complied with, the exporter is bound by the SCCs to suspend the transfer or terminate the SCCs or to notify its competent supervisory authority if it intends to continue transferring data.
The EDPB takes note of the duties for the competent supervisory authorities (SAs) to suspend or prohibit a transfer of data to a third country pursuant to SCCs, if, in the view of the competent SA and in the light of all the circumstances of that transfer, those clauses are not or cannot be complied with in that third country, and the protection of the data transferred cannot be ensured by other means, in particular where the controller or a processor has not already itself suspended or put an end to the transfer.
The EDPB recalls that it issued guidelines on Art 49 GDPR derogations (2); and that such derogations must be applied on a case-by-case basis.
The EDPB will assess the judgment in more detail and provide further clarification for stakeholders and guidance on the use of instruments for the transfer of personal data to third countries pursuant to the judgment.
The EDPB and its European SAs stand ready, as stated by the CJEU, to ensure consistency across the EEA.
For the European Data Protection Board
(Andrea Jelinek)
(1) See EDPB, EU-U.S. Privacy Shield - Second Annual Joint Review report here, and EDPB, EU -U.S. Privacy Shield - Third Annual Joint Review report here.
(2) DPB Guidelines 2/2018 on derogations of Article 49 under Regulation 2016/679, adopted on 25 May 2018, p3.
EDPBEDPB publishes new register containing One-Stop-Shop decisions
The EDPB has published a new register containing decisions taken by national supervisory authorities following the One-Stop-Shop cooperation procedure (Art. 60 GDPR) on its website.
Under the GDPR, Supervisory Authorities have a duty to cooperate on cases with a cross-border component to ensure a consistent application of the regulation - the so-called one-stop-shop (OSS) mechanism. Under the OSS, the Lead Supervisory Authority (LSA) is in charge of preparing the draft decisions and works together with the concerned SAs to reach consensus. Up until early June, LSAs have adopted 110 final OSS decisions. The register includes access to the decisions as well as summaries of the decisions in English prepared by the EDPB Secretariat. The register will be valuable to data protection practitioners who will gain access to information showcasing how SAs work together to enforce the GDPR in practice. The information in the register has been validated by the LSAs in question and in accordance with the conditions provided by its national legislation.
The register is accessible here
EDPBThirty-second Plenary Session: adopted documents
During its 32nd Plenary Session, the EDPB adopted the following documents:
EDPB statement on the interoperability of contact tracing applications
EDPB statement on the processing of personal data in the context of reopening the Schengen borders
EDPB letter to MEP Körner on the relevance of encryption bans in third countries for assessing the level of data protection
EDPB letter to MEP Körner on laptop camera covers
EDPB letter to the Committee of European Auditor Oversight Bodies
EDPBThirty-first Plenary Session: adopted documents
During its 31st Plenary Session, the EDPB adopted the following documents:
EDPB response to MEP Körner regarding TikTok
EDPB response to MEPs regarding Clearview AI
EDPB response to ENISA regarding EDPB representative to the ENISA Advisory Group
EDPB response to open letter from NYOB
EDPBThirty-second plenary session: Statement on the interoperability of contact tracing applications, statement on the opening of borders and data protection rights, response letters to MEP Körner on laptop camera covers and encryption and letter to the Commi
During its 32nd plenary session, the EDPB adopted a statement on the interoperability of contact tracing apps, as well as a statement on the opening of borders and data protection rights. The Board also adopted two letters to MEP Körner - on encryption and on Article 25 GDPR - and a letter to CEAOB on PCAOB arrangements.
The EDPB adopted a statement on the interoperability of contact tracing applications, building on the EDPB Guidelines 04/2020 on the use of location data and contact tracing tools in the context of the COVID-19 outbreak. The statement offers a more in-depth analysis of key aspects, including transparency, legal basis, controllership, data subject rights, data retention and minimisation, information security and data accuracy in the context of creating an interoperable network of applications, that need to be considered on top of those highlighted in the EDPB Guidelines 04/2020.
The EDPB emphasises that the sharing of data about individuals that have been diagnosed or tested positively with such interoperable applications should only be triggered by a voluntary action of the user. Giving data subjects information and control will increase their trust in the solutions and their potential uptake. The goal of interoperability should not be used as an argument to extend the collection of personal data beyond what is necessary.
Moreover, contact tracing apps need to be part of a comprehensive public health strategy to fight the pandemic, such as testing and subsequent manual contact tracing for the purpose of improving effectiveness of the performed measures.
Ensuring interoperability is not only technically challenging and sometimes impossible without disproportionate trade-offs, but also leads to a potential increased data protection risk. Therefore, controllers need to ensure measures are effective and proportionate and must assess whether a less intrusive alternative can achieve the same purpose.
The EDPB adopted a statement on the processing of personal data in the context of reopening the Schengen borders following the COVID-19 outbreak. The measures allowing a safe reopening of the borders currently envisaged or implemented by Member States include testing for COVID-19, requiring certificates issued by health professionals and the use of a voluntary contact tracing app. Most measures involve processing of personal data.
The EDPB recalls that data protection legislation remains applicable and allows for an efficient response to the pandemic, while at the same time protecting fundamental rights and freedoms. The EDPB stresses that the processing of personal data must be necessary and proportionate, and the level of protection should be consistent throughout the EEA. In the statement, the EDPB urges the Member States to take a common European approach when deciding which processing of personal data is necessary in this context.
The statement also addresses the GDPR principles that Member States need to pay special attention to when processing personal data in the context of reopening the border. These include lawfulness, fairness and transparency, purpose limitation, data minimisation, storage limitation, security of data and data protection by design and by default. Moreover, the decision to allow the entrance into a country should not only be based on the automated individual decision making technologies. In any case, such decisions should be subject to suitable safeguards, which should include specific information to the data subject and the right to obtain human intervention, to express his or her point of view, to obtain an explanation of the decision reached after such assessment and to challenge the decision. Automated individual decision measures should not apply to children.
Finally, the EDPB highlights the importance of a prior consultation with competent national supervisory authorities when Member States intend to process personal data in this context.
The EDPB adopted a response to a letter from MEP Moritz Körner on the relevance of encryption bans in third countries for assessing the level of data protection when personal data are transferred to countries where these bans exist. According to the EDPB, any ban on encryption or provisions weakening encryption would seriously undermine compliance with GDPR security obligations applicable to controllers and processors, be that in a third country or in the EEA. Security measures are one of the elements the European Commission must take into account when assessing the adequacy of the level of protection in a third country.
A second letter to MEP Körner addresses the topic of laptop camera covers. MEP Körner highlighted that this technology could help comply with the GDPR and suggested new laptops should be equipped with it. In its reply, the Board clarifies that while laptop manufacturers should be encouraged to take into account the right to data protection when developing and designing such products, they are not responsible for the processing carried out with those products and the GDPR does not establish legal obligations for manufacturers, unless they also act as controllers or processors. Controllers must evaluate the risks of each processing and choose the appropriate safeguards to comply with GDPR, including the privacy by design and by default enshrined in Article 25 GDPR.
Finally, the EDPB adopted a letter to the Committee of European Auditor Oversight Bodies (CEAOB). The EDPB received a proposal from the CEAOB, which gathers the national auditor oversight bodies at EU level, to cooperate and receive feedback on negotiations of draft administrative arrangements for the transfer of data to the US Public Company Accounting Oversight Board (PCAOB). The EDPB welcomes this proposal and indicates that it is available to hold an exchange with the CEAOB to clarify any potential questions on data protection requirements related to such arrangements in light of the EDPB Guidelines 2/2020 on Art. 46 (2) (a) and 46 (3) (b) GDPR for transfers of personal data between EEA and non-EEA public authorities. The exchange could also involve the PCAOB if the CEAOB and its members deem it beneficial for their work on these arrangements.
The agenda of the 32nd plenary is available here
EDPBThirty-first Plenary session: Establishment of a taskforce on TikTok, Response to MEPs on use of Clearview AI by law enforcement authorities, Response to ENISA Advisory Group, Response to Open Letter NYOB
During its 31st plenary session, the EDPB decided to establish a taskforce to coordinate potential actions and to acquire a more comprehensive overview of TikTok's processing and practices across the EU, and adopted a letter with regard to the use of Clearview AI by law enforcement authorities. In addition, the EDPB adopted a response to the ENISA advisory group and a letter in response to an Open Letter from NOYB.
The EDPB announced its decision to establish a taskforce to coordinate potential actions and to acquire a more comprehensive overview of TikTok's processing and practices across the EU.
In response to MEP Körner's request regarding TikTok, the EDPB indicates that it has already issued guidelines and recommendations that should be taken into account by all data controllers whose processing is subject to the GDPR, in particular when it comes to the transfer of personal data to third countries, substantive and procedural conditions for access to personal data by public authorities or the application of the GDPR territorial scope, in particular when it comes to the processing of minors' data. The EDPB recalls that the GDPR applies to the processing of personal data by a controller, even if it is not established in the Union, where the processing activities are related to the offering of goods or services to data subjects in the Union.
In its response to MEPs regarding Clearview AI, the EDPB shared its concerns regarding certain developments in facial recognition technologies. The EDPB recalls that under the Law Enforcement Directive (EU) 2016/680, law enforcement authorities may process biometric data for the purpose of uniquely identifying a natural person only in accordance with the strict conditions of Articles 8 and 10 of the Directive.
The EDPB has doubts as to whether any Union or Member State law provides a legal basis for using a service such as the one offered by Clearview AI. Therefore, as it stands and without prejudice to any future or pending investigation, the lawfulness of such use by EU law enforcement authorities cannot be ascertained.
Without prejudice to further analysis on the basis of additional elements provided, the EDPB is therefore of the opinion that the use of a service such as Clearview AI by law enforcement authorities in the European Union would, as it stands, likely not be consistent with the EU data protection regime.
Finally, the EDPB refers to its guidelines on the processing of personal data through video devices and announces upcoming work on the use of facial recognition technology by law enforcement authorities.
In response to a letter from the European Union Agency for Cybersecurity (ENISA) requesting that the EDPB nominate a representative to the ENISA Advisory group, the Board appointed Gwendal Le Grand, Deputy Secretary-General CNIL, as representative. The Advisory Group assists the Executive Director of ENISA with drawing up an annual work programme and ensuring communication with the relevant stakeholders.
The EDPB adopted a response to an Open Letter by NOYB regarding cooperation between the Supervisory Authorities and the consistency procedures. In its letter, the Board indicates it has been working constantly on the improvement of the cooperation between the Supervisory Authorities and the consistency procedures. The Board is aware that there are issues requiring improvement, such as the differences in national administrative procedural laws and practices, together with the time and resources needed to resolve cross-border cases. The Board reiterates it is committed to finding solutions, where these lie within its competence.
The agenda of the 31st plenary is available here
EDPBEDPB adopted documents - 26th, 28th and 30th plenary
During its 26th, 28th and 30th plenary session, the EDPB adopted the following documents:
EDPB response to MEPs Metsola and Halicki
EDPB opinion on the draft Standard Contractual Clauses (SCCs) for controller-processor contracts submitted to the Board by the Slovenian Supervisory Authority
EDPB response to NGOs on Hungarian government decrees
Statement on Art 23 GDPR
EDPBThirtieth Plenary session: EDPB response to NGOs on Hungarian Decrees and statement on Article 23 GDPR
During its 30th plenary session, the EDPB adopted a statement on data subject rights in connection to the state of emergency in Member States. The Board also adopted a letter in response to a letter from Civil Liberties Union for Europe, Access Now and the Hungarian Civil Liberties Union (HCLU) regarding the Hungarian Government's Decree 179/2020 of 4 May.
The EDPB recalls that, even in these exceptional times, the protection of personal data must be upheld in all emergency measures, thus contributing to the respect of the overarching values of democracy, rule of law and fundamental rights on which the Union is founded.
In both the statement and the letter the EDPB reiterates that the GDPR remains applicable and allows for an efficient response to the pandemic, while at the same time protecting fundamental rights and freedoms. Data protection law already enables data-processing operations necessary to contribute to the fight against the COVID-19 pandemic.
The statement recalls the main principles related to the restrictions on data subject rights in connection to the state of emergency in Member States:
• Restrictions which are general, extensive or intrusive to the extent that they void a fundamental right of its basic content cannot be justified.
• Under specific conditions, Article 23 GDPR allows national legislators to restrict via a legislative measure the scope of the obligations of controllers and processors and the rights of data subjects when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard important objectives of general public interest of the Union or of a Member State, such as in particular public health.
• Data subject rights are at the core of the fundamental right to data protection and Article 23 GDPR should be interpreted and read bearing in mind that their application should be the general rule. As restrictions are exceptions to the general rule, they should only be applied in limited circumstances.
• Restrictions must be provided for 'by law', and the law establishing restrictions should be sufficiently clear as to allow citizens to understand the conditions in which controllers are empowered to resort to them. Additionally, restrictions must be foreseeable for persons subject to them. Restrictions imposed for a duration not precisely limited in time, which apply retroactively or are subject to undefined conditions, do not meet the foreseeability criterion.
• The mere existence of a pandemic or any other emergency situation alone is not a sufficient reason to provide for any kind of restriction on the rights of data subjects; rather, any restriction must clearly contribute to the safeguard of an important objective of general public interest of the EU or of a Member State.
• The emergency state, adopted in a pandemic context, is a legal condition, which may legitimise restrictions of data subject rights, provided these restrictions only apply insofar as it is strictly necessary and proportionate in order to safeguard the public health objective. Thus, restrictions must be strictly limited in scope and in time, since data subject rights can be restricted but not denied. Additionally, the guarantees provided for under Article 23(2) GDPR must fully apply.
• Restrictions adopted in the context of a state of emergency suspending or postponing the application of data subject rights and the obligations incumbent to data controllers and processors, without any clear limitation in time, would equate to a de facto blanket suspension of those rights and would not be compatible with the essence of the fundamental rights and freedoms.
Furthermore, the EDPB announced it will issue guidelines on the implementation of Article 23 of the GDPR in the coming months.
The agenda of the 30th pleanry is available here
EDPBTwenty-eighth Plenary session: Art. 64 GDPR Opinion on draft SCCs submitted by the SI SA, Publication register of Art. 60 GDPR (OSS) Decisions
Brussels, 20 May - During its 28th EDPB plenary session, the EDPB adopted an Art. 64 GDPR opinion on the draft Standard Contractual Clauses submitted by the Slovenian Supervisory Authority (SA) and decided on the publication of a register containing 'one-stop-shop' decisions.
