Ireland: Pensions and The General Data Protection Regulation

Last Updated: 25 January 2018
Article by Catherine Austin, Philip Smith, Sarah McCague, Rob Corbet, Colin Rooney, Olivia Mullooly and Hugh McCarthy
Most Read Contributor in Ireland, March 2019

The General Data Protection Regulation ("GDPR") is due to be implemented on 25 May 2018 and will replace the Data Protection Directive 1995 (the "Directive") which was transposed into Irish law by the Data Protection Acts 1988 and 2003 (the "Acts"). GDPR and the Data Protection Bill 2017 (the "Bill") (when enacted) will largely supersede the Acts.

GDPR will be legally binding in Ireland from its enforcement date (25 May 2018) and will not require implementing national legislation to be effective. The Bill (when enacted) will give further effect to GDPR and will clarify the provisions that give Member States a limited margin of flexibility. GDPR (like the Directive and the Acts) will govern the processing (i.e. handling, accessing, transferring etc.) of personal data.

Personal data includes member data held by pension scheme trustees. Processing of "Special Categories of Personal Data" ("SCPD") requires increased protection.

Trustees may process SCPD which requires separate consideration.

Trustees will have a number of actions to take in advance of the commencement of GDPR, a summary of which is set out below. If you would like further information in relation to these or if you would like trustee training on this topic, please contact your usual Arthur Cox pension team contact.

Common definitions under the current Acts and GDPR are set out at the end of this update.



  1. Adopt a data breach response procedure to handle breaches within the new 72 hour timeframe
  2. Maintain an internal record of data processing activities in order to demonstrate "accountability"
  3. Review their data protection policy in light of GDPR requirements
  4. Update privacy notice/data protection statement to ensure data subjects are provided with transparency notice detailing how their personal data is processed
  5. Review procedures in light of data subjects' additional rights (e.g. the right to be forgotten and the right to data portability)
  6. Review contracts with scheme administrators and other data processors
  7. Notify members that the legal basis for processing their data is that it is lawful and necessary for the operation of the scheme
  8. Revisit scheme indemnity provisions to determine who would have to foot the bill for any breach of GDPR by the scheme


  1. Register with the DPA: GDPR will abolish the requirement to register with the DPA


While trustees may outsource activities involving the processing of member data to advisers and service providers (i.e. data processors), the trustees will remain ultimately responsible for compliance with GDPR. In the context of outsourcing, there will be little impact on existing restrictions on the transfer of data outside of the European Economic Area (the "EEA") which are a feature of many administration agreements. Trustees should consider this in the context of any agreements which allow for the flow of personal data outside the EEA.

Under GDPR, data controllers and data processors have separate and distinct obligations. Controllers have a larger compliance burden than processors under GDPR. An assessment of whether trustees would be considered controllers or processors under GDPR is a factual analysis of the processing of personal data by the trustees. Both corporate and individual trustees are likely to be data controllers under the Acts and under GDPR and, as such, are subject to certain obligations. While some data processing activities may be outsourced to third parties (including to service providers), trustees will remain responsible for compliance with the GDPR as data controller of member data and will continue to be obliged to do the following in respect of personal data:

  • obtain and process it fairly;
  • keep it for one or more specified, explicit and lawful purposes;
  • use and disclose it solely in a manner compatible with such purposes;
  • keep it safe and secure;
  • keep it accurate, up to date and complete;
  • ensure it is adequate, relevant and not excessive;
  • retain it for no longer than necessary; and
  • give a copy to the data subject on request.

How trustees comply with their obligations should be proportionate to the size, nature and complexity of their scheme, bearing in mind their duty of care to act in members' interests and the risk to its members in the event of non-compliance or a security breach.


The principal changes that arise under GDPR are:

  • Supervisory Authority: Each Member State will have to establish a Supervisory Authority ("SA") and most countries will likely transition their Data Protection Authority ("DPA") to be the SA. The SA's functions will be similar to those currently performed by the DPA and will include investigation and enforcement of GDPR and liaising with other Member State SAs. Data controllers and data processors will be subject to a "lead" SA instead of interacting with several SAs in respect of each relevant Member State. A data subject may complain directly to an SA.
  • Internal Records: trustees will be obliged to maintain internal records of data processing activities. An internal record of data processing activities must outline why data is held, how it was obtained, why it was obtained, how long it should be retained for, how secure it is and how it is shared. This is required to comply with GDPR's "accountability" provisions.
  • Registration: GDPR will abolish the requirement to register with the DPA.
  • Privacy Notice/Data Protection Statement: Under the Acts, there was a requirement to notify data subjects in relation to the processing of their personal data. GDPR increases the amount of information to be notified to data subjects.
  • Data Subject Consent: In order to process data, trustees must have an appropriate legal basis, e.g. the data subject's consent. To demonstrate a data subject's consent, data controllers will no longer be permitted to rely on pro-forma terms and conditions unless consent is "clearly distinguishable" from other matters and is "in an intelligible and easily accessible form, using clear and plain language". Data subjects have the right to withdraw consent at any time.
  • Strengthening data subjects' rights: GDPR introduces new and enhanced data subject rights which data controllers must facilitate including the right to be forgotten and right to data portability. Trustees will have to put in place mechanisms to respond to the exercise of these rights within the statutory timeframe of one month although their application appears limited given the purpose of a pension scheme.
  • Breach notifications: GDPR introduces an obligation to report all breaches to the SA within 72 hours, unless the breach is unlikely to result in a risk to data subjects' personal data. In certain circumstances there is also an obligation to report a breach to affected data subjects. Trustees should analyse information security measures to ensure a robust security system is in place. Both the breach, and failure to report the breach, may result in a fine.
  • Data processors responsible for breach: for the first time data processors will be liable for breaches to data protection.
  • Enforcement and Penalties: there will be a harmonised sanctions regime under GDPR. In particular, the GDPR grants the Office of the Data Protection Commissioner the ability to impose extensive financial and non-financial sanctions on data controllers and data processors. These sanctions may include fines of up to €20 million or 4% of annual worldwide turnover depending on the severity of the breach. It is likely that liability will attach to individual trustees and if a corporate trustee, the trustee company (rather than directors) would be liable. Trustees may be protected by the indemnity provisions in their trust deed and rules and these should be considered in the context of the increased sanctions regime.


  • Is member consent necessary to process personal data, or is there a more appropriate basis upon which personal data may be processed? Trustees may wish to consider using an alternative ground for processing such as that it is lawful and necessary for the operation of the relevant scheme.
  • Are trustees obliged to engage a data protection officer? A data controller/ processor is obliged to engage a DPO if their core activities consist of processing operations which, by virtue of their nature, their scope and/ or their purposes, require regular and systematic monitoring of data subjects on a large scale. The majority of trustees will not fall into this category and so will not be legally required to appoint a DPO.
  • Is it possible that parent company turnover be included in the calculation of worldwide turnover for the purposes of sanctions? Whether the worldwide turnover of a principal employer could be used for the purposes of calculating a fine imposed on pension scheme trustees will turn on the specific facts of a particular case and is likely to focus on the corporate relationship between the parties and the extent to which the principal employer exercises control over the trustee board (whether the trustee is incorporated or not).


Data controller means a person who alone or jointly with others, determines the purposes and means of processing of personal data.

Data processor means any person (excluding a data controller's employee) who processes personal data on behalf of the data controller.

Data subject means a person identifiable by personal data held by a data controller.

Personal data means data which relates to a person who may be identified (directly or indirectly) from that data.

Processing means 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 of personal data.

Special Categories of Personal Data means 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.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions