1

European Public Prosecutor’s Office Implementation Act-2021

FEDERAL LEGISLATION FOR THE REPUBLIC OF AUSTRIA

Born in 2021

Issued May 28, 2021

part One

94th Federal Law:

EU Criminal Law Amendment Act 2021 – StrEU-AG 2021

(NR: GP XXVII RV 808 AB 859 p. 107. BR: AB 10638 p. 926.)

94. Federal law with which a federal law for the implementation of the European Public Prosecutor’s Office (EUStA-DG) is enacted and with which the Judges and Public Prosecutor’s Service Act, the Federal Act on Judicial Cooperation in Criminal Matters with the Member States of the European Union, the Extradition and Legal Assistance Act, which Financial Criminal Law and the Criminal Code are changed (EU Criminal Law Amendment Act 2021 – StrEU-AG 2021)

The National Council decided:

Table of Contents

article 1

Federal Act for the Implementation of the European Public Prosecutor’s Office (EUStA-DG)

Article 2

Amendment of the Judiciary and Public Prosecutor’s Service Act

Article 3

Change of the EU-JZG

Article 4

Amendment to the Extradition and Legal Assistance Act

Article 5

Amendment of the Financial Criminal Law

Article 6

Amendment of the Criminal Code

Article 7

Come into effect

article 1
Federal Act for the Implementation of the European Public Prosecutor’s Office (European Public Prosecutor’s Office Implementation Act – EUStA-DG)

1st section
General provisions and criminal proceedings of the European Public Prosecutor’s Office

Principles

§ 1.

 (1) This federal law serves to implement the EUStA-VO (§ 2 Z 2).

(2) When performing its duties, the European Public Prosecutor’s Office must, unless otherwise stated in the EPPO or the provisions of this Federal Act, proceed in accordance with the general provisions on criminal proceedings and in the cases of Art. 30 Paragraphs 2 and 3 EUStA-VO to observe the prerequisites and conditions for the ordering and implementation of investigative measures and for taking evidence according to national regulations.

Definitions

§ 2.

 For the purposes of this federal law:

1.

“EPPO”: the European Public Prosecutor’s Office;

2.

“EUStA-VO”: Regulation (EU) 2017/1939 for the implementation of enhanced cooperation to establish the European Public Prosecutor’s Office (EPStA), OJ No. L 283 of 31.10.2017 p. 1;

3rd

“Member State”: a state that is a member of the European Union;

4th

“Participating Member State”: a Member State participating in the establishment of the EPPO;

5.

“Non-participating Member State”: a Member State that does not participate in the establishment of the EPPO;

6th

“Third country”: a country that is not a member state.

scope of application

§ 3.

 The provisions of this federal act are to be applied in proceedings for the investigation of criminal offenses for which the EPPO is responsible according to Art. 22, 23 and 120 para. 2 EPPO Regulation and can exercise its competence according to Art. 25 para. 1 to 4 of this Ordinance .

Performing tasks in the federal territory

§ 4.

 (1) The EPPO is responsible for the entire federal territory:

1.

leading the investigation,

2.

the termination of the investigation according to Art. 39 and 40 EPPO-VO,

3rd

bringing the indictment and representing it in the main proceedings,

4th

representation in proceedings before the Higher Regional Court and

5.

representation in proceedings for reopening and reinstatement.

(2) The EPPO performs the tasks assigned to it in the EPPO Regulation through one of the European Delegated Public Prosecutors appointed for the Republic of Austria. The European Public Prosecutor appointed for the Republic of Austria can also perform the tasks in the exceptional cases mentioned in Art. 28 (4) of the EUStA-VO.

privacy

§ 5.

Sections 74 and 75 of the Code of Criminal Procedure (StPO), Federal Law Gazette No. 631/1975, are only applicable to the processing of personal data by the EPPO in the event that the filing is based on national legal provisions or the EPPO processes federal data uses. To this extent, however, the EPPO is not subject to supervision by the data protection authority (Section 31 Data Protection Act – DSG, Federal Law Gazette I No. 165/1999).

Transfer of jurisdiction

§ 6.

 In cases of Art. 25 Para. 4 EPPO Regulation, the competent public prosecutor’s office has to give consent to the EPPO to prosecute criminal offenses if

1.

the EPPO is in a better position to conduct the investigation and clear up the criminal offenses, and

2.

In individual cases, the victim’s interests worthy of protection do not predominate

Conflict of jurisdiction

§ 7.

The Supreme Court has to decide on conflicts of jurisdiction between a public prosecutor’s office and the EPPO (Art. 25 (6) EPPO) by means of a triple senate (Section 7 of the Federal Act of June 19, 1968 on the Supreme Court, Federal Law Gazette No. 328/1968) . The simple senate has to make the decision at the request of only one member of the triple senate.

Notification requirement

§ 8th.

 If an authority or a public agency becomes aware of the suspicion of a criminal offense falling under the jurisdiction of the EPPO according to § 3, which affects its legal sphere of activity, it is obliged to report it to the EPPO.

Beginning of criminal proceedings

§ 9.

The criminal proceedings must be initiated by the EPPO (Art. 26, Paragraph 1 EPPO). The initiation by the criminal police or financial criminal authority is permissible if measures are to be taken that cannot be delayed.

Jurisdiction for preliminary investigations of the EPPO

§ 10.

In preliminary proceedings of the EPPO, judicial decisions are incumbent on the regional court, at whose seat the public prosecutor is located, which are responsible for criminal proceedings according to §§ 20a, 25 to 27 StPO, according to §§ 197 and 198 of the Financial Criminal Law (FinStrG), Federal Law Gazette No. 21/1959, according to § 15 of the Association Responsibility Act (VbVG), Federal Law Gazette I No. 151/2005, or according to § 29 of the Youth Courts Act 1988 (JGG), Federal Law Gazette No. 599/1988. Section 36 (2) and Section 38 of the Code of Criminal Procedure apply.

Court jurisdiction for cross-border investigations according to Art. 31 EPPO-VO

§ 11.

 (1) Notwithstanding Section 10, there is no domestic jurisdiction if a measure is to be carried out in another participating Member State and under whose law a court authorization or a court order to carry out the measure is to be obtained (Article 31 Paragraph 3 Subparagraph 1 EUStA-VO).

(2) If, in the case of cross-border investigations by the EPPO, a measure is to be carried out in the federal territory, the judicial decision or approval according to Art. 31 para. 3 subpara. 1 first case EUStA-VO the regional court at whose seat the public prosecutor is located, which according to § 46 Paragraph 1 or § 55c of the Federal Act on Judicial Cooperation in Criminal Matters with the Member States of the European Union (EU-JZG), Federal Law Gazette I No. 36/2004, would be responsible.

Administrative assistance

§ 12.

 In accordance with Section 76 (1) to (2a) of the Code of Criminal Procedure, the EPPO can directly claim the support of all federal, state and local authorities and other corporations and institutions under public law established by law.

Legal protection officer

§ 13.

 (1) In the investigation procedure, the EPPO does not have to ask the legal protection officer (Section 47a StPO) to authorize the application under Section 147 (2) StPO.

(2) In no case shall the legal protection officer have the right to submit an application to continue the investigation.

Suspension of the investigation

§ 14.

 (1) The reasons for recruitment listed in Sections 190 to 192 of the Code of Criminal Procedure and in Section 18 VbVG do not apply to the EPPO’s recruitment decisions.

(2) In an agreement on the termination, the victim must also be informed of the conditions under which an action for annulment pursuant to Art. 263 (4) of the Treaty on the Functioning of the European Union (TFEU), OJ C 83 of 30.3.2010 p. 1, can be brought before the ECJ. The provisions on the application for continuation according to Sections 195 f of the Code of Criminal Procedure apply mutatis mutandis.

(3) The General Procuratorate is responsible for the consultation on the termination of criminal proceedings by the EPPO in the cases of Art. 39 Para. 3 EPPO Regulation. It has to speak out against the termination of the preliminary investigation by the EPPO and request the transfer of the criminal proceedings according to Art. 34, Paragraph 6 EPPO, if

1.

the facts of the case have not yet been sufficiently clarified, taking into account Section 108 (1) (2) StPO,

2.

a conviction on the basis of sufficiently clarified facts is obvious or

3rd

there is no reason to discontinue the case or to withdraw from the prosecution.

(4) If the preliminary investigation is to be finally concluded on the basis of the conditions agreed with the accused (Art. 40 EPPO), the provisions on withdrawal from prosecution are to be applied mutatis mutandis in accordance with domestic law.

Main and appeal proceedings

§ 15.

 (1) The regional court as lay judge is responsible for the main proceedings on the basis of an indictment by the EPPO (Art. 36 EPPO-VO).

(2) An objection to the indictment can also be raised on the grounds (Section 212 (6) of the Code of Criminal Procedure) that the indictment appeals to a domestic court contrary to Art. 36 (3) EPPO. The court can report such concerns about its jurisdiction to the higher regional court (Section 213 (6) StPO). If the indictment invokes a court in Germany, contrary to Art. 36 (3) EPPO, the higher regional court must reject the indictment.

(3) The EPPO has the rights of the national public prosecutor’s office in appeal proceedings before the Supreme Court.

Exceptionally high investigative costs

§ 16.

If the costs of carrying out an investigative measure reach an exceptionally high level, the European Delegated Public Prosecutor must submit a reasoned request to the EPPO for reimbursement of costs. In any case, an exceptionally high level can be assumed if the costs exceed 100,000 euros. The EPPO’s decision to reimburse costs must be included in the file or documented in the file.

2nd section
International cooperation

general requirements

§ 17.

 The EPPO only has the provisions of the Extradition and Legal Assistance Act (ARHG), Federal Law Gazette No. 529/1979, the EU JZG and the Iceland-Norway Transfer Act (INÜG), Federal Law Gazette I. No. 20 / 2020, to be applied accordingly.

Application of provisions on extradition and the (European) arrest warrant

§ 18.

In proceedings of the EPPO, the provisions of main part I of the ARHG and sections 68 to 70 ARHG on obtaining extradition, section 1 (2), sections 3, 4 and the provisions of section 4 of main part II of the EU JZG on obtaining the execution of a European arrest warrant and §§ 1, 4 and 6 to 9 INÜG on extradition from Iceland and Norway (surrender) to apply mutatis mutandis; however, the European arrest warrant (§ 2 no. 1 EU-JZG) and the arrest warrant (§ 6 paragraph 1 INÜG) are not to be approved by the court.

Application of provisions on freezing orders

§ 19.

 In proceedings of the EPPO, Section 1 (2) and Sections 44 to 51 EU-JZG are only to be applied accordingly in the event that a security is to be obtained in a non-participating Member State.

Application of provisions on mutual legal assistance and the European Investigation Order

§ 20.

 (1) In proceedings of the EPPO, the provisions of main part I of the ARHG and Sections 50 to 59a and 71 to 73 ARHG as well as Section 1 (2) and Sections 55 to 57 and 71 to 75 EU-JZG shall apply mutatis mutandis , if

1.

the enforcement of an EIO is to be obtained in a non-participating member state or mutual legal assistance is to be obtained in a non-participating member state or a third country, or

2.

under the special prerequisites of Art. 31 (6) EPPO, the enforcement of a European investigation order is to be obtained in another participating member state or such is to be enforced in the federal territory or

3rd

the EPPO is requested to transmit parts of the files of the investigative proceedings it is conducting or to provide information about these and no charges have yet been brought.

(2) If, in domestic criminal proceedings, the EPPO is to be requested to transmit parts of the files from the investigative proceedings it is conducting or to provide information about these and no charges have yet been made, Sections 56 to 56b of the EU JZG shall apply mutatis mutandis.

Application of provisions on other cooperation in criminal matters

§ 21.

 (1) Sections 59a to 59c EU-JZG are to be applied mutatis mutandis if it is to be avoided that the EPPO and an authority of a non-participating member state conduct parallel proceedings.

(2) The provisions of main part I of the ARHG and Sections 76a and 76b ARHG as well as Sections 60 to 62 and 76 EU-JZG are to be applied mutatis mutandis if the EPPO is to participate in a joint investigation group.

(3) The EPPO has to apply §§ 77 to 80 EU-JZG mutatis mutandis if information from the criminal records is to be obtained about citizens of other Member States.

(4) If the court intends to obtain the supervision of a decision on the use of milder means in another member state, Sections 115 to 121 of the EU JZG shall apply mutatis mutandis.

3rd section
Application of the provisions of the StAG and the GebAG

Application of the provisions of the StAG

§ 22.

 (1) The provisions of the Federal Act on Public Prosecutor Authorities (Public Prosecutor Act – StAG), Federal Law Gazette No. 164/1986, are only applicable to the extent that this is provided for in this Federal Act.

(2) The provisions of the StAG on dealings with the court (Section 32 (1)) and the inspection of court files (Section 33) are to be applied. The investigation is to be carried out in accordance with § 34c StAG.

(3) Sections 34a and 34b StAG only apply to the extent that the EPPO uses the respective federal data processing.

(4) For complaints against a European Delegated Public Prosecutor regarding his performance of office (supervisory complaint), § 37 StAG shall apply mutatis mutandis. The complaint must be submitted to the European Public Prosecutor appointed for the Republic of Austria.

Application of the provisions of the GebAG

§ 23.

 Sections 23a and 52 of the Fee Claims Act (GebAG), Federal Law Gazette No. 136/1975, are to be applied with the proviso that within the scope of Section 23a GebAG, the head of the public prosecutor’s office must determine the fees for the criminal proceedings would be responsible (§ 10).

4th section
Judicial administration

Domestic safeguarding of the operation and functionality of the EPPO

§ 24.

In their areas of responsibility, the organs of the administration of justice must guarantee the personnel and material requirements for the operation of the EPPO in Germany, taking into account the principles of legality, expediency, economic efficiency and economy. The organs of the administration of justice have to respect the independence of the EPPO according to Art. 6 EPPO-VO.

5th section
Final provisions

References

§ 25.

 (1) Insofar as reference is made in this federal act to other federal acts, these are to be applied in their currently valid version.

(2) References to the public prosecutor’s office contained in other federal acts shall also apply as references to the EPPO, unless otherwise stated in this federal act.

Come into effect

§ 26.

 This federal law comes into force on the day following its announcement.

Completion

§ 27.

 The Federal Minister of Justice, the Federal Minister of the Interior and the Federal Minister of Finance are entrusted with the implementation of this federal law – depending on their area of ​​responsibility.

Article 2
Amendment of the Judiciary and Public Prosecutor’s Service Act

The Judges and Public Prosecutor’s Office Act (RStDG), Federal Law Gazette No. 305/1961, last amended by the Federal Act, Federal Law Gazette I No. 153/2020, is amended as follows:

1. After Section 203, the following Sections 204 and 204a are inserted together with the heading:

“European Delegated Prosecutors

Section 204.

 (1) For the duration of the appointment as European Delegated Public Prosecutor in accordance with Regulation (EU) 2017/1939 for the implementation of enhanced cooperation for the establishment of the European Public Prosecutor’s Office (EPPO), OJ No. L 283 of October 31, 2017 P. 1, the national public prosecutor is on leave against loss of salary, whereby the right to vacation leave remains unaffected.

(2) Notwithstanding Section 7 (1) of the Civil Service Health and Accident Insurance Act (B-KUVG), Federal Law Gazette No. 200/1967, the insurance is not interrupted in the event of a leave of absence in accordance with Section 1. The contribution basis for the assessment of the social security and pension contributions to be paid by the European Delegated Public Prosecutors during parental leave according to Paragraph 1 is the full monthly payment that the public prosecutor would have been entitled to if he or she had not been on leave. All contribution parts are to be borne and paid by the employer.

(3) The period of parental leave according to Paragraph 1 shall be taken into account for rights that depend on the length of the employment relationship.

Special disciplinary and service law provisions for European Delegated Public Prosecutors

§ 204a.

 (1) Disciplinary proceedings against a European Delegated Public Prosecutor can only be initiated upon application by the service authority.

(2) If the service authority intends to take legal action against a national public prosecutor who has been appointed European Delegated Public Prosecutor for reasons that are inconsistent with his or her obligations under Regulation (EU) 2017/1939 are in connection with filing an application to initiate disciplinary proceedings, they must inform the European Public Prosecutor General in advance.

(3) The service authority may not file an application against a European Delegated Public Prosecutor without the consent of the European Public Prosecutor General for reasons related to his or her duties under Regulation (EU) 2017/1939 to initiate disciplinary proceedings. If the European Public Prosecutor General does not give his or her consent, the service authority may request the College to review the matter in accordance with Art. 9 of Regulation (EU) 2017/1939.

(4) During an upright leave of absence against loss of remuneration according to Section 204 (1), a description of the duties of a European Delegated Public Prosecutor must be omitted. This also applies if the European Delegated Public Prosecutor had to be described for the previous calendar year. In this case, the next job description must be for the first full calendar year after the end of the parental leave. “

2. The following paragraph 75 is added to Section 212:

“(75) Sections 204 and 204a including the headings in the version of the Federal Law, Federal Law Gazette I No. 94/2021 come into force on the day following the announcement.”

Article 3
Change of the EU-JZG

The Federal Law on Judicial Cooperation with the Member States of the European Union (EU-JZG), Federal Law Gazette I No. 36/2004, last amended by the Federal Law, Federal Law Gazette I No. 20/2020, is amended as follows:

1. In the table of contents, the following entry is inserted after the entry for § 19:

“Section 19a

Questioning or conditional handover prior to the decision on handover “

2. In the table of contents, the entry for § 27 is omitted.

3. In the table of contents, the following entry is inserted after the entry for § 33:

“Section 33a

Transit of Union citizens “

4. In the table of contents, the following entries are inserted before the entry for § 45:

“First subsection

Implementation of Regulation (EU) 2018/1805

§ 43

Enforcement of freezing orders

§ 44

Obtaining the enforcement of freezing orders

Second subsection

Enforcement of freezing orders from Denmark and Ireland “

5. In the table of contents, the entry for the heading of the first subsection of the third section of III. Main piece:

“Implementation of Regulation (EU) 2018/1805”

6. The entry for § 52 in the table of contents reads:

“Section 52

Enforcement of confiscation orders “

7. In the table of contents, the following entries are inserted after the entry for § 52:

“Second subsection

Enforcement of confiscation orders from the Member States Denmark and Ireland

§ 52a

Requirements”

8. In the table of contents, in the entry for Section 52a, the term “Section 52a” is replaced by the term “Section 52a1” .

9. In the table of contents, the entry for the designation of the second subsection of the third section of III. Main part replaced by the entry “Third Subsection” .

10. In the table of contents, the entries for the title and heading of the eighth subsection of the second section of the fourth main line are replaced by the following entries:

“Third section

Special forms of cooperation “

11. The text of § 2 is given the paragraph designation “(1)” and the following paragraph 2 is added:

“(2) In the scope of Regulation (EU) 2018/1805 on the mutual recognition of freezing and confiscation orders, OJ No. L 303 of November 28, 2018 p. 1, the definitions are based on Art. 2 of the Regulation (EU ) 2018/1805. “

12. § 5a reads:

 § 5a.

 Section 5 (4) to (6) shall apply mutatis mutandis to a Union citizen against whom a European arrest warrant has been issued, if

1.

the Union citizen is domiciled or permanently resident in Germany,

2.

it can be assumed that the execution of a prison sentence in Germany serves to facilitate rehabilitation and reintegration of the convicted person into society, and

3rd

he has not forfeited his right of residence through conduct that represents an actual, present and significant danger to public order or security. “

13. Section 19 (1) reads:

“(1) The requirements for a surrender (§§ 4 to 13 and Paragraph 4) are to be checked against the content of the European arrest warrant.”

14. After Section 19, the following Section 19a and its heading are inserted:

“Questioning or conditional handover prior to the decision on handover

§ 19a.

 Until the decision on the handover is made, the person concerned is at the request of the issuing judicial authority

1.

to be heard, whereby Sections 55h and 55k are to be applied accordingly, or

2.

to be transferred temporarily if their presence at the negotiation on the admissibility of the surrender can be guaranteed; Section 26 is to be applied accordingly. “

15. Section 21 (2) first sentence reads:

“A final decision on the execution of the European arrest warrant must be made within 60 days of arrest.”

16. Paragraph 27 and its heading are omitted.

17. In Section 29 (2), after the phrase “European arrest warrant”, the phrase “including the court authorization” is inserted.

18. After Paragraph 29 (2a), the following paragraph 2b is inserted:

“(2b) The transmission of the European arrest warrant according to Paragraphs 2 and 2a can be combined with the request to the accused or accused

1.

to be heard, whereby it can be requested to proceed analogously according to §§ 55h and 55k, or

2.

to be transferred temporarily, with a promise that his presence at the negotiation on the admissibility of the transfer will be guaranteed. “

19. Paragraph 4, penultimate sentence and paragraph 5, last sentence, are omitted in Section 31.

20. After Section 33, the following Section 33a and its heading are inserted:

“Transit of Union citizens

§ 33a.

 According to Section 33 (2) and (3), the procedure is also to be followed if the European arrest warrant was issued against a Union citizen and

1.

the Union citizen is domiciled or permanently resident in Germany,

2.

it can be assumed that the execution of a prison sentence in Germany serves to facilitate rehabilitation and reintegration of the convicted person into society, and

3rd

he has not forfeited his right of residence through conduct that represents an actual, present and significant danger to public order or security. “

21. In the III. In the main part, the following first subsection and the following subsection name and subsection heading are inserted after the heading of the second section:

“First subsection
Implementation of Regulation (EU) 2018/1805

Enforcement of freezing orders

§ 43.

(1) A freezing order (Art. 2 Para. 1 Regulation (EU) 2018/1805) issued by a Member State other than Denmark or Ireland on property (Art. 2 Para. 3 Regulation (EU) 2018/1805), which leads to a subsequent confiscation order ( Art. 2 (2) Regulation (EU) 2018/1805) must be enforced in accordance with the provisions of Regulation (EU) 2018/1805 and the provisions of this subsection.

(2) The public prosecutor’s office shall initiate proceedings for the enforcement of a freezing order if another member state sends a certificate (Art. 6 Regulation (EU) 2018/1805) or, based on certain facts, it can be assumed that an asset that is included in the Schengen information system for The manhunt is advertised, is located in the country. The decision-making authority is to be requested to submit a certificate or a request for mutual assistance, setting a reasonable deadline, if the asset is found in Germany.

(3) If the freezing order is not based on any of the criminal acts listed in Art. 3 Paragraph 1 of Regulation (EU) 2018/1805, the mutual criminal liability shall be examined (Art. 8 Paragraph 1 lit. 1805).

(4) The public prosecutor’s office as the enforcement authority (Art. 2 (9) Regulation (EU) 2018/1805) in whose area the asset is located or the person concerned has assets in which the decision is located is responsible for the procedure for enforcing a freezing order can be enforced. If the responsibility cannot be determined after this, the place where the person concerned has his place of residence or residence is decisive; it is an association (Section 1, Paragraphs 2 and 3 VbVG), including the place where it has its registered office, business or branch. If responsibility cannot be determined according to these provisions, the Vienna Public Prosecutor is responsible.

(5) If an application would have to be made for the seizure of the freezing order in a comparable domestic case in accordance with domestic legal provisions, the public prosecutor’s office shall submit the necessary applications to the court. Insofar as the court considers it necessary for legal or factual reasons to obtain further information from the issuing authority in the proceedings on an application from the public prosecutor’s office or after the execution of the freezing order, or to submit a request in accordance with Article 12 (2) of Regulation (EU) 2018/1805 To judge these, it has to issue the necessary orders to the public prosecutor’s office.

(6) If paragraph 5 is not to be followed, it is the public prosecutor’s office to order the execution of the freezing order. The order must contain:

1.

the information specified in Section 102 (2) 1, 2 and 4 StPO,

2.

a justification from which the admissibility of the enforcement results, and

3rd

a photocopy of the security certificate.

(7) The legal remedies provided for under national law are available against the order of the public prosecutor’s office, against the decision of the court and against violations of the law in the context of the execution of the seizure, without prejudice to Article 33 (2) of Regulation (EU) 2018/1805.

Obtaining the enforcement of freezing orders

§ 44.

If a seizure is to be obtained in another member state besides Denmark and Ireland during the preliminary investigation, the public prosecutor’s office must apply to the court for seizure (Section 109 (2) of the Code of Criminal Procedure). The freezing certificate (Annex I of Regulation (EU) 2018/1805) must then be issued and transmitted by the court.

Second subsection
Enforcement of freezing orders from Denmark and Ireland “

22. In Paragraph 45 (2), the phrase “all Member States of the European Union” is replaced by the phrase “Denmark and Ireland” .

23. Section 46 (1) first sentence reads:

“Section 43 Paragraphs 2 and 4 to 7 apply mutatis mutandis.”

24. Paragraph 46 (3) reads:

“(3) A decision on whether to enforce a freezing order is to be made within 24 hours if possible. The issuing judicial authority must be informed of the decision. “

25. In Section 50, the phrase “the court” is replaced by the phrase “the public prosecutor’s office” .

26. The heading of the first subsection in the third section of III. The main part is:

“Implementation of Regulation (EU) 2018/1805”

27. Paragraph 52 including the heading reads:

“Enforcement of confiscation orders

Section 52.

 (1) A confiscation order (Art. 2 Para. 2 Regulation (EU) 2018/1805) issued by a Member State other than Denmark and Ireland relating to property (Art. 2 Para. 3 Regulation (EU) 2018/1805) is subject to the provisions of the Regulation (EU) 2018/1805 as well as the provisions of this subsection.

(2) If the confiscation order is not based on any of the criminal acts listed in Article 3 (1) of Regulation (EU) 2018/1805, the mutual criminal liability must be examined (Article 19 (1) (f) of Regulation (EU) 2018) / 1805).

(3) The single judge of the regional court is responsible for the decision on the enforcement of a confiscation order.

(4) The local jurisdiction is based on the place where the property covered by the confiscation decision is located or where the person concerned has property in which the decision can be enforced. If the responsibility cannot be determined after this, the place where the person concerned has his place of residence or residence is decisive; it is an association (Section 1, Paragraphs 2 and 3 VbVG), including the place where it has its registered office, business or branch. If the jurisdiction of a particular court cannot be determined according to these provisions, the Regional Court for Criminal Matters Vienna is responsible.

(5) If assets that are subject to confiscation are not secured, the court may, at the request of the public prosecutor, order them to be secured (Art. 18 (5) Regulation (EU) 2018/1805) if this seems necessary to secure the confiscation and not on the basis of certain facts it can be assumed that the confiscation order will have to be rejected.

(6) The confiscation order is to be served on the person concerned and he is to be heard about the prerequisites for enforcement, provided that it can be summoned in Germany.

(7) The enforcement of the confiscation order is to be decided by resolution. The decision must contain the name of the authority whose decision is being enforced, its file number, a brief description of the facts including the place and time of the offense and the measures ordered, as well as the description of the criminal act.

(8) If the enforcement of a confiscation order for a monetary amount is assumed, the amount to be enforced in Germany is to be set at the amount that is stated in the decision to be enforced. If this amount is not given in euros, the conversion must be carried out at the exchange rate applicable on the day the decision to be enforced was issued. Payments already made and amounts contributed are to be taken into account.

(9) The public prosecutor’s office and the person affected by the decision can lodge a complaint with the Higher Regional Court against a decision pursuant to paras. 7 and 8 within 14 days. A complaint against the enforcement of a confiscation order filed in good time has suspensive effect.

(10) Once the decision has become final, Section 408 (1) of the Code of Criminal Procedure shall be followed.

(11) If the enforcement is declared inadmissible, the public prosecutor’s office must report to the Federal Ministry of Justice by sending a copy of the decision and a photocopy of the confiscation order. “

28. The previous section 52a is given the name “Section 52a1” , and the phrase “from another Member State” is no longer used in Paragraph 1 .

29. After § 52, the following subsection designation and heading as well as the following § 52a and heading are inserted:

“Second subsection
Enforcement of confiscation orders from the Member States Denmark and Ireland

requirements

Section 52a.

 A property-related order (§ 2 no. 11) issued by a Danish or Irish court will be enforced in accordance with the provisions of this subsection. “

30. Section 52b reads:

 Section 52b.

Section 52 (3) and (4) apply. If the court that has been seized with the enforcement does not have jurisdiction, it assigns the matter to the competent court. “

31. In Paragraph 52c, in Paragraph 2, Item 2, the designation “Paragraph 52a” is replaced by the designation “Paragraph 52a1” and in Paragraph 4 the quotation in brackets “(§§ 52, 52a)” by the quotation in brackets “(§ 52a1)” replaced.

32. § 52d reads:

 Section 52d.

 Section 52 (5) and 7 to 11 shall apply. “

33. The quotation in brackets is omitted in Section 52e (1) no.

34. In Section 52i, the quotation in brackets “(Section 52b Paragraph 3)” is replaced by the quotation in brackets “(Section 52b, second sentence)” in Item 1 and the quotation in brackets “(Section 52d Paragraph 2)” with the quotation in brackets “ (§§ 52d, 52 Paragraph 8) “ replaced.

35. In the third section of III. The main part of the previous second subsection is given the designation “third subsection” .

36. In § 52k, the following paragraph 1a is inserted after paragraph 1:

“(1a) In relation to the Member States with the exception of Denmark and Ireland, Regulation (EU) 2018/1805 must be followed. If the enforcement is to be obtained by Denmark or Ireland, the further provisions of this subsection shall apply. “

37. Section 55a (1) no.13 reads:

“13.

in the case of a European investigation order to carry out an observation, a surveillance of messages or an optical and acoustic surveillance of persons, the surveillance would not be approved in a comparable domestic case. “

38. In Section 56 (1), the phrase “this is how a European Investigation Order is to be issued” is replaced by the phrase “this is how a European Investigation Order can be issued. In doing so, it must be taken into account whether the referral to another Member State is proportionate to the weight of the crime, the gravity of the guilt, the consequences of the offense, the degree of suspicion and the desired success ” .

39. The following paragraph 6 is added to Section 61:

“(6) Section 14 (1) to (5) shall apply mutatis mutandis to business transactions.”

40. According to § 74 the subsection designation and the subsection heading are replaced by the following section designation and section heading:

“Third section
Special forms of cooperation “

41. The following paragraph 4 is added to Section 76:

“(4) Section 14 (1) to (5) shall apply mutatis mutandis to business transactions.”

42. In § 80 the word “section” is replaced by the word “subsection” .

43. The following paragraph 19 is added to Section 140:

“(19) The entries in the table of contents, Section 2, Section 5a, Section 19 Paragraph 1, Section 19a including the heading, Section 21 Paragraph 2, Section 29 Paragraph 2 and 2b, Section 31 Paragraph 4 and 5, Section 33a including heading, the first subsection of the second section of III. Main part, title and heading of the second subsection of the second section of the III. Main part, Section 45 Paragraph 2, Section 46 Paragraph 1 and 3, Section 50, the heading of the first subsection of the third section of III. Main part, Section 52 including the heading, the designation of Section 52a1, Section 52b, Section 52c Paragraph 2 Item 2 and Paragraph 4, Section 52c, Section 52e Paragraph 1 Item 1, Section 52i Items 1 and 2, the designation of the third party Subsection of the third section of III. Section 52k, Paragraph 1a, Section 55a, Paragraph 1, Item 13, Section 56, Paragraph 1, Section 61, Paragraph 6, designation and heading of the third section of Section IV, Section 76, Paragraph 4 and § 80 as amended by Federal Law Gazette I No. 94/2021 come into force on the day following the announcement. The entry to § 27 in the table of contents and § 27 including the heading expire at the end of the day of the announcement. “

Article 4
Amendment to the Extradition and Legal Assistance Act

The Extradition and Legal Assistance Act (ARHG), Federal Law Gazette No. 529/1979, last amended by the Federal Act, Federal Law Gazette I No. 20/2020, is amended as follows:

1. The following sentence is added to Section 26 (1):

“If the same person receives several requests for extradition or for consent to further criminal prosecution or execution (Section 40), which are in a specialty relationship (Section 23), they are to be conducted in a joint extradition procedure.

2. In Section 31 (1a), after the phrase “and this”, the phrase “a description of the criminal act on which the extradition request is based, its legal assessment” is inserted.

3. Section 64 (2) reads:

“(2) The enforcement of the decision of a foreign court with which a prison sentence or preventive measure associated with deprivation of liberty has been pronounced is only permissible if the convicted person

1.

is an Austrian citizen,

2.

has his place of residence, residence or ties in Germany, or, based on certain circumstances, it can be assumed that enforcement in Germany serves to facilitate the rehabilitation and reintegration of the convicted person into society, and

3rd

has consented to enforcement in Germany. “

4. The following sentence is added to Section 65 (1):

“If, however, the sentencing state would not consent to the transfer under these conditions and the convicted person would be disproportionately harsh in the execution of the detention in the sentencing state, the execution of the entire sentence still to be executed or the preventive measure associated with deprivation of liberty is permissible in Germany.”

5. The following paragraph 4 is added to Section 78:

“(4) Section 26 (1), Section 31 (1a), Section 64 (2) and Section 65 (1) in the version of the Federal Law, Federal Law Gazette I No. 94/2021, shall come into force on the day following the announcement. “

Article 5
Amendment of the Financial Criminal Law

The Financial Criminal Law (FinStrG), Federal Law Gazette No. 129/1958, last amended by the Federal Law, Federal Law Gazette I No. 52/2021, is amended as follows:

The following sentence is added to Section 195 (1):

“If the European Public Prosecutor’s Office is responsible, Regulation (EU) 2017/1939 on the implementation of enhanced cooperation to establish the European Public Prosecutor’s Office (EPPO), OJ No. L 283 of October 31, 2017 p. 1, in its currently valid version, apply, as well the provisions of the federal law for the implementation of the European Public Prosecutor’s Office (EUStA-DG). “

Article 6
Amendment of the Criminal Code

The Criminal Code (StGB), Federal Law Gazette No. 60/1974, last amended by the Federal Law, Federal Law Gazette I No. 154/2020, is amended as follows:

1. In Section 58 (3) (2), the phrase “including comparable measures by the European Public Prosecutor’s Office” is inserted after the word “indictment” .

2. In Section 64 (1) no. 3, after the phrase “Code of Criminal Procedure or”, the phrase “according to Regulation (EU) 2017/1939 on the implementation of enhanced cooperation for the establishment of the European Public Prosecutor’s Office (EPPO), OJ No. L 283 from October 31, 2017 p. 1, as well as “ inserted.

3. Section 168c is given the name “Section 168f” and Section 168d is given the name “Section 168g” .

4. In Section 288 (4), the word “or” is replaced by a comma after the word “Kriminalpolizei” and the phrase “or European Public Prosecutor” is inserted after the word “Public Prosecutor” .

5. In Section 293 (1) and (2), the phrase “after Regulation (EU) 2017/1939” is inserted after the word “Code of Criminal Procedure” .

6. In Section 295, the phrase “or after Regulation (EU) 2017/1939” is inserted after the word “Code of Criminal Procedure” .

7. In § 296, the phrase “the European Public Prosecutor’s Office” is inserted after the phrase “the public prosecutor’s office” .

Article 7
Come into effect

Art. 6

 comes into force on the day following the announcement of the Federal Law, Federal Law Gazette I No. 94/2021.

Van der Bellen

Short




General Data Protection Regulation of EU

Regulation (EU) 2016/679

Edition: 23.5.2018

The European Data Protection Regulation is applicable as of May 25th, 2018 in all member states to harmonize data privacy laws across Europe

What is it?

This Regulation does not apply to the processing of personal data

‘Personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

This Regulation lays down rules relating to the protection of natural persons with regard to the processing of personal data and rules relating to the free movement of personal data.

This Regulation protects fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data.

This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.

This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law.



Table of Contents

Chapter 1
General provisions
Article 1
Subject-matter and objectives
Article 2
Material scope
Article 3
Territorial scope
Article 4
Definitions

Chapter 2
Principles
Article 5
Principles relating to processing of personal data
Article 6
Lawfulness of processing
Article 7
Conditions for consent
Article 8
Conditions applicable to child’s consent in relation to information society services
Article 9
Processing of special categories of personal data
Article 10
Processing of personal data relating to criminal convictions and offences
Article 11
Processing which does not require identification

Chapter 3
Rights of the data subject
Section 1
Transparency and modalities
Article 12
Transparent information, communication and modalities for the exercise of the rights of the data subject
Section 2
Information and access to personal data
Article 13
Information to be provided where personal data are collected from the data subject
Article 14
Information to be provided where personal data have not been obtained from the data subject
Article 15
Right of access by the data subject
Section 3
Rectification and erasure
Article 16
Right to rectification
Article 17
Right to erasure (‘right to be forgotten’)
Article 18
Right to restriction of processing
Article 19
Notification obligation regarding rectification or erasure of personal data or restriction of processing
Article 20
Right to data portability
Section 4
Right to object and automated individual decision-making
Article 21
Right to object
Article 22
Automated individual decision-making, including profiling
Section 5
Restrictions
Article 23
Restrictions

Chapter 4
Controller and processor
Section 1
General obligations
Article 24
Responsibility of the controller
Article 25
Data protection by design and by default
Article 26
Joint controllers
Article 27
Representatives of controllers or processors not established in the Union
Article 28
Processor
Article 29
Processing under the authority of the controller or processor
Article 30
Records of processing activities
Article 31
Cooperation with the supervisory authority
Section 2
Security of personal data
Article 32
Security of processing
Article 33
Notification of a personal data breach to the supervisory authority
Article 34
Communication of a personal data breach to the data subject
Section 3
Data protection impact assessment and prior consultation
Article 35
Data protection impact assessment
Article 36
Prior consultation
Section 4
Data protection officer
Article 37
Designation of the data protection officer
Article 38
Position of the data protection officer
Article 39
Tasks of the data protection officer
Section 5
Codes of conduct and certification
Article 40
Codes of conduct
Article 41
Monitoring of approved codes of conduct
Article 42
Certification
Article 43
Certification bodies

Chapter 5
Transfers of personal data to third countries or international organisations
Article 44
General principle for transfers
Article 45
Transfers on the basis of an adequacy decision
Article 46
Transfers subject to appropriate safeguards
Article 47
Binding corporate rules
Article 48
Transfers or disclosures not authorised by Union law
Article 49
Derogations for specific situations
Article 50
International cooperation for the protection of personal data

Chapter 6
Independent supervisory authorities
Section 1
Independent status
Article 51
Supervisory authority
Article 52
Independence
Article 53
General conditions for the members of the supervisory authority
Article 54
Rules on the establishment of the supervisory authority
Section 2
Competence, tasks and powers
Article 55
Competence
Article 56
Competence of the lead supervisory authority
Article 57
Tasks
Article 58
Powers
Article 59
Activity reports

Chapter 7
Cooperation and consistency
Section 1
Cooperation
Article 60
Cooperation between the lead supervisory authority and the other supervisory authorities concerned
Article 61
Mutual assistance
Article 62
Joint operations of supervisory authorities
Section 2
Consistency
Article 63
Consistency mechanism
Article 64
Opinion of the Board
Article 65
Dispute resolution by the Board
Article 66
Urgency procedure
Article 67
Exchange of information
Section 3
European data protection board
Article 68
European Data Protection Board
Article 69
Independence
Article 70
Tasks of the Board
Article 71
Reports
Article 72
Procedure
Article 73
Chair
Article 74
Tasks of the Chair
Article 75
Secretariat
Article 76
Confidentiality

Chapter 8
Remedies, liability and penalties
Article 77
Right to lodge a complaint with a supervisory authority
Article 78
Right to an effective judicial remedy against a supervisory authority
Article 79
Right to an effective judicial remedy against a controller or processor
Article 80
Representation of data subjects
Article 81
Suspension of proceedings
Article 82
Right to compensation and liability
Article 83
General conditions for imposing administrative fines
Article 84
Penalties

Chapter 9
Provisions relating to specific processing situations
Article 85
Processing and freedom of expression and information
Article 86
Processing and public access to official documents
Article 87
Processing of the national identification number
Article 88
Processing in the context of employment
Article 89
Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes
Article 90
Obligations of secrecy
Article 91
Existing data protection rules of churches and religious associations

Chapter 10
Delegated acts and implementing acts
Article 92
Exercise of the delegation
Article 93
Committee procedure
Chapter 11
Final provisions
Article 94
Repeal of Directive 95/46/EC
Article 95
Relationship with Directive 2002/58/EC
Article 96
Relationship with previously concluded Agreements
Article 97
Commission reports
Article 98
Review of other Union legal acts on data protection
Article 99
Entry into force and application





Standards on rights, support and protection of victims of crime- EU directives- 2012

DIRECTIVE 2012/29/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of

25 October 2012

Establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 82(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the ordinary legislative procedure (3),

Whereas:

(1)

The Union has set itself the objective of maintaining and developing an area of freedom, security and justice, the cornerstone of which is the mutual recognition of judicial decisions in civil and criminal matters.

(2)

The Union is committed to the protection of, and to the establishment of minimum standards in regard to, victims of crime and the Council has adopted Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (4). Under the Stockholm Programme – An open and secure Europe serving and protecting citizens (5), adopted by the European Council at its meeting on 10 and 11 December 2009, the Commission and the Member States were asked to examine how to improve legislation and practical support measures for the protection of victims, with particular attention paid to, support for and recognition of, all victims, including for victims of terrorism, as a priority.

(3)

Article 82(2) of the Treaty on the Functioning of the European Union (TFEU) provides for the establishment of minimum rules applicable in the Member States to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, in particular with regard to the rights of victims of crime.

(4)

In its resolution of 10 June 2011 on a roadmap for strengthening the rights and protection of victims, in particular in criminal proceedings (6) (‘the Budapest roadmap’), the Council stated that action should be taken at Union level in order to strengthen the rights of, support for, and protection of victims of crime. To that end and in accordance with that resolution, this Directive aims to revise and supplement the principles set out in Framework Decision 2001/220/JHA and to take significant steps forward in the level of protection of victims throughout the Union, in particular within the framework of criminal proceedings.

(5)

The resolution of the European Parliament of 26 November 2009 on the elimination of violence against women (7) called on the Member States to improve their national laws and policies to combat all forms of violence against women and to act in order to tackle the causes of violence against women, not least by employing preventive measures, and called on the Union to guarantee the right to assistance and support for all victims of violence.

(6)

In its resolution of 5 April 2011 on priorities and outline of a new EU policy framework to fight violence against women (8) the European Parliament proposed a strategy to combat violence against women, domestic violence and female genital mutilation as a basis for future legislative criminal-law instruments against gender-based violence including a framework to fight violence against women (policy, prevention, protection, prosecution, provision and partnership) to be followed up by a Union action plan. International regulation within this area includes the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) adopted on 18 December 1979, the CEDAW Committee’s recommendations and decisions, and the Council of Europe Convention on preventing and combating violence against women and domestic violence adopted on 7 April 2011.

(7)

Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection order (9) establishes a mechanism for the mutual recognition of protection measures in criminal matters between Member States. Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims (10) and Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography (11) address, inter alia, the specific needs of the particular categories of victims of human trafficking, child sexual abuse, sexual exploitation and child pornography.

(8)

Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (12) recognises that terrorism constitutes one of the most serious violations of the principles on which the Union is based, including the principle of democracy, and confirms that it constitutes, inter alia, a threat to the free exercise of human rights.

(9)

Crime is a wrong against society as well as a violation of the individual rights of victims. As such, victims of crime should be recognised and treated in a respectful, sensitive and professional manner without discrimination of any kind based on any ground such as race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, gender, gender expression, gender identity, sexual orientation, residence status or health. In all contacts with a competent authority operating within the context of criminal proceedings, and any service coming into contact with victims, such as victim support or restorative justice services, the personal situation and immediate needs, age, gender, possible disability and maturity of victims of crime should be taken into account while fully respecting their physical, mental and moral integrity. Victims of crime should be protected from secondary and repeat victimisation, from intimidation and from retaliation, should receive appropriate support to facilitate their recovery and should be provided with sufficient access to justice.

(10)

This Directive does not address the conditions of the residence of victims of crime in the territory of the Member States. Member States should take the necessary measures to ensure that the rights set out in this Directive are not made conditional on the victim’s residence status in their territory or on the victim’s citizenship or nationality. Reporting a crime and participating in criminal proceedings do not create any rights regarding the residence status of the victim.

(11)

This Directive lays down minimum rules. Member States may extend the rights set out in this Directive in order to provide a higher level of protection.

(12)

The rights set out in this Directive are without prejudice to the rights of the offender. The term ‘offender’ refers to a person who has been convicted of a crime. However, for the purposes of this Directive, it also refers to a suspected or accused person before any acknowledgement of guilt or conviction, and it is without prejudice to the presumption of innocence.

(13)

This Directive applies in relation to criminal offences committed in the Union and to criminal proceedings that take place in the Union. It confers rights on victims of extra-territorial offences only in relation to criminal proceedings that take place in the Union. Complaints made to competent authorities outside the Union, such as embassies, do not trigger the obligations set out in this Directive.

(14)

In applying this Directive, children’s best interests must be a primary consideration, in accordance with the Charter of Fundamental Rights of the European Union and the United Nations Convention on the Rights of the Child adopted on 20 November 1989. Child victims should be considered and treated as the full bearers of rights set out in this Directive and should be entitled to exercise those rights in a manner that takes into account their capacity to form their own views.

(15)

In applying this Directive, Member States should ensure that victims with disabilities are able to benefit fully from the rights set out in this Directive, on an equal basis with others, including by facilitating the accessibility to premises where criminal proceedings are conducted and access to information.

(16)

Victims of terrorism have suffered attacks that are intended ultimately to harm society. They may therefore need special attention, support and protection due to the particular nature of the crime that has been committed against them. Victims of terrorism can be under significant public scrutiny and often need social recognition and respectful treatment by society. Member States should therefore take particular account of the needs of victims of terrorism, and should seek to protect their dignity and security.

(17)

Violence that is directed against a person because of that person’s gender, gender identity or gender expression or that affects persons of a particular gender disproportionately, is understood as gender-based violence. It may result in physical, sexual, emotional or psychological harm, or economic loss, to the victim. Gender-based violence is understood to be a form of discrimination and a violation of the fundamental freedoms of the victim and includes violence in close relationships, sexual violence (including rape, sexual assault and harassment), trafficking in human beings, slavery, and different forms of harmful practices, such as forced marriages, female genital mutilation and so-called ‘honour crimes’. Women victims of gender-based violence and their children often require special support and protection because of the high risk of secondary and repeat victimisation, of intimidation and of retaliation connected with such violence.

(18)

Where violence is committed in a close relationship, it is committed by a person who is a current or former spouse, or partner or other family member of the victim, whether or not the offender shares or has shared the same household with the victim. Such violence could cover physical, sexual, psychological or economic violence and could result in physical, mental or emotional harm or economic loss. Violence in close relationships is a serious and often hidden social problem which could cause systematic psychological and physical trauma with severe consequences because the offender is a person whom the victim should be able to trust. Victims of violence in close relationships may therefore be in need of special protection measures. Women are affected disproportionately by this type of violence and the situation can be worse if the woman is dependent on the offender economically, socially or as regards her right to residence.

(19)

A person should be considered to be a victim regardless of whether an offender is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between them. It is possible that family members of victims are also harmed as a result of the crime. In particular, family members of a person whose death has been directly caused by a criminal offence could be harmed as a result of the crime. Such family members, who are indirect victims of the crime, should therefore also benefit from protection under this Directive. However, Member States should be able to establish procedures to limit the number of family members who can benefit from the rights set out in this Directive. In the case of a child, the child or, unless this is not in the best interests of the child, the holder of parental responsibilty on behalf of the child, should be entitled to exercise the rights set out in this Directive. This Directive is without prejudice to any national administrative procedures required to establish that a person is a victim.

(20)

The role of victims in the criminal justice system and whether they can participate actively in criminal proceedings vary across Member States, depending on the national system, and is determined by one or more of the following criteria: whether the national system provides for a legal status as a party to criminal proceedings; whether the victim is under a legal requirement or is requested to participate actively in criminal proceedings, for example as a witness; and/or whether the victim has a legal entitlement under national law to participate actively in criminal proceedings and is seeking to do so, where the national system does not provide that victims have the legal status of a party to the criminal proceedings. Member States should determine which of those criteria apply to determine the scope of rights set out in this Directive where there are references to the role of the victim in the relevant criminal justice system.

(21)

Information and advice provided by competent authorities, victim support services and restorative justice services should, as far as possible, be given by means of a range of media and in a manner which can be understood by the victim. Such information and advice should be provided in simple and accessible language. It should also be ensured that the victim can be understood during proceedings. In this respect, the victim’s knowledge of the language used to provide information, age, maturity, intellectual and emotional capacity, literacy and any mental or physical impairment should be taken into account. Particular account should be taken of difficulties in understanding or communicating which may be due to a disability of some kind, such as hearing or speech impediments. Equally, limitations on a victim’s ability to communicate information should be taken into account during criminal proceedings.

(22)

The moment when a complaint is made should, for the purposes of this Directive, be considered as falling within the context of the criminal proceedings. This should also include situations where authorities initiate criminal proceedings ex officio as a result of a criminal offence suffered by a victim.

(23)

Information about reimbursement of expenses should be provided, from the time of the first contact with a competent authority, for example in a leaflet stating the basic conditions for such reimbursement of expenses. Member States should not be required, at this early stage of the criminal proceedings, to decide on whether the victim concerned fulfils the conditions for reimbursement of expenses.

(24)

When reporting a crime, victims should receive a written acknowledgement of their complaint from the police, stating the basic elements of the crime, such as the type of crime, the time and place, and any damage or harm caused by the crime. This acknowledgement should include a file number and the time and place for reporting of the crime in order to serve as evidence that the crime has been reported, for example in relation to insurance claims.

(25)

Without prejudice to rules relating to limitation periods, the delayed reporting of a criminal offence due to fear of retaliation, humiliation or stigmatisation should not result in refusing acknowledgement of the victim’s complaint.

(26)

When providing information, sufficient detail should be given to ensure that victims are treated in a respectful manner and to enable them to make informed decisions about their participation in proceedings. In this respect, information allowing the victim to know about the current status of any proceedings is particularly important. This is equally relevant for information to enable a victim to decide whether to request a review of a decision not to prosecute. Unless otherwise required, it should be possible to provide the information communicated to the victim orally or in writing, including through electronic means.

(27)

Information to a victim should be provided to the last known correspondence address or electronic contact details given to the competent authority by the victim. In exceptional cases, for example due to the high number of victims involved in a case, it should be possible to provide information through the press, through an official website of the competent authority or through a similar communication channel.

(28)

Member States should not be obliged to provide information where disclosure of that information could affect the proper handling of a case or harm a given case or person, or if they consider it contrary to the essential interests of their security.

(29)

Competent authorities should ensure that victims receive updated contact details for communication about their case unless the victim has expressed a wish not to receive such information.

(30)

A reference to a ‘decision’ in the context of the right to information, interpretation and translation, should be understood only as a reference to the finding of guilt or otherwise ending criminal proceedings. The reasons for that decision should be provided to the victim through a copy of the document which contains that decision or through a brief summary of them.

(31)

The right to information about the time and place of a trial resulting from the complaint with regard to a criminal offence suffered by the victim should also apply to information about the time and place of a hearing related to an appeal of a judgment in the case.

(32)

Specific information about the release or the escape of the offender should be given to victims, upon request, at least in cases where there might be a danger or an identified risk of harm to the victims, unless there is an identified risk of harm to the offender which would result from the notification. Where there is an identified risk of harm to the offender which would result from the notification, the competent authority should take into account all other risks when determining an appropriate action. The reference to ‘identified risk of harm to the victims’ should cover such factors as the nature and severity of the crime and the risk of retaliation. Therefore, it should not be applied to those situations where minor offences were committed and thus where there is only a slight risk of harm to the victim.

(33)

Victims should receive information about any right to appeal of a decision to release the offender, if such a right exists in national law.

(34)

Justice cannot be effectively achieved unless victims can properly explain the circumstances of the crime and provide their evidence in a manner understandable to the competent authorities. It is equally important to ensure that victims are treated in a respectful manner and that they are able to access their rights. Interpretation should therefore be made available, free of charge, during questioning of the victim and in order to enable them to participate actively in court hearings, in accordance with the role of the victim in the relevant criminal justice system. For other aspects of criminal proceedings, the need for interpretation and translation can vary depending on specific issues, the role of the victim in the relevant criminal justice system and his or her involvement in proceedings and any specific rights they have. As such, interpretation and translation for these other cases need only be provided to the extent necessary for victims to exercise their rights.

(35)

The victim should have the right to challenge a decision finding that there is no need for interpretation or translation, in accordance with procedures in national law. That right does not entail the obligation for Member States to provide for a separate mechanism or complaint procedure in which such decision may be challenged and should not unreasonably prolong the criminal proceedings. An internal review of the decision in accordance with existing national procedures would suffice.

(36)

The fact that a victim speaks a language which is not widely spoken should not, in itself, be grounds to decide that interpretation or translation would unreasonably prolong the criminal proceedings.

(37)

Support should be available from the moment the competent authorities are aware of the victim and throughout criminal proceedings and for an appropriate time after such proceedings in accordance with the needs of the victim and the rights set out in this Directive. Support should be provided through a variety of means, without excessive formalities and through a sufficient geographical distribution across the Member State to allow all victims the opportunity to access such services. Victims who have suffered considerable harm due to the severity of the crime could require specialist support services.

(38)

Persons who are particularly vulnerable or who find themselves in situations that expose them to a particularly high risk of harm, such as persons subjected to repeat violence in close relationships, victims of gender-based violence, or persons who fall victim to other types of crime in a Member State of which they are not nationals or residents, should be provided with specialist support and legal protection. Specialist support services should be based on an integrated and targeted approach which should, in particular, take into account the specific needs of victims, the severity of the harm suffered as a result of a criminal offence, as well as the relationship between victims, offenders, children and their wider social environment. A main task of these services and their staff, which play an important role in supporting the victim to recover from and overcome potential harm or trauma as a result of a criminal offence, should be to inform victims about the rights set out in this Directive so that they can take decisions in a supportive environment that treats them with dignity, respect and sensitivity. The types of support that such specialist support services should offer could include providing shelter and safe accommodation, immediate medical support, referral to medical and forensic examination for evidence in cases of rape or sexual assault, short and long-term psychological counselling, trauma care, legal advice, advocacy and specific services for children as direct or indirect victims.

(39)

Victim support services are not required to provide extensive specialist and professional expertise themselves. If necessary, victim support services should assist victims in calling on existing professional support, such as psychologists.

(40)

Although the provision of support should not be dependent on victims making a complaint with regard to a criminal offence to a competent authority such as the police, such authorities are often best placed to inform victims of the possibility of support. Member States are therefore encouraged to establish appropriate conditions to enable the referral of victims to victim support services, including by ensuring that data protection requirements can be and are adhered to. Repeat referrals should be avoided.

(41)

The right of victims to be heard should be considered to have been fulfilled where victims are permitted to make statements or explanations in writing.

(42)

The right of child victims to be heard in criminal proceedings should not be precluded solely on the basis that the victim is a child or on the basis of that victim’s age.

(43)

The right to a review of a decision not to prosecute should be understood as referring to decisions taken by prosecutors and investigative judges or law enforcement authorities such as police officers, but not to the decisions taken by courts. Any review of a decision not to prosecute should be carried out by a different person or authority to that which made the original decision, unless the initial decision not to prosecute was taken by the highest prosecuting authority, against whose decision no review can be made, in which case the review may be carried out by that same authority. The right to a review of a decision not to prosecute does not concern special procedures, such as proceedings against members of parliament or government, in relation to the exercise of their official position.

(44)

A decision ending criminal proceedings should include situations where a prosecutor decides to withdraw charges or discontinue proceedings.

(45)

A decision of the prosecutor resulting in an out-of-court settlement and thus ending criminal proceedings, excludes victims from the right to a review of a decision of the prosecutor not to prosecute, only if the settlement imposes a warning or an obligation.

(46)

Restorative justice services, including for example victim-offender mediation, family group conferencing and sentencing circles, can be of great benefit to the victim, but require safeguards to prevent secondary and repeat victimisation, intimidation and retaliation. Such services should therefore have as a primary consideration the interests and needs of the victim, repairing the harm done to the victim and avoiding further harm. Factors such as the nature and severity of the crime, the ensuing degree of trauma, the repeat violation of a victim’s physical, sexual, or psychological integrity, power imbalances, and the age, maturity or intellectual capacity of the victim, which could limit or reduce the victim’s ability to make an informed choice or could prejudice a positive outcome for the victim, should be taken into consideration in referring a case to the restorative justice services and in conducting a restorative justice process. Restorative justice processes should, in principle, be confidential, unless agreed otherwise by the parties, or as required by national law due to an overriding public interest. Factors such as threats made or any forms of violence committed during the process may be considered as requiring disclosure in the public interest.

(47)

Victims should not be expected to incur expenses in relation to their participation in criminal proceedings. Member States should be required to reimburse only necessary expenses of victims in relation to their participation in criminal proceedings and should not be required to reimburse victims’ legal fees. Member States should be able to impose conditions in regard to the reimbursement of expenses in national law, such as time limits for claiming reimbursement, standard rates for subsistence and travel costs and maximum daily amounts for loss of earnings. The right to reimbursement of expenses in criminal proceedings should not arise in a situation where a victim makes a statement on a criminal offence. Expenses should only be covered to the extent that the victim is obliged or requested by the competent authorities to be present and actively participate in the criminal proceedings.

(48)

Recoverable property which is seized in criminal proceedings should be returned as soon as possible to the victim of the crime, subject to exceptional circumstances, such as in a dispute concerning the ownership or where the possession of the property or the property itself is illegal. The right to have property returned should be without prejudice to its legitimate retention for the purposes of other legal proceedings.

(49)

The right to a decision on compensation from the offender and the relevant applicable procedure should also apply to victims resident in a Member State other than the Member State where the criminal offence was committed.

(50)

The obligation set out in this Directive to transmit complaints should not affect Member States’ competence to institute proceedings and is without prejudice to the rules of conflict relating to the exercise of jurisdiction, as laid down in Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings (13).

(51)

If the victim has left the territory of the Member State where the criminal offence was committed, that Member State should no longer be obliged to provide assistance, support and protection except for what is directly related to any criminal proceedings it is conducting regarding the criminal offence concerned, such as special protection measures during court proceedings. The Member State of the victim’s residence should provide assistance, support and protection required for the victim’s need to recover.

(52)

Measures should be available to protect the safety and dignity of victims and their family members from secondary and repeat victimisation, from intimidation and from retaliation, such as interim injunctions or protection or restraining orders.

(53)

The risk of secondary and repeat victimisation, of intimidation and of retaliation by the offender or as a result of participation in criminal proceedings should be limited by carrying out proceedings in a coordinated and respectful manner, enabling victims to establish trust in authorities. Interaction with competent authorities should be as easy as possible whilst limiting the number of unnecessary interactions the victim has with them through, for example, video recording of interviews and allowing its use in court proceedings. As wide a range of measures as possible should be made available to practitioners to prevent distress to the victim during court proceedings in particular as a result of visual contact with the offender, his or her family, associates or members of the public. To that end, Member States should be encouraged to introduce, especially in relation to court buildings and police stations, feasible and practical measures enabling the facilities to include amenities such as separate entrances and waiting areas for victims. In addition, Member States should, to the extent possible, plan the criminal proceedings so that contacts between victims and their family members and offenders are avoided, such as by summoning victims and offenders to hearings at different times.

(54)

Protecting the privacy of the victim can be an important means of preventing secondary and repeat victimisation, intimidation and retaliation and can be achieved through a range of measures including non-disclosure or limitations on the disclosure of information concerning the identity and whereabouts of the victim. Such protection is particularly important for child victims, and includes non-disclosure of the name of the child. However, there might be cases where, exceptionally, the child can benefit from the disclosure or even widespread publication of information, for example where a child has been abducted. Measures to protect the privacy and images of victims and of their family members should always be consistent with the right to a fair trial and freedom of expression, as recognised in Articles 6 and 10, respectively, of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

(55)

Some victims are particularly at risk of secondary and repeat victimisation, of intimidation and of retaliation by the offender during criminal proceedings. It is possible that such a risk derives from the personal characteristics of the victim or the type, nature or circumstances of the crime. Only through individual assessments, carried out at the earliest opportunity, can such a risk be effectively identified. Such assessments should be carried out for all victims to determine whether they are at risk of secondary and repeat victimisation, of intimidation and of retaliation and what special protection measures they require.

(56)

Individual assessments should take into account the personal characteristics of the victim such as his or her age, gender and gender identity or expression, ethnicity, race, religion, sexual orientation, health, disability, residence status, communication difficulties, relationship to or dependence on the offender and previous experience of crime. They should also take into account the type or nature and the circumstances of the crime such as whether it is a hate crime, a bias crime or a crime committed with a discriminatory motive, sexual violence, violence in a close relationship, whether the offender was in a position of control, whether the victim’s residence is in a high crime or gang dominated area, or whether the victim’s country of origin is not the Member State where the crime was committed.

(57)

Victims of human trafficking, terrorism, organised crime, violence in close relationships, sexual violence or exploitation, gender-based violence, hate crime, and victims with disabilities and child victims tend to experience a high rate of secondary and repeat victimisation, of intimidation and of retaliation. Particular care should be taken when assessing whether such victims are at risk of such victimisation, intimidation and of retaliation and there should be a strong presumption that those victims will benefit from special protection measures.

(58)

Victims who have been identified as vulnerable to secondary and repeat victimisation, to intimidation and to retaliation should be offered appropriate measures to protect them during criminal proceedings. The exact nature of such measures should be determined through the individual assessment, taking into account the wish of the victim. The extent of any such measure should be determined without prejudice to the rights of the defence and in accordance with rules of judicial discretion. The victims’ concerns and fears in relation to proceedings should be a key factor in determining whether they need any particular measure.

(59)

Immediate operational needs and constraints may make it impossible to ensure, for example, that the same police officer consistently interview the victim; illness, maternity or parental leave are examples of such constraints. Furthermore, premises specially designed for interviews with victims may not be available due, for example, to renovation. In the event of such operational or practical constraints, a special measure envisaged following an individual assessment may not be possible to provide on a case-by-case basis.

(60)

Where, in accordance with this Directive, a guardian or a representative is to be appointed for a child, those roles could be performed by the same person or by a legal person, an institution or an authority.

(61)

Any officials involved in criminal proceedings who are likely to come into personal contact with victims should be able to access and receive appropriate initial and ongoing training, to a level appropriate to their contact with victims, so that they are able to identify victims and their needs and deal with them in a respectful, sensitive, professional and non-discriminatory manner. Persons who are likely to be involved in the individual assessment to identify victims’ specific protection needs and to determine their need for special protection measures should receive specific training on how to carry out such an assessment. Member States should ensure such training for police services and court staff. Equally, training should be promoted for lawyers, prosecutors and judges and for practitioners who provide victim support or restorative justice services. This requirement should include training on the specific support services to which victims should be referred or specialist training where their work focuses on victims with specific needs and specific psychological training, as appropriate. Where relevant, such training should be gender sensitive. Member States’ actions on training should be complemented by guidelines, recommendations and exchange of best practices in accordance with the Budapest roadmap.

(62)

Member States should encourage and work closely with civil society organisations, including recognised and active non-governmental organisations working with victims of crime, in particular in policymaking initiatives, information and awareness-raising campaigns, research and education programmes and in training, as well as in monitoring and evaluating the impact of measures to support and protect victims of crime. For victims of crime to receive the proper degree of assistance, support and protection, public services should work in a coordinated manner and should be involved at all administrative levels — at Union level, and at national, regional and local level. Victims should be assisted in finding and addressing the competent authorities in order to avoid repeat referrals. Member States should consider developing ‘sole points of access’ or ‘one-stop shops’, that address victims’ multiple needs when involved in criminal proceedings, including the need to receive information, assistance, support, protection and compensation.

(63)

In order to encourage and facilitate reporting of crimes and to allow victims to break the cycle of repeat victimisation, it is essential that reliable support services are available to victims and that competent authorities are prepared to respond to victims’ reports in a respectful, sensitive, professional and non-discriminatory manner. This could increase victims’ confidence in the criminal justice systems of Member States and reduce the number of unreported crimes. Practitioners who are likely to receive complaints from victims with regard to criminal offences should be appropriately trained to facilitate reporting of crimes, and measures should be put in place to enable third-party reporting, including by civil society organisations. It should be possible to make use of communication technology, such as e-mail, video recordings or online electronic forms for making complaints.

(64)

Systematic and adequate statistical data collection is recognised as an essential component of effective policymaking in the field of rights set out in this Directive. In order to facilitate evaluation of the application of this Directive, Member States should communicate to the Commission relevant statistical data related to the application of national procedures on victims of crime, including at least the number and type of the reported crimes and, as far as such data are known and are available, the number and age and gender of the victims. Relevant statistical data can include data recorded by the judicial authorities and by law enforcement agencies and, as far as possible, administrative data compiled by healthcare and social welfare services and by public and non-governmental victim support or restorative justice services and other organisations working with victims of crime. Judicial data can include information about reported crime, the number of cases that are investigated and persons prosecuted and sentenced. Service-based administrative data can include, as far as possible, data on how victims are using services provided by government agencies and public and private support organisations, such as the number of referrals by police to victim support services, the number of victims that request, receive or do not receive support or restorative justice.

(65)

This Directive aims to amend and expand the provisions of Framework Decision 2001/220/JHA. Since the amendments to be made are substantial in number and nature, that Framework Decision should, in the interests of clarity, be replaced in its entirety in relation to Member States participating in the adoption of this Directive.

(66)

This Directive respects fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union. In particular, it seeks to promote the right to dignity, life, physical and mental integrity, liberty and security, respect for private and family life, the right to property, the principle of non-discrimination, the principle of equality between women and men, the rights of the child, the elderly and persons with disabilities, and the right to a fair trial.

(67)

Since the objective of this Directive, namely to establish minimum standards on the rights, support and protection of victims of crime, cannot be sufficiently achieved by the Member States, and can therefore, by reason of its scale and potential effects, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(68)

Personal data processed when implementing this Directive should be protected in accordance with Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (14) and in accordance with the principles laid down in the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which all Member States have ratified.

(69)

This Directive does not affect more far reaching provisions contained in other Union acts which address the specific needs of particular categories of victims, such as victims of human trafficking and victims of child sexual abuse, sexual exploitation and child pornography, in a more targeted manner.

(70)

In accordance with Article 3 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the TEU and to the TFEU, those Member States have notified their wish to take part in the adoption and application of this Directive.

(71)

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.

(72)

The European Data Protection Supervisor delivered an opinion on 17 October 2011 (15) based on Article 41(2) of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (16),

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER 1

GENERAL PROVISIONS

Article 1

Objectives

1.   The purpose of this Directive is to ensure that victims of crime receive appropriate information, support and protection and are able to participate in criminal proceedings.

Member States shall ensure that victims are recognised and treated in a respectful, sensitive, tailored, professional and non-discriminatory manner, in all contacts with victim support or restorative justice services or a competent authority, operating within the context of criminal proceedings. The rights set out in this Directive shall apply to victims in a non-discriminatory manner, including with respect to their residence status.

2.   Member States shall ensure that in the application of this Directive, where the victim is a child, the child’s best interests shall be a primary consideration and shall be assessed on an individual basis. A child-sensitive approach, taking due account of the child’s age, maturity, views, needs and concerns, shall prevail. The child and the holder of parental responsibility or other legal representative, if any, shall be informed of any measures or rights specifically focused on the child.

Article 2

Definitions

1.   For the purposes of this Directive the following definitions shall apply:

(a)

‘victim’ means:

(i)

a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence;

(ii)

family members of a person whose death was directly caused by a criminal offence and who have suffered harm as a result of that person’s death;

(b)

‘family members’ means the spouse, the person who is living with the victim in a committed intimate relationship, in a joint household and on a stable and continuous basis, the relatives in direct line, the siblings and the dependants of the victim;

(c)

‘child’ means any person below 18 years of age;

(d)

‘restorative justice’ means any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the criminal offence through the help of an impartial third party.

2.   Member States may establish procedures:

(a)

to limit the number of family members who may benefit from the rights set out in this Directive taking into account the individual circumstances of each case; and

(b)

in relation to paragraph (1)(a)(ii), to determine which family members have priority in relation to the exercise of the rights set out in this Directive.

CHAPTER 2

PROVISION OF INFORMATION AND SUPPORT

Article 3

Right to understand and to be understood

1.   Member States shall take appropriate measures to assist victims to understand and to be understood from the first contact and during any further necessary interaction they have with a competent authority in the context of criminal proceedings, including where information is provided by that authority.

2.   Member States shall ensure that communications with victims are given in simple and accessible language, orally or in writing. Such communications shall take into account the personal characteristics of the victim including any disability which may affect the ability to understand or to be understood.

3.   Unless contrary to the interests of the victim or unless the course of proceedings would be prejudiced, Member States shall allow victims to be accompanied by a person of their choice in the first contact with a competent authority where, due to the impact of the crime, the victim requires assistance to understand or to be understood.

Article 4

Right to receive information from the first contact with a competent authority

1.   Member States shall ensure that victims are offered the following information, without unnecessary delay, from their first contact with a competent authority in order to enable them to access the rights set out in this Directive:

(a)

the type of support they can obtain and from whom, including, where relevant, basic information about access to medical support, any specialist support, including psychological support, and alternative accommodation;

(b)

the procedures for making complaints with regard to a criminal offence and their role in connection with such procedures;

(c)

how and under what conditions they can obtain protection, including protection measures;

(d)

how and under what conditions they can access legal advice, legal aid and any other sort of advice;

(e)

how and under what conditions they can access compensation;

(f)

how and under what conditions they are entitled to interpretation and translation;

(g)

if they are resident in a Member State other than that where the criminal offence was committed, any special measures, procedures or arrangements, which are available to protect their interests in the Member State where the first contact with the competent authority is made;

(h)

the available procedures for making complaints where their rights are not respected by the competent authority operating within the context of criminal proceedings;

(i)

the contact details for communications about their case;

(j)

the available restorative justice services;

(k)

how and under what conditions expenses incurred as a result of their participation in the criminal proceedings can be reimbursed.

2.   The extent or detail of information referred to in paragraph 1 may vary depending on the specific needs and personal circumstances of the victim and the type or nature of the crime. Additional details may also be provided at later stages depending on the needs of the victim and the relevance, at each stage of proceedings, of such details.

Article 5

Right of victims when making a complaint

1.   Member States shall ensure that victims receive written acknowledgement of their formal complaint made by them to the competent authority of a Member State, stating the basic elements of the criminal offence concerned.

2.   Member States shall ensure that victims who wish to make a complaint with regard to a criminal offence and who do not understand or speak the language of the competent authority be enabled to make the complaint in a language that they understand or by receiving the necessary linguistic assistance.

3.   Member States shall ensure that victims who do not understand or speak the language of the competent authority, receive translation, free of charge, of the written acknowledgement of their complaint provided for in paragraph 1, if they so request, in a language that they understand.

Article 6

Right to receive information about their case

1.   Member States shall ensure that victims are notified without unnecessary delay of their right to receive the following information about the criminal proceedings instituted as a result of the complaint with regard to a criminal offence suffered by the victim and that, upon request, they receive such information:

(a)

any decision not to proceed with or to end an investigation or not to prosecute the offender;

(b)

the time and place of the trial, and the nature of the charges against the offender.

2.   Member States shall ensure that, in accordance with their role in the relevant criminal justice system, victims are notified without unnecessary delay of their right to receive the following information about the criminal proceedings instituted as a result of the complaint with regard to a criminal offence suffered by them and that, upon request, they receive such information:

(a)

any final judgment in a trial;

(b)

information enabling the victim to know about the state of the criminal proceedings, unless in exceptional cases the proper handling of the case may be adversely affected by such notification.

3.   Information provided for under paragraph 1(a) and paragraph 2(a) shall include reasons or a brief summary of reasons for the decision concerned, except in the case of a jury decision or a decision where the reasons are confidential in which cases the reasons are not provided as a matter of national law.

4.   The wish of victims as to whether or not to receive information shall bind the competent authority, unless that information must be provided due to the entitlement of the victim to active participation in the criminal proceedings. Member States shall allow victims to modify their wish at any moment, and shall take such modification into account.

5.   Member States shall ensure that victims are offered the opportunity to be notified, without unnecessary delay, when the person remanded in custody, prosecuted or sentenced for criminal offences concerning them is released from or has escaped detention. Furthermore, Member States shall ensure that victims are informed of any relevant measures issued for their protection in case of release or escape of the offender.

6.   Victims shall, upon request, receive the information provided for in paragraph 5 at least in cases where there is a danger or an identified risk of harm to them, unless there is an identified risk of harm to the offender which would result from the notification.

Article 7

Right to interpretation and translation

1.   Member States shall ensure that victims who do not understand or speak the language of the criminal proceedings concerned are provided, upon request, with interpretation in accordance with their role in the relevant criminal justice system in criminal proceedings, free of charge, at least during any interviews or questioning of the victim during criminal proceedings before investigative and judicial authorities, including during police questioning, and interpretation for their active participation in court hearings and any necessary interim hearings.

2.   Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, communication technology such as videoconferencing, telephone or internet may be used, unless the physical presence of the interpreter is required in order for the victims to properly exercise their rights or to understand the proceedings.

3.   Member States shall ensure that victims who do not understand or speak the language of the criminal proceedings concerned are provided, in accordance with their role in the relevant criminal justice system in criminal proceedings, upon request, with translations of information essential to the exercise of their rights in criminal proceedings in a language that they understand, free of charge, to the extent that such information is made available to the victims. Translations of such information shall include at least any decision ending the criminal proceedings related to the criminal offence suffered by the victim, and upon the victim’s request, reasons or a brief summary of reasons for such decision, except in the case of a jury decision or a decision where the reasons are confidential in which cases the reasons are not provided as a matter of national law.

4.   Member States shall ensure that victims who are entitled to information about the time and place of the trial in accordance with Article 6(1)(b) and who do not understand the language of the competent authority, are provided with a translation of the information to which they are entitled, upon request.

5.   Victims may submit a reasoned request to consider a document as essential. There shall be no requirement to translate passages of essential documents which are not relevant for the purpose of enabling victims to actively participate in the criminal proceedings.

6.   Notwithstanding paragraphs 1 and 3, an oral translation or oral summary of essential documents may be provided instead of a written translation on condition that such oral translation or oral summary does not prejudice the fairness of the proceedings.

7.   Member States shall ensure that the competent authority assesses whether victims need interpretation or translation as provided for under paragraphs 1 and 3. Victims may challenge a decision not to provide interpretation or translation. The procedural rules for such a challenge shall be determined by national law.

8.   Interpretation and translation and any consideration of a challenge of a decision not to provide interpretation or translation under this Article shall not unreasonably prolong the criminal proceedings.

Article 8

Right to access victim support services

1.   Member States shall ensure that victims, in accordance with their needs, have access to confidential victim support services, free of charge, acting in the interests of the victims before, during and for an appropriate time after criminal proceedings. Family members shall have access to victim support services in accordance with their needs and the degree of harm suffered as a result of the criminal offence committed against the victim.

2.   Member States shall facilitate the referral of victims, by the competent authority that received the complaint and by other relevant entities, to victim support services.

3.   Member States shall take measures to establish free of charge and confidential specialist support services in addition to, or as an integrated part of, general victim support services, or to enable victim support organisations to call on existing specialised entities providing such specialist support. Victims, in accordance with their specific needs, shall have access to such services and family members shall have access in accordance with their specific needs and the degree of harm suffered as a result of the criminal offence committed against the victim.

4.   Victim support services and any specialist support services may be set up as public or non-governmental organisations and may be organised on a professional or voluntary basis.

5.   Member States shall ensure that access to any victim support services is not dependent on a victim making a formal complaint with regard to a criminal offence to a competent authority.

Article 9

Support from victim support services

1.   Victim support services, as referred to in Article 8(1), shall, as a minimum, provide:

(a)

information, advice and support relevant to the rights of victims including on accessing national compensation schemes for criminal injuries, and on their role in criminal proceedings including preparation for attendance at the trial;

(b)

information about or direct referral to any relevant specialist support services in place;

(c)

emotional and, where available, psychological support;

(d)

advice relating to financial and practical issues arising from the crime;

(e)

unless otherwise provided by other public or private services, advice relating to the risk and prevention of secondary and repeat victimisation, of intimidation and of retaliation.

2.   Member States shall encourage victim support services to pay particular attention to the specific needs of victims who have suffered considerable harm due to the severity of the crime.

3.   Unless otherwise provided by other public or private services, specialist support services referred to in Article 8(3), shall, as a minimum, develop and provide:

(a)

shelters or any other appropriate interim accommodation for victims in need of a safe place due to an imminent risk of secondary and repeat victimisation, of intimidation and of retaliation;

(b)

targeted and integrated support for victims with specific needs, such as victims of sexual violence, victims of gender-based violence and victims of violence in close relationships, including trauma support and counselling.

CHAPTER 3

PARTICIPATION IN CRIMINAL PROCEEDINGS

Article 10

Right to be heard

1.   Member States shall ensure that victims may be heard during criminal proceedings and may provide evidence. Where a child victim is to be heard, due account shall be taken of the child’s age and maturity.

2.   The procedural rules under which victims may be heard during criminal proceedings and may provide evidence shall be determined by national law.

Article 11

Rights in the event of a decision not to prosecute

1.   Member States shall ensure that victims, in accordance with their role in the relevant criminal justice system, have the right to a review of a decision not to prosecute. The procedural rules for such a review shall be determined by national law.

2.   Where, in accordance with national law, the role of the victim in the relevant criminal justice system will be established only after a decision to prosecute the offender has been taken, Member States shall ensure that at least the victims of serious crimes have the right to a review of a decision not to prosecute. The procedural rules for such a review shall be determined by national law.

3.   Member States shall ensure that victims are notified without unnecessary delay of their right to receive, and that they receive sufficient information to decide whether to request a review of any decision not to prosecute upon request.

4.   Where the decision not to prosecute is taken by the highest prosecuting authority against whose decision no review may be carried out under national law, the review may be carried out by the same authority.

5.   Paragraphs 1, 3 and 4 shall not apply to a decision of the prosecutor not to prosecute, if such a decision results in an out-of-court settlement, in so far as national law makes such provision.

Article 12

Right to safeguards in the context of restorative justice services

1.   Member States shall take measures to safeguard the victim from secondary and repeat victimisation, from intimidation and from retaliation, to be applied when providing any restorative justice services. Such measures shall ensure that victims who choose to participate in restorative justice processes have access to safe and competent restorative justice services, subject to at least the following conditions:

(a)

the restorative justice services are used only if they are in the interest of the victim, subject to any safety considerations, and are based on the victim’s free and informed consent, which may be withdrawn at any time;

(b)

before agreeing to participate in the restorative justice process, the victim is provided with full and unbiased information about that process and the potential outcomes as well as information about the procedures for supervising the implementation of any agreement;

(c)

the offender has acknowledged the basic facts of the case;

(d)

any agreement is arrived at voluntarily and may be taken into account in any further criminal proceedings;

(e)

discussions in restorative justice processes that are not conducted in public are confidential and are not subsequently disclosed, except with the agreement of the parties or as required by national law due to an overriding public interest.

2.   Member States shall facilitate the referral of cases, as appropriate to restorative justice services, including through the establishment of procedures or guidelines on the conditions for such referral.

Article 13

Right to legal aid

Member States shall ensure that victims have access to legal aid, where they have the status of parties to criminal proceedings. The conditions or procedural rules under which victims have access to legal aid shall be determined by national law.

Article 14

Right to reimbursement of expenses

Member States shall afford victims who participate in criminal proceedings, the possibility of reimbursement of expenses incurred as a result of their active participation in criminal proceedings, in accordance with their role in the relevant criminal justice system. The conditions or procedural rules under which victims may be reimbursed shall be determined by national law.

Article 15

Right to the return of property

Member States shall ensure that, following a decision by a competent authority, recoverable property which is seized in the course of criminal proceedings is returned to victims without delay, unless required for the purposes of criminal proceedings. The conditions or procedural rules under which such property is returned to the victims shall be determined by national law.

Article 16

Right to decision on compensation from the offender in the course of criminal proceedings

1.   Member States shall ensure that, in the course of criminal proceedings, victims are entitled to obtain a decision on compensation by the offender, within a reasonable time, except where national law provides for such a decision to be made in other legal proceedings.

2.   Member States shall promote measures to encourage offenders to provide adequate compensation to victims.

Article 17

Rights of victims resident in another Member State

1.   Member States shall ensure that their competent authorities can take appropriate measures to minimise the difficulties faced where the victim is a resident of a Member State other than that where the criminal offence was committed, particularly with regard to the organisation of the proceedings. For this purpose, the authorities of the Member State where the criminal offence was committed shall, in particular, be in a position:

(a)

to take a statement from the victim immediately after the complaint with regard to the criminal offence is made to the competent authority;

(b)

to have recourse to the extent possible to the provisions on video conferencing and telephone conference calls laid down in the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (17) for the purpose of hearing victims who are resident abroad.

2.   Member States shall ensure that victims of a criminal offence committed in Member States other than that where they reside may make a complaint to the competent authorities of the Member State of residence, if they are unable to do so in the Member State where the criminal offence was committed or, in the event of a serious offence, as determined by national law of that Member State, if they do not wish to do so.

3.   Member States shall ensure that the competent authority to which the victim makes a complaint transmits it without delay to the competent authority of the Member State in which the criminal offence was committed, if the competence to institute the proceedings has not been exercised by the Member State in which the complaint was made.

CHAPTER 4

PROTECTION OF VICTIMS AND RECOGNITION OF VICTIMS WITH SPECIFIC PROTECTION NEEDS

Article 18

Right to protection

Without prejudice to the rights of the defence, Member States shall ensure that measures are available to protect victims and their family members from secondary and repeat victimisation, from intimidation and from retaliation, including against the risk of emotional or psychological harm, and to protect the dignity of victims during questioning and when testifying. When necessary, such measures shall also include procedures established under national law for the physical protection of victims and their family members.

Article 19

Right to avoid contact between victim and offender

1.   Member States shall establish the necessary conditions to enable avoidance of contact between victims and their family members, where necessary, and the offender within premises where criminal proceedings are conducted, unless the criminal proceedings require such contact.

2.   Member States shall ensure that new court premises have separate waiting areas for victims.

Article 20

Right to protection of victims during criminal investigations

Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that during criminal investigations:

(a)

interviews of victims are conducted without unjustified delay after the complaint with regard to a criminal offence has been made to the competent authority;

(b)

the number of interviews of victims is kept to a minimum and interviews are carried out only where strictly necessary for the purposes of the criminal investigation;

(c)

victims may be accompanied by their legal representative and a person of their choice, unless a reasoned decision has been made to the contrary;

(d)

medical examinations are kept to a minimum and are carried out only where strictly necessary for the purposes of the criminal proceedings.

Article 21

Right to protection of privacy

1.   Member States shall ensure that competent authorities may take during the criminal proceedings appropriate measures to protect the privacy, including personal characteristics of the victim taken into account in the individual assessment provided for under Article 22, and images of victims and of their family members. Furthermore, Member States shall ensure that competent authorities may take all lawful measures to prevent public dissemination of any information that could lead to the identification of a child victim.

2.   In order to protect the privacy, personal integrity and personal data of victims, Member States shall, with respect for freedom of expression and information and freedom and pluralism of the media, encourage the media to take self-regulatory measures.

Article 22

Individual assessment of victims to identify specific protection needs

1.   Member States shall ensure that victims receive a timely and individual assessment, in accordance with national procedures, to identify specific protection needs and to determine whether and to what extent they would benefit from special measures in the course of criminal proceedings, as provided for under Articles 23 and 24, due to their particular vulnerability to secondary and repeat victimisation, to intimidation and to retaliation.

2.   The individual assessment shall, in particular, take into account:

(a)

the personal characteristics of the victim;

(b)

the type or nature of the crime; and

(c)

the circumstances of the crime.

3.   In the context of the individual assessment, particular attention shall be paid to victims who have suffered considerable harm due to the severity of the crime; victims who have suffered a crime committed with a bias or discriminatory motive which could, in particular, be related to their personal characteristics; victims whose relationship to and dependence on the offender make them particularly vulnerable. In this regard, victims of terrorism, organised crime, human trafficking, gender-based violence, violence in a close relationship, sexual violence, exploitation or hate crime, and victims with disabilities shall be duly considered.

4.   For the purposes of this Directive, child victims shall be presumed to have specific protection needs due to their vulnerability to secondary and repeat victimisation, to intimidation and to retaliation. To determine whether and to what extent they would benefit from special measures as provided for under Articles 23 and 24, child victims shall be subject to an individual assessment as provided for in paragraph 1 of this Article.

5.   The extent of the individual assessment may be adapted according to the severity of the crime and the degree of apparent harm suffered by the victim.

6.   Individual assessments shall be carried out with the close involvement of the victim and shall take into account their wishes including where they do not wish to benefit from special measures as provided for in Articles 23 and 24.

7.   If the elements that form the basis of the individual assessment have changed significantly, Member States shall ensure that it is updated throughout the criminal proceedings.

Article 23

Right to protection of victims with specific protection needs during criminal proceedings

1.   Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that victims with specific protection needs who benefit from special measures identified as a result of an individual assessment provided for in Article 22(1), may benefit from the measures provided for in paragraphs 2 and 3 of this Article. A special measure envisaged following the individual assessment shall not be made available if operational or practical constraints make this impossible, or where there is a an urgent need to interview the victim and failure to do so could harm the victim or another person or could prejudice the course of the proceedings.

2.   The following measures shall be available during criminal investigations to victims with specific protection needs identified in accordance with Article 22(1):

(a)

interviews with the victim being carried out in premises designed or adapted for that purpose;

(b)

interviews with the victim being carried out by or through professionals trained for that purpose;

(c)

all interviews with the victim being conducted by the same persons unless this is contrary to the good administration of justice;

(d)

all interviews with victims of sexual violence, gender-based violence or violence in close relationships, unless conducted by a prosecutor or a judge, being conducted by a person of the same sex as the victim, if the victim so wishes, provided that the course of the criminal proceedings will not be prejudiced.

3.   The following measures shall be available for victims with specific protection needs identified in accordance with Article 22(1) during court proceedings:

(a)

measures to avoid visual contact between victims and offenders including during the giving of evidence, by appropriate means including the use of communication technology;

(b)

measures to ensure that the victim may be heard in the courtroom without being present, in particular through the use of appropriate communication technology;

(c)

measures to avoid unnecessary questioning concerning the victim’s private life not related to the criminal offence; and

(d)

measures allowing a hearing to take place without the presence of the public.

Article 24

Right to protection of child victims during criminal proceedings

1.   In addition to the measures provided for in Article 23, Member States shall ensure that where the victim is a child:

(a)

in criminal investigations, all interviews with the child victim may be audiovisually recorded and such recorded interviews may be used as evidence in criminal proceedings;

(b)

in criminal investigations and proceedings, in accordance with the role of victims in the relevant criminal justice system, competent authorities appoint a special representative for child victims where, according to national law, the holders of parental responsibility are precluded from representing the child victim as a result of a conflict of interest between them and the child victim, or where the child victim is unaccompanied or separated from the family;

(c)

where the child victim has the right to a lawyer, he or she has the right to legal advice and representation, in his or her own name, in proceedings where there is, or there could be, a conflict of interest between the child victim and the holders of parental responsibility.

The procedural rules for the audiovisual recordings referred to in point (a) of the first subparagraph and the use thereof shall be determined by national law.

2.   Where the age of a victim is uncertain and there are reasons to believe that the victim is a child, the victim shall, for the purposes of this Directive, be presumed to be a child.

CHAPTER 5

OTHER PROVISIONS

Article 25

Training of practitioners

1.   Member States shall ensure that officials likely to come into contact with victims, such as police officers and court staff, receive both general and specialist training to a level appropriate to their contact with victims to increase their awareness of the needs of victims and to enable them to deal with victims in an impartial, respectful and professional manner.

2.   Without prejudice to judicial independence and differences in the organisation of the judiciary across the Union, Member States shall request that those responsible for the training of judges and prosecutors involved in criminal proceedings make available both general and specialist training to increase the awareness of judges and prosecutors of the needs of victims.

3.   With due respect for the independence of the legal profession, Member States shall recommend that those responsible for the training of lawyers make available both general and specialist training to increase the awareness of lawyers of the needs of victims.

4.   Through their public services or by funding victim support organisations, Member States shall encourage initiatives enabling those providing victim support and restorative justice services to receive adequate training to a level appropriate to their contact with victims and observe professional standards to ensure such services are provided in an impartial, respectful and professional manner.

5.   In accordance with the duties involved, and the nature and level of contact the practitioner has with victims, training shall aim to enable the practitioner to recognise victims and to treat them in a respectful, professional and non-discriminatory manner.

Article 26

Cooperation and coordination of services

1.   Member States shall take appropriate action to facilitate cooperation between Member States to improve the access of victims to the rights set out in this Directive and under national law. Such cooperation shall be aimed at least at:

(a)

the exchange of best practices;

(b)

consultation in individual cases; and

(c)

assistance to European networks working on matters directly relevant to victims’ rights.

2.   Member States shall take appropriate action, including through the internet, aimed at raising awareness of the rights set out in this Directive, reducing the risk of victimisation, and minimising the negative impact of crime and the risks of secondary and repeat victimisation, of intimidation and of retaliation, in particular by targeting groups at risk such as children, victims of gender-based violence and violence in close relationships. Such action may include information and awareness raising campaigns and research and education programmes, where appropriate in cooperation with relevant civil society organisations and other stakeholders.

CHAPTER 6

FINAL PROVISIONS

Article 27

Transposition

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 16 November 2015.

2.   When Member States adopt those provisions they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such a reference is to be made.

Article 28

Provision of data and statistics

Member States shall, by 16 November 2017 and every three years thereafter, communicate to the Commission available data showing how victims have accessed the rights set out in this Directive.

Article 29

Report

The Commission shall, by 16 November 2017, submit a report to the European Parliament and to the Council, assessing the extent to which the Member States have taken the necessary measures in order to comply with this Directive, including a description of action taken under Articles 8, 9 and 23, accompanied, if necessary, by legislative proposals.

Article 30

Replacement of Framework Decision 2001/220/JHA

Framework Decision 2001/220/JHA is hereby replaced in relation to Member States participating in the adoption of this Directive, without prejudice to the obligations of the Member States relating to the time limits for transposition into national law.

In relation to Member States participating in the adoption of this Directive, references to that Framework Decision shall be construed as references to this Directive.

Article 31

Entry into force

This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.

Article 32

Addressees

This Directive is addressed to the Member States in accordance with the Treaties.

Done at Strasbourg, 25 October 2012.

For the European Parliament

The President

M. SCHULZ

For the Council

The President

A. D. MAVROYIANNIS


(1)  OJ C 43, 15.2.2012, p. 39.

(2)  OJ C 113, 18.4.2012, p. 56.

(3)  Position of the European Parliament of 12 September 2012 (not yet published in the Official Journal) and decision of the Council of 4 October 2012.

(4)  OJ L 82, 22.3.2001, p. 1.

(5)  OJ C 115, 4.5.2010, p. 1.

(6)  OJ C 187, 28.6.2011, p. 1.

(7)  OJ C 285 E, 21.10.2010, p. 53.

(8)  OJ C 296 E, 2.10.2012, p. 26.

(9)  OJ L 338, 21.12.2011, p. 2.

(10)  OJ L 101, 15.4.2011, p. 1.

(11)  OJ L 335, 17.12.2011, p. 1.

(12)  OJ L 164, 22.6.2002, p. 3.

(13)  OJ L 328, 15.12.2009, p. 42.

(14)  OJ L 350, 30.12.2008, p. 60.

(15)  OJ C 35, 9.2.2012, p. 10.

(16)  OJ L 8, 12.1.2001, p. 1.

(17)  OJ C 197, 12.7.2000, p. 3.


 




Legal protection of databases: EU Law 1996

DIRECTIVE 96/9/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 11 March 1996

on the legal protection of databases

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 57 (2), 66 and 100a thereof,

Having regard to the proposal from the Commission ,

Having regard to the opinion of the Economic and Social Committee ,

Acting in accordance with the procedure laid down in Article 189b of the Treaty ,

(1) Whereas databases are at present not sufficiently protected in all Member States by existing legislation; whereas such protection, where it exists, has different attributes;

(2) Whereas such differences in the legal protection of databases offered by the legislation of the Member States have direct negative effects on the functioning of the internal market as regards databases and in particular on the freedom of natural and legal persons to provide on-line database goods and services on the basis of harmonized legal arrangements throughout the Community; whereas such differences could well become more pronounced as Member States introduce new legislation in this field, which is now taking on an increasingly international dimension;

(3) Whereas existing differences distorting the functioning of the internal market need to be removed and new ones prevented from arising, while differences not adversely affecting the functioning of the internal market or the development of an information market within the Community need not be removed or prevented from arising;

(4) Whereas copyright protection for databases exists in varying forms in the Member States according to legislation or case-law, and whereas, if differences in legislation in the scope and conditions of protection remain between the Member States, such unharmonized intellectual property rights can have the effect of preventing the free movement of goods or services within the Community;

(5) Whereas copyright remains an appropriate form of exclusive right for authors who have created databases;

(6) Whereas, nevertheless, in the absence of a harmonized system of unfair-competition legislation or of case-law, other measures are required in addition to prevent the unauthorized extraction and/or re-utilization of the contents of a database;

(7) Whereas the making of databases requires the investment of considerable human, technical and financial resources while such databases can be copied or accessed at a fraction of the cost needed to design them independently;

(8) Whereas the unauthorized extraction and/or re-utilization of the contents of a database constitute acts which can have serious economic and technical consequences;

(9) Whereas databases are a vital tool in the development of an information market within the Community; whereas this tool will also be of use in many other fields;

(10) Whereas the exponential growth, in the Community and worldwide, in the amount of information generated and processed annually in all sectors of commerce and industry calls for investment in all the Member States in advanced information processing systems;

(11) Whereas there is at present a very great imbalance in the level of investment in the database sector both as between the Member States and between the Community and the world’s largest database-producing third countries;

(12) Whereas such an investment in modern information storage and processing systems will not take place within the Community unless a stable and uniform legal protection regime is introduced for the protection of the rights of makers of databases;

(13) Whereas this Directive protects collections, sometimes called ‘compilations’, of works, data or other materials which are arranged, stored and accessed by means which include electronic, electromagnetic or electro-optical processes or analogous processes;

(14) Whereas protection under this Directive should be extended to cover non-electronic databases;

(15) Whereas the criteria used to determine whether a database should be protected by copyright should be defined to the fact that the selection or the arrangement of the contents of the database is the author’s own intellectual creation; whereas such protection should cover the structure of the database;

(16) Whereas no criterion other than originality in the sense of the author’s intellectual creation should be applied to determine the eligibility of the database for copyright protection, and in particular no aesthetic or qualitative criteria should be applied;

(17) Whereas the term ‘database’ should be understood to include literary, artistic, musical or other collections of works or collections of other material such as texts, sound, images, numbers, facts, and data; whereas it should cover collections of independent works, data or other materials which are systematically or methodically arranged and can be individually accessed; whereas this means that a recording or an audiovisual, cinematographic, literary or musical work as such does not fall within the scope of this Directive;

(18) Whereas this Directive is without prejudice to the freedom of authors to decide whether, or in what manner, they will allow their works to be included in a database, in particular whether or not the authorization given is exclusive; whereas the protection of databases by the sui generis right is without prejudice to existing rights over their contents, and whereas in particular where an author or the holder of a related right permits some of his works or subject matter to be included in a database pursuant to a non-exclusive agreement, a third party may make use of those works or subject matter subject to the required consent of the author or of the holder of the related right without the sui generis right of the maker of the database being invoked to prevent him doing so, on condition that those works or subject matter are neither extracted from the database nor re-utilized on the basis thereof;

(19) Whereas, as a rule, the compilation of several recordings of musical performances on a CD does not come within the scope of this Directive, both because, as a compilation, it does not meet the conditions for copyright protection and because it does not represent a substantial enough investment to be eligible under the sui generis right;

(20) Whereas protection under this Directive may also apply to the materials necessary for the operation or consultation of certain databases such as thesaurus and indexation systems;

(21) Whereas the protection provided for in this Directive relates to databases in which works, data or other materials have been arranged systematically or methodically; whereas it is not necessary for those materials to have been physically stored in an organized manner,

(22) Whereas electronic databases within the meaning of this Directive may also include devices such as CD-ROM and CD-i;

(23) Whereas the term ‘database’ should not be taken to extend to computer programs used in the making or operation of a database, which are protected by Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs (4);

(24) Whereas the rental and lending of databases in the field of copyright and related rights are governed exclusively by Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (5);

(25) Whereas the term of copyright is already governed by Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights (6);

(26) Whereas works protected by copyright and subject matter protected by related rights, which are incorporated into a database, remain nevertheless protected by the respective exclusive rights and may not be incorporated into, or extracted from, the database without the permission of the right-holder or his successors in title;

(27) Whereas copyright in such works and related rights in subject matter thus incorporated into a database are in no way affected by the existence of a separate right in the selection or arrangement of these works and subject matter in a database;

(28) Whereas the moral rights of the natural person who created the database belong to the author and should be exercised according to the legislation of the Member States and the provisions of the Berne Convention for the Protection of Literary and Artistic Works; whereas such moral rights remain outside the scope of this Directive;

(29) Whereas the arrangements applicable to databases created by employees are left to the discretion of the Member States; whereas, therefore nothing in this Directive prevents Member States from stipulating in their legislation that where a database is created by an employee in the execution of his duties or following the instructions given by his employer, the employer exclusively shall be entitled to exercise all economic rights in the database so created, unless otherwise provided by contract;

(30) Whereas the author’s exclusive rights should include the right to determine the way in which his work is exploited and by whom, and in particular to control the distribution of his work to unauthorized persons;

(31) Whereas the copyright protection of databases includes making databases available by means other than the distribution of copies;

(32) Whereas Member States are required to ensure that their national provisions are at least materially equivalent in the case of such acts subject to restrictions as are provided for by this Directive;

(33) Whereas the question of exhaustion of the right of distribution does not arise in the case of on-line databases, which come within the field of provision of services; whereas this also applies with regard to a material copy of such a database made by the user of such a service with the consent of the right-holder, whereas, unlike CD-ROM or CD-i, where the intellectual property is incorporated in a material medium, namely an item of goods, every on-line service is in fact an act which will have to be subject to authorization where the copyright so provides;

(34) Whereas, nevertheless, once the rightholder has chosen to make available a copy of the database to a user, whether by an on-line service or by other means of distribution, that lawful user must be able to access and use the database for the purposes and in the way set out in the agreement with the right-holder, even if such access and use necessitate performance of otherwise restricted acts;

(35) Whereas a list should be drawn up of exceptions to restricted acts, taking into account the fact that copyright as covered by this Directive applies only to the selection or arrangements of the contents of a database; whereas Member States should be given the option of providing for such exceptions in certain cases; whereas, however, this option should be exercised in accordance with the Berne Convention and to the extent that the exceptions relate to the structure of the database; whereas a distinction should be drawn between exceptions for private use and exceptions for reproduction for private purposes, which concerns provisions under national legislation of some Member States on levies on blank media or recording equipment;

(36) Whereas the term ‘scientific research’ within the meaning of this Directive covers both the natural sciences and the human sciences;

(37) Whereas Article 10 (1) of the Berne Convention is not affected by this Directive;

(38) Whereas the increasing use of digital recording technology exposes the database maker to the risk that the contents of his database may be copied and rearranged electronically, without his authorization, to produce a database of identical content which, however, does not infringe any copyright in the arrangement of his database;

(39) Whereas, in addition to aiming to protect the copyright in the original selection or arrangement of the contents of a database, this Directive seeks to safeguard the position of makers of databases against misappropriation of the results of the financial and professional investment made in obtaining and collection the contents by protecting the whole or substantial parts of a database against certain acts by a user or competitor;

(40) Whereas the object of this sui generis right is to ensure protection of any investment in obtaining, verifying or presenting the contents of a database for the limited duration of the right; whereas such investment may consist in the deployment of financial resources and/or the expending of time, effort and energy;

(41) Whereas the objective of the sui generis right is to give the maker of a database the option of preventing the unauthorized extraction and/or re-utilization of all or a substantial part of the contents of that database; whereas the maker of a database is the person who takes the initiative and the risk of investing; whereas this excludes subcontractors in particular from the definition of maker;

(42) Whereas the special right to prevent unauthorized extraction and/or re-utilization relates to acts by the user which go beyond his legitimate rights and thereby harm the investment; whereas the right to prohibit extraction and/or re-utilization of all or a substantial part of the contents relates not only to the manufacture of a parasitical competing product but also to any user who, through his acts, causes significant detriment, evaluated qualitatively or quantitatively, to the investment;

(43) Whereas, in the case of on-line transmission, the right to prohibit re-utilization is not exhausted either as regards the database or as regards a material copy of the database or of part thereof made by the addressee of the transmission with the consent of the rightholder;

(44) Whereas, when on-screen display of the contents of a database necessitates the permanent or temporary transfer of all or a substantial part of such contents to another medium, that act should be subject to authorization by the rightholder;

(45) Whereas the right to prevent unauthorized extraction and/or re-utilization does not in any way constitute an extension of copyright protection to mere facts or data;

(46) Whereas the existence of a right to prevent the unauthorized extraction and/or re-utilization of the whole or a substantial part of works, data or materials from a database should not give rise to the creation of a new right in the works, data or materials themselves;

(47) Whereas, in the interests of competition between suppliers of information products and services, protection by the sui generis right must not be afforded in such a way as to facilitate abuses of a dominant position, in particular as regards the creation and ditribution of new products and services which have an intellectual, documentary, technical, economic or commercial added value; whereas, therefore, the provisions of this Directive are without prejudice to the application of Community or national competition rules;

(48) Whereas the objective of this Directive, which is to afford an appropriate and uniform level of protection of databases as a means to secure the remuneration of the maker of the database, is different from the aim of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (7), which is to guarantee free circulation of personal data on the basis of harmonized rules designed to protect fundamental rights, notably the right to privacy which is recognized in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; whereas the provisions of this Directive are without prejudice to data protection legislation;

(49) Whereas, notwithstanding the right to prevent extraction and/or re-utilization of all or a substantial part of a database, it should be laid down that the maker of a database or rightholder may not prevent a lawful user of the database from extracting and re-utilizing insubstantial parts; whereas, however, that user may not unreasonably prejudice either the legitimate interests of the holder of the sui generis right or the holder of copyright or a related right in respect of the works or subject matter contained in the database;

(50) Whereas the Member States should be given the option of providing for exceptions to the right to prevent the unauthorized extraction and/or re-utilization of a substantial part of the contents of a database in the case of extraction for private purposes, for the purposes of illustration for teaching or scientific research, or where extraction and/or re-utilization are/is carried out in the interests of public security or for the purposes of an administrative or judicial procedure; whereas such operations must not prejudice the exclusive rights of the maker to exploit the database and their purpose must not be commercial;

(51) Whereas the Member States, where they avail themselves of the option to permit a lawful user of a database to extract a substantial part of the contents for the purposes of illustration for teaching or scientific research, may limit that permission to certain categories of teaching or scientific research institution;

(52) Whereas those Member States which have specific rules providing for a right comparable to the sui generis right provided for in this Directive should be permitted to retain, as far as the new right is concerned, the exceptions traditionally specified by such rules;

(53) Whereas the burden of proof regarding the date of completion of the making of a database lies with the maker of the database;

(54) Whereas the burden of proof that the criteria exist for concluding that a substantial modification of the contents of a database is to be regarded as a substantial new investment lies with the maker of the database resulting from such investment;

(55) Whereas a substantial new investment involving a new term of protection may include a substantial verification of the contents of the database;

(56) Whereas the right to prevent unauthorized extraction and/or re-utilization in respect of a database should apply to databases whose makers are nationals or habitual residents of third countries or to those produced by legal persons not established in a Member State, within the meaning of the Treaty, only if such third countries offer comparable protection to databases produced by nationals of a Member State or persons who have their habitual residence in the territory of the Community;

(57) Whereas, in addition to remedies provided under the legislation of the Member States for infringements of copyright or other rights, Member States should provide for appropriate remedies against unauthorized extraction and/or re-utilization of the contents of a database;

(58) Whereas, in addition to the protection given under this Directive to the structure of the database by copyright, and to its contents against unauthorized extraction and/or re-utilization under the sui generis right, other legal provisions in the Member States relevant to the supply of database goods and services continue to apply;

(59) Whereas this Directive is without prejudice to the application to databases composed of audiovisual works of any rules recognized by a Member State’s legislation concerning the broadcasting of audiovisual programmes;

(60) Whereas some Member States currently protect under copyright arrangements databases which do not meet the criteria for eligibility for copyright protection laid down in this Directive; whereas, even if the databases concerned are eligible for protection under the right laid down in this Directive to prevent unauthorized extraction and/or re-utilization of their contents, the term of protection under that right is considerably shorter than that which they enjoy under the national arrangements currently in force; whereas harmonization of the criteria for determining whether a database is to be protected by copyright may not have the effect of reducing the term of protection currently enjoyed by the rightholders concerned; whereas a derogation should be laid down to that effect; whereas the effects of such derogation must be confined to the territories of the Member States concerned,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

SCOPE

Article 1

Scope

1. This Directive concerns the legal protection of databases in any form.

2. For the purposes of this Directive, ‘database’ shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.

3. Protection under this Directive shall not apply to computer programs used in the making or operation of databases accessible by electronic means.

Article 2

Limitations on the scope

This Directive shall apply without prejudice to Community provisions relating to:

(a)

the legal protection of computer programs;

(b)

rental right, lending right and certain rights related to copyright in the field of intellectual property,

(c)

the term of protection of copyright and certain related rights.

CHAPTER II

COPYRIGHT

Article 3

Object of protection

1. In accordance with this Directive, databases which, by reason of the selection or arrangement of their contents, constitute the author’s own intellectual creation shall be protected as such by copyright. No other criteria shall be applied to determine their eligibility for that protection.

2. The copyright protection of databases provided for by this Directive shall not extend to their contents and shall be without prejudice to any rights subsisting in those contents themselves.

Article 4

Database authorship

1. The author of a database shall be the natural person or group of natural persons who created the base or, where the legislation of the Member States so permits, the legal person designated as the rightholder by that legislation.

2. Where collective works are recognized by the legislation of a Member State, the economic rights shall be owned by the person holding the copyright.

3. In respect of a database created by a group of natural persons jointly, the exclusive rights shall be owned jointly.

Article 5

Restricted acts

In respect of the expression of the database which is protectable by copyright, the author of a database shall have the exclusive right to carry out or to authorize:

(a)

temporary or permanent reproduction by any means and in any form, in whole or in part;

(b)

translation, adaptation, arrangement and any other alteration;

(c)

any form of distribution to the public of the database or of copies thereof. The first sale in the Community of a copy of the database by the rightholder or with his consent shall exhaust the right to control resale of that copy within the Community;

(d)

any communication, display or performance to the public;

(e)

any reproduction, distribution, communication, display or performance to the public of the results of the acts referred to in (b).

Article 6

Exceptions to restricted acts

1. The performance by the lawful user of a database or of a copy thereof of any of the acts listed in Article 5 which is necessary for the purposes of access to the contents of the databases and normal use of the contents by the lawful user shall not require the authorization of the author of the database. Where the lawful user is authorized to use only part of the database, this provision shall apply only to that part.

2. Member States shall have the option of providing for limitations on the rights set out in Article 5 in the following cases:

(a)

in the case of reproduction for private purposes of a non-electronic database;

(b)

where there is use for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved;

(c)

where there is use for the purposes of public security of for the purposes of an administrative or judicial procedure;

(d)

where other exceptions to copyright which are traditionally authorized under national law are involved, without prejudice to points (a), (b) and (c).

3. In accordance with the Berne Convention for the protection of Literary and Artistic Works, this Article may not be interpreted in such a way as to allow its application to be used in a manner which unreasonably prejudices the rightholder’s legitimate interests or conflicts with normal exploitation of the database.

CHAPTER III

SUI GENERIS RIGHT

Article 7

Object of protection

1. Member States shall provide for a right for the maker of a database which shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database.

2. For the purposes of this Chapter:

(a) ‘extraction’ shall mean the permanent or temporary transfer of all or a substantial part of the contents of a database to another medium by any means or in any form;

(b) ‘re-utilization’ shall mean any form of making available to the public all or a substantial part of the contents of a database by the distribution of copies, by renting, by on-line or other forms of transmission. The first sale of a copy of a database within the Community by the rightholder or with his consent shall exhaust the right to control resale of that copy within the Community;

Public lending is not an act of extraction or re-utilization.

3. The right referred to in paragraph 1 may be transferred, assigned or granted under contractual licence.

4. The right provided for in paragraph 1 shall apply irrespective of the eligibility of that database for protection by copyright or by other rights. Moreover, it shall apply irrespective of eligibility of the contents of that database for protection by copyright or by other rights. Protection of databases under the right provided for in paragraph 1 shall be without prejudice to rights existing in respect of their contents.

5. The repeated and systematic extraction and/or re-utilization of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted.

Article 8

Rights and obligations of lawful users

1. The maker of a database which is made available to the public in whatever manner may not prevent a lawful user of the database from extracting and/or re-utilizing insubstantial parts of its contents, evaluated qualitatively and/or quantitatively, for any purposes whatsoever. Where the lawful user is authorized to extract and/or re-utilize only part of the database, this paragraph shall apply only to that part.

2. A lawful user of a database which is made available to the public in whatever manner may not perform acts which conflict with normal exploitation of the database or unreasonably prejudice the legitimate interests of the maker of the database.

3. A lawful user of a database which is made available to the public in any manner may not cause prejudice to the holder of a copyright or related right in respect of the works or subject matter contained in the database.

Article 9

Exceptions to the sui generis right

Member States may stipulate that lawful users of a database which is made available to the public in whatever manner may, without the authorization of its maker, extract or re-utilize a substantial part of its contents:

(a)

in the case of extraction for private purposes of the contents of a non-electronic database;

(b)

in the case of extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved;

(c)

in the case of extraction and/or re-utilization for the purposes of public security or an administrative or judicial procedure.

Article 10

Term of protection

1. The right provided for in Article 7 shall run from the date of completion of the making of the database. It shall expire fifteen years from the first of January of the year following the date of completion.

2. In the case of a database which is made available to the public in whatever manner before expiry of the period provided for in paragraph 1, the term of protection by that right shall expire fifteen years from the first of January of the year following the date when the database was first made available to the public.

3. Any substantial change, evaluated qualitatively or quantitatively, to the contents of a database, including any substantial change resulting from the accumulation of successive additions, deletions or alterations, which would result in the database being considered to be a substantial new investment, evaluated qualitatively or quantitatively, shall qualify the database resulting from that investment for its own term of protection.

Article 11

Beneficiaries of protection under the sui generis right

1. The right provided for in Article 7 shall apply to database whose makers or rightholders are nationals of a Member State or who have their habitual residence in the territory of the Community.

2. Paragraph 1 shall also apply to companies and firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Community; however, where such a company or firm has only its registered office in the territory of the Community, its operations must be genuinely linked on an ongoing basis with the economy of a Member State.

3. Agreements extending the right provided for in Article 7 to databases made in third countries and falling outside the provisions of paragraphs 1 and 2 shall be concluded by the Council acting on a proposal from the Commission. The term of any protection extended to databases by virtue of that procedure shall not exceed that available pursuant to Article 10.

CHAPTER IV

COMMON PROVISIONS

Article 12

Remedies

Member States shall provide appropriate remedies in respect of infringements of the rights provided for in this Directive.

Article 13

Continued application of other legal provisions

This Directive shall be without prejudice to provisions concerning in particular copyright, rights related to copyright or any other rights or obligations subsisting in the data, works or other materials incorporated into a database, patent rights, trade marks, design rights, the protection of national treasures, laws on restrictive practices and unfair competition, trade secrets, security, confidentiality, data protection and privacy, access to public documents, and the law of contract.

Article 14

Application over time

1. Protection pursuant to this Directive as regards copyright shall also be available in respect of databases created prior to the date referred to Article 16 (1) which on that date fulfil the requirements laid down in this Directive as regards copyright protection of databases.

2. Notwithstanding paragraph 1, where a database protected under copyright arrangements in a Member State on the date of publication of this Directive does not fulfil the eligibility criteria for copyright protection laid down in Article 3 (1), this Directive shall not result in any curtailing in that Member State of the remaining term of protection afforded under those arrangements.

3. Protection pursuant to the provisions of this Directive as regards the right provided for in Article 7 shall also be available in respect of databases the making of which was completed not more than fifteen years prior to the date referred to in Article 16 (1) and which on that date fulfil the requirements laid down in Article 7.

4. The protection provided for in paragraphs 1 and 3 shall be without prejudice to any acts concluded and rights acquired before the date referred to in those paragraphs.

5. In the case of a database the making of which was completed not more than fifteen years prior to the date referred to in Article 16 (1), the term of protection by the right provided for in Article 7 shall expire fifteen years from the first of January following that date.

Article 15

Binding nature of certain provisions

Any contractual provision contrary to Articles 6 (1) and 8 shall be null and void.

Article 16

Final provisions

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 1 January 1998.

When Member States adopt these provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the provisions of domestic law which they adopt in the field governed by this Directive.

3. Not later than at the end of the third year after the date refered to in paragraph 1, and every three years thereafter, the Commission shall submit to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Directive, in which, inter alia, on the basis of specific information supplied by the Member States, it shall examine in particular the application of the sui generis right, including Articles 8 and 9, and shall verify especially whether the application of this right has led to abuse of a dominant position or other interference with free competition which would justify appropriate measures being taken, including the establishment of non-voluntary licensing arrangements. Where necessary, it shall submit proposals for adjustment of this Directive in line with developments in the area of databases.

Article 17

This Directive is addressed to the Member States.

Done at Strasbourg, 11 March 1996.

For the European Parliament

The President

K. HÄNSCH

For the Council

The President

L. DINI





EU Regulation on the protection of natural persons with regard to the processing of personal data

Previous Page

The protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation

HAVE ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter and objectives

1. This Regulation lays down rules relating to the protection of natural persons with regard to the processing of personal data by the Union institutions and bodies and rules relating to the free movement of personal data between them or to other recipients established in the Union.

2. This Regulation protects fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data.

3. The European Data Protection Supervisor shall monitor the application of the provisions of this Regulation to all processing operations carried out by a Union institution or body.

Article 2

Scope

1. This Regulation applies to the processing of personal data by all Union institutions and bodies.

2. Only Article 3 and Chapter IX of this Regulation shall apply to the processing of operational personal data by Union bodies, offices and agencies when carrying out activities which fall within the scope of Chapter 4 or Chapter 5 of Title V of Part Three TFEU.

3. This Regulation shall not apply to the processing of operational personal data by Europol and the European Public Prosecutor’s Office, until Regulation (EU) 2016/794 of the European Parliament and of the Council (15) and Council Regulation (EU) 2017/1939 (16) are adapted in accordance with Article 98 of this Regulation.

4. This Regulation shall not apply to the processing of personal data by missions referred to in Articles 42(1), 43 and 44 TEU.

5. This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.

Article 3

Definitions

For the purposes of this Regulation, the following definitions apply:

(1)

‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

(2)

‘operational personal data’ means all personal data processed by Union bodies, offices or agencies when carrying out activities which fall within the scope of Chapter 4 or Chapter 5 of Title V of Part Three TFEU to meet the objectives and tasks laid down in the legal acts establishing those bodies, offices or agencies;

(3)

‘processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;

(4)

‘restriction of processing’ means the marking of stored personal data with the aim of limiting their processing in the future;

(5)

‘profiling’ means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements;

(6)

‘pseudonymisation’ means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person;

(7)

‘filing system’ means any structured set of personal data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographical basis;

(8)

‘controller’ means the Union institution or body or the directorate-general or any other organisational entity which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by a specific Union act, the controller or the specific criteria for its nomination can be provided for by Union law;

(9)

‘controllers other than Union institutions and bodies’ means controllers within the meaning of point (7) of Article 4 of Regulation (EU) 2016/679 and controllers within the meaning of point (8) of Article 3 of Directive (EU) 2016/680;

(10)

‘Union institutions and bodies’ means the Union institutions, bodies, offices and agencies set up by, or on the basis of, the TEU, the TFEU or the Euratom Treaty;

(11)

‘competent authority’ means any public authority in a Member State competent for the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security;

(12)

‘processor’ means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller;

(13)

‘recipient’ means a natural or legal person, public authority, agency or another body, to which the personal data are disclosed, whether a third party or not. However, public authorities which may receive personal data in the framework of a particular inquiry in accordance with Union or Member State law shall not be regarded as recipients; the processing of those data by those public authorities shall be in compliance with the applicable data protection rules according to the purposes of the processing;

(14)

‘third party’ means a natural or legal person, public authority, agency or body other than the data subject, controller, processor and persons who, under the direct authority of the controller or processor, are authorised to process personal data;

(15)

‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her;

(16)

‘personal data breach’ means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed;

(17)

‘genetic data’ means personal data relating to the inherited or acquired genetic characteristics of a natural person which give unique information about the physiology or the health of that natural person and which result, in particular, from an analysis of a biological sample from the natural person in question;

(18)

‘biometric data’ means personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data;

(19)

‘data concerning health’ means personal data related to the physical or mental health of a natural person, including the provision of healthcare services, which reveal information about his or her health status;

(20)

‘information society service’ means a service as defined in point (b) of Article 1(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council (17);

(21)

‘international organisation’ means an organisation and its subordinate bodies governed by public international law, or any other body which is set up by, or on the basis of, an agreement between two or more countries;

(22)

‘national supervisory authority’ means an independent public authority which is established by a Member State pursuant to Article 51 of Regulation (EU) 2016/679 or pursuant to Article 41 of Directive (EU) 2016/680;

(23)

‘user’ means any natural person using a network or terminal equipment operated under the control of a Union institution or body;

(24)

‘directory’ means a publicly available directory of users or an internal directory of users available within a Union institution or body or shared between Union institutions and bodies, whether in printed or electronic form;

(25)

‘electronic communications network’ means a transmission system, whether or not based on a permanent infrastructure or centralised administration capacity, and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched including internet) and mobile terrestrial networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;

(26)

‘terminal equipment’ means terminal equipment as defined in point (1) of Article 1 of Commission Directive 2008/63/EC (18).

CHAPTER II

GENERAL PRINCIPLES

Article 4

Principles relating to processing of personal data

1. Personal data shall be:

(a)

processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’);

(b)

collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall, in accordance with Article 13, not be considered to be incompatible with the initial purposes (‘purpose limitation’);

(c)

adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’);

(d)

accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’);

(e)

kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 13 subject to implementation of the appropriate technical and organisational measures required by this Regulation in order to safeguard the rights and freedoms of the data subject (‘storage limitation’);

(f)

processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’).

2. The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’).

Article 5

Lawfulness of processing

1. Processing shall be lawful only if and to the extent that at least one of the following applies:

(a)

processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the Union institution or body;

(b)

processing is necessary for compliance with a legal obligation to which the controller is subject;

(c)

processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;

(d)

the data subject has given consent to the processing of his or her personal data for one or more specific purposes;

(e)

processing is necessary in order to protect the vital interests of the data subject or of another natural person.

2. The basis for the processing referred to in points (a) and (b) of paragraph 1 shall be laid down in Union law.

Article 6

Processing for another compatible purpose

Where the processing for a purpose other than that for which the personal data have been collected is not based on the data subject’s consent or on Union law which constitutes a necessary and proportionate measure in a democratic society to safeguard the objectives referred to in Article 25(1), the controller shall, in order to ascertain whether processing for another purpose is compatible with the purpose for which the personal data are initially collected, take into account, inter alia:

(a)

any link between the purposes for which the personal data have been collected and the purposes of the intended further processing;

(b)

the context in which the personal data have been collected, in particular regarding the relationship between data subjects and the controller;

(c)

the nature of the personal data, in particular whether special categories of personal data are processed, pursuant to Article 10, or whether personal data related to criminal convictions and offences are processed, pursuant to Article 11;

(d)

the possible consequences of the intended further processing for data subjects;

(e)

the existence of appropriate safeguards, which may include encryption or pseudonymisation.

Article 7

Conditions for consent

1. Where processing is based on consent, the controller shall be able to demonstrate that the data subject has consented to processing of his or her personal data.

2. If the data subject’s consent is given in the context of a written declaration which also concerns other matters, the request for consent shall be presented in a manner which is clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language. Any part of such a declaration which constitutes an infringement of this Regulation shall not be binding.

3. The data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal. Prior to giving consent, the data subject shall be informed thereof. It shall be as easy to withdraw as to give consent.

4. When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of that contract.

Article 8

Conditions applicable to a child’s consent in relation to information society services

1. Where point (d) of Article 5(1) applies, in relation to the offer of information society services directly to a child, the processing of the personal data of a child shall be lawful where the child is at least 13 years old. Where the child is below the age of 13 years, such processing shall be lawful only if and to the extent that consent is given or authorised by the holder of parental responsibility over the child.

2. The controller shall make reasonable efforts to verify in such cases that consent is given or authorised by the holder of parental responsibility over the child, taking into consideration available technology.

3. Paragraph 1 shall not affect the general contract law of Member States such as the rules on the validity, formation or effect of a contract in relation to a child.

Article 9

Transmissions of personal data to recipients established in the Union other than Union institutions and bodies

1. Without prejudice to Articles 4 to 6 and 10, personal data shall only be transmitted to recipients established in the Union other than Union institutions and bodies if:

(a)

the recipient establishes that the data are necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the recipient; or

(b)

the recipient establishes that it is necessary to have the data transmitted for a specific purpose in the public interest and the controller, where there is any reason to assume that the data subject’s legitimate interests might be prejudiced, establishes that it is proportionate to transmit the personal data for that specific purpose after having demonstrably weighed the various competing interests.

2. Where the controller initiates the transmission under this Article, it shall demonstrate that the transmission of personal data is necessary for and proportionate to the purposes of the transmission by applying the criteria laid down in points (a) or (b) of paragraph 1.

3. Union institutions and bodies shall reconcile the right to the protection of personal data with the right of access to documents in accordance with Union law.

Article 10

Processing of special categories of personal data

1. Processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation shall be prohibited.

2. Paragraph 1 shall not apply if one of the following applies:

(a)

the data subject has given explicit consent to the processing of those personal data for one or more specified purposes, except where Union law provides that the prohibition referred to in paragraph 1 may not be lifted by the data subject;

(b)

the processing is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment and social security and social protection law insofar as it is authorised by Union law providing for appropriate safeguards for the fundamental rights and the interests of the data subject;

(c)

the processing is necessary to protect the vital interests of the data subject or of another person where the data subject is physically or legally incapable of giving consent;

(d)

the processing is carried out in the course of its legitimate activities with appropriate safeguards by a non-profit-seeking body which constitutes an entity integrated in a Union institution or body and with a political, philosophical, religious or trade union aim and on condition that the processing relates solely to the members or to former members of this body or to persons who have regular contact with it in connection with its purposes and that the data are not disclosed outside that body without the consent of the data subjects;

(e)

the processing relates to personal data which are manifestly made public by the data subject;

(f)

the processing is necessary for the establishment, exercise or defence of legal claims or whenever the Court of Justice is acting in its judicial capacity;

(g)

the processing is necessary for reasons of substantial public interest, on the basis of Union law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject;

(h)

the processing is necessary for the purposes of preventive or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis, the provision of health or social care or treatment or the management of health or social care systems and services on the basis of Union law or pursuant to contract with a health professional and subject to the conditions and safeguards referred to in paragraph 3;

(i)

the processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of healthcare and of medicinal products or medical devices, on the basis of Union law which provides for suitable and specific measures to safeguard the rights and freedoms of the data subject, in particular professional secrecy; or

(j)

the processing is necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes based on Union law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject.

3. Personal data referred to in paragraph 1 may be processed for the purposes referred to in point (h) of paragraph 2 when those data are processed by, or under the responsibility of, a professional subject to the obligation of professional secrecy under Union or Member State law or rules established by national competent bodies, or by another person also subject to an obligation of secrecy under Union or Member State law or rules established by national competent bodies.

Article 11

Processing of personal data relating to criminal convictions and offences

Processing of personal data relating to criminal convictions and offences or related security measures based on Article 5(1) shall be carried out only under control of official authority or when the processing is authorised by Union law providing for appropriate safeguards for the rights and freedoms of data subjects.

Article 12

Processing which does not require identification

1. If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation.

2. Where, in cases referred to in paragraph 1 of this Article, the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible. In such cases, Articles 17 to 22 shall not apply except where the data subject, for the purpose of exercising his or her rights under those articles, provides additional information enabling his or her identification.

Article 13

Safeguards relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes

Processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, shall be subject to appropriate safeguards, in accordance with this Regulation, for the rights and freedoms of the data subject. Those safeguards shall ensure that technical and organisational measures are in place in particular in order to ensure respect for the principle of data minimisation. Those measures may include pseudonymisation provided that those purposes can be fulfilled in that manner. Where those purposes can be fulfilled by further processing which does not permit or no longer permits the identification of data subjects, those purposes shall be fulfilled in that manner.

CHAPTER III

RIGHTS OF THE DATA SUBJECT

SECTION 1

Transparency and modalities

Article 14

Transparent information, communication and modalities for the exercise of the rights of the data subject

1. The controller shall take appropriate measures to provide any information referred to in Articles 15 and 16 and any communication under Articles 17 to 24 and 35 relating to processing to the data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child. The information shall be provided in writing, or by other means, including, where appropriate, by electronic means. When requested by the data subject, the information may be provided orally, provided that the identity of the data subject is proven by other means.

2. The controller shall facilitate the exercise of data subject rights under Articles 17 to 24. In the cases referred to in Article 12(2), the controller shall not refuse to act on the request of the data subject for exercising his or her rights under Articles 17 to 24, unless the controller demonstrates that it is not in a position to identify the data subject.

3. The controller shall provide information on action taken on a request under Articles 17 to 24 to the data subject without undue delay and in any event within one month of receipt of the request. That period may be extended by two further months where necessary, taking into account the complexity and number of the requests. The controller shall inform the data subject of any such extension within one month of receipt of the request, together with the reasons for the delay. Where the data subject makes the request by electronic form means, the information shall be provided by electronic means where possible, unless otherwise requested by the data subject.

4. If the controller does not take action on the request of the data subject, the controller shall inform the data subject without delay and at the latest within one month of receipt of the request of the reasons for not taking action and on the possibility of lodging a complaint with the European Data Protection Supervisor and seeking a judicial remedy.

5. Information provided under Articles 15 and 16 and any communication and any actions taken under Articles 17 to 24 and 35 shall be provided free of charge. Where requests from a data subject are manifestly unfounded or excessive, in particular because of their repetitive character, the controller may refuse to act on the request. The controller shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.

6. Without prejudice to Article 12, where the controller has reasonable doubts concerning the identity of the natural person making the request referred to in Articles 17 to 23, the controller may request the provision of additional information necessary to confirm the identity of the data subject.

7. The information to be provided to data subjects pursuant to Articles 15 and 16 may be provided in combination with standardised icons in order to give in an easily visible, intelligible and clearly legible manner a meaningful overview of the intended processing. Where the icons are presented electronically they shall be machine-readable.

8. Where the Commission adopts delegated acts pursuant to Article 12(8) of Regulation (EU) 2016/679 determining the information to be presented by the icons and the procedures for providing standardised icons, Union institutions and bodies shall, where appropriate, provide the information pursuant to Articles 15 and 16 of this Regulation in combination with such standardised icons.

SECTION 2

Information and access to personal data

Article 15

Information to be provided where personal data are collected from the data subject

1. Where personal data relating to a data subject are collected from the data subject, the controller shall, at the time when personal data are obtained, provide the data subject with all of the following information:

(a)

the identity and the contact details of the controller;

(b)

the contact details of the data protection officer;

(c)

the purposes of the processing for which the personal data are intended as well as the legal basis for the processing;

(d)

the recipients or categories of recipients of the personal data, if any;

(e)

where applicable, the fact that the controller intends to transfer personal data to a third country or international organisation and the existence or absence of an adequacy decision by the Commission, or in the case of transfers referred to in Article 48, reference to the appropriate or suitable safeguards and the means by which to obtain a copy of them or where they have been made available.

2. In addition to the information referred to in paragraph 1, the controller shall, at the time when personal data are obtained, provide the data subject with the following further information necessary to ensure fair and transparent processing:

(a)

the period for which the personal data will be stored, or if that is not possible, the criteria used to determine that period;

(b)

the existence of the right to request from the controller access to and rectification or erasure of personal data or restriction of processing concerning the data subject or, where applicable, the right to object to processing or the right to data portability;

(c)

where the processing is based on point (d) of Article 5(1) or point (a) of Article 10(2), the existence of the right to withdraw consent at any time, without affecting the lawfulness of processing based on consent before its withdrawal;

(d)

the right to lodge a complaint with the European Data Protection Supervisor;

(e)

whether the provision of personal data is a statutory or contractual requirement, or a requirement necessary to enter into a contract, as well as whether the data subject is obliged to provide the personal data and of the possible consequences of failure to provide such data;

(f)

the existence of automated decision-making, including profiling, referred to in Article 24(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.

3. Where the controller intends to further process the personal data for a purpose other than that for which the personal data were collected, the controller shall provide the data subject prior to that further processing with information on that other purpose and with any relevant further information as referred to in paragraph 2.

4. Paragraphs 1, 2 and 3 shall not apply where and insofar as the data subject already has the information.

Article 16

Information to be provided where personal data have not been obtained from the data subject

1. Where personal data have not been obtained from the data subject, the controller shall provide the data subject with the following information:

(a)

the identity and the contact details of the controller;

(b)

the contact details of the data protection officer;

(c)

the purposes of the processing for which the personal data are intended as well as the legal basis for the processing;

(d)

the categories of personal data concerned;

(e)

the recipients or categories of recipients of the personal data, if any;

(f)

where applicable, that the controller intends to transfer personal data to a recipient in a third country or international organisation and the existence or absence of an adequacy decision by the Commission, or in the case of transfers referred to in Article 48, reference to the appropriate or suitable safeguards and the means to obtain a copy of them or where they have been made available.

2. In addition to the information referred to in paragraph 1, the controller shall provide the data subject with the following further information necessary to ensure fair and transparent processing in respect of the data subject:

(a)

the period for which the personal data will be stored, or if that is not possible, the criteria used to determine that period;

(b)

the existence of the right to request from the controller access to and rectification or erasure of personal data or restriction of processing concerning the data subject or, where applicable, the right to object to processing or the right to data portability;

(c)

where the processing is based on point (d) of Article 5(1) or point (a) of Article 10(2), the existence of the right to withdraw consent at any time, without affecting the lawfulness of processing based on consent before its withdrawal;

(d)

the right to lodge a complaint with the European Data Protection Supervisor;

(e)

from which source the personal data originate, and if applicable, whether it came from publicly accessible sources;

(f)

the existence of automated decision-making, including profiling, referred to in Article 24(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.

3. The controller shall provide the information referred to in paragraphs 1 and 2:

(a)

within a reasonable period after obtaining the personal data, but at the latest within one month, having regard to the specific circumstances in which the personal data are processed;

(b)

if the personal data are to be used for communication with the data subject, at the latest at the time of the first communication to that data subject; or

(c)

if a disclosure to another recipient is envisaged, at the latest when the personal data are first disclosed.

4. Where the controller intends to further process the personal data for a purpose other than that for which the personal data were obtained, the controller shall provide the data subject prior to that further processing with information on that other purpose and with any relevant further information as referred to in paragraph 2.

5. Paragraphs 1 to 4 shall not apply where and insofar as:

(a)

the data subject already has the information;

(b)

the provision of such information proves impossible or would involve a disproportionate effort, in particular for processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes or in so far as the obligation referred to in paragraph 1 of this Article is likely to render impossible or seriously impair the achievement of the objectives of that processing;

(c)

obtaining or disclosure is expressly laid down by Union law, which provides appropriate measures to protect the data subject’s legitimate interests; or

(d)

where the personal data must remain confidential subject to an obligation of professional secrecy regulated by Union law, including a statutory obligation of secrecy.

6. In the cases referred to in point (b) of paragraph 5 the controller shall take appropriate measures to protect the data subject’s rights and freedoms and legitimate interests, including making the information publicly available.

Article 17

Right of access by the data subject

1. The data subject shall have the right to obtain from the controller confirmation as to whether or not personal data concerning him or her are being processed, and, where that is the case, access to the personal data and the following information:

(a)

the purposes of the processing;

(b)

the categories of personal data concerned;

(c)

the recipients or categories of recipient to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organisations;

(d)

where possible, the envisaged period for which the personal data will be stored, or, if not possible, the criteria used to determine that period;

(e)

the existence of the right to request from the controller rectification or erasure of personal data or restriction of processing of personal data concerning the data subject or to object to such processing;

(f)

the right to lodge a complaint with the European Data Protection Supervisor;

(g)

where the personal data are not collected from the data subject, any available information as to their source;

(h)

the existence of automated decision-making, including profiling, referred to in Article 24(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject.

2. Where personal data are transferred to a third country or to an international organisation, the data subject shall have the right to be informed of the appropriate safeguards pursuant to Article 48 relating to the transfer.

3. The controller shall provide a copy of the personal data undergoing processing. Where the data subject makes the request by electronic means, and unless otherwise requested by the data subject, the information shall be provided in a commonly used electronic form.

4. The right to obtain a copy referred to in paragraph 3 shall not adversely affect the rights and freedoms of others.

SECTION 3

Rectification and erasure

Article 18

Right to rectification

The data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete personal data completed, including by means of providing a supplementary statement.

Article 19

Right to erasure (‘right to be forgotten’)

1. The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies:

(a)

the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;

(b)

the data subject withdraws consent on which the processing is based according to point (d) of Article 5(1), or point (a) of Article 10(2), and where there is no other legal ground for the processing;

(c)

the data subject objects to the processing pursuant to Article 23(1) and there are no overriding legitimate grounds for the processing;

(d)

the personal data have been unlawfully processed;

(e)

the personal data have to be erased for compliance with a legal obligation to which the controller is subject;

(f)

the personal data have been collected in relation to the offer of information society services referred to in Article 8(1).

2. Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers, or controllers other than Union institutions and bodies, which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data.

3. Paragraphs 1 and 2 shall not apply to the extent that processing is necessary:

(a)

for exercising the right of freedom of expression and information;

(b)

for compliance with a legal obligation to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;

(c)

for reasons of public interest in the area of public health in accordance with points (h) and (i) of Article 10(2) as well as Article 10(3);

(d)

for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing; or

(e)

for the establishment, exercise or defence of legal claims.

Article 20

Right to restriction of processing

1. The data subject shall have the right to obtain from the controller restriction of processing where one of the following applies:

(a)

the accuracy of the personal data is contested by the data subject, for a period enabling the controller to verify the accuracy, including the completeness, of the personal data;

(b)

the processing is unlawful and the data subject opposes the erasure of the personal data and requests the restriction of their use instead;

(c)

the controller no longer needs the personal data for the purposes of the processing, but they are required by the data subject for the establishment, exercise or defence of legal claims;

(d)

the data subject has objected to processing pursuant to Article 23(1) pending the verification whether the legitimate grounds of the controller override those of the data subject.

2. Where processing has been restricted under paragraph 1, such personal data shall, with the exception of storage, only be processed with the data subject’s consent or for the establishment, exercise or defence of legal claims or for the protection of the rights of another natural or legal person or for reasons of important public interest of the Union or of a Member State.

3. A data subject who has obtained restriction of processing pursuant to paragraph 1 shall be informed by the controller before the restriction of processing is lifted.

4. In automated filing systems restriction of processing shall in principle be ensured by technical means. The fact that the personal data are restricted shall be indicated in the system in such a way that it becomes clear that the personal data may not be used.

Article 21

Notification obligation regarding rectification or erasure of personal data or restriction of processing

The controller shall communicate any rectification or erasure of personal data or restriction of processing carried out in accordance with Article 18, Article 19(1) and Article 20 to each recipient to whom the personal data have been disclosed, unless this proves impossible or involves disproportionate effort. The controller shall inform the data subject about those recipients if the data subject requests it.

Article 22

Right to data portability

1. The data subject shall have the right to receive the personal data concerning him or her, which he or she has provided to a controller, in a structured, commonly used and machine-readable format and have the right to transmit those data to another controller without hindrance from the controller to which the personal data have been provided, where:

(a)

the processing is based on consent pursuant to point (d) of Article 5(1) or point (a) of Article 10(2) or on a contract pursuant to point (c) of Article 5(1); and

(b)

the processing is carried out by automated means.

2. In exercising his or her right to data portability pursuant to paragraph 1, the data subject shall have the right to have the personal data transmitted directly from one controller to another or to controllers other than Union institutions and bodies, where technically feasible.

3. The exercise of the right referred to in paragraph 1 of this Article shall be without prejudice to Article 19. That right shall not apply to processing necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.

4. The right referred to in paragraph 1 shall not adversely affect the rights and freedoms of others.

SECTION 4

Right to object and automated individual decision-making

Article 23

Right to object

1. The data subject shall have the right to object, on grounds relating to his or her particular situation, at any time to processing of personal data concerning him or her which is based on point (a) of Article 5(1), including profiling based on that provision. The controller shall no longer process the personal data unless the controller demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the data subject or for the establishment, exercise or defence of legal claims.

2. At the latest at the time of the first communication with the data subject, the right referred to in paragraph 1 shall be explicitly brought to the attention of the data subject and shall be presented clearly and separately from any other information.

3. Without prejudice to Articles 36 and 37, in the context of the use of information society services the data subject may exercise his or her right to object by automated means using technical specifications.

4. Where personal data are processed for scientific or historical research purposes or statistical purposes, the data subject, on grounds relating to his or her particular situation, shall have the right to object to processing of personal data concerning him or her, unless the processing is necessary for the performance of a task carried out for reasons of public interest.

Article 24

Automated individual decision-making, including profiling

1. The data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.

2. Paragraph 1 shall not apply if the decision:

(a)

is necessary for entering into, or performance of, a contract between the data subject and the controller;

(b)

is authorised by Union law, which also lays down suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests; or

(c)

is based on the data subject’s explicit consent.

3. In the cases referred to in points (a) and (c) of paragraph 2, the controller shall implement suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests, at least the right to obtain human intervention on the part of the controller, to express his or her point of view and to contest the decision.

4. Decisions referred to in paragraph 2 of this Article shall not be based on special categories of personal data referred to in Article 10(1), unless point (a) or (g) of Article 10(2) applies and suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests are in place.

SECTION 5

Restrictions

Article 25

Restrictions

1. Legal acts adopted on the basis of the Treaties or, in matters relating to the operation of the Union institutions and bodies, internal rules laid down by the latter may restrict the application of Articles 14 to 22, 35, and 36, as well as Article 4 in so far as its provisions correspond to the rights and obligations provided for in Articles 14 to 22, when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard:

(a)

the national security, public security or defence of the Member States;

(b)

the prevention, investigation, detection and prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security;

(c)

other important objectives of general public interest of the Union or of a Member State, in particular the objectives of the common foreign and security policy of the Union or an important economic or financial interest of the Union or of a Member State, including monetary, budgetary and taxation matters, public health and social security;

(d)

the internal security of Union institutions and bodies, including of their electronic communications networks;

(e)

the protection of judicial independence and judicial proceedings;

(f)

the prevention, investigation, detection and prosecution of breaches of ethics for regulated professions;

(g)

a monitoring, inspection or regulatory function connected, even occasionally, to the exercise of official authority in the cases referred to in points (a) to (c);

(h)

the protection of the data subject or the rights and freedoms of others;

(i)

the enforcement of civil law claims.

2. In particular, any legal act or internal rule referred to in paragraph 1 shall contain specific provisions, where relevant, as to:

(a)

the purposes of the processing or categories of processing;

(b)

the categories of personal data;

(c)

the scope of the restrictions introduced;

(d)

the safeguards to prevent abuse or unlawful access or transfer;

(e)

the specification of the controller or categories of controllers;

(f)

the storage periods and the applicable safeguards taking into account the nature, scope and purposes of the processing or categories of processing; and

(g)

the risks to the rights and freedoms of data subjects.

3. Where personal data are processed for scientific or historical research purposes or statistical purposes, Union law, which may include internal rules adopted by Union institutions and bodies in matters relating to their operation, may provide for derogations from the rights referred to in Articles 17, 18, 20 and 23 subject to the conditions and safeguards referred to in Article 13 in so far as such rights are likely to render impossible or seriously impair the achievement of the specific purposes, and such derogations are necessary for the fulfilment of those purposes.

4. Where personal data are processed for archiving purposes in the public interest, Union law, which may include internal rules adopted by Union institutions and bodies in matters relating to their operation, may provide for derogations from the rights referred to in Articles 17, 18, 20, 21, 22 and 23 subject to the conditions and safeguards referred to in Article 13 in so far as such rights are likely to render impossible or seriously impair the achievement of the specific purposes, and such derogations are necessary for the fulfilment of those purposes.

5. Internal rules referred to in paragraphs 1, 3 and 4 shall be clear and precise acts of general application, intended to produce legal effects vis-à-vis data subjects, adopted at the highest level of management of the Union institutions and bodies and subject to publication in the Official Journal of the European Union.

6. If a restriction is imposed pursuant to paragraph 1, the data subject shall be informed in accordance with Union law of the principal reasons on which the application of the restriction is based and of his or her right to lodge a complaint with the European Data Protection Supervisor.

7. If a restriction imposed pursuant to paragraph 1 is relied upon to deny access to the data subject, the European Data Protection Supervisor shall, when investigating the complaint, only inform him or her of whether the data have been processed correctly and, if not, whether any necessary corrections have been made.

8. Provision of the information referred to in paragraphs 6 and 7 of this Article and in Article 45(2) may be deferred, omitted or denied if it would cancel the effect of the restriction imposed pursuant to paragraph 1 of this Article.

CHAPTER IV

CONTROLLER AND PROCESSOR

SECTION 1

General obligations

Article 26

Responsibility of the controller

1. Taking into account the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons, the controller shall implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in accordance with this Regulation. Those measures shall be reviewed and updated where necessary.

2. Where proportionate in relation to processing activities, the measures referred to in paragraph 1 shall include the implementation of appropriate data protection policies by the controller.

3. Adherence to approved certification mechanisms as referred to in Article 42 of Regulation (EU) 2016/679 may be used as an element by which to demonstrate compliance with the obligations of the controller.

Article 27

Data protection by design and by default

1. Taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing, the controller shall, both at the time of the determination of the means for processing and at the time of the processing itself, implement appropriate technical and organisational measures, such as pseudonymisation, which are designed to implement data protection principles, such as data minimisation, in an effective manner and to integrate the necessary safeguards into the processing in order to meet the requirements of this Regulation and protect the rights of data subjects.

2. The controller shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual’s intervention to an indefinite number of natural persons.

3. An approved certification mechanism pursuant to Article 42 of Regulation (EU) 2016/679 may be used as an element to demonstrate compliance with the requirements set out in paragraphs 1 and 2 of this Article.

Article 28

Joint controllers

1. Where two or more controllers or one or more controllers together with one or more controllers other than Union institutions and bodies jointly determine the purposes and means of processing, they shall be joint controllers. They shall in a transparent manner determine their respective responsibilities for compliance with their data protection obligations, in particular as regards the exercising of the rights of the data subject and their respective duties to provide the information referred to in Articles 15 and 16, by means of an arrangement between them unless, and in so far as, the respective responsibilities of the joint controllers are determined by Union or Member State law to which the joint controllers are subject. The arrangement may designate a contact point for data subjects.

2. The arrangement referred to in paragraph 1 shall duly reflect the respective roles and relationships of the joint controllers vis-à-vis the data subjects. The essence of the arrangement shall be made available to the data subject.

3. Irrespective of the terms of the arrangement referred to in paragraph 1, the data subject may exercise his or her rights under this Regulation in respect of and against each of the controllers.

Article 29

Processor

1. Where processing is to be carried out on behalf of a controller, the controller shall use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject.

2. The processor shall not engage another processor without prior specific or general written authorisation of the controller. In the case of general written authorisation, the processor shall inform the controller of any intended changes concerning the addition or replacement of other processors, thereby giving the controller the opportunity to object to such changes.

3. Processing by a processor shall be governed by a contract or other legal act under Union or Member State law, that is binding on the processor with regard to the controller and that sets out the subject matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subjects and the obligations and rights of the controller. That contract or other legal act shall stipulate, in particular, that the processor:

(a)

processes the personal data only on documented instructions from the controller, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by Union or Member State law to which the processor is subject; in such a case, the processor shall inform the controller of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;

(b)

ensures that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

(c)

takes all measures required pursuant to Article 33;

(d)

respects the conditions referred to in paragraphs 2 and 4 for engaging another processor;

(e)

taking into account the nature of the processing, assists the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III;

(f)

assists the controller in ensuring compliance with the obligations pursuant to Articles 33 to 41 taking into account the nature of processing and the information available to the processor;

(g)

at the choice of the controller, deletes or returns all the personal data to the controller after the end of the provision of services relating to processing, and deletes existing copies unless Union or Member State law requires storage of the personal data;

(h)

makes available to the controller all information necessary to demonstrate compliance with the obligations laid down in this Article and allow for and contribute to audits, including inspections, conducted by the controller or another auditor mandated by the controller.

With regard to point (h) of the first subparagraph, the processor shall immediately inform the controller if, in its opinion, an instruction infringes this Regulation or other Union or Member State data protection provisions.

4. Where a processor engages another processor for carrying out specific processing activities on behalf of the controller, the same data protection obligations as set out in the contract or other legal act between the controller and the processor as referred to in paragraph 3 shall be imposed on that other processor by way of a contract or other legal act under Union or Member State law, in particular providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of this Regulation. Where that other processor fails to fulfil its data protection obligations, the initial processor shall remain fully liable to the controller for the performance of that other processor’s obligations.

5. When a processor is not a Union institution or body, its adherence to an approved code of conduct referred to in Article 40(5) of Regulation (EU) 2016/679 or an approved certification mechanism referred to in Article 42 of Regulation (EU) 2016/679 may be used as an element by which to demonstrate sufficient guarantees as referred to in paragraphs 1 and 4 of this Article.

6. Without prejudice to any individual contract between the controller and the processor, the contract or the other legal act referred to in paragraphs 3 and 4 of this Article may be based, in whole or in part, on standard contractual clauses referred to in paragraphs 7 and 8 of this Article, including when they are part of a certification granted to the processor other than a Union institution or body pursuant to Article 42 of Regulation (EU) 2016/679.

7. The Commission may lay down standard contractual clauses for the matters referred to in paragraph 3 and 4 of this Article and in accordance with the examination procedure referred to in Article 96(2).

8. The European Data Protection Supervisor may adopt standard contractual clauses for the matters referred to in paragraphs 3 and 4.

9. The contract or the other legal act referred to in paragraphs 3 and 4 shall be in writing, including in electronic form.

10. Without prejudice to Articles 65 and 66, if a processor infringes this Regulation by determining the purposes and means of processing, the processor shall be considered to be a controller in respect of that processing.

Article 30

Processing under the authority of the controller or processor

The processor and any person acting under the authority of the controller or of the processor, who has access to personal data, shall not process those data except on instructions from the controller, unless required to do so by Union or Member State law.

Article 31

Records of processing activities

1. Each controller shall maintain a record of processing activities under its responsibility. That record shall contain all of the following information:

(a)

the name and contact details of the controller, the data protection officer and, where applicable, the processor and the joint controller;

(b)

the purposes of the processing;

(c)

a description of the categories of data subjects and of the categories of personal data;

(d)

the categories of recipients to whom the personal data have been or will be disclosed including recipients in Member States, third countries or international organisations;

(e)

where applicable, transfers of personal data to a third country or an international organisation, including the identification of that third country or international organisation and the documentation of suitable safeguards;

(f)

where possible, the envisaged time limits for erasure of the different categories of data;

(g)

where possible, a general description of the technical and organisational security measures referred to in Article 33.

2. Each processor shall maintain a record of all categories of processing activities carried out on behalf of a controller, containing:

(a)

the name and contact details of the processor or processors and of each controller on behalf of which the processor is acting, and of the data protection officer;

(b)

the categories of processing carried out on behalf of each controller;

(c)

where applicable, transfers of personal data to a third country or an international organisation, including the identification of that third country or international organisation and the documentation of suitable safeguards;

(d)

where possible, a general description of the technical and organisational security measures referred to in Article 33.

3. The records referred to in paragraphs 1 and 2 shall be in writing, including in electronic form.

4. Union institutions and bodies shall make the record available to the European Data Protection Supervisor on request.

5. Unless it is not appropriate taking into account the size of the Union institution or body, Union institutions and bodies shall keep their records of processing activities in a central register. They shall make the register publicly accessible.

Article 32

Cooperation with the European Data Protection Supervisor

Union institutions and bodies shall cooperate, on request, with the European Data Protection Supervisor in the performance of his or her tasks.

SECTION 2

Security of personal data

Article 33

Security of processing

1. Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons, the controller and the processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including, inter alia, as appropriate:

(a)

the pseudonymisation and encryption of personal data;

(b)

the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

(c)

the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;

(d)

a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.

2. In assessing the appropriate level of security account shall be taken in particular of the risks that are presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, stored or otherwise processed.

3. The controller and processor shall take steps to ensure that any natural person acting under the authority of the controller or the processor who has access to personal data does not process them except on instructions from the controller, unless he or she is required to do so by Union law.

4. Adherence to an approved certification mechanism as referred to in Article 42 of Regulation (EU) 2016/679 may be used as an element by which to demonstrate compliance with the requirements set out in paragraph 1 of this Article.

Article 34

Notification of a personal data breach to the European Data Protection Supervisor

1. In the case of a personal data breach, the controller shall without undue delay and, where feasible, not later than 72 hours after having become aware of it, notify the personal data breach to the European Data Protection Supervisor, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Where the notification to the European Data Protection Supervisor is not made within 72 hours, it shall be accompanied by reasons for the delay.

2. The processor shall notify the controller without undue delay after becoming aware of a personal data breach.

3. The notification referred to in paragraph 1 shall at least:

(a)

describe the nature of the personal data breach including where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;

(b)

communicate the name and contact details of the data protection officer;

(c)

describe the likely consequences of the personal data breach;

(d)

describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

4. Where, and in so far as, it is not possible to provide the information at the same time, the information may be provided in phases without undue further delay.

5. The controller shall inform the data protection officer about the personal data breach.

6. The controller shall document any personal data breaches, comprising the facts relating to the personal data breach, its effects and the remedial action taken. That documentation shall enable the European Data Protection Supervisor to verify compliance with this Article.

Article 35

Communication of a personal data breach to the data subject

1. When the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall communicate the personal data breach to the data subject without undue delay.

2. The communication to the data subject referred to in paragraph 1 of this Article shall describe in clear and plain language the nature of the personal data breach and contain at least the information and measures referred to in points (b), (c) and (d) of Article 34(3).

3. The communication to the data subject referred to in paragraph 1 shall not be required if any of the following conditions are met:

(a)

the controller has implemented appropriate technical and organisational protection measures, and those measures were applied to the personal data affected by the personal data breach, in particular those that render the personal data unintelligible to any person who is not authorised to access it, such as encryption;

(b)

the controller has taken subsequent measures which ensure that the high risk to the rights and freedoms of data subjects referred to in paragraph 1 is no longer likely to materialise;

(c)

it would involve disproportionate effort. In such a case, there shall instead be a public communication or similar measure whereby the data subjects are informed in an equally effective manner.

4. If the controller has not already communicated the personal data breach to the data subject, the European Data Protection Supervisor, having considered the likelihood of the personal data breach resulting in a high risk, may require it to do so or may decide that any of the conditions referred to in paragraph 3 are met.

SECTION 3

Confidentiality of electronic communications

Article 36

Confidentiality of electronic communications

Union institutions and bodies shall ensure the confidentiality of electronic communications, in particular by securing their electronic communications networks.

Article 37

Protection of information transmitted to, stored in, related to, processed by and collected from users’ terminal equipment

Union institutions and bodies shall protect the information transmitted to, stored in, related to, processed by and collected from the terminal equipment of users accessing their publicly available websites and mobile applications, in accordance with Article 5(3) of Directive 2002/58/EC.

Article 38

Directories of users

1. Personal data contained in directories of users and access to such directories shall be limited to what is strictly necessary for the specific purposes of the directory.

2. Union institutions and bodies shall take all the necessary measures to prevent personal data contained in those directories from being used for direct marketing purposes regardless of whether they are accessible to the public or not.

SECTION 4

Data protection impact assessment and prior consultation

Article 39

Data protection impact assessment

1. Where a type of processing in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall, prior to the processing, carry out an assessment of the impact of the envisaged processing operations on the protection of personal data. A single assessment may address a set of similar processing operations that present similar high risks.

2. The controller shall seek the advice of the data protection officer when carrying out a data protection impact assessment.

3. A data protection impact assessment referred to in paragraph 1 shall in particular be required in the case of:

(a)

a systematic and extensive evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling, and on which decisions are based that produce legal effects concerning the natural person or similarly significantly affect the natural person;

(b)

processing on a large scale of special categories of data referred to in Article 10, or of personal data relating to criminal convictions and offences referred to in Article 11; or

(c)

a systematic monitoring of a publicly accessible area on a large scale.

4. The European Data Protection Supervisor shall establish and make public a list of the kind of processing operations which are subject to the requirement for a data protection impact assessment pursuant to paragraph 1.

5. The European Data Protection Supervisor may also establish and make public a list of the kind of processing operations for which no data protection impact assessment is required.

6. Prior to the adoption of the lists referred to in paragraphs 4 and 5 of this Article, the European Data Protection Supervisor shall request that the European Data Protection Board set up by Article 68 of Regulation (EU) 2016/679 examine such lists in accordance with point (e) of Article 70(1) of that Regulation where they refer to processing operations by a controller acting jointly with one or more controllers other than Union institutions and bodies.

7. The assessment shall contain at least:

(a)

a systematic description of the envisaged processing operations and the purposes of the processing;

(b)

an assessment of the necessity and proportionality of the processing operations in relation to the purposes;

(c)

an assessment of the risks to the rights and freedoms of data subjects referred to in paragraph 1; and

(d)

the measures envisaged to address the risks, including safeguards, security measures and mechanisms to ensure the protection of personal data and to demonstrate compliance with this Regulation taking into account the rights and legitimate interests of data subjects and other persons concerned.

8. Compliance with approved codes of conduct referred to in Article 40 of the Regulation (EU) 2016/679 by the relevant processors other than Union institutions and bodies shall be taken into due account in assessing the impact of the processing operations performed by such processors, in particular for the purposes of a data protection impact assessment.

9. Where appropriate, the controller shall seek the views of data subjects or their representatives on the intended processing, without prejudice to the protection of public interests or the security of processing operations.

10. Where processing pursuant to point (a) or (b) of Article 5(1) has a legal basis in a legal act adopted on the basis of the Treaties, which regulates the specific processing operation or set of operations in question, and where a data protection impact assessment has already been carried out as part of a general impact assessment preceding the adoption of that legal act, paragraphs 1 to 6 of this Article shall not apply unless that legal act provides otherwise.

11. Where necessary, the controller shall carry out a review to assess if processing is performed in accordance with the data protection impact assessment at least when there is a change of the risk represented by processing operations.

Article 40

Prior consultation

1. The controller shall consult the European Data Protection Supervisor prior to processing where a data protection impact assessment under Article 39 indicates that the processing would, in the absence of safeguards, security measures and mechanisms to mitigate the risk, result in a high risk to the rights and freedoms of natural persons and the controller is of the opinion that the risk cannot be mitigated by reasonable means in view of the available technologies and costs of implementation. The controller shall seek the advice of the data protection officer on the need for prior consultation.

2. Where the European Data Protection Supervisor is of the opinion that the intended processing referred to in paragraph 1 would infringe this Regulation, in particular where the controller has insufficiently identified or mitigated the risk, the European Data Protection Supervisor shall, within period of up to eight weeks of receipt of the request for consultation, provide written advice to the controller and, where applicable to the processor, and may use any of his or her powers referred to in Article 58. That period may be extended by six weeks, taking into account the complexity of the intended processing. The European Data Protection Supervisor shall inform the controller and, where applicable, the processor, of any such extension within one month of receipt of the request for consultation together with the reasons for the delay. Those periods may be suspended until the European Data Protection Supervisor has obtained information it has requested for the purposes of the consultation.

3. When consulting the European Data Protection Supervisor pursuant to paragraph 1, the controller shall provide the European Data Protection Supervisor with:

(a)

where applicable, the respective responsibilities of the controller, joint controllers and processors involved in the processing;

(b)

the purposes and means of the intended processing;

(c)

the measures and safeguards provided to protect the rights and freedoms of data subjects pursuant to this Regulation;

(d)

the contact details of the data protection officer;

(e)

the data protection impact assessment provided for in Article 39; and

(f)

any other information requested by the European Data Protection Supervisor.

4. The Commission may, by means of an implementing act, determine a list of cases in which the controllers shall consult with, and obtain prior authorisation from, the European Data Protection Supervisor in relation to processing of personal data for the performance of a task carried out by the controller in the public interest, including the processing of such data in relation to social protection and public health.

SECTION 5

Information and legislative consultation

Article 41

Information and consultation

1. The Union institutions and bodies shall inform the European Data Protection Supervisor when drawing up administrative measures and internal rules relating to the processing of personal data by a Union institution or body, whether alone or jointly with others.

2. The Union institutions and bodies shall consult the European Data Protection Supervisor when drawing up the internal rules referred to in Article 25.

Article 42

Legislative consultation

1. The Commission shall, following the adoption of proposals for a legislative act, of recommendations or of proposals to the Council pursuant to Article 218 TFEU or when preparing delegated acts or implementing acts, consult the European Data Protection Supervisor where there is an impact on the protection of individuals’ rights and freedoms with regard to the processing of personal data.

2. Where an act referred to in paragraph 1 is of particular importance for the protection of individuals’ rights and freedoms with regard to the processing of personal data, the Commission may also consult the European Data Protection Board. In such cases the European Data Protection Supervisor and the European Data Protection Board shall coordinate their work with a view to issuing a joint opinion.

3. The advice referred to in paragraphs 1 and 2 shall be provided in writing within a period of up to eight weeks of receipt of the request for consultation referred to in paragraphs 1 and 2. In urgent cases, or if otherwise appropriate, the Commission may shorten the deadline.

4. This Article shall not apply where the Commission is required, pursuant to Regulation (EU) 2016/679, to consult the European Data Protection Board.

SECTION 6

Data protection officer

Article 43

Designation of the data protection officer

1. Each Union institution or body shall designate a data protection officer.

2. Union institutions and bodies may designate a single data protection officer for several of them, taking into account their organisational structure and size.

3. The data protection officer shall be designated on the basis of professional qualities and, in particular, expert knowledge of data protection law and practices and the ability to fulfil the tasks referred to in Article 45.

4. The data protection officer shall be a staff member of the Union institution or body. Taking into account their size and if the option under paragraph 2 is not exercised, Union institutions and bodies may designate a data protection officer who fulfils his or her tasks on the basis of a service contract.

5. The Union institutions and bodies shall publish the contact details of the data protection officer and communicate them to the European Data Protection Supervisor.

Article 44

Position of the data protection officer

1. The Union institutions and bodies shall ensure that the data protection officer is involved, properly and in a timely manner, in all issues which relate to the protection of personal data.

2. The Union institutions and bodies shall support the data protection officer in performing the tasks referred to in Article 45 by providing resources necessary to carry out those tasks and access to personal data and processing operations, and to maintain his or her expert knowledge.

3. The Union institutions and bodies shall ensure that the data protection officer does not receive any instructions regarding the exercise of those tasks. He or she shall not be dismissed or penalised by the controller or the processor for performing his or her tasks. The data protection officer shall directly report to the highest management level of the controller or the processor.

4. Data subjects may contact the data protection officer with regard to all issues related to processing of their personal data and to the exercise of their rights under this Regulation.

5. The data protection officer and his or her staff shall be bound by secrecy or confidentiality concerning the performance of their tasks, in accordance with Union law.

6. The data protection officer may fulfil other tasks and duties. The controller or processor shall ensure that any such tasks and duties do not result in a conflict of interests.

7. The data protection officer may be consulted by the controller and the processor, by the staff committee concerned and by any individual on any matter concerning the interpretation or application of this Regulation, without them going through the official channels. No one shall suffer prejudice on account of a matter brought to the attention of the competent data protection officer alleging that a breach of the provisions of this Regulation has taken place.

8. The data protection officer shall be designated for a term of three to five years and shall be eligible for reappointment. The data protection officer may be dismissed from the post by the Union institution or body which designated him or her if he or she no longer fulfils the conditions required for the performance of his or her duties and only with the consent of the European Data Protection Supervisor.

9. After his or her designation the data protection officer shall be registered with the European Data Protection Supervisor by the Union institution or body which designated him or her.

Article 45

Tasks of the data protection officer

1. The data protection officer shall have the following tasks:

(a)

to inform and advise the controller or the processor and the employees who carry out processing of their obligations pursuant to this Regulation and to other Union data protection provisions;

(b)

to ensure in an independent manner the internal application of this Regulation; to monitor compliance with this Regulation, with other applicable Union law containing data protection provisions and with the policies of the controller or processor in relation to the protection of personal data, including the assignment of responsibilities, the raising of awareness and training of staff involved in processing operations, and the related audits;

(c)

to ensure that data subjects are informed of their rights and obligations pursuant to this Regulation;

(d)

to provide advice where requested as regards the necessity for a notification or a communication of a personal data breach pursuant to Articles 34 and 35;

(e)

to provide advice where requested as regards the data protection impact assessment and monitor its performance pursuant to Article 39 and to consult the European Data Protection Supervisor in case of doubt as to the need for a data protection impact assessment;

(f)

to provide advice where requested as regards the need for prior consultation of the European Data Protection Supervisor pursuant to Article 40; to consult the European Data Protection Supervisor in case of doubt as to the need for a prior consultation;

(g)

to respond to requests from the European Data Protection Supervisor; within the sphere of his or her competence, to cooperate and consult with the European Data Protection Supervisor at the latter’s request or on his or her own initiative;

(h)

to ensure that the rights and freedoms of data subjects are not adversely affected by processing operations.

2. The data protection officer may make recommendations to the controller and the processor for the practical improvement of data protection and advise them on matters concerning the application of data protection provisions. Furthermore he or she may, on his or her own initiative or at the request of the controller or the processor, the staff committee concerned or any individual, investigate matters and occurrences directly relating to his or her tasks which come to his or her notice, and report back to the person who commissioned the investigation or to the controller or the processor.

3. Further implementing rules concerning the data protection officer shall be adopted by each Union institution or body. The implementing rules shall in particular concern the tasks, duties and powers of the data protection officer.

CHAPTER V

TRANSFERS OF PERSONAL DATA TO THIRD COUNTRIES OR INTERNATIONAL ORGANISATIONS

Article 46

General principle for transfers

Any transfer of personal data which are undergoing processing or are intended for processing after transfer to a third country or to an international organisation shall take place only if, subject to the other provisions of this Regulation, the conditions laid down in this Chapter are complied with by the controller and processor, including for onward transfers of personal data from the third country or an international organisation to another third country or to another international organisation. All provisions in this Chapter shall be applied in order to ensure that the level of protection of natural persons guaranteed by this Regulation is not undermined.

Article 47

Transfers on the basis of an adequacy decision

1. A transfer of personal data to a third country or international organisation may take place where the Commission has decided pursuant to Article 45(3) of Regulation (EU) 2016/679 or to Article 36(3) of Directive (EU) 2016/680 that the third country, a territory or one or more specified sectors within that third country, or the international organisation in question ensures an adequate level of protection and where the personal data are transferred solely to allow tasks within the competence of the controller to be carried out.

2. The Union institutions and bodies shall inform the Commission and the European Data Protection Supervisor of cases where they consider that a third country, a territory or one or more specified sectors within a third country, or an international organisation in question does not ensure an adequate level of protection within the meaning of paragraph 1.

3. The Union institutions and bodies shall take the necessary measures to comply with decisions taken by the Commission where it establishes, pursuant to Article 45(3) or (5) of Regulation (EU) 2016/679 or to Article 36(3) or (5) of Directive (EU) 2016/680, that a third country, a territory or one or more specified sectors within a third country, or an international organisation ensures or no longer ensures an adequate level of protection.

Article 48

Transfers subject to appropriate safeguards

1. In the absence of a decision pursuant to Article 45(3) of Regulation (EU) 2016/679 or to Article 36(3) of Directive (EU) 2016/680, a controller or processor may transfer personal data to a third country or to an international organisation only if the controller or processor has provided appropriate safeguards, and on condition that enforceable data subject rights and effective legal remedies for data subjects are available.

2. The appropriate safeguards referred to in paragraph 1 may be provided for, without requiring any specific authorisation from the European Data Protection Supervisor, by:

(a)

a legally binding and enforceable instrument between public authorities or bodies;

(b)

standard data protection clauses adopted by the Commission in accordance with the examination procedure referred to in Article 96(2);

(c)

standard data protection clauses adopted by the European Data Protection Supervisor and approved by the Commission pursuant to the examination procedure referred to in Article 96(2);

(d)

where the processor is not a Union institution or body, binding corporate rules, codes of conduct or certification mechanisms pursuant to points (b), (e) and (f) of Article 46(2) of Regulation (EU) 2016/679.

3. Subject to the authorisation from the European Data Protection Supervisor, the appropriate safeguards referred to in paragraph 1 may also be provided for, in particular, by:

(a)

contractual clauses between the controller or processor and the controller, processor or the recipient of the personal data in the third country or international organisation; or

(b)

provisions to be inserted into administrative arrangements between public authorities or bodies which include enforceable and effective data subject rights.

4. Authorisations by the European Data Protection Supervisor on the basis of Article 9(7) of Regulation (EC) No 45/2001 shall remain valid until amended, replaced or repealed, if necessary, by the European Data Protection Supervisor.

5. The Union institutions and bodies shall inform the European Data Protection Supervisor of the categories of cases in which this Article has been applied.

Article 49

Transfers or disclosures not authorised by Union law

Any judgment of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may only be recognised or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union, without prejudice to other grounds for transfer pursuant to this Chapter.

Article 50

Derogations for specific situations

1. In the absence of an adequacy decision pursuant to Article 45(3) of Regulation (EU) 2016/679 or to Article 36(3) of Directive (EU) 2016/680, or of appropriate safeguards pursuant to Article 48 of this Regulation, a transfer or a set of transfers of personal data to a third country or an international organisation shall take place only on one of the following conditions:

(a)

the data subject has explicitly consented to the proposed transfer, after having been informed of the possible risks of such transfers for the data subject due to the absence of an adequacy decision and appropriate safeguards;

(b)

the transfer is necessary for the performance of a contract between the data subject and the controller or the implementation of pre-contractual measures taken at the data subject’s request;

(c)

the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the controller and another natural or legal person;

(d)

the transfer is necessary for important reasons of public interest;

(e)

the transfer is necessary for the establishment, exercise or defence of legal claims;

(f)

the transfer is necessary in order to protect the vital interests of the data subject or of other persons, where the data subject is physically or legally incapable of giving consent; or

(g)

the transfer is made from a register which, according to Union law, is intended to provide information to the public and which is open to consultation either by the public in general or by any person who can demonstrate a legitimate interest, but only to the extent that the conditions laid down in Union law for consultation are fulfilled in the particular case.

2. Points (a), (b) and (c) of paragraph 1 shall not apply to activities carried out by Union institutions and bodies in the exercise of their public powers.

3. The public interest referred to in point (d) of paragraph 1 shall be recognised in Union law.

4. A transfer pursuant to point (g) of paragraph 1 shall not involve the entirety of the personal data or entire categories of the personal data contained in the register, unless authorised by Union law. Where the register is intended for consultation by persons having a legitimate interest, the transfer shall be made only at the request of those persons or if they are to be the recipients.

5. In the absence of an adequacy decision, Union law may, for important reasons of public interest, expressly set limits to the transfer of specific categories of personal data to a third country or an international organisation.

6. The Union institutions and bodies shall inform the European Data Protection Supervisor of the categories of cases in which this Article has been applied.

Article 51

International cooperation for the protection of personal data

In relation to third countries and international organisations, the European Data Protection Supervisor, in cooperation with the Commission and the European Data Protection Board, shall take appropriate steps to:

(a)

develop international cooperation mechanisms to facilitate the effective enforcement of legislation for the protection of personal data;

(b)

provide international mutual assistance in the enforcement of legislation for the protection of personal data, including through notification, complaint referral, investigative assistance and information exchange, subject to appropriate safeguards for the protection of personal data and other fundamental rights and freedoms;

(c)

engage relevant stakeholders in discussion and activities aimed at furthering international cooperation in the enforcement of legislation for the protection of personal data;

(d)

promote the exchange and documentation of personal data protection legislation and practice, including on jurisdictional conflicts with third countries.

CHAPTER VI

EUROPEAN DATA PROTECTION SUPERVISOR

Article 52

European Data Protection Supervisor

1. The European Data Protection Supervisor is hereby established.

2. With respect to the processing of personal data, the European Data Protection Supervisor shall be responsible for ensuring that the fundamental rights and freedoms of natural persons, and in particular their right to data protection, are respected by Union institutions and bodies.

3. The European Data Protection Supervisor shall be responsible for monitoring and ensuring the application of the provisions of this Regulation and of any other Union act relating to the protection of the fundamental rights and freedoms of natural persons with regard to the processing of personal data by a Union institution or body, and for advising Union institutions and bodies and data subjects on all matters concerning the processing of personal data. To those ends, the European Data Protection Supervisor shall fulfil the tasks set out in Article 57 and exercise the powers granted in Article 58.

4. Regulation (EC) No 1049/2001 shall apply to documents held by the European Data Protection Supervisor. The European Data Protection Supervisor shall adopt detailed rules for applying Regulation (EC) No 1049/2001 with regard to those documents.

Article 53

Appointment of the European Data Protection Supervisor

1. The European Parliament and the Council shall appoint the European Data Protection Supervisor by common accord for a term of five years, on the basis of a list drawn up by the Commission following a public call for candidates. The call for candidates shall enable all interested parties throughout the Union to submit their applications. The list of candidates drawn up by the Commission shall be public and shall consist of at least three candidates. On the basis of the list drawn up by the Commission, the competent committee of the European Parliament may decide to hold a hearing in order to enable it to express a preference.

2. The list of candidates referred to in paragraph 1 shall be made up of persons whose independence is beyond doubt and who are acknowledged as having expert knowledge in data protection as well as the experience and skills required to perform the duties of European Data Protection Supervisor.

3. The term of office of the European Data Protection Supervisor shall be renewable once.

4. The duties of the European Data Protection Supervisor shall cease in the following circumstances:

(a)

if the European Data Protection Supervisor is replaced;

(b)

if the European Data Protection Supervisor resigns;

(c)

if the European Data Protection Supervisor is dismissed or required to take compulsory retirement.

5. The European Data Protection Supervisor may be dismissed or deprived of his or her right to a pension or other benefits in his or her stead by the Court of Justice at the request of the European Parliament, the Council or the Commission, if he or she no longer fulfils the conditions required for the performance of his or her duties or if he or she is guilty of serious misconduct.

6. In the event of normal replacement or voluntary resignation, the European Data Protection Supervisor shall nevertheless remain in office until he or she has been replaced.

7. Articles 11 to 14 and 17 of the Protocol on the Privileges and Immunities of the European Union shall apply to the European Data Protection Supervisor.

Article 54

Regulations and general conditions governing the performance of the European Data Protection Supervisor’s duties, staff and financial resources

1. The European Data Protection Supervisor shall be considered equivalent to a judge of the Court of Justice as regards the determination of remuneration, allowances, retirement pension and any other benefit in lieu of remuneration.

2. The budgetary authority shall ensure that the European Data Protection Supervisor is provided with the human and financial resources necessary for the performance of his or her tasks.

3. The budget of the European Data Protection Supervisor shall be shown in a separate budgetary heading in the section related to administrative expenditure of the general budget of the Union.

4. The European Data Protection Supervisor shall be assisted by a secretariat. The officials and other staff members of the secretariat shall be appointed by the European Data Protection Supervisor and their superior shall be the European Data Protection Supervisor. They shall be subject exclusively to his or her direction. Their numbers shall be decided each year as part of the budgetary procedure. Article 75(2) of Regulation (EU) 2016/679 shall apply to the staff of the European Data Protection Supervisor involved in carrying out the tasks conferred on the European Data Protection Board by Union law.

5. The officials and the other staff members of the secretariat of the European Data Protection Supervisor shall be subject to the rules and regulations applicable to officials and other servants of the Union.

6. The seat of the European Data Protection Supervisor shall be in Brussels.

Article 55

Independence

1. The European Data Protection Supervisor shall act with complete independence in performing his or her tasks and exercising his or her powers in accordance with this Regulation.

2. The European Data Protection Supervisor shall, in the performance of his or her tasks and exercise of his or her powers in accordance with this Regulation, remain free from external influence, whether direct or indirect, and shall neither seek nor take instructions from anybody.

3. The European Data Protection Supervisor shall refrain from any action incompatible with his or her duties and shall not, during his or her term of office, engage in any other occupation, whether gainful or not.

4. After his or her term of office, the European Data Protection Supervisor shall behave with integrity and discretion as regards the acceptance of appointments and benefits.

Article 56

Professional secrecy

The European Data Protection Supervisor and his or her staff shall, both during and after their term of office, be subject to a duty of professional secrecy with regard to any confidential information which has come to their knowledge in the course of the performance of their official duties.

Article 57

Tasks

1. Without prejudice to other tasks set out under this Regulation, the European Data Protection Supervisor shall:

(a)

monitor and enforce the application of this Regulation by Union institutions and bodies, with the exception of the processing of personal data by the Court of Justice acting in its judicial capacity;

(b)

promote public awareness and understanding of the risks, rules, safeguards and rights in relation to processing. Activities addressed specifically to children shall receive specific attention;

(c)

promote the awareness of controllers and processors of their obligations under this Regulation;

(d)

upon request, provide information to any data subject concerning the exercise of their rights under this Regulation and, if appropriate, cooperate with the national supervisory authorities to that end;

(e)

handle complaints lodged by a data subject, or by a body, organisation or association in accordance with Article 67, and investigate, to the extent appropriate, the subject matter of the complaint and inform the complainant of the progress and the outcome of the investigation within a reasonable period, in particular if further investigation or coordination with another supervisory authority is necessary;

(f)

conduct investigations on the application of this Regulation, including on the basis of information received from another supervisory authority or other public authority;

(g)

advise, on his or her own initiative or on request, all Union institutions and bodies on legislative and administrative measures relating to the protection of natural persons’ rights and freedoms with regard to the processing of personal data;

(h)

monitor relevant developments, insofar as they have an impact on the protection of personal data, in particular the development of information and communication technologies;

(i)

adopt standard contractual clauses referred to in Article 29(8) and in point (c) of Article 48(2);

(j)

establish and maintain a list in relation to the requirement for data protection impact assessment pursuant to Article 39(4);

(k)

participate in the activities of the European Data Protection Board;

(l)

provide the secretariat for the European Data Protection Board, in accordance with Article 75 of Regulation (EU) 2016/679;

(m)

give advice on the processing referred to in Article 40(2);

(n)

authorise contractual clauses and provisions referred to in Article 48(3);

(o)

keep internal records of infringements of this Regulation and of measures taken in accordance with Article 58(2);

(p)

fulfil any other tasks related to the protection of personal data; and

(q)

establish his or her Rules of Procedure.

2. The European Data Protection Supervisor shall facilitate the submission of complaints referred to in point (e) of paragraph 1 by a complaint submission form which can also be completed electronically, without excluding other means of communication.

3. The performance of the tasks of the European Data Protection Supervisor shall be free of charge for the data subject.

4. Where requests are manifestly unfounded or excessive, in particular because of their repetitive character, the European Data Protection Supervisor may refuse to act on the request. The European Data Protection Supervisor shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.

Article 58

Powers

1. The European Data Protection Supervisor shall have the following investigative powers:

(a)

to order the controller and the processor to provide any information it requires for the performance of his or her tasks;

(b)

to carry out investigations in the form of data protection audits;

(c)

to notify the controller or the processor of an alleged infringement of this Regulation;

(d)

to obtain, from the controller and the processor, access to all personal data and to all information necessary for the performance of his or her tasks;

(e)

to obtain access to any premises of the controller and the processor, including to any data processing equipment and means, in accordance with Union law.

2. The European Data Protection Supervisor shall have the following corrective powers:

(a)

to issue warnings to a controller or processor that intended processing operations are likely to infringe provisions of this Regulation;

(b)

to issue reprimands to a controller or a processor where processing operations have infringed provisions of this Regulation;

(c)

to refer matters to the controller or processor concerned and, if necessary, to the European Parliament, the Council and the Commission;

(d)

to order the controller or the processor to comply with the data subject’s requests to exercise his or her rights pursuant to this Regulation;

(e)

to order the controller or processor to bring processing operations into compliance with the provisions of this Regulation, where appropriate, in a specified manner and within a specified period;

(f)

to order the controller to communicate a personal data breach to the data subject;

(g)

to impose a temporary or definitive limitation including a ban on processing;

(h)

to order the rectification or erasure of personal data or restriction of processing pursuant to Articles 18, 19 and 20 and the notification of such actions to recipients to whom the personal data have been disclosed pursuant to Article 19(2) and Article 21;

(i)

to impose an administrative fine pursuant to Article 66 in the case of non-compliance by a Union institution or body with one of the measures referred to in points (d) to (h) and (j) of this paragraph, depending on the circumstances of each individual case;

(j)

to order the suspension of data flows to a recipient in a Member State, a third country or to an international organisation.

3. The European Data Protection Supervisor shall have the following authorisation and advisory powers:

(a)

to advise data subjects in the exercise of their rights;

(b)

to advise the controller in accordance with the prior consultation procedure referred to in Article 40, and in accordance with Article 41(2);

(c)

to issue, on his or her own initiative or on request, opinions to Union institutions and bodies and to the public on any issue related to the protection of personal data;

(d)

to adopt standard data protection clauses referred to in Article 29(8) and in point (c) of Article 48(2);

(e)

to authorise contractual clauses referred to in point (a) of Article 48(3);

(f)

to authorise administrative arrangements referred to in point (b) of Article 48(3);

(g)

to authorise processing operations pursuant to implementing acts adopted under Article 40(4).

4. The European Data Protection Supervisor shall have the power to refer the matter to the Court of Justice under the conditions provided for in the Treaties and to intervene in actions brought before the Court of Justice.

5. The exercise of the powers conferred on the European Data Protection Supervisor pursuant to this Article shall be subject to appropriate safeguards, including effective judicial remedies and due process, set out in Union law.

Article 59

Obligation of controllers and processors to react to allegations

Where the European Data Protection Supervisor exercises the powers provided for in points (a), (b) and (c) of Article 58(2), the controller or processor concerned shall inform the European Data Protection Supervisor of its views within a reasonable period to be specified by the European Data Protection Supervisor, taking into account the circumstances of each case. The reply shall also include a description of the measures taken, if any, in response to the remarks of the European Data Protection Supervisor.

Article 60

Activities report

1. The European Data Protection Supervisor shall submit an annual report on his or her activities to the European Parliament, to the Council and to the Commission and at the same time make it public.

2. The European Data Protection Supervisor shall forward the report referred to in paragraph 1 to the other Union institutions and bodies, which may submit comments with a view to possible examination of the report by the European Parliament.

CHAPTER VII

COOPERATION AND CONSISTENCY

Article 61

Cooperation between the European Data Protection Supervisor and national supervisory authorities

The European Data Protection Supervisor shall cooperate with national supervisory authorities and with the joint supervisory authority established under Article 25 of Council Decision 2009/917/JHA (19) to the extent necessary for the performance of their respective duties, in particular by providing each other with relevant information, asking each other to exercise their powers and responding to each other’s requests.

Article 62

Coordinated supervision by the European Data Protection Supervisor and national supervisory authorities

1. Where a Union act refers to this Article, the European Data Protection Supervisor and the national supervisory authorities, each acting within the scope of their respective competences, shall cooperate actively within the framework of their responsibilities to ensure effective supervision of large-scale IT systems and of Union bodies, offices and agencies.

2. They shall, as necessary, each acting within the scope of their respective competences and within the framework of their responsibilities, exchange relevant information, assist each other in carrying out audits and inspections, examine difficulties of interpretation or application of this Regulation and other applicable Union acts, study problems with the exercise of independent supervision or with the exercise of the rights of data subjects, draw up harmonised proposals for solutions to any problems and promote awareness of data protection rights.

3. For the purposes laid down in paragraph 2, the European Data Protection Supervisor and the national supervisory authorities shall meet at least twice a year within the framework of the European Data Protection Board. For these purposes, the European Data Protection Board may develop further working methods as necessary.

4. The European Data Protection Board shall submit a joint report of coordinated supervision activities to the European Parliament, to the Council, and to the Commission every two years.

CHAPTER VIII

REMEDIES, LIABILITY AND PENALTIES

Article 63

Right to lodge a complaint with the European Data Protection Supervisor

1. Without prejudice to any judicial, administrative or non-judicial remedy, every data subject shall have the right to lodge a complaint with the European Data Protection Supervisor if the data subject considers that the processing of personal data relating to him or her infringes this Regulation.

2. The European Data Protection Supervisor shall inform the complainant of the progress and the outcome of the complaint, including of the possibility of a judicial remedy pursuant to Article 64.

3. If the European Data Protection Supervisor does not handle the complaint or does not inform the data subject within three months on the progress or outcome of the complaint, the European Data Protection Supervisor shall be deemed to have adopted a negative decision.

Article 64

Right to an effective judicial remedy

1. The Court of Justice shall have jurisdiction to hear all disputes relating to the provisions of this Regulation, including claims for damages.

2. Actions against decisions of the European Data Protection Supervisor, including decisions under Article 63(3), shall be brought before the Court of Justice.

3. The Court of Justice shall have unlimited jurisdiction to review administrative fines referred to in Article 66. It may cancel, reduce or increase those fines within the limits of Article 66.

Article 65

Right to compensation

Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the Union institution or body for the damage suffered, subject to the conditions provided for in the Treaties.

Article 66

Administrative fines

1. The European Data Protection Supervisor may impose administrative fines on Union institutions and bodies, depending on the circumstances of each individual case, where a Union institution or body fails to comply with an order by the European Data Protection Supervisor pursuant to points (d) to (h) and (j) of Article 58(2). When deciding whether to impose an administrative fine and deciding on the amount of the administrative fine in each individual case, due regard shall be given to the following:

(a)

the nature, gravity and duration of the infringement, taking into account the nature, scope or purpose of the processing concerned as well as the number of data subjects affected and the level of damage suffered by them;

(b)

any action taken by the Union institution or body to mitigate the damage suffered by data subjects;

(c)

the degree of responsibility of the Union institution or body, taking into account technical and organisational measures implemented by them pursuant to Articles 27 and 33;

(d)

any similar previous infringements by the Union institution or body;

(e)

the degree of cooperation with the European Data Protection Supervisor in order to remedy the infringement and mitigate the possible adverse effects of the infringement;

(f)

the categories of personal data affected by the infringement;

(g)

the manner in which the infringement became known to the European Data Protection Supervisor, in particular whether, and if so to what extent, the Union institution or body notified the infringement;

(h)

compliance with any of the measures referred to in Article 58 previously ordered against the Union institution or body concerned with regard to the same subject matter. The proceedings leading to the imposition of those fines shall be carried out in a reasonable timeframe according to the circumstances of the case and taking into account the relevant actions and proceedings referred to in Article 69.

2. Infringements of the obligations of the Union institution or body pursuant to Articles 8, 12, 27 to 35, 39, 40, 43, 44 and 45 shall, in accordance with paragraph 1 of this Article, be subject to administrative fines of up to 25 000 EUR per infringement and up to a total of 250 000 EUR per year.

3. Infringements of the following provisions by the Union institution or body shall, in accordance with paragraph 1, be subject to administrative fines of up to 50 000 EUR per infringement and up to a total of 500 000 EUR per year:

(a)

the basic principles for processing, including conditions for consent, pursuant to Articles 4, 5, 7 and 10;

(b)

the data subjects’ rights pursuant to Articles 14 to 24;

(c)

the transfers of personal data to a recipient in a third country or an international organisation pursuant to Articles 46 to 50.

4. If a Union institution or body, for the same or linked or continuous processing operations, infringes several provisions of this Regulation or the same provision of this Regulation several times, the total amount of the administrative fine shall not exceed the amount specified for the gravest infringement.

5. Before taking decisions pursuant to this Article, the European Data Protection Supervisor shall give the Union institution or body which is the subject of the proceedings conducted by the European Data Protection Supervisor the opportunity of being heard on the matters to which the European Data Protection Supervisor has taken objection. The European Data Protection Supervisor shall base his or her decisions only on objections on which the parties concerned have been able to comment. Complainants shall be associated closely with the proceedings.

6. The rights of defence of the parties concerned shall be fully respected in the proceedings. They shall be entitled to have access to the European Data Protection Supervisor’s file, subject to the legitimate interest of individuals or undertakings in the protection of their personal data or business secrets.

7. Funds collected by imposition of fines in this Article shall be the income of the general budget of the Union.

Article 67

Representation of data subjects

The data subject shall have the right to mandate a not-for-profit body, organisation or association which has been properly constituted in accordance with Union law or the law of a Member State, has statutory objectives which are in the public interest, and is active in the field of the protection of data subjects’ rights and freedoms with regard to the protection of their personal data to lodge the complaint with the European Data Protection Supervisor on his or her behalf, to exercise the rights referred to in Articles 63 and 64 on his or her behalf, and to exercise the right to receive compensation referred to in Article 65 on his or her behalf.

Article 68

Complaints by Union staff

Any person employed by a Union institution or body may lodge a complaint with the European Data Protection Supervisor regarding an alleged infringement of the provisions of this Regulation, including without acting through official channels. No one shall suffer prejudice by reason of having submitted a complaint with the European Data Protection Supervisor alleging such an infringement.

Article 69

Sanctions

Where an official or other servant of the Union fails to comply with the obligations laid down in this Regulation, whether intentionally or through negligence on his or her part, the official or other servant concerned shall be liable to disciplinary or other action, in accordance with the rules and procedures laid down in the Staff Regulations.

CHAPTER IX

PROCESSING OF OPERATIONAL PERSONAL DATA BY UNION BODIES, OFFICES AND AGENCIES WHEN CARRYING OUT ACTIVITIES WHICH FALL WITHIN THE SCOPE OF CHAPTER 4 OR CHAPTER 5 OF TITLE V OF PART THREE TFEU

Article 70

Scope of the Chapter

This Chapter applies only to the processing of operational personal data by Union bodies, offices and agencies when carrying out activities which fall within the scope of Chapter 4 or Chapter 5 of Title V of Part Three TFEU, without prejudice to specific data protection rules applicable to such a Union body, office or agency.

Article 71

Principles relating to processing of operational personal data

1. Operational personal data shall be:

(a)

processed lawfully and fairly (‘lawfulness and fairness’);

(b)

collected for specified, explicit and legitimate purposes and not processed in a manner that is incompatible with those purposes (‘purpose limitation’);

(c)

adequate, relevant, and not excessive in relation to the purposes for which they are processed (‘data minimisation’);

(d)

accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that operational personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’);

(e)

kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the operational personal data are processed (‘storage limitation’);

(f)

processed in a manner that ensures appropriate security of the operational personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’).

2. Processing by the same or another controller for any of the purposes set out in the legal act establishing the Union body, office or agency other than that for which the operational personal data are collected shall be permitted in so far as:

(a)

the controller is authorised to process such operational personal data for such a purpose in accordance with Union law; and

(b)

processing is necessary and proportionate to that other purpose in accordance with Union law.

3. Processing by the same or another controller may include archiving in the public interest, scientific, statistical or historical use, for the purposes set out in the legal act establishing the Union body, office or agency, subject to appropriate safeguards for the rights and freedoms of data subjects.

4. The controller shall be responsible for, and be able to demonstrate compliance with, paragraphs 1, 2 and 3.

Article 72

Lawfulness of processing of operational personal data

1. Processing of operational personal data shall be lawful only if and to the extent that processing is necessary for the performance of a task carried out by Union bodies, offices and agencies when carrying out activities which fall within the scope of Chapter 4 or Chapter 5 of Title V of Part Three TFEU and that it is based on Union law.

2. Specific Union legal acts regulating processing within the scope of this Chapter shall specify at least the objectives of processing, the operational personal data to be processed, the purposes of the processing and the time limits for storage of the operational personal data or for periodic review of the need for further storage of the operational personal data.

Article 73

Distinction between different categories of data subjects

The controller shall, where applicable and as far as possible, make a clear distinction between the operational personal data of different categories of data subjects, such as the categories listed in the legal acts establishing Union bodies, offices and agencies.

Article 74

Distinction between operational personal data and verification of the quality of operational personal data

1. The controller shall distinguish, as far as possible, operational personal data based on facts from operational personal data based on personal assessments.

2. The controller shall take all reasonable steps to ensure that operational personal data which are inaccurate, incomplete or no longer up to date are not transmitted or made available. To that end, the controller shall, as far as practicable and where relevant, verify the quality of operational personal data before they are transmitted or made available, for example by consulting the competent authority from which the data originates. As far as possible, in all transmissions of operational personal data, the controller shall add the necessary information enabling the recipient to assess the degree to which the operational personal data are accurate, complete and reliable, and the extent to which they are up to date.

3. If it emerges that incorrect operational personal data have been transmitted or that operational personal data have been unlawfully transmitted, the recipient shall be notified without delay. In such a case, the operational personal data concerned shall be rectified or erased or their processing shall be restricted in accordance with Article 82.

Article 75

Specific processing conditions

1. When Union law applicable to the transmitting controller provides for specific conditions for processing, the controller shall inform the recipient of the operational personal data of those conditions and the requirement to comply with them.

2. The controller shall comply with specific processing conditions for processing provided by a transmitting competent authority in accordance with Article 9(3) and (4) of Directive (EU) 2016/680.

Article 76

Processing of special categories of operational personal data

1. Processing of operational personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, operational personal data concerning health or concerning a natural person’s sex life or sexual orientation shall be allowed only where strictly necessary for operational purposes, within the mandate of the Union body, office or agency concerned and subject to appropriate safeguards for the rights and freedoms of the data subject. Discrimination against natural persons on the basis of such personal data shall be prohibited.

2. The data protection officer shall be informed without undue delay of recourse to this Article.

Article 77

Automated individual decision-making, including profiling

1. A decision based solely on automated processing, including profiling, which produces an adverse legal effect concerning the data subject or significantly affects him or her shall be prohibited unless authorised by Union law to which the controller is subject and which provides appropriate safeguards for the rights and freedoms of the data subject, at least the right to obtain human intervention on the part of the controller.

2. Decisions referred to in paragraph 1 of this Article shall not be based on the special categories of personal data referred to in Article 76 unless suitable measures to safeguard the data subject’s rights, freedoms and legitimate interests are in place.

3. Profiling that results in discrimination against natural persons on the basis of special categories of personal data referred to in Article 76 shall be prohibited, in accordance with Union law.

Article 78

Communication and modalities for exercising the rights of the data subject

1. The controller shall take reasonable steps to provide any information referred to in Article 79 and make any communication with regard to Articles 80 to 84 and 92 relating to processing to the data subject in a concise, intelligible and easily accessible form, using clear and plain language. The information shall be provided by any appropriate means, including by electronic means. As a general rule, the controller shall provide the information in the same form as the request.

2. The controller shall facilitate the exercise of the rights of the data subject under Articles 79 to 84.

3. The controller shall inform the data subject in writing about the follow-up to his or her request without undue delay and in any case at the latest within three months after receipt of the request by the data subject.

4. The controller shall provide the information under Article 79 and any communication made or action taken pursuant to Articles 80 to 84 and 92 free of charge. Where requests from a data subject are manifestly unfounded or excessive, in particular because of their repetitive character, the controller may refuse to act on the request. The controller shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.

5. Where the controller has reasonable doubts concerning the identity of the natural person making a request referred to in Article 80 or 82, the controller may request the provision of additional information necessary to confirm the identity of the data subject.

Article 79

Information to be made available or given to the data subject

1. The controller shall make available to the data subject at least the following information:

(a)

the identity and the contact details of the Union body, office or agency;

(b)

the contact details of the data protection officer;

(c)

the purposes of the processing for which the operational personal data are intended;

(d)

the right to lodge a complaint with the European Data Protection Supervisor and his or her contact details;

(e)

the existence of the right to request from the controller access to and rectification or erasure of operational personal data and restriction of processing of the operational personal data concerning the data subject.

2. In addition to the information referred to in paragraph 1, the controller shall give to the data subject, in the specific cases foreseen by Union law, the following further information to enable the exercise of his or her rights:

(a)

the legal basis for the processing;

(b)

the period for which the operational personal data will be stored, or, where that is not possible, the criteria used to determine that period;

(c)

where applicable, the categories of recipients of the operational personal data, including in third countries or international organisations;

(d)

where necessary, further information, in particular where the operational personal data are collected without the knowledge of the data subject.

3. The controller may delay, restrict or omit the provision of the information to the data subject pursuant to paragraph 2 to the extent that, and for as long as, such a measure constitutes a necessary and proportionate measure in a democratic society with due regard for the fundamental rights and the legitimate interests of the natural person concerned, in order to:

(a)

avoid obstructing official or legal inquiries, investigations or procedures;

(b)

avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties;

(c)

protect the public security of Member States;

(d)

protect the national security of Member States;

(e)

protect the rights and freedoms of others, such as victims and witnesses.

Article 80

Right of access by the data subject

The data subject shall have the right to obtain from the controller confirmation as to whether or not operational personal data concerning him or her are processed, and where that is the case, have the right to access operational personal data and the following information:

(a)

the purposes of and legal basis for the processing;

(b)

the categories of operational personal data concerned;

(c)

the recipients or categories of recipients to whom the operational personal data have been disclosed, in particular recipients in third countries or international organisations;

(d)

where possible, the envisaged period for which the operational personal data will be stored, or, if not possible, the criteria used to determine that period;

(e)

the existence of the right to request from the controller rectification or erasure of operational personal data or restriction of processing of operational personal data concerning the data subject;

(f)

the right to lodge a complaint with the European Data Protection Supervisor and his or her contact details;

(g)

communication of the operational personal data undergoing processing and of any available information as to their origin.

Article 81

Limitations to the right of access

1. The controller may restrict, wholly or partly, the data subject’s right of access to the extent that, and for as long as, such a partial or complete restriction constitutes a necessary and proportionate measure in a democratic society with due regard for the fundamental rights and legitimate interests of the natural person concerned, in order to:

(a)

avoid obstructing official or legal inquiries, investigations or procedures;

(b)

avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties;

(c)

protect the public security of Member States;

(d)

protect the national security of Member States;

(e)

protect the rights and freedoms of others, such as victims and witnesses.

2. In the cases referred to in paragraph 1, the controller shall inform the data subject, without undue delay, in writing of any refusal or restriction of access and of the reasons for the refusal or the restriction. Such information may be omitted where the provision thereof would undermine a purpose under paragraph 1. The controller shall inform the data subject of the possibility of lodging a complaint with the European Data Protection Supervisor or of seeking a judicial remedy before the Court of Justice. The controller shall document the factual or legal reasons on which the decision is based. That information shall be made available to the European Data Protection Supervisor on request.

Article 82

Right to rectification or erasure of operational personal data and restriction of processing

1. Any data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate operational personal data relating to him or her. Taking into account the purposes of the processing, the data subject shall have the right to have incomplete operational personal data completed, including by means of providing a supplementary statement.

2. The controller shall erase operational personal data without undue delay and the data subject shall have the right to obtain from the controller the erasure of operational personal data concerning him or her without undue delay where processing infringes Articles 71, 72(1) or 76, or where operational personal data must be erased in order to comply with a legal obligation to which the controller is subject.

3. Instead of erasure, the controller shall restrict processing where:

(a)

the accuracy of the personal data is contested by the data subject and their accuracy or inaccuracy cannot be ascertained; or

(b)

the personal data must be maintained for the purposes of evidence.

Where processing is restricted pursuant to point (a) of the first subparagraph, the controller shall inform the data subject before lifting the restriction of processing.

Restricted data shall be processed only for the purpose that prevented their erasure.

4. The controller shall inform the data subject in writing of any refusal of rectification or erasure of operational personal data or restrict processing and of the reasons for the refusal. The controller may restrict, wholly or partly, the provision of such information to the extent that such a restriction constitutes a necessary and proportionate measure in a democratic society with due regard for the fundamental rights and legitimate interests of the natural person concerned in order to:

(a)

avoid obstructing official or legal inquiries, investigations or procedures;

(b)

avoid prejudicing the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties;

(c)

protect the public security of Member States;

(d)

protect the national security of Member States;

(e)

protect the rights and freedoms of others, such as victims and witnesses.

The controller shall inform the data subject of the possibility of lodging a complaint with the European Data Protection Supervisor or seeking a judicial remedy from the Court of Justice.

5. The controller shall communicate the rectification of inaccurate operational personal data to the competent authority from which the inaccurate operational personal data originate.

6. The controller shall, where operational personal data has been rectified or erased or processing has been restricted pursuant to paragraphs 1, 2 or 3, notify the recipients and inform them that they have to rectify or erase the operational personal data or restrict processing of the operational personal data under their responsibility.

Article 83

Right of access in criminal investigations and proceedings

Where operational personal data originates from a competent authority, Union bodies, offices and agencies shall, prior to deciding on a data subject’s right of access, verify with the competent authority concerned whether such personal data are contained in a judicial decision or record or a case file processed in the course of criminal investigations and proceedings in the Member State of that competent authority. Where this is the case, a decision on the right of access shall be taken in consultation and in close cooperation with the competent authority concerned.

Article 84

Exercise of rights by the data subject and verification by the European Data Protection Supervisor

1. In the cases referred to in Articles 79(3), 81 and 82(4), the rights of the data subject may also be exercised through the European Data Protection Supervisor.

2. The controller shall inform the data subject of the possibility of exercising his or her rights through the European Data Protection Supervisor pursuant to paragraph 1.

3. Where the right referred to in paragraph 1 is exercised, the European Data Protection Supervisor shall at least inform the data subject that all necessary verifications or a review by him or her have taken place. The European Data Protection Supervisor shall also inform the data subject of his or her right to seek a judicial remedy before the Court of Justice.

Article 85

Data protection by design and by default

1. Taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing, the controller shall, both at the time of the determination of the means for processing and at the time of the processing itself, implement appropriate technical and organisational measures, such as pseudonymisation, which are designed to implement data protection principles, such as data minimisation, in an effective manner and to integrate the necessary safeguards into the processing, in order to meet the requirements of this Regulation and the legal act establishing it, and protect the rights of the data subjects.

2. The controller shall implement appropriate technical and organisational measures ensuring that, by default, only operational personal data which are adequate, relevant and not excessive in relation to the purpose of the processing are processed. That obligation applies to the amount of operational personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default operational personal data are not made accessible without the individual’s intervention to an indefinite number of natural persons.

Article 86

Joint controllers

1. Where two or more controllers or one or more controllers together with one or more controllers other than Union institutions and bodies jointly determine the purposes and means of processing, they shall be joint controllers. They shall in a transparent manner determine their respective responsibilities for compliance with their data protection obligations, in particular as regards the exercise of the rights of the data subject and their respective duties to provide the information referred to in Article 79, by means of an arrangement between them, unless and in so far as the respective responsibilities of the joint controllers are determined by Union or Member State law to which the joint controllers are subject. The arrangement may designate a contact point for data subjects.

2. The arrangement referred to in paragraph 1 shall duly reflect the respective roles and relationships of the joint controllers vis-à-vis the data subject. The essence of the arrangement shall be made available to the data subject.

3. Irrespective of the terms of the arrangement referred to in paragraph 1, the data subject may exercise his or her rights under this Regulation in respect of and against each of the controllers.

Article 87

Processor

1. Where processing is to be carried out on behalf of a controller, the controller shall use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and the legal act establishing the controller and ensure the protection of the rights of the data subject.

2. The processor shall not engage another processor without prior specific or general written authorisation by the controller. In the case of general written authorisation, the processor shall inform the controller of any intended changes concerning the addition or replacement of other processors, thereby giving the controller the opportunity to object to such changes.

3. Processing by a processor shall be governed by a contract or other legal act under Union or Member State law, that is binding on the processor with regard to the controller and that sets out the subject matter and duration of the processing, the nature and purpose of the processing, the type of operational personal data and categories of data subjects and the obligations and rights of the controller. That contract or other legal act shall stipulate, in particular, that the processor:

(a)

acts only on instructions from the controller;

(b)

ensures that persons authorised to process the operational personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

(c)

assists the controller by any appropriate means to ensure compliance with the provisions on the data subject’s rights;

(d)

at the choice of the controller, deletes or returns all the operational personal data to the controller after the end of the provision of services relating to processing, and deletes existing copies unless Union law or Member State law requires storage of the operational personal data;

(e)

makes available to the controller all information necessary to demonstrate compliance with the obligations laid down in this Article;

(f)

complies with the conditions referred to in paragraph 2 and in this paragraph for engaging another processor.

4. The contract or the other legal act referred to in paragraph 3 shall be in writing, including in electronic form.

5. If a processor infringes this Regulation or the legal act establishing the controller by determining the purposes and means of processing, the processor shall be considered to be a controller in respect of that processing.

Article 88

Logging

1. The controller shall keep logs for any of the following processing operations in automated processing systems: the collection, alteration, access, consultation, disclosure, including transfers, combination and erasure of operational personal data. The logs of consultation and disclosure shall make it possible to establish the justification for, and the date and time of, such operations, the identification of the person who consulted or disclosed operational personal data, and, as far as possible, the identity of the recipients of such operational personal data.

2. The logs shall be used solely for verification of the lawfulness of processing, self-monitoring, ensuring the integrity and security of the operational personal data, and for criminal proceedings. Such logs shall be deleted after three years, unless they are required for ongoing control.

3. The controller shall make the logs available to its data protection officer and to the European Data Protection Supervisor on request.

Article 89

Data protection impact assessment

1. Where a type of processing, in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall carry out, prior to the processing, an assessment of the impact of the envisaged processing operations on the protection of operational personal data.

2. The assessment referred to in paragraph 1 shall contain at least a general description of the envisaged processing operations, an assessment of the risks to the rights and freedoms of data subjects, the measures envisaged to address those risks, safeguards, security measures and mechanisms to ensure the protection of operational personal data and to demonstrate compliance with data protection rules, taking into account the rights and legitimate interests of the data subjects and other persons concerned.

Article 90

Prior consultation of the European Data Protection Supervisor

1. The controller shall consult the European Data Protection Supervisor prior to processing which will form part of a new filing system to be created, where:

(a)

a data protection impact assessment under Article 89 indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk; or

(b)

the type of processing, in particular, where using new technologies, mechanisms or procedures, involves a high risk to the rights and freedoms of data subjects.

2. The European Data Protection Supervisor may establish a list of the processing operations which are subject to prior consultation pursuant to paragraph 1.

3. The controller shall provide the European Data Protection Supervisor with the data protection impact assessment referred to Article 89 and, on request, with any other information to allow the European Data Protection Supervisor to make an assessment of the compliance of the processing and in particular of the risks for the protection of operational personal data of the data subject and of the related safeguards.

4. Where the European Data Protection Supervisor is of the opinion that the intended processing referred to in paragraph 1 would infringe this Regulation or the legal act establishing the Union body, office or agency, in particular where the controller has insufficiently identified or mitigated the risk, the European Data Protection Supervisor shall provide written advice to the controller within a period of up to six weeks of receipt of the request for consultation. That period may be extended by a month, taking into account the complexity of the intended processing. The European Data Protection Supervisor shall inform the controller of any such extension within one month of receipt of the request for consultation, together with the reasons for the delay.

Article 91

Security of processing of operational personal data

1. The controller and the processor shall, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons, implement appropriate technical and organisational measures to ensure a level of security appropriate to the risks, in particular as regards the processing of special categories of operational personal data.

2. In respect of automated processing, the controller and the processor shall, following an evaluation of the risks, implement measures designed to:

(a)

deny unauthorised persons access to data processing equipment used for processing (‘equipment access control’);

(b)

prevent the unauthorised reading, copying, modification or removal of data media (‘data media control’);

(c)

prevent the unauthorised input of operational personal data and the unauthorised inspection, modification or deletion of stored operational personal data (‘storage control’);

(d)

prevent the use of automated processing systems by unauthorised persons using data communication equipment (‘user control’);

(e)

ensure that persons authorised to use an automated processing system have access only to the operational personal data covered by their access authorisation (‘data access control’);

(f)

ensure that it is possible to verify and establish the bodies to which operational personal data have been or may be transmitted or made available using data communication (‘communication control’);

(g)

ensure that it is subsequently possible to verify and establish which operational personal data have been input into automated data processing systems, and when and by whom the operational personal data were input (‘input control’);

(h)

prevent unauthorised reading, copying, modification or deletion of operational personal data during transfers of operational personal data or during transportation of data media (‘transport control’);

(i)

ensure that installed systems may, in the case of interruption, be restored (‘recovery’);

(j)

ensure that the functions of the system perform, that the appearance of faults in the functions is reported (‘reliability’) and that stored operational personal data cannot be corrupted by means of a malfunctioning of the system (‘integrity’).

Article 92

Notification of a personal data breach to the European Data Protection Supervisor

1. In the case of a personal data breach, the controller shall notify without undue delay and, where feasible, not later than 72 hours after having become aware of it, the personal data breach to the European Data Protection Supervisor, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Where the notification to the European Data Protection Supervisor is not made within 72 hours, it shall be accompanied by reasons for the delay.

2. The notification referred to in paragraph 1 shall at least:

(a)

describe the nature of the personal data breach including, where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of operational personal data records concerned;

(b)

communicate the name and contact details of the Data Protection Officer;

(c)

describe the likely consequences of the personal data breach;

(d)

describe the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

3. Where, and in so far as, it is not possible to provide the information referred to in paragraph 2 at the same time, the information may be provided in phases without undue further delay.

4. The controller shall document any personal data breaches referred to in paragraph 1, comprising the facts relating to the personal data breach, its effects and the remedial action taken. That documentation shall enable the European Data Protection Supervisor to verify compliance with this Article.

5. Where the personal data breach involves operational personal data that have been transmitted by or to the competent authorities, the controller shall communicate the information referred to in paragraph 2 to the competent authorities concerned without undue delay.

Article 93

Communication of a personal data breach to the data subject

1. Where the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall communicate the personal data breach to the data subject without undue delay.

2. The communication to the data subject referred to in paragraph 1 of this Article shall describe in clear and plain language the nature of the personal data breach and shall contain at least the information and the recommendations provided for in points (b), (c) and (d) of Article 92(2).

3. The communication to the data subject referred to in paragraph 1 shall not be required if any of the following conditions are met:

(a)

the controller has implemented appropriate technological and organisational protection measures, and those measures were applied to the operational personal data affected by the personal data breach, in particular those that render the operational personal data unintelligible to any person who is not authorised to access it, such as encryption;

(b)

the controller has taken subsequent measures which ensure that the high risk to the rights and freedoms of data subjects referred to in paragraph 1 is no longer likely to materialise;

(c)

it would involve a disproportionate effort. In such a case, there shall instead be a public communication or a similar measure whereby the data subjects are informed in an equally effective manner.

4. If the controller has not already communicated the personal data breach to the data subject, the European Data Protection Supervisor, having considered the likelihood of the personal data breach resulting in a high risk, may require it to do so, or may decide that any of the conditions referred to in paragraph 3 are met.

5. The communication to the data subject referred to in paragraph 1 of this Article may be delayed, restricted or omitted subject to the conditions and on the grounds referred to in Article 79(3).

Article 94

Transfer of operational personal data to third countries and international organisations

1. Subject to restrictions and conditions laid down in the legal acts establishing the Union body, office or agency, the controller may transfer operational personal data to an authority of a third country or to an international organisation insofar as such transfer is necessary for the performance of controller’s tasks and only where the conditions laid down in this Article are met, namely:

(a)

the Commission has adopted an adequacy decision in accordance with Article 36(3) of Directive (EU) 2016/680, finding that the third country or a territory or a processing sector within that third country or the international organisation in question ensures an adequate level of protection;

(b)

in the absence of a Commission adequacy decision under point (a), an international agreement has been concluded between the Union and that third country or international organisation pursuant to Article 218 TFEU adducing adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals;

(c)

in the absence of a Commission adequacy decision under point (a) or an international agreement under point (b), a cooperation agreement has been concluded allowing for the exchange of operational personal data before the date of application of the legal act establishing the Union body, office or agency concerned, between that Union body, office or agency and the third country in question.

2. The legal acts establishing the Union bodies, offices and agencies may maintain or introduce more specific provisions on the conditions for international transfers of operational personal data, in particular on the transfers by way of appropriate safeguards and derogations for specific situations..

3. The controller shall publish on its website and keep up to date a list of adequacy decisions referred to in point (a) of paragraph 1, agreements, administrative arrangements and other instruments relating to the transfer of operational personal data in accordance with paragraph 1.

4. The controller shall keep detailed records of all transfers made pursuant to this Article.

Article 95

Secrecy of judicial inquiries and criminal proceedings

The legal acts establishing the Union bodies, offices or agencies carrying out the activities which fall within the scope of Chapter 4 or Chapter 5 of Title V of Part Three TFEU may oblige the European Data Protection Supervisor, in the exercise of his or her supervision powers, to take utmost account of the secrecy of judicial inquiries and criminal proceedings, in accordance with Union or Member State law.

CHAPTER X

IMPLEMENTING ACTS

Article 96

Committee procedure

1. The Commission shall be assisted by the committee established by Article 93 of Regulation (EU) 2016/679. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

CHAPTER XI

REVIEW

Article 97

Review clause

No later than 30 April 2022, and every five years thereafter, the Commission shall present to the European Parliament and to the Council a report on the application of this Regulation, accompanied, if necessary, by appropriate legislative proposals.

Article 98

Review of Union legal acts

1. By 30 April 2022, the Commission shall review legal acts adopted on the basis of the Treaties which regulate the processing of operational personal data by Union bodies, offices or agencies when carrying out activities which fall within the scope of Chapter 4 or Chapter 5 of Title V of Part Three TFEU, in order to:

(a)

assess their consistency with Directive (EU) 2016/680 and Chapter IX of this Regulation;

(b)

identify any divergences that may hamper the exchange of operational personal data between Union bodies, offices or agencies when carrying out activities in those fields and competent authorities; and

(c)

identify any divergences that may create legal fragmentation of the data protection legislation in the Union.

2. On the basis of the review, in order to ensure uniform and consistent protection of natural persons with regard to processing, the Commission may submit appropriate legislative proposals, in particular with a view to applying Chapter IX of this Regulation to Europol and the European Public Prosecutor’s Office and including adaptations of Chapter IX of this Regulation, if necessary.

CHAPTER XII

FINAL PROVISIONS

Article 99

Repeal of Regulation (EC) No 45/2001 and of Decision No 1247/2002/EC

Regulation (EC) No 45/2001 and Decision No 1247/2002/EC are repealed with effect from 11 December 2018. References to the repealed Regulation and Decision shall be construed as references to this Regulation.

Article 100

Transitional measures

1. The Decision 2014/886/EU of the European Parliament and of the Council (20) and the current terms of office of the European Data Protection Supervisor and the Assistant Supervisor shall not be affected by this Regulation.

2. The Assistant Supervisor shall be considered equivalent to the Registrar of the Court of Justice as regards the determination of remuneration, allowances, retirement pension and any other benefit in lieu of remuneration.

3. Article 53(4), (5) and (7), and Articles 55 and 56 of this Regulation shall apply to the current Assistant Supervisor until the end of his term of office.

4. The Assistant Supervisor shall assist the European Data Protection Supervisor in fulfilling the latter’s duties and act as a replacement when the European Data Protection Supervisor is absent or prevented from attending to those duties until the end of the current Assistant Supervisor’s term of office.

Article 101

Entry into force and application

1. This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2. However, this Regulation shall apply to processing of personal data by Eurojust from 12 December 2019.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Strasbourg, 23 October 2018.

For the European Parliament

The President

A. TAJANI

For the Council

The President

K. EDTSTADLER


(1) OJ C 288, 31.8.2017, p. 107.

(2) Position of the European Parliament of 13 September 2018 (not yet published in the Official Journal) and decision of the Council of 11 October 2018.

(3) Regulation (EC) No 45/2001 of the European Parliament and the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1).

(4) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).

(5) Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89).

(6) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29).

(7) Regulation (EC) No 1338/2008 of the European Parliament and of the Council of 16 December 2008 on Community statistics on public health and health and safety at work (OJ L 354, 31.12.2008, p. 70).

(8) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37).

(9) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43).

(10) OJ L 56, 4.3.1968, p. 1.

(11) Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

(12) Regulation (EC) No 223/2009 of the European Parliament and of the Council of 11 March 2009 on European statistics and repealing Regulation (EC, Euratom) No 1101/2008 of the European Parliament and of the Council on the transmission of data subject to statistical confidentiality to the Statistical Office of the European Communities, Council Regulation (EC) No 322/97 on Community Statistics, and Council Decision 89/382/EEC, Euratom establishing a Committee on the Statistical Programmes of the European Communities (OJ L 87, 31.3.2009, p. 164).

(13) Decision No 1247/2002/EC of the European Parliament, of the Council and of the Commission of 1 July 2002 on the regulations and general conditions governing the performance of the European Data protection Supervisor’s duties (OJ L 183, 12.7.2002, p. 1).

(14) OJ C 164, 24.5.2017, p. 2.

(15) Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA (OJ L 135, 24.5.2016, p. 53).

(16) Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ L 283, 31.10.2017, p. 1).

(17) Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1).

(18) Commission Directive 2008/63/EC of 20 June 2008 on competition in the markets in telecommunications terminal equipment (OJ L 162, 21.6.2008, p. 20).

(19) Council Decision 2009/917/JHA of 30 November 2009 on the use of information technology for customs purposes (OJ L 323, 10.12.2009, p. 20).

(20) Decision 2014/886/EU of the European Parliament and of the Council of 4 December 2014 appointing the European Data Protection Supervisor and the Assistant Supervisor (OJ L 351, 9.12.2014, p. 9).

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European Union Data Protection Law 2018

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REGULATION (EU) 2018/1725 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 23 October 2018

on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 16(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

Acting in accordance with the ordinary legislative procedure (2),

Whereas:

(1)

The protection of natural persons in relation to the processing of personal data is a fundamental right. Article 8(1) of the Charter of Fundamental Rights of the European Union (the ‘Charter’) and Article 16(1) of the Treaty on the Functioning of the European Union (TFEU) provide that everyone has the right to the protection of personal data concerning him or her. This right is also guaranteed under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

(2)

Regulation (EC) No 45/2001 of the European Parliament and of the Council (3) provides natural persons with legally enforceable rights, specifies the data processing obligations of controllers within the Community institutions and bodies, and creates an independent supervisory authority, the European Data Protection Supervisor, responsible for monitoring the processing of personal data by the Union institutions and bodies. However, it does not apply to the processing of personal data in the course of an activity of Union institutions and bodies which fall outside the scope of Union law.

(3)

Regulation (EU) 2016/679 of the European Parliament and of the Council (4) and Directive (EU) 2016/680 of the European Parliament and of the Council (5) were adopted on 27 April 2016. While the Regulation lays down general rules to protect natural persons with regard to the processing of personal data and to ensure the free movement of personal data within the Union, the Directive lays down the specific rules to protect natural persons with regard to the processing of personal data and to ensure the free movement of personal data within the Union in the fields of judicial cooperation in criminal matters and police cooperation.

(4)

Regulation (EU) 2016/679 provides for the adaptation of Regulation (EC) No 45/2001 in order to ensure a strong and coherent data protection framework in the Union and to allow its application in parallel with Regulation (EU) 2016/679.

(5)

It is in the interest of a coherent approach to personal data protection throughout the Union, and of the free movement of personal data within the Union, to align as far as possible the data protection rules for Union institutions, bodies, offices and agencies with the data protection rules adopted for the public sector in the Member States. Whenever the provisions of this Regulation follow the same principles as the provisions of Regulation (EU) 2016/679, those two sets of provisions should, under the case law of the Court of Justice of the European Union (the ‘Court of Justice’), be interpreted homogeneously, in particular because the scheme of this Regulation should be understood as equivalent to the scheme of Regulation (EU) 2016/679.

(6)

Persons whose personal data are processed by Union institutions and bodies in any context whatsoever, for example, because they are employed by those institutions and bodies, should be protected. This Regulation should not apply to the processing of personal data of deceased persons. This Regulation does not cover the processing of personal data which concerns legal persons and in particular undertakings established as legal persons, including the name and the form of the legal person and the contact details of the legal person.

(7)

In order to prevent creating a serious risk of circumvention, the protection of natural persons should be technologically neutral and should not depend on the techniques used.

(8)

This Regulation should apply to the processing of personal data by all Union institutions, bodies, offices and agencies. It should apply to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system. Files or sets of files, as well as their cover pages, which are not structured according to specific criteria should not fall within the scope of this Regulation.

(9)

In Declaration No 21 on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation, annexed to the final act of the intergovernmental conference which adopted the Treaty of Lisbon, the conference acknowledged that specific rules on the protection of personal data and on the free movement of personal data in the fields of judicial cooperation in criminal matters and police cooperation based on Article 16 TFEU could prove necessary because of the specific nature of those fields. A distinct Chapter of this Regulation containing general rules should therefore apply to the processing of operational personal data, such as personal data processed for the purposes of a criminal investigation by Union bodies, offices or agencies when carrying out activities in the fields of judicial cooperation in criminal matters and police cooperation.

(10)

Directive (EU) 2016/680 sets out harmonised rules for the protection and the free movement of personal data processed for the purposes of the prevention, investigation, detection or prosecution of criminal offences or execution of criminal penalties, including the safeguarding against and the prevention of threats to public security. In order to ensure the same level of protection for natural persons through legally enforceable rights throughout the Union and to prevent divergences hampering the exchange of personal data between Union bodies, offices or agencies when carrying out activities which fall within the scope of Chapter 4 or Chapter 5 of Title V of Part Three TFEU and competent authorities, the rules for the protection and the free movement of operational personal data processed by such Union bodies, offices or agencies should be consistent with Directive (EU) 2016/680.

(11)

The general rules of the Chapter of this Regulation on the processing of operational personal data should apply without prejudice to the specific rules applicable to the processing of operational personal data by Union bodies, offices and agencies when carrying out activities falling within the scope of Chapter 4 or Chapter 5 of Title V of Part Three TFEU. Such specific rules should be regarded as lex specialis to the provisions in the Chapter of this Regulation on the processing of operational personal data (lex specialis derogat legi generali). In order to reduce legal fragmentation, specific data protection rules applicable to the processing of operational personal data by Union bodies, offices or agencies when carrying out activities falling within the scope of Chapter 4 or Chapter 5 of Title V of Part Three TFEU should be consistent with the principles underpinning the Chapter of this Regulation on the processing of operational personal data, as well as with the provisions of this Regulation relating to independent supervision, remedies, liability and penalties.

(12)

The Chapter of this Regulation on the processing of operational personal data should apply to Union bodies, offices and agencies when carrying out activities which fall within the scope of Chapter 4 or Chapter 5 of Title V of Part Three TFEU, whether they exercise such activities as their main or ancillary tasks, for the purposes of the prevention, detection, investigation or prosecution of criminal offences. However, it should not apply to Europol or to the European Public Prosecutor’s Office until the legal acts establishing Europol and the European Public Prosecutor’s Office are amended with a view to rendering the Chapter of this Regulation on the processing of operational personal data, as adapted, applicable to them.

(13)

The Commission should conduct a review of this Regulation, in particular the Chapter of this Regulation on the processing of operational personal data. The Commission should also conduct a review of other legal acts adopted on the basis of the Treaties which regulate the processing of operational personal data by Union bodies, offices or agencies when carrying out activities which fall within the scope of Chapter 4 or Chapter 5 of Title V of Part Three TFEU. After such a review, in order to ensure uniform and consistent protection of natural persons with regard to the processing of personal data, the Commission should be able to make any appropriate legislative proposals, including any necessary adaptations of the Chapter of this Regulation on the processing of operational personal data, with a view to applying it to Europol and to the European Public Prosecutor’s Office. The adaptations should take into account provisions relating to independent supervision, remedies, liability and penalties.

(14)

The processing of administrative personal data, such as staff data, by Union bodies, offices or agencies carrying out activities which fall within the scope of Chapter 4 or Chapter 5 of Title V of Part Three TFEU should be covered by this Regulation.

(15)

This Regulation should apply to the processing of personal data by Union institutions, bodies, offices or agencies carrying out activities which fall within the scope of Chapter 2 of Title V of the Treaty on European Union (TEU). This Regulation should not apply to the processing of personal data by missions referred to in Articles 42(1), 43 and 44 TEU, which implement the common security and defence policy. Where appropriate, relevant proposals should be put forward to further regulate the processing of personal data in the field of the common security and defence policy.

(16)

The principles of data protection should apply to any information concerning an identified or identifiable natural person. Personal data which have undergone pseudonymisation, which could be attributed to a natural person by the use of additional information, should be considered to be information on an identifiable natural person. To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person, to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable. This Regulation does not therefore concern the processing of such anonymous information, including for statistical or research purposes.

(17)

The application of pseudonymisation to personal data can reduce the risks to the data subjects concerned and help controllers and processors to meet their data protection obligations. The explicit introduction of ‘pseudonymisation’ in this Regulation is not intended to preclude any other measures of data protection.

(18)

Natural persons may be associated with online identifiers provided by their devices, applications, tools and protocols, such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags. This may leave traces which, in particular when combined with unique identifiers and other information received by the servers, may be used to create profiles of the natural persons and identify them.

(19)

Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement. This could include ticking a box when visiting an internet website, choosing technical settings for information society services or another statement or conduct which clearly indicates in this context the data subject’s acceptance of the proposed processing of his or her personal data. Silence, pre-ticked boxes or inactivity should not therefore constitute consent. Consent should cover all processing activities carried out for the same purpose or purposes. When the processing has multiple purposes, consent should be given for all of them. If the data subject’s consent is to be given following a request by electronic means, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided. At the same time, the data subject should have the right to withdraw consent at any time without affecting the lawfulness of processing based on consent before its withdrawal. In order to ensure that consent is freely given, consent should not provide a valid legal ground for the processing of personal data in a specific case where there is a clear imbalance between the data subject and the controller and it is therefore unlikely that consent was freely given in all the circumstances of that specific situation. It is often not possible to fully identify the purpose of personal data processing for scientific research purposes at the time of data collection. Therefore, data subjects should be allowed to give their consent to certain areas of scientific research when in keeping with recognised ethical standards for scientific research. Data subjects should have an opportunity to give their consent only to certain areas of research or parts of research projects to the extent allowed by the intended purpose.

(20)

Any processing of personal data should be lawful and fair. It should be transparent to natural persons that personal data concerning them are collected, used, consulted or otherwise processed and to what extent the personal data are or will be processed. The principle of transparency requires that any information and communication relating to the processing of those personal data be easily accessible and easy to understand, and that clear and plain language be used. That principle concerns, in particular, information to the data subjects on the identity of the controller and the purposes of the processing and further information to ensure fair and transparent processing in respect of the natural persons concerned and their right to obtain confirmation and communication of personal data concerning them which are being processed. Natural persons should be made aware of risks, rules, safeguards and rights in relation to the processing of personal data and how to exercise their rights in relation to such processing. In particular, the specific purposes for which personal data are processed should be explicit and legitimate and determined at the time of the collection of the personal data. The personal data should be adequate, relevant and limited to what is necessary for the purposes for which they are processed. This requires, in particular, ensuring that the period for which the personal data are stored is limited to a strict minimum. Personal data should be processed only if the purpose of the processing could not reasonably be fulfilled by other means. In order to ensure that the personal data are not kept longer than necessary, time limits should be established by the controller for erasure or for a periodic review. Every reasonable step should be taken to ensure that personal data which are inaccurate are rectified or deleted. Personal data should be processed in a manner that ensures appropriate security and confidentiality of the personal data, including for preventing unauthorised access to or use of personal data and the equipment used for the processing and for preventing its unauthorised disclosure when it is transmitted.

(21)

In accordance with the principle of accountability, where Union institutions and bodies transmit personal data within the same Union institution or body and the recipient is not part of the controller, or to other Union institutions or bodies, they should verify whether such personal data are required for the legitimate performance of tasks within the competence of the recipient. In particular, following a recipient’s request for transmission of personal data, the controller should verify the existence of a relevant ground for lawfully processing personal data and the competence of the recipient. The controller should also make a provisional evaluation of the necessity of the transmission of the data. If doubts arise as to this necessity, the controller should seek further information from the recipient. The recipient should ensure that the necessity of the transmission of the data can be subsequently verified.

(22)

In order for processing to be lawful, personal data should be processed on the basis of the necessity for the performance of a task carried out in the public interest by Union institutions and bodies or in the exercise of their official authority, the necessity for compliance with a legal obligation to which the controller is subject or some other legitimate basis under this Regulation, including the consent of the data subject concerned, the necessity for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract. Processing of personal data for the performance of tasks carried out in the public interest by the Union institutions and bodies includes the processing of personal data necessary for the management and functioning of those institutions and bodies. The processing of personal data should also be regarded to be lawful where it is necessary to protect an interest which is essential for the life of the data subject or that of another natural person. Processing of personal data based on the vital interest of another natural person should in principle take place only where the processing cannot be manifestly based on another legal basis. Some types of processing may serve both important grounds of public interest and the vital interests of the data subject, as for instance when processing is necessary for humanitarian purposes, including for monitoring epidemics and their spread, or in situations of humanitarian emergencies, in particular in situations of natural and man-made disasters.

(23)

The Union law referred to in this Regulation should be clear and precise and its application should be foreseeable to persons subject to it, in accordance with the requirements set out in the Charter and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

(24)

The internal rules referred to in this Regulation should be clear and precise acts of general application intended to produce legal effects vis-à-vis data subjects. They should be adopted at the highest level of management of the Union institutions and bodies, within their competencies and in matters relating to their operation. They should be published in the Official Journal of the European Union. The application of those rules should be foreseeable to persons subject to them in accordance with the requirements set out in the Charter and the European Convention for the Protection of Human Rights and Freedoms. Internal rules may take the form of decisions, in particular when adopted by Union institutions.

(25)

The processing of personal data for purposes other than those for which the personal data were initially collected should be allowed only where the processing is compatible with the purposes for which the personal data were initially collected. In such a case, no legal basis separate from that which allowed the collection of the personal data is required. If the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, Union law may determine and specify the tasks and purposes for which the further processing should be regarded as compatible and lawful. Further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes should be considered to be compatible lawful processing operations. The legal basis provided by Union law for the processing of personal data may also provide a legal basis for further processing. In order to ascertain whether a purpose of further processing is compatible with the purpose for which the personal data are initially collected, the controller, after having met all the requirements for the lawfulness of the original processing, should take into account, inter alia: any link between those purposes and the purposes of the intended further processing; the context in which the personal data have been collected, in particular the reasonable expectations of data subjects based on their relationship with the controller as to their further use; the nature of the personal data; the consequences of the intended further processing for data subjects; and the existence of appropriate safeguards in both the original and intended further processing operations.

(26)

Where processing is based on the data subject’s consent, the controller should be able to demonstrate that the data subject has given consent to the processing operation. In particular in the context of a written declaration on another matter, safeguards should ensure that the data subject is aware of the fact that and the extent to which consent is given. In accordance with Council Directive 93/13/EEC (6), a declaration of consent pre-formulated by the controller should be provided in an intelligible and easily accessible form, using clear and plain language and it should not contain unfair terms. For consent to be informed, the data subject should be aware at least of the identity of the controller and the purposes of the processing for which the personal data are intended. Consent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment.

(27)

Children merit specific protection with regard to their personal data, as they may be less aware of the risks, consequences and safeguards concerned and their rights in relation to the processing of personal data. Such specific protection should, in particular, apply to creating personality profiles and to the collection of personal data with regard to children when services are offered directly to a child on websites of Union institutions and bodies, such as interpersonal communication services or online selling of tickets, and the processing of personal data is based on consent.

(28)

When recipients established in the Union other than Union institutions and bodies would like to have personal data transmitted to them by Union institutions and bodies, those recipients should demonstrate that it is necessary to have the data transmitted to these recipients either for the performance of their task carried out in the public interest or in the exercise of official authority vested in them. Alternatively, those recipients should demonstrate that the transmission is necessary for a specific purpose in the public interest and the controller should establish whether there is any reason to assume that the data subject’s legitimate interests might be prejudiced. In such cases, the controller should demonstrably weigh the various competing interests in order to assess the proportionality of the requested transmission of personal data. The specific purpose in the public interest could relate to the transparency of Union institutions and bodies. Furthermore, Union institutions and bodies should demonstrate such necessity when they themselves initiate a transmission, in compliance with the principle of transparency and good administration. The requirements laid down in this Regulation for transmissions to recipients established in the Union other than Union institutions and bodies should be understood as supplementary to the conditions for lawful processing.

(29)

Personal data which are, by their nature, particularly sensitive in relation to fundamental rights and freedoms merit specific protection, as the context of their processing could create significant risks to the fundamental rights and freedoms. Such personal data should not be processed unless the specific conditions set out in this Regulation are met. Those personal data should include personal data revealing racial or ethnic origin, whereby the use of the term ‘racial origin’ in this Regulation does not imply an acceptance by the Union of theories which attempt to determine the existence of separate human races. The processing of photographs should not systematically be considered to be processing of special categories of personal data as they are covered by the definition of biometric data only when processed through a specific technical means allowing the unique identification or authentication of a natural person. In addition to the specific requirements for processing of sensitive data, the general principles and other rules of this Regulation should apply, in particular as regards the conditions for lawful processing. Derogations from the general prohibition for processing such special categories of personal data should be explicitly provided, inter alia, where the data subject gives his or her explicit consent or in respect of specific needs, in particular where the processing is carried out in the course of legitimate activities by certain associations or foundations the purpose of which is to permit the exercise of fundamental freedoms.

(30)

Special categories of personal data which merit higher protection should be processed for health-related purposes only where necessary to achieve those purposes for the benefit of natural persons and society as a whole, in particular in the context of the management of health or social care services and systems. Therefore, this Regulation should provide for harmonised conditions for the processing of special categories of personal data concerning health, in respect of specific needs, in particular where the processing of such data is carried out for certain health-related purposes by persons subject to a legal obligation of professional secrecy. Union law should provide for specific and suitable measures so as to protect fundamental rights and the personal data of natural persons.

(31)

The processing of special categories of personal data may be necessary for reasons of public interest in the areas of public health without consent of the data subject. Such processing should be subject to suitable and specific measures so as to protect the rights and freedoms of natural persons. In that context, ‘public health’ should be interpreted as defined in Regulation (EC) No 1338/2008 of the European Parliament and of the Council (7), namely all elements related to health, namely health status, including morbidity and disability, the determinants having an effect on that health status, healthcare needs, resources allocated to healthcare, the provision of, and universal access to, healthcare as well as healthcare expenditure and financing, and the causes of mortality. Such processing of data concerning health for reasons of public interest should not result in personal data being processed for other purposes.

(32)

If the personal data processed by a controller do not permit the controller to identify a natural person, the data controller should not be obliged to acquire additional information in order to identify the data subject for the sole purpose of complying with any provision of this Regulation. However, the controller should not refuse to take additional information provided by the data subject in order to support the exercise of his or her rights. Identification should include the digital identification of a data subject, for example through an authentication mechanism such as the same credentials, used by the data subject to log in to the online service offered by the data controller.

(33)

The processing of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes should be subject to appropriate safeguards for the rights and freedoms of the data subject pursuant to this Regulation. Those safeguards should ensure that technical and organisational measures are in place in order to ensure, in particular, the principle of data minimisation. The further processing of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes is to be carried out when the controller has assessed the feasibility to fulfil those purposes by processing data which do not permit or no longer permit the identification of data subjects, provided that appropriate safeguards exist (such as, for instance, pseudonymisation of the data). Union institutions and bodies should provide for appropriate safeguards for the processing of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in Union law, which may include internal rules adopted by Union institutions and bodies in matters relating to their operation.

(34)

Modalities should be provided for facilitating the exercise of the data subject’s rights under this Regulation, including mechanisms to request and, if applicable, obtain, free of charge, in particular, access to and rectification or erasure of personal data and the exercise of the right to object. The controller should also provide means for requests to be made electronically, especially where personal data are processed by electronic means. The controller should be obliged to respond to requests from the data subject without undue delay and at the latest within one month and to give reasons where the controller does not intend to comply with any such requests.

(35)

The principles of fair and transparent processing require that the data subject be informed of the existence of the processing operation and its purposes. The controller should provide the data subject with any further information necessary to ensure fair and transparent processing taking into account the specific circumstances and context in which the personal data are processed. Furthermore, the data subject should be informed of the existence of profiling and the consequences of such profiling. Where the personal data are collected from the data subject, the data subject should also be informed whether he or she is obliged to provide the personal data and of the consequences, where he or she does not provide such data. That information may be provided in combination with standardised icons in order to give in an easily visible, intelligible and clearly legible manner, a meaningful overview of the intended processing. Where the icons are presented electronically, they should be machine-readable.

(36)

The information in relation to the processing of personal data relating to the data subject should be given to him or her at the time of collection from the data subject, or, where the personal data are obtained from another source, within a reasonable period, depending on the circumstances of the case. Where personal data can be legitimately disclosed to another recipient, the data subject should be informed when the personal data are first disclosed to the recipient. Where the controller intends to process the personal data for a purpose other than that for which they were collected, the controller should provide the data subject prior to that further processing with information on that other purpose and other necessary information. Where the origin of the personal data cannot be provided to the data subject because various sources have been used, general information should be provided.

(37)

A data subject should have the right of access to personal data which have been collected concerning him or her, and to exercise that right easily and at reasonable intervals, in order to be aware of, and verify, the lawfulness of the processing. This includes the right for data subjects to have access to data concerning their health, for example the data in their medical records containing information such as diagnoses, examination results, assessments by treating physicians and any treatment or interventions provided. Every data subject should therefore have the right to know and obtain communication in particular with regard to the purposes for which the personal data are processed, where possible the period for which the personal data are processed, the recipients of the personal data, the logic involved in any automatic personal data processing and, at least when based on profiling, the consequences of such processing. That right should not adversely affect the rights or freedoms of others, including trade secrets or intellectual property and in particular the copyright protecting the software. However, the result of those considerations should not be a refusal to provide all information to the data subject. Where the controller processes a large quantity of information concerning the data subject, the controller should be able to request that, before the information is delivered, the data subject specify the information or processing activities to which the request relates.

(38)

A data subject should have the right to have personal data concerning him or her rectified and a ‘right to be forgotten’ where the retention of such data infringes this Regulation or Union law to which the controller is subject. A data subject should have the right to have his or her personal data erased and no longer processed where the personal data are no longer necessary in relation to the purposes for which they are collected or otherwise processed, where a data subject has withdrawn his or her consent or objects to the processing of personal data concerning him or her, or where the processing of his or her personal data does not otherwise comply with this Regulation. That right is relevant in particular where the data subject has given his or her consent as a child and is not fully aware of the risks involved by the processing, and later wants to remove such personal data, especially on the internet. The data subject should be able to exercise that right notwithstanding the fact that he or she is no longer a child. However, the further retention of the personal data should be lawful where it is necessary, for exercising the right of freedom of expression and information, for compliance with a legal obligation, for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims.

(39)

To strengthen the right to be forgotten in the online environment, the right to erasure should also be extended in such a way that a controller who has made the personal data public should be obliged to inform the controllers which are processing such personal data to erase any links to, or copies or replications of those personal data. In doing so, that controller should take reasonable steps, taking into account available technology and the means available to the controller, including technical measures, to inform the controllers which are processing the personal data of the data subject’s request.

(40)

Methods by which to restrict the processing of personal data could include, inter alia, temporarily moving the selected data to another processing system, making the selected personal data unavailable to users, or temporarily removing published data from a website. In automated filing systems, the restriction of processing should in principle be ensured by technical means in such a manner that the personal data are not subject to further processing operations and cannot be changed. The fact that the processing of personal data is restricted should be clearly indicated in the system.

(41)

To further strengthen the control over his or her own data, where the processing of personal data is carried out by automated means, the data subject should also be allowed to receive personal data concerning him or her which he or she has provided to a controller in a structured, commonly used, machine-readable and interoperable format, and to transmit it to another controller. Data controllers should be encouraged to develop interoperable formats that enable data portability. That right should apply where the data subject provided the personal data on the basis of his or her consent or the processing is necessary for the performance of a contract. It should therefore not apply where the processing of the personal data is necessary for compliance with a legal obligation to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of an official authority vested in the controller. The data subject’s right to transmit or receive personal data concerning him or her should not create an obligation for the controllers to adopt or maintain processing systems which are technically compatible. Where, in a certain set of personal data, more than one data subject is concerned, the right to receive the personal data should be without prejudice to the rights and freedoms of other data subjects in accordance with this Regulation. Furthermore, that right should not prejudice the right of the data subject to obtain the erasure of personal data and the limitations of that right as set out in this Regulation and should, in particular, not imply the erasure of personal data concerning the data subject which have been provided by him or her for the performance of a contract to the extent that and for as long as the personal data are necessary for the performance of that contract. Where technically feasible, the data subject should have the right to have the personal data transmitted directly from one controller to another.

(42)

Where personal data might lawfully be processed because processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, a data subject should, nevertheless, be entitled to object to the processing of any personal data relating to his or her particular situation. It should be for the controller to demonstrate that its compelling legitimate interest overrides the interests or the fundamental rights and freedoms of the data subject.

(43)

The data subject should have the right not to be subject to a decision, which may include a measure, evaluating personal aspects relating to him or her which is based solely on automated processing and which produces legal effects concerning him or her or similarly significantly affects him or her, such as e-recruiting practices without any human intervention. Such processing includes ‘profiling’ that consists of any form of automated processing of personal data evaluating the personal aspects relating to a natural person, in particular to analyse or predict aspects concerning the data subject’s performance at work, economic situation, health, personal preferences or interests, reliability or behaviour, location or movements, where it produces legal effects concerning him or her or similarly significantly affects him or her.

However, decision-making based on such processing, including profiling, should be allowed where expressly authorised by Union law. In any case, such processing should be subject to suitable safeguards, which should include specific information to the data subject and the right to obtain human intervention, to express his or her point of view, to obtain an explanation of the decision reached after such assessment and to challenge the decision. Such measure should not concern a child. In order to ensure fair and transparent processing in respect of the data subject, taking into account the specific circumstances and context in which the personal data are processed, the controller should use appropriate mathematical or statistical procedures for the profiling, implement technical and organisational measures appropriate to ensure, in particular, that factors which result in inaccuracies in personal data are corrected and the risk of errors is minimised, secure personal data in a manner that takes account of the potential risks involved for the interests and rights of the data subject. and prevent, inter alia, discriminatory effects on natural persons on the basis of racial or ethnic origin, political opinion, religion or beliefs, trade union membership, genetic or health status or sexual orientation, or processing that results in measures having such an effect. Automated decision-making and profiling based on special categories of personal data should be allowed only under specific conditions.

(44)

Legal acts adopted on the basis of the Treaties or internal rules adopted by Union institutions and bodies in matters relating to their operation may impose restrictions concerning specific principles and the rights of information, access to and rectification or erasure of personal data, the right to data portability, confidentiality of electronic communications data as well as the communication of a personal data breach to a data subject and certain related obligations of the controllers, as far as necessary and proportionate in a democratic society to safeguard public security and for the prevention, investigation and prosecution of criminal offences or the execution of criminal penalties. This includes safeguarding against and the prevention of threats to public security, protection of human life especially in response to natural or manmade disasters, internal security of Union institutions and bodies, other important objectives of general public interest of the Union or of a Member State, in particular the objectives of the Common Foreign and Security Policy of the Union or an important economic or financial interest of the Union or of a Member State, and keeping of public registers for reasons of general public interest or the protection of the data subject or the rights and freedoms of others, including social protection, public health and humanitarian purposes.

(45)

The responsibility and liability of the controller for any processing of personal data carried out by the controller or on the controller’s behalf should be established. In particular, the controller should be obliged to implement appropriate and effective measures and be able to demonstrate the compliance of processing activities with this Regulation, including the effectiveness of the measures. Those measures should take into account the nature, scope, context and purposes of the processing and the risk to the rights and freedoms of natural persons.

(46)

The risk to the rights and freedoms of natural persons, of varying likelihood and severity, may result from personal data processing which could lead to physical, material or non-material damage, in particular: where the processing may give rise to discrimination, identity theft or fraud, financial loss, damage to the reputation, loss of confidentiality of personal data protected by professional secrecy, unauthorised reversal of pseudonymisation, or any other significant economic or social disadvantage; where data subjects might be deprived of their rights and freedoms or prevented from exercising control over their personal data; where personal data are processed which reveal racial or ethnic origin, political opinions, religion or philosophical beliefs, trade union membership, and the processing of genetic data, data concerning health or data concerning sex life or criminal convictions and offences or related security measures; where personal aspects are evaluated, in particular analysing or predicting aspects concerning performance at work, economic situation, health, personal preferences or interests, reliability or behaviour, location or movements, in order to create or use personal profiles; where personal data of vulnerable natural persons, in particular of children, are processed; or where processing involves a large amount of personal data and affects a large number of data subjects.

(47)

The likelihood and severity of the risk to the rights and freedoms of the data subject should be determined by reference to the nature, scope, context and purposes of the processing. Risk should be evaluated on the basis of an objective assessment, by which it is established whether data processing operations involve a risk or a high risk.

(48)

The protection of the rights and freedoms of natural persons with regard to the processing of personal data require that appropriate technical and organisational measures be taken to ensure that the requirements of this Regulation are met. In order to be able to demonstrate compliance with this Regulation, the controller should adopt internal policies and implement measures which meet in particular the principles of data protection by design and data protection by default. Such measures could consist, inter alia, of minimising the processing of personal data, pseudonymising personal data as soon as possible, transparency with regard to the functions and processing of personal data, enabling the data subject to monitor the data processing, enabling the controller to create and improve security features. The principles of data protection by design and by default should also be taken into consideration in the context of public tenders.

(49)

Regulation (EU) 2016/679 provides for controllers to demonstrate compliance by adherence to approved certification mechanisms. Likewise, Union institutions and bodies should be able to demonstrate compliance with this Regulation by obtaining certification in accordance with Article 42 of Regulation (EU) 2016/679.

(50)

The protection of the rights and freedoms of data subjects as well as the responsibility and liability of controllers and processors requires a clear allocation of the responsibilities under this Regulation, including where a controller determines the purposes and means of the processing jointly with other controllers or where a processing operation is carried out on behalf of a controller.

(51)

To ensure compliance with the requirements of this Regulation in respect of the processing to be carried out by the processor on behalf of the controller, when entrusting a processor with processing activities, the controller should use only processors providing sufficient guarantees, in particular in terms of expert knowledge, reliability and resources, to implement technical and organisational measures which meet the requirements of this Regulation, including for the security of processing. The adherence of processors other than Union institutions and bodies to an approved code of conduct or an approved certification mechanism can be used as an element to demonstrate compliance with the obligations of the controller. The carrying-out of processing by a processor other than a Union institution or body should be governed by a contract, or, in case of Union institutions and bodies acting as processors, by a contract or other legal act under Union law, binding the processor to the controller, setting out the subject matter and duration of the processing, the nature and purposes of the processing, the type of personal data and categories of data subjects, taking into account the specific tasks and responsibilities of the processor in the context of the processing to be carried out and the risk to the rights and freedoms of the data subject. The controller and processor should be able to choose to use an individual contract or standard contractual clauses which are adopted either directly by the Commission or by the European Data Protection Supervisor and then adopted by the Commission. After the completion of the processing on behalf of the controller, the processor should, at the choice of the controller, return or delete the personal data, unless there is a requirement to store that personal data under Union or Member State law to which the processor is subject.

(52)

In order to demonstrate compliance with this Regulation, controllers should maintain records of processing activities under their responsibility and processors should maintain records of categories of processing activities under their responsibility. Union institutions and bodies should be obliged to cooperate with the European Data Protection Supervisor and make their records available to it on request, so that they might serve for monitoring those processing operations. Unless it is not appropriate taking into account the size of a Union institution or body, Union institutions and bodies should be able to establish a central register of records of their processing activities. For reasons of transparency, they should also be able to make such a register public.

(53)

In order to maintain security and to prevent processing in infringement of this Regulation, the controller or processor should evaluate the risks inherent in the processing and implement measures to mitigate those risks, such as encryption. Those measures should ensure an appropriate level of security, including confidentiality, taking into account the state of the art and the costs of implementation in relation to the risks and the nature of the personal data to be protected. In assessing data security risk, consideration should be given to the risks that are presented by personal data processing, such as accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed which may in particular lead to physical, material or non-material damage.

(54)

Union institutions and bodies should ensure the confidentiality of electronic communications provided for by Article 7 of the Charter. In particular, Union institutions and bodies should ensure the security of their electronic communications networks. They should protect the information related to the terminal equipment of users accessing their publicly available websites and mobile applications, in accordance with the Directive 2002/58/EC of the European Parliament and of the Council (8). They should also protect the personal data stored in directories of users.

(55)

A personal data breach could, if not addressed in an appropriate and timely manner, result in physical, material or non-material damage to natural persons. Therefore, as soon as the controller becomes aware that a personal data breach has occurred, the controller should notify that personal data breach to the European Data Protection Supervisor without undue delay and, where feasible, not later than 72 hours after having become aware of it, unless the controller is able to demonstrate, in accordance with the accountability principle, that the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Where such notification cannot be achieved within 72 hours, it should be accompanied by the reasons for the delay and information can be provided in phases without further undue delay. Where such delay is justified, less sensitive or less specific information on the breach should be released as early as possible, rather than fully resolving the underlying incident before notifying.

(56)

The controller should communicate to the data subject a personal data breach, without undue delay, where that personal data breach is likely to result in a high risk to the rights and freedoms of the natural person in order to allow him or her to take the necessary precautions. The communication should describe the nature of the personal data breach as well as recommendations for the natural person concerned to mitigate potential adverse effects. Such communications to data subjects should be made as soon as reasonably feasible and in close cooperation with the European Data Protection Supervisor, respecting guidance provided by it or by other relevant authorities such as law-enforcement authorities.

(57)

Regulation (EC) No 45/2001 provides for a general obligation on a controller to notify the processing of personal data to the data protection officer. Unless it is not appropriate taking into account the size of the Union institution or body, the data protection officer is to keep a register of notified processing operations. Besides this general obligation, effective procedures and mechanisms should be put in place to monitor processing operations that are likely to result in a high risk to the rights and freedoms of natural persons by virtue of their nature, scope, context and purposes. Such procedures should, in particular, also be in place where types of processing operations involve using new technologies, or are of a new kind in relation to which no data protection impact assessment has been carried out before by the controller, or where they become necessary in the light of the time that has elapsed since the initial processing. In such cases, a data protection impact assessment should be carried out by the controller prior to the processing in order to assess the particular likelihood and severity of the high risk, taking into account the nature, scope, context and purposes of the processing and the sources of the risk. That impact assessment should include, in particular, the measures, safeguards and mechanisms envisaged for mitigating that risk, ensuring the protection of personal data and demonstrating compliance with this Regulation.

(58)

Where a data protection impact assessment indicates that the processing would, in the absence of safeguards, security measures and mechanisms to mitigate the risk, result in a high risk to the rights and freedoms of natural persons and the controller is of the opinion that the risk cannot be mitigated by reasonable means in terms of available technologies and costs of implementation, the European Data Protection Supervisor should be consulted prior to the start of processing activities. Such high risk is likely to result from certain types of processing and the extent and frequency of processing, which could result also in a realisation of damage or interference with the rights and freedoms of the natural person. The European Data Protection Supervisor should respond to the request for consultation within a specified period. However, the absence of a reaction of the European Data Protection Supervisor within that period should be without prejudice to any intervention of the European Data Protection Supervisor in accordance with his or her tasks and powers laid down in this Regulation, including the power to prohibit processing operations. As part of that consultation process, it should be possible to submit the outcome of a data protection impact assessment carried out with regard to the processing at issue to the European Data Protection Supervisor, in particular the measures envisaged to mitigate the risk to the rights and freedoms of natural persons.

(59)

The European Data Protection Supervisor should be informed of administrative measures and consulted on internal rules adopted by Union institutions and bodies in matters relating to their operation when they provide for the processing of personal data, lay down conditions for restricting the rights of data subjects or provide appropriate safeguards for data subject rights, in order to ensure that the intended processing complies with this Regulation, in particular as regards mitigating the risks involved for the data subject.

(60)

Regulation (EU) 2016/679 established the European Data Protection Board as an independent body of the Union with legal personality. The Board should contribute to the consistent application of Regulation (EU) 2016/679 and Directive (EU) 2016/680 throughout the Union, including by advising the Commission. At the same time, the European Data Protection Supervisor should continue to exercise his or her supervisory and advisory functions in respect of all Union institutions and bodies, on his or her own initiative or upon request. In order to ensure consistency of data protection rules throughout the Union, when preparing proposals or recommendations, the Commission should endeavour to consult the European Data Protection Supervisor. A consultation by the Commission should be obligatory following the adoption of legislative acts or during the preparation of delegated acts and implementing acts as defined in Article 289, 290 and 291 TFEU and following the adoption of recommendations and proposals relating to agreements with third countries and international organisations as provided for in Article 218 TFEU which have an impact on the right to protection of personal data. In such cases, the Commission should be obliged to consult the European Data Protection Supervisor, except where the Regulation (EU) 2016/679 provides for mandatory consultation of the European Data Protection Board, for example on adequacy decisions or delegated acts on standardised icons and requirements for certification mechanisms. Where the act in question is of particular importance for the protection of rights and freedoms of natural persons with regard to the processing of personal data, the Commission should be able, in addition, to consult the European Data Protection Board. In those cases, the European Data Protection Supervisor should, as a member of the European Data Protection Board, coordinate his or her work with the latter with a view to issuing a joint opinion. The European Data Protection Supervisor, and where applicable, the European Data Protection Board should provide their written advice within eight weeks. That time-frame should be shorter in urgent cases or where otherwise appropriate, for example when the Commission is preparing delegated and implementing acts.

(61)

In accordance with Article 75 of Regulation (EU) 2016/679, the European Data Protection Supervisor should provide the secretariat of the European Data Protection Board.

(62)

In all Union institutions and bodies a data protection officer should ensure that the provisions of this Regulation are applied and should advise controllers and processors on fulfilling their obligations. That officer should be a person with expert knowledge of data protection law and practices, which should be determined in particular according to the data processing operations carried out by the controller or the processor and the protection required for the personal data involved. Such data protection officers should be in a position to perform their duties and tasks in an independent manner.

(63)

When personal data are transferred from the Union institutions and bodies to controllers, processors or other recipients in third countries or to international organisations, the level of protection of natural persons ensured in the Union by this Regulation should be guaranteed. The same guarantees should apply in cases of onward transfers of personal data from the third country or international organisation to controllers, processors in the same or another third country or international organisation. In any event, transfers to third countries and international organisations may only be carried out in full compliance with this Regulation and respecting the fundamental rights and freedoms enshrined in the Charter. A transfer could take place only if, subject to the other provisions of this Regulation, the conditions laid down in the provisions of this Regulation relating to the transfer of personal data to third countries or international organisations are complied with by the controller or processor.

(64)

The Commission can decide, under Article 45 of Regulation (EU) 2016/679 or under Article 36 of Directive (EU) 2016/680, that a third country, a territory or specified sector within a third country or an international organisation offers an adequate level of data protection. In such cases, transfers of personal data to that third country or international organisation by a Union institution or body can take place without the need to obtain any further authorisation.

(65)

In the absence of an adequacy decision, the controller or processor should take measures to compensate for the lack of data protection in a third country by way of appropriate safeguards for the data subject. Such appropriate safeguards can consist of making use of standard data protection clauses adopted by the Commission, standard data protection clauses adopted by the European Data Protection Supervisor or contractual clauses authorised by the European Data Protection Supervisor. Where the processor is not a Union institution or body those appropriate safeguards can also consist of binding corporate rules, codes of conduct and certification mechanisms used for international transfers under Regulation (EU) 2016/679. Those safeguards should ensure compliance with data protection requirements and the rights of the data subjects appropriate to processing within the Union, including the availability of enforceable data subject rights and of effective legal remedies, including to obtain effective administrative or judicial redress and to claim compensation, in the Union or in a third country. They should relate in particular to compliance with the general principles relating to personal data processing, the principles of data protection by design and by default. Transfers may also be carried out by Union institutions and bodies to public authorities or bodies in third countries or to international organisations with corresponding duties or functions, including on the basis of provisions to be inserted into administrative arrangements, such as a memorandum of understanding, providing for enforceable and effective rights for data subjects. Authorisation by the European Data Protection Supervisor should be obtained when the safeguards are provided for in administrative arrangements that are not legally binding.

(66)

The possibility for the controller or processor to use standard data-protection clauses adopted by the Commission or by the European Data Protection Supervisor should prevent controllers or processors neither from including the standard data-protection clauses in a wider contract, such as a contract between the processor and another processor, nor from adding other clauses or additional safeguards provided that they do not contradict, directly or indirectly, the standard contractual clauses adopted by the Commission or by the European Data Protection Supervisor or prejudice the fundamental rights or freedoms of the data subjects. Controllers and processors should be encouraged to provide additional safeguards via contractual commitments that supplement standard data-protection clauses.

(67)

Some third countries adopt laws, regulations and other legal acts which purport to directly regulate the processing activities of Union institutions and bodies. This may include judgments of courts or tribunals or decisions of administrative authorities in third countries requiring a controller or processor to transfer or disclose personal data, and which are not based on an international agreement in force between the requesting third country and the Union. The extraterritorial application of those laws, regulations and other legal acts may be in breach of international law and may impede the attainment of the protection of natural persons ensured in the Union by this Regulation. Transfers should only be allowed where the conditions of this Regulation for a transfer to third countries are met. This may be the case, inter alia, where disclosure is necessary for an important ground of public interest recognised in Union law.

(68)

Provision should be made in specific situations for the possibility for transfers in certain circumstances where the data subject has given his or her explicit consent, where the transfer is occasional and necessary in relation to a contract or a legal claim, regardless of whether in a judicial procedure or whether in an administrative or any out-of-court procedure, including procedures before regulatory bodies. Provision should also be made for the possibility for transfers where important grounds of public interest laid down by Union law so require or where the transfer is made from a register established by law and intended for consultation by the public or persons having a legitimate interest. In the latter case, such a transfer should not involve the entirety of the personal data or entire categories of the data contained in the register, unless authorised by Union law, and, when the register is intended for consultation by persons having a legitimate interest, the transfer should be made only at the request of those persons or, if they are to be the recipients, taking into full account the interests and fundamental rights of the data subject.

(69)

Those derogations should in particular apply to data transfers required and necessary for important reasons of public interest, for example in cases of international data exchange between Union institutions and bodies and competition authorities, tax or customs administrations, financial supervisory authorities and services competent for social security matters or for public health, for example in the case of contact tracing for contagious diseases or in order to reduce and/or eliminate doping in sport. A transfer of personal data should also be regarded as lawful where it is necessary to protect an interest which is essential for the data subject’s or another person’s vital interests, including physical integrity or life, if the data subject is incapable of giving consent. In the absence of an adequacy decision, Union law may, for important reasons of public interest, expressly set limits to the transfer of specific categories of data to a third country or an international organisation. Any transfer to an international humanitarian organisation of personal data of a data subject who is physically or legally incapable of giving consent, with a view to accomplishing a task incumbent under the Geneva Conventions or to complying with international humanitarian law applicable in armed conflicts, could be considered to be necessary for an important reason of public interest or because it is in the vital interest of the data subject.

(70)

In any case, where the Commission has taken no decision on the adequate level of data protection in a third country, the controller or processor should make use of solutions that provide data subjects with enforceable and effective rights as regards the processing of their data in the Union once those data have been transferred so that that they will continue to benefit from fundamental rights and safeguards.

(71)

When personal data moves across borders outside the Union it may put at increased risk the ability of natural persons to exercise data protection rights, in particular to protect themselves from the unlawful use or disclosure of that information. At the same time, national supervisory authorities and the European Data Protection Supervisor can be unable to pursue complaints or conduct investigations relating to the activities outside their jurisdiction. Their efforts to work together in the cross-border context can also be hampered by insufficient preventive or remedial powers, inconsistent legal regimes, and practical obstacles like resource constraints. Therefore, closer cooperation between the European Data Protection Supervisor and national supervisory authorities should be promoted to help the exchange of information with their international counterparts.

(72)

The establishment in Regulation (EC) No 45/2001 of the European Data Protection Supervisor, who is empowered to perform his or her tasks and exercise his or her powers with complete independence, is an essential component of the protection of natural persons with regard to the processing of their personal data. This Regulation should further strengthen and clarify his or her role and independence. The European Data Protection Supervisor should be a person whose independence is beyond doubt and who is acknowledged as having the experience and skills required to perform the duties of European Data Protection Supervisor, for example because he or she has belonged to one of the supervisory authorities established under Article 51 of Regulation (EU) 2016/679.

(73)

In order to ensure consistent monitoring and enforcement of data protection rules throughout the Union, the European Data Protection Supervisor should have the same tasks and effective powers as the national supervisory authorities, including powers of investigation, corrective powers and sanctions, and authorisation and advisory powers, in particular in cases of complaints from natural persons, powers to bring infringements of this Regulation to the attention of the Court of Justice and powers to engage in legal proceedings in accordance with the primary law. Such powers should also include the power to impose a temporary or definitive limitation, including a ban, on processing. In order to avoid superfluous costs and excessive inconveniencies for the persons concerned who might be adversely affected, each measure of the European Data Protection Supervisor should be appropriate, necessary and proportionate in view of ensuring compliance with this Regulation, should take into account the circumstances of each individual case and respect the right of every person to be heard before any individual measure concerned is taken. Each legally binding measure of the European Data Protection Supervisor should be in writing, be clear and unambiguous, indicate the date of issue of the measure, bear the signature of the European Data Protection Supervisor, give the reasons for the measure, and refer to the right to an effective remedy.

(74)

The supervisory competence of the European Data Protection Supervisor should not cover the processing of personal data by the Court of Justice when acting in its judicial capacity, in order to safeguard the independence of the Court in the performance of its judicial tasks, including decision-making. For such processing operations, the Court should establish independent supervision, in accordance with Article 8(3) of the Charter, for example through an internal mechanism.

(75)

The decisions of the European Data Protection Supervisor regarding exemptions, guarantees, authorisations and conditions relating to data processing operations, as defined in this Regulation, should be published in the activities report. Independently of the publication of an annual activities report, the European Data Protection Supervisor can publish reports on specific subjects.

(76)

The European Data Protection Supervisor should comply with Regulation (EC) No 1049/2001 of the European Parliament and of the Council (9).

(77)

The national supervisory authorities monitor the application of Regulation (EU) 2016/679 and contribute to its consistent application throughout the Union, in order to protect natural persons in relation to the processing of their personal data and to facilitate the free flow of personal data within the internal market. In order to increase consistency in the application of data protection rules applicable in Member States and of data protection rules applicable to Union institutions and bodies, the European Data Protection Supervisor should cooperate effectively with the national supervisory authorities.

(78)

In certain instances, Union law provides for a model of coordinated supervision, shared between the European Data Protection Supervisor and the national supervisory authorities. The European Data Protection Supervisor is also the supervisory authority of Europol and for these purposes, a specific model of cooperation with the national supervisory authorities has been established through a cooperation board with an advisory function. In order to improve the effective supervision and enforcement of substantive data protection rules, a single, coherent model of coordinated supervision should be introduced in the Union. The Commission should therefore make legislative proposals where appropriate with a view to amending Union legal acts providing for a model of coordinated supervision, in order to align them with the coordinated supervision model of this Regulation. The European Data Protection Board should serve as a single forum for ensuring effective coordinated supervision in all areas.

(79)

Every data subject should have the right to lodge a complaint with the European Data Protection Supervisor, and the right to an effective judicial remedy before the Court of Justice in accordance with the Treaties, if the data subject considers that his or her rights under this Regulation are infringed or where the European Data Protection Supervisor does not act on a complaint, partially or wholly rejects or dismisses a complaint or does not act where such action is necessary to protect the rights of the data subject. The investigation following a complaint should be carried out, subject to judicial review, to the extent that is appropriate in the specific case. The European Data Protection Supervisor should inform the data subject of the progress and the outcome of the complaint within a reasonable period. If the case requires further coordination with a national supervisory authority, intermediate information should be given to the data subject. In order to facilitate the submission of complaints, the European Data Protection Supervisor should take measures such as providing a complaint submission form which can also be completed electronically, without excluding other means of communication.

(80)

Any person who has suffered material or non-material damage as a result of an infringement of this Regulation should have the right to receive compensation from the controller or processor for the damage suffered, subject to the conditions provided for in the Treaties.

(81)

In order to strengthen the supervisory role of the European Data Protection Supervisor and the effective enforcement of this Regulation, the European Data Protection Supervisor should, as a sanction of last resort, have the power to impose administrative fines. The fines should aim at sanctioning the Union institution or body — rather than individuals — for non-compliance with this Regulation, to deter future violations of this Regulation and to foster a culture of personal data protection within the Union institutions and bodies. This Regulation should indicate the infringements subject to administrative fines and the upper limits and criteria for setting the associated fines. The European Data Protection Supervisor should determine the amount of the fine in each individual case, by taking into account all relevant circumstances of the specific situation, with due regard to the nature, gravity and duration of the infringement, its consequences and the measures taken to ensure compliance with the obligations under this Regulation and to prevent or mitigate the consequences of the infringement. When imposing an administrative fine on a Union institution or body, the European Data Protection Supervisor should consider the proportionality of amount of the fine. The administrative procedure for the imposition of fines on Union institutions and bodies should respect the general principles of Union law as interpreted by the Court of Justice.

(82)

Where a data subject considers that his or her rights under this Regulation are infringed, he or she should have the right to mandate a not-for-profit body, organisation or association which is constituted in accordance with Union law or the law of a Member State, has statutory objectives which are in the public interest and is active in the field of the protection of personal data to lodge a complaint on his or her behalf with the European Data Protection Supervisor. Such a body, organisation or association should also be able to exercise the right to a judicial remedy on behalf of data subjects or exercise the right to receive compensation on behalf of data subjects.

(83)

An official or other servant of the Union who fails to comply with the obligations in this Regulation should be liable to disciplinary or other action, in accordance with the rules and procedures laid down in the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the Union, laid down in Council Regulation (EEC, Euratom, ECSC) No 259/68 (10) (‘Staff Regulations’).

(84)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and the Council (11). The examination procedure should be used for the adoption of standard contractual clauses between controllers and processors and between processors, for the adoption of a list of processing operations requiring prior consultation of the European Data Protection Supervisor by controllers processing personal data for the performance of a task carried out in the public interest, and for the adoption of standard contractual clauses providing appropriate safeguards for international transfers.

(85)

The confidential information which the Union and national statistical authorities collect for the production of official European and official national statistics should be protected. European statistics should be developed, produced and disseminated in accordance with the statistical principles set out in Article 338(2) TFEU. Regulation (EC) No 223/2009 of the European Parliament and of the Council (12) provides further specifications on statistical confidentiality for European statistics.

(86)

Regulation (EC) No 45/2001 and Decision No 1247/2002/EC of the European Parliament, of the Council and of the Commission (13) should be repealed. The references to the repealed Regulation and Decision should be construed as references to this Regulation.

(87)

In order to safeguard the full independence of the members of the independent supervisory authority, the terms of office of the current European Data Protection Supervisor and the current Assistant Supervisor should not be affected by this Regulation. The current Assistant Supervisor should remain in place until the end of his term of office, unless one of the conditions for the premature end of term of the European Data Protection Supervisor laid down in this Regulation is met. The relevant provisions of this Regulation should apply to the Assistant Supervisor until the end of his term of office.

(88)

In accordance with the principle of proportionality, it is necessary and appropriate for the achievement of the basic objective of ensuring an equivalent level of protection of natural persons with regard to the processing of personal data and the free flow of personal data throughout the Union to lay down rules on processing of personal data in Union institutions and bodies. This Regulation does not go beyond what is necessary in order to achieve the objectives pursued in accordance with Article 5(4) of the TEU.

(89)

The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on 15 March 2017 (14),

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European Electronic Communications Code [EECC]

In 2010, the Digital Agenda for Europe defined objectives for connectivity by 2020: universal availability at 30 Mbps, to ensure territorial cohesion, and subscriptions at 100 Mbps by at least 50% of European households, to anticipate future competitiveness needs.

By mid-2015, fixed networks offering at least 30 Mbps were available to 71% of homes across the EU, up from 48% in 20117. Almost half of EU homes were covered by networks
capable of providing downlink speeds at 100 Mbps. Subscriptions at 100 Mbps+ are growing sharply, from a low base: 11% of all homes had such subscriptions by mid-2015. The growth trend is more pronounced in Member States with the highest 100 Mbps subscription rate, suggesting a virtuous take-up circle. However, there are still substantial differences between Member States, and between urban and rural areas, in both coverage and take-up.

While basic broadband is available to every European, mainly enabled by legacy infrastructures, this is no longer good enough for the ongoing digital transformation. Around half of Europeans own a smartphone, but cannot use its full potential because of major gaps in mobile data coverage and quality. Within the next 10 years, up to 50 billion objects, from homes to cars and watches, are expected to be connected worldwide – the great majority of them wirelessly.

Transformative solutions based on Internet connectivity – including cloud computing, Internet of Things, high-performance computing and big data analytics – will transform business processes and influence social interactions. Next-generation TV is likely to be a significant driver of bandwidth demand for households in the coming years. New digital applications – like virtual and augmented reality, increasingly connected and automated driving, remote surgery, artificial intelligence, precision farming – will require the speed, quality, and responsiveness that can only be delivered by very high-capacity broadband networks.

The European Commission’s public consultation on the needs for Internet speed and quality beyond 2020 and measures to fulfill these needs by 2025 reveals clear expectations for the quality of service of fixed Internet connectivity to improve by 2025, especially regarding downlink speed (above 1 Gbps) and responsiveness (less than 10 milliseconds), and confirms the increasing importance of features other than download speed for both fixed and mobile connectivity. These expectations are increasingly being reflected in Member States’ national broadband plans. 5G refers to the next generation of network technologies offering prospects for the new digital economy and business models.

The EECC is a revision of the current EU regulatory framework for electronic communications.

Overview of the EECC

The EU’s regulatory framework for electronic communications underpins the regulation of the UK’s telecoms sector. The core objectives of the regulatory framework are to:

● drive investment in very high capacity networks and services through sustainable
competition,
● support efficient and effective use of radio spectrum frequencies,
● maintain the security of networks and services, and
● provide a high level of consumer protection.

The existing EU Framework was agreed in 2002 and revised in 2009. Much of the Framework was transposed through the Communications Act 2003 and the Wireless Telegraphy Act 2006, which will both be amended to incorporate the changes made by the EECC. The EU regulatory framework consisted of five Directives:

● the Framework Directive (2002/21/EC) ;
● the Access Directive (2002/19/EC) ;
● the Authorisation Directive (2002/20/EC) ;
● the Universal Service Directive (2002/22/EC) ; and 7
● the ePrivacy Directive (2002/58/EC) .

Implementation of the EECC is mandatory and, for the most part, we have no discretion over whether to implement it. The powers and duties in the EECC take a number of different forms, and they may appear as a discretionary power for, or an obligation on the Government, NRA or another competent authority.

This Directive/regulations creates a legal framework to ensure freedom to provide electronic communications networks and services, subject only to the conditions laid down in this Directive and to any restrictions in accordance with Article 52(1) of the Treaty on the Functioning of the European Union (TFEU), in particular measures regarding public policy, public security and public health, and consistent with Article 52(1) of the Charter of Fundamental Rights of the European Union (the ‘Charter’).

The EECC was published in the Official Journal of the EU on 17 December 2018, and Member States have until 21 December 2020 to implement the provisions in domestic law.

European Electronic Communications Code full Text

Directive (EU) 2018/1972 of the European Parliament and of the Council  aims to create an internal market for electronic communications within the Union while ensuring a high level of investment, innovation and consumer protection through enhanced competition. That Directive also establishes a significant number of new tasks for the
Body of European Regulators for Electronic Communications (‘BEREC’) such as issuing guidelines on several topics, reporting on technical matters, keeping registers, lists or databases and delivering opinions on internal market procedures for draft national measures on market regulation.

Regulation (EU) 2015/2120 of the European Parliament and of the Council   lays down additional tasks for BEREC in relation to open internet access. Moreover, the BEREC [Body of European Regulation for Electronic Communication] Guidelines of 30 August 2016 on the Implementation by National Regulators of European Net Neutrality Rules have been welcomed as providing a valuable clarification of the guarantee of a strong, free and open internet by ensuring the consistent application of the rules to safeguard equal and non-discriminatory treatment of traffic in the provision of internet access services and related end-users’ rights. BEREC works for “Committed to ensure independent, consistent, high-quality application of the European regulatory framework for electronic communications markets for the benefit of Europe and its citizens.”

BEREC, the Body of European Regulators for Electronic Communications, will publish non-binding guidelines by 21 December 2020 on the criteria that a network should fulfil in order to be considered a VHCN. These guidelines are expected to provide criteria on down- and uplink bandwidth, resilience, error-related parameters and latency. The Government proposes to work with Ofcom to contribute to the work of BEREC on these guidelines. Our aim is that the criteria require gigabit-capable network performance. [UK Department for Digital, Culture, Media and Sport- Consultation Paper 2019]