The EDPB adopted its opinion on the draft Standard Contractual Clauses (SCCs) for controller-processor contracts submitted to the Board by the Slovenian Supervisory Authority. The opinion aims to ensure the consistent application of Article 28 GDPR, which imposes an obligation on controllers and processors to enter into a contract or other legal act stipulating the parties' respective obligations. According to Article 28(6) GDPR, these contracts or other legal acts may be based, in whole or in part, on standard contractual clauses adopted by a Supervisory Authority. In the opinion, the Board makes several recommendations that need to be taken into account in order for these draft SCCs to be considered as Standard Contractual Clauses. If all recommendations are implemented, the Slovenian SA will be able to adopt this draft agreement as Standard Contractual Clauses pursuant to Article 28(8) GDPR.
The EDPB will publish a register containing decisions taken by national supervisory authorities following the One-Stop-Shop cooperation procedure (Art. 60 GDPR) on its website.
Under the GDPR, Supervisory Authorities have a duty to cooperate on cases with a cross-border component to ensure a consistent application of the regulation - the so-called one-stop-shop (OSS) mechanism. Under the OSS, the Lead Supervisory Authority (LSA) is in charge of preparing the draft decisions and works together with the concerned SAs to reach consensus. Up to end of April 2020, LSAs have adopted 103 final OSS decisions. The EDPB intends to publish summaries in English prepared by the EDPB Secretariat. The information will be made public after the validation of the LSA in question and in accordance with the conditions provided by its national legislation.
The agenda of the 28th plenary is available here
EDPBEDPB adopts letter on Polish presidential elections data disclosure & discusses recent Hungarian government decrees in relation to the coronavirus during the state of emergency
During its 26th plenary session, the EDPB adopted a letter in response to requests from MEPs Metsola and Halicki regarding the Polish presidential elections taking place via postal vote. Additionally, an exchange of information took place on the recent Hungarian government decrees in relation to the coronavirus during the state of emergency
In its response to the MEPs Metsola and Halicki, the EDPB indicates that it is aware that data of Polish citizens was sent from the national PESEL (personal identification) database to the Polish Post by one of the Polish ministries and acknowledges that this issue requires special attention.
The Board underlines that, according to the GDPR, personal data, such as names and addresses, and national identification numbers (such as the Polish PESEL ID), must be processed lawfully, fairly and in a transparent manner, for specified purposes only. Public authorities may disclose information on individuals included in electoral lists, but only when this is specifically authorised by Member State law. The EDPB underlined that the disclosure of personal data – from one entity to another – always requires a legal basis in accordance with EU data protection laws. As previously indicated in the EDPB statement on the use of personal data in political campaigns (2/2019), political parties and candidates - but also public authorities, particularly those responsible for public registers - must stand ready to demonstrate how they have complied with data protection principles. The EDPB also underlined that, where elections are conducted by the collection of postal votes, it is the responsibility of the state to ensure that specific safeguards are in place to maintain the secrecy and integrity of the personal data concerning political opinions.
EDPB Chair, Andrea Jelinek, added: "Elections form the cornerstone of every democratic society. That is why the EDPB has always dedicated special attention to the processing of personal data for election purposes. We encourage data controllers, especially public authorities, to lead by example and process personal data in a manner which is transparent and leaves no doubt regarding the legal basis for the processing operations, including disclosure of data."
However, the EDPB stresses that enforcement of the GDPR lies with the national supervisory authorities. The EDPB is not a data protection supervisory authority in its own right and, as such, does not have the same competences, tasks and powers as the national supervisory authorities. In the first instance, the assessment of alleged GDPR infringements falls within the competence of the responsible and independent national supervisory authority. Nevertheless, the EDPB will continue to pay special attention to the developments of personal data processing in connection to democratic elections and remains ready to support all members of the Board, including the Polish Supervisory Authority, in such matters.
During the plenary, the Hungarian Supervisory Authority provided the Board with information on the legislative measures the Hungarian government has adopted in relation to the coronavirus during the state of emergency. The Board considers that further explanation is necessary and has thus requested that the Hungarian Supervisory Authority provides further information on the scope and the duration, as well as the Hungarian Supervisory Authority's opinion on the necessity and proportionality of these measures. The Board will discuss this further during its plenary session next Tuesday.
EDPBTwenty-fourth Plenary Session: adopted documents
During its 24th Plenary Session, the EDPB adopted the following documents:
EDPB response to the US Mission to the EU on the transfer of personal data for the purpose of scientific research and the development of vaccines and treatments to combat COVID-19
EDPB response MEPs Ďuriš Nicholsonová and Jurzyca on common guidance in the fight against the COVID-19
EDPB Response to MEP Sophie in't Veld on the use of apps in fight against COVID-19
EDPBTwenty-fourth Plenary session: EDPB doubles down on COVID-19 guidance in newly adopted letters
During its 24th plenary session, the EDPB adopted three letters, reinforcing several elements from its earlier guidance on data protection in the context of fighting the COVID-19 outbreak.
In reply to a letter from the United States Mission to the European Union, the EDPB looks into transfers of health data for research purposes, enabling international cooperation for the development of a vaccine. The US Mission enquired into the possibility of relying on a derogation of Art. 49 GDPR to enable international flows.
