European Union: Article 29 Working Party Guidance On GDPR

Last Updated: 30 January 2017
Article