The EDPB tackled this topic in detail in its recently adopted guidelines (03/2020) on the processing of health data for scientific research. In its letter, the EDPB reiterates that the GDPR allows for collaboration between EEA and non-EEA scientists in the search for vaccines and treatments against COVID-19, while simultaneously protecting fundamental data protection rights in the EEA.
When data are transferred outside of the EEA, solutions that guarantee the continuous protection of data subjects' fundamental rights, such as adequacy decisions or appropriate safeguards (included in Article 46 GDPR) should be favoured, according to the EDPB.
However, the EDPB considers that the fight against COVID-19 has been recognised by the EU and Member States as an important public interest, as it has caused an exceptional sanitary crisis of an unprecedented nature and scale. This may require urgent action in the field of scientific research, necessitating transfers of personal data to third countries or international organisations.
In the absence of an adequacy decision or appropriate safeguards, public authorities and private entities may also rely upon derogations included in Article 49 GDPR
Andrea Jelinek, the Chair of the EDPB, said: "The global scientific community is racing against the clock to develop a COVID-19 vaccine or treatment. The EDPB confirms that the GDPR offers tools giving the best guarantees for international transfers of health data and is flexible enough to offer faster temporary solutions in the face of the urgent medical situation."
The EDPB also adopted a response to a request from MEPs Lucia Ďuriš Nicholsonová and Eugen Jurzyca.
The EDPB replies that data protection laws already take into account data processing operations necessary to contribute to fighting an epidemic, therefore - according to the EDPB - there is no reason to lift GDPR provisions, but to observe them. In addition, the EDPB refers to the guidelines on the issues of geolocation and other tracing tools, as well as the processing of health data for research purposes in the context of the COVID-19 outbreak.
Andrea Jelinek, Chair of the EDPB, added: "The GDPR is designed to be flexible. As a result, it can enable an efficient response to support the fight against the pandemic, while at the same time protecting fundamental human rights and freedoms. When the processing of personal data is necessary in the context of COVID-19, data protection is indispensable to build trust, to create the conditions for social acceptability of any possible solution and, therefore, to guarantee the effectiveness of these measures".
The EDPB received two letters from Sophie In 't Veld MEP, raising a series of questions regarding the latest technologies that are being developed in order to fight the spread of COVID-19.
In its reply, the EDPB refers to its recently adopted guidelines (04/2020) on the use of location data and contact tracing apps, which highlight – among other elements - that such schemes should have a voluntary nature, use the least amount of data possible, and should not trace individual movements, but rather use proximity information of users.
The agenda of the 23rd plenary is available here
EDPBTwenty-third Plenary Session: adopted documents
During its 23rd Plenary Session, the EDPB adopted the following documents:
Guidelines on the processing of health data for research purposes in the context of the COVID-19 outbreak
Guidelines on geolocation and other tracing tools in the context of the COVID-19 outbreak
EDPBEuropean Data Protection Board - Twenty-third Plenary session: EDPB adopts further COVID-19 guidance
During its 23rd plenary session, the EDPB adopted guidelines on the processing of health data for research purposes in the context of the COVID-19 outbreak and guidelines on geolocation and other tracing tools in the context of the COVID-19 outbreak.
The guidelines on the processing of health data for research purposes in the context of the COVID-19 outbreak aim to shed light on the most urgent legal questions concerning the use of health data, such as the legal basis of processing, further processing of health data for the purpose of scientific research, the implementation of adequate safeguards and the exercise of data subject rights.
The guidelines state that the GDPR contains several provisions for the processing of health data for the purpose of scientific research, which also apply in the context of the COVID-19 pandemic, in particular relating to consent and to the respective national legislations. The GDPR foresees the possibility to process certain special categories of personal data, such as health data, where it is necessary for scientific research purposes.
In addition, the guidelines address legal questions concerning international data transfers involving health data for research purposes related to the fight against COVID-19, in particular in the absence of an adequacy decision or other appropriate safeguards.
Andrea Jelinek, Chair of the EDPB, said: "Currently, great research efforts are being made in the fight against COVID-19. Researchers hope to produce results as quickly as possible. The GDPR does not stand in the way of scientific research, but enables the lawful processing of health data to support the purpose of finding a vaccine or treatment for COVID-19".
The guidelines on geolocation and other tracing tools in the context of the COVID-19 outbreak aim to clarify the conditions and principles for the proportionate use of location data and contact tracing tools, for two specific purposes:
1. using location data to support the response to the pandemic by modelling the spread of the virus in order to assess the overall effectiveness of confinement measures;
2. using contact tracing, which aims to notify individuals who may have been in close proximity to someone who is eventually confirmed as a carrier of the virus, in order to break the contamination chains as early as possible.
The guidelines emphasise that both the GDPR and the ePrivacy Directive contain specific provisions allowing for the use of anonymous or personal data to support public authorities and other actors at both national and EU level in their efforts to monitor and contain the spread of COVID-19. The general principles of effectiveness, necessity, and proportionality must guide any measures adopted by Member States or EU institutions that involve processing of personal data to fight COVID-19.
The EDPB stands by and underlines the position expressed in its letter to the European Commission (14 April) that the use of contact tracing apps should be voluntary and should not rely on tracing individual movements, but rather on proximity information regarding users.
Dr. Jelinek added: "Apps can never replace nurses and doctors. While data and technology can be important tools, we need to keep in mind that they have intrinsic limitations. Apps can only complement the effectiveness of public health measures and the dedication of healthcare workers that is necessary to fight COVID-19. At any rate, people should not have to choose between an efficient response to the crisis and the protection of fundamental rights."
In addition, the EDPB adopted a guide for contact tracing apps as an annex to the guidelines. The purpose of this guide, which is non-exhaustive, is to provide general guidance to designers and implementers of contact tracing apps, underlining that any assessment must be carried out on a case-by-case basis.
Both sets of guidelines will exceptionally not be submitted for public consultation due to the urgency of the current situation and the necessity to have the guidelines readily available.
EDPBTwenty-second plenary session of the European Data Protection Board
On April 17th, the EDPB held its 22nd Plenary Session. For further information, please consult the agenda:
Agenda of Twenty-second Plenary
EDPBTwenty-first plenary session of the European Data Protection Board - Letter concerning the European Commission's draft Guidance on apps supporting the fight against the COVID-19 pandemic
Following a request for consultation from the European Commission, the European Data Protection Board adopted a letter concerning the European Commission's draft Guidance on apps supporting the fight against the COVID-19 pandemic. This Guidance on data protection and privacy implications complements the European Commission's Recommendation on apps for contact tracing, published on 8 April and setting out the process towards a common EU toolbox for the use of technology and data to combat and exit from the COVID-19 crisis.
Andrea Jelinek, Chair of the EDPB, said: "The EDPB welcomes the Commission's initiative to develop a pan-European and coordinated approach as this will help to ensure the same level of data protection for every European citizen, regardless of where he or she lives."
In its letter, the EDPB specifically addresses the use of apps for the contact tracing and warning functionality, because this is where increased attention must be paid in order to minimise interferences with private life while still allowing data processing with the goal of preserving public health.
The EDPB considers that the development of the apps should be made in an accountable way, documenting with a data protection impact assessment all the implemented privacy by design and privacy by default mechanisms. In addition, the source code should be made publicly available for the widest possible scrutiny by the scientific community.
The EDPB strongly supports the Commission's proposal for a voluntary adoption of such apps, a choice that should be made by individuals as a token of collective responsibility.
Finally, the EDPB underlined the need for the Board and its Members, in charge of advising and ensuring the correct application of the GDPR and the E-Privacy Directive, to be fully involved in the whole process of elaboration and implementation of these measures. The EDPB recalls that it intends to publish Guidelines in the upcoming days on geolocation and tracing tools in the context of the COVID-19 out-break.
The EDPB's letter is available here: https://edpb.europa.eu/letters_en
The agenda of the 21th plenary session is available here: https://edpb.europa.eu/our-work-tools/agenda/2020_en#agenda_490
EDPBTwentieth plenary session of the European Data Protection Board - scope of upcoming guidance on data processing in the fight against COVID-19
During its 20th plenary session on April 7th, the European Data Protection Board assigned concrete mandates to its expert subgroups to develop guidance on several aspects of data processing in the fight against COVID-19. This follows the decision made on April 3rd during the EDPB's 19th plenary session.
1. geolocation and other tracing tools in the context of the COVID-19 outbreak – a mandate was given to the technology expert subgroup for leading this work;
2. processing of health data for research purposes in the context of the COVID-19 outbreak – a mandate was given to the compliance, e-government and health expert subgroup for leading this work.
Considering the high priority of these 2 topics, the EDPB decided to postpone the guidance work on teleworking tools and practices in the context of the COVID-19 outbreak, for the time being.
Andrea Jelinek, Chair of the EDPB, said: "The EDPB will move swiftly to issue guidance on these topics within the shortest possible notice to help make sure that technology is used in a responsible way to support and hopefully win the battle against the corona pandemic. I strongly believe data protection and public health go hand in hand."
The agenda of the 20th plenary session is available here
EDPBTwentieth Plenary Session: adopted documents
During its April Plenary Session, the EDPB adopted the following documents:
Mandate on the processing of health data for research purposes in the context of the COVID-19 outbreak — 07/04/2020
Mandate on geolocation and other tracing tools in the context of the COVID-19 outbreak — 07/04/2020
EDPBEuropean Data Protection Board to issue guidance on data processing in the fight against COVID-19
The European Data Protection Board is speeding up its guidance work in response to the COVID-19 crisis. Its monthly plenary meetings are being replaced by weekly remote meetings with the Members of the Board.
Andrea Jelinek, Chair of the EDPB, said: "The Board will prioritise providing guidance on the following issues: use of location data and anonymisation of data; processing of health data for scientific and research purposes and the processing of data by technologies used to enable remote working. The EDPB will adopt a horizontal approach and plans to issue general guidance with regard to the appropriate legal bases and applicable legal principles."
The agenda of today's remote meeting is available here
EDPBEDPB April Plenary Cancelled
Following a decision by the EDPB Chair, the EDPB April Plenary Session has been cancelled due to safety concerns surrounding the outbreak of the Coronavirus (COVID-19). The EDPB hereby follows the example of other EU institutions, such as the European Parliament, which have restricted the number of large-scale meetings.
The April Plenary Session was scheduled to take place on 20 and 21 April. Earlier, the EDPB March Plenary was also cancelled for the same reasons. You can find an overview of upcoming EDPB Plenary Meetings here
EDPBStatement on the processing of personal data in the context of the COVID-19 outbreak
On March 19th, the European Data Protection Board adopted a formal statement on the processing of personal data in the context of the COVID-19 outbreak via written procedure. The full statement is available here
EDPBStatement by the EDPB Chair on the processing of personal data in the context of the COVID-19 outbreak
Governments, public and private organisations throughout Europe are taking measures to contain and mitigate COVID-19. This can involve the processing of different types of personal data.
Andrea Jelinek, Chair of the European Data Protection Board (EDPB), said: "Data protection rules (such as GDPR) do not hinder measures taken in the fight against the coronavirus pandemic. However, I would like to underline that, even in these exceptional times, the data controller must ensure the protection of the personal data of the data subjects. Therefore, a number of considerations should be taken into account to guarantee the lawful processing of personal data."
The GDPR is a broad legislation and also provides for the rules to apply to the processing of personal data in a context such as the one relating to COVID-19. Indeed, the GDPR provides for the legal grounds to enable the employers and the competent public health authorities to process personal data in the context of epidemics, without the need to obtain the consent of the data subject. This applies for instance when the processing of personal data is necessary for the employers for reasons of public interest in the area of public health or to protect vital interests (Art. 6 and 9 of the GDPR) or to comply with another legal obligation.
For the processing of electronic communication data, such as mobile location data, additional rules apply. The national laws implementing the ePrivacy Directive provide for the principle that the location data can only be used by the operator when they are made anonymous, or with the consent of the individuals. The public authorities should first aim for the processing of location data in an anonymous way (i.e. processing data aggregated in a way that it cannot be reversed to personal data). This could enable to generate reports on the concentration of mobile devices at a certain location ("cartography").
When it is not possible to only process anonymous data, Art. 15 of the ePrivacy Directive enables the member states to introduce legislative measures pursuing national security and public security *. This emergency legislation is possible under the condition that it constitutes a necessary, appropriate and proportionate measure within a democratic society. If such measures are introduced, a Member State is obliged to put in place adequate safeguards, such as granting individuals the right to judicial remedy.
On March 19th, the European Data Protection Board adopted a formal statement on the processing of personal data in the context of the COVID-19 outbreak. The full statement is available below.
* In this context, it shall be noted that safeguarding public health may fall under the national and/or public security exception.
EDPBEDPB March Plenary Cancelled
Following a decision by the EDPB Chair, the EDPB March Plenary Session has been cancelled due to safety concerns surrounding the outbreak of the Coronavirus (COVID-19). The EDPB hereby follows the example of other EU institutions, such as the European Parliament, which have restricted the number of large-scale meetings.
The March Plenary Session was scheduled to take place on 19 and 20 March. You can find an overview of upcoming EDPB Plenary Meetings here
EDPBEighteenth Plenary Session: adopted documents
During its February Plenary Session, the EDPB adopted the following documents:
EDPB Contribution to the evaluation of the GDPR under Article 97
Guidelines on Articles 46 (2) (a) and 46 (3) (b) for transfers of personal data between EEA and non-EEA public authorities and bodies
Statement on privacy implications of mergers
Letter to Hoda
EDPBEighteenth EDPB Plenary Session
On February 18th and 19th, the EEA Supervisory Authorities and the European Data Protection Supervisor, assembled in the European Data Protection Board, met for their eighteenth plenary session. During the plenary, a wide range of topics was discussed.
The EDPB and the individual EEA Supervisory Authorities (SAs) contributed to the evaluation and review of the GDPR as required by Art. 97 GDPR. The EDPB is of the opinion that the application of the GDPR in the first 20 months has been successful. Although the need for sufficient resources for all SAs is still a concern and some challenges remain, resulting, for example, from the patchwork of national procedures, the Board is convinced that the cooperation between SAs will result in a common data protection culture and consistent practice. The EDPB is examining possible solutions to overcome these challenges and to improve existing cooperation procedures. It also calls upon the European Commission to check if national procedures impact the effectiveness of the cooperation procedures and considers that, eventually, legislators may also have a role to play in ensuring further harmonisation. In its assessment, the EDPB also addresses issues such as international transfer tools, impact on SMEs, SA resources and development of new technologies. The EDPB concludes that it is premature to revise the GDPR at this point in time.
The EDPB adopted draft guidelines to provide further clarification regarding the application of Articles 46.2 (a) and 46.3 (b) of the GDPR. These articles address transfers of personal data from EEA public authorities or bodies to public bodies in third countries or to international organisations, where these transfers are not covered by an adequacy decision. The guidelines recommend which safeguards to implement in legally binding instruments (art. 46.2 (a)) or in administrative arrangements (Art. 46.3 (b)) to ensure that the level of protection of natural persons under the GDPR is met and not undermined. The guidelines will be submitted for public consultation.
Following the announcement of Google LLC's intention to acquire Fitbit, the EDPB adopted a statement highlighting that the possible further combination and accumulation of sensitive personal data regarding people in Europe by a major tech company could entail a high level of risk to privacy and data protection. The EDPB reminds the parties to the proposed merger of their obligations under the GDPR and to conduct a full assessment of the data protection requirements and privacy implications of the merger in a transparent way. The Board urges the parties to mitigate possible risks to the rights to privacy and data protection before notifying the merger to the European Commission. The EDPB will consider any implications for the protection of personal data in the EEA and stands ready to contribute its advice to the EC if so requested.
EDPBEighteenth Plenary Session of the European Data Protection Board
On February 18th and 19th, the eighteenth plenary session of the European Data Protection Board is taking place in Brussels. For further information, please consult the agenda.
Agenda of Eighteenth Plenary
EDPBSeventeenth Plenary Session: adopted documents
During its January Plenary Session, the EDPB adopted the following documents:
Article 64 Opinions on Accreditation Requirements for Codes of Conduct Monitoring Bodies, submitted to the Board by:
Guidelines on Connected Vehicles
Guidelines on the processing of Personal Data through Video Devices (following public consultation)
Article 64 Opinions on Accreditation Requirements for Certification Bodies, submitted to the Board by:
Article 64 Opinion on the Fujikura Automotive Europe Group's Controller BCRs
Letter on unfair algorithms
Letter to the Council of Europe on the Cybercrime Convention
Document on the procedure for the approval of certification criteria by the EDPB resulting in a common certification: the European Data Protection Seal
EDPBSeventeenth EDPB Plenary Session
On January 28th and 29th, the EEA Data Protection Authorities and the European Data Protection Supervisor, assembled in the European Data Protection Board, met for their seventeenth plenary session. During the plenary, a wide range of topics was discussed.
The EDPB adopted its opinions on the Accreditation Requirements for Codes of Conduct Monitoring Bodies submitted to the Board by the Belgian, Spanish and French supervisory authorities (SAs). These opinions aim to ensure consistency and the correct application of the criteria among EEA SAs.
The EDPB adopted draft Guidelines on Connected Vehicles. As vehicles become increasingly more connected, the amount of data generated about drivers and passengers by these connected vehicles is growing rapidly. The EDPB guidelines focus on the processing of personal data in relation to the non-professional use of connected vehicles by data subjects. More specifically, the guidelines deal with the personal data processed by the vehicle and the data communicated by the vehicle as a connected device. The guidelines will be submitted for public consultation.
The Board adopted the final version of the Guidelines on the processing of Personal Data through Video Devices following public consultation. The guidelines aim to clarify how the GDPR applies to the processing of personal data when using video devices and to ensure the consistent application of the GDPR in this regard. The guidelines cover both traditional video devices and smart video devices. The guidelines address, among others, the lawfulness of processing, including the processing of special categories of data, the applicability of the household exemption and the disclosure of footage to third parties. Following public consultation, several amendments were made.
The EDPB adopted its opinions on the draft accreditation requirements for Certification Bodies submitted to the Board by the UK and Luxembourg SAs. These are the first opinions on accreditation requirements for Certification Bodies adopted by the Board. They aim to establish a consistent and harmonised approach regarding the requirements which SAs and national accreditation bodies will apply when accrediting certification bodies.
The EDPB adopted its opinion on the draft decision regarding the Fujikura Automotive Europe Group's Controller Binding Corporate Rules (BCRs), submitted to the Board by the Spanish Supervisory Authority.
The EDPB adopted a letter in response to MEP Sophie in't Veld's request concerning the use of unfair algorithms. The letter provides an analysis of the challenges posed by the use of algorithms, an overview of the relevant GDPR provisions and existing guidelines addressing these issues, and describes the work already undertaken by SAs.
Following the Board's contribution to the consultation process on the negotiation of a second additional protocol to the Council of Europe Convention on Cybercrime (Budapest Convention), several EDPB Members actively participated in the Council of Europe Cybercrime Committee's (T-CY) Octopus Conference. The Board adopted a follow-up letter to the conference, stressing the need to integrate strong data protection safeguards into the future Additional Protocol to the Convention and to ensure its consistency with Convention 108, as well as with the EU Treaties and Charter of Fundamental Rights.
EDPBSeventeenth Plenary Session of the European Data Protection Board
On January 28th and 29th, the seventeenth plenary session of the European Data Protection Board is taking place in Brussels. For further information, please consult the agenda.
Agenda of Seventeenth Plenary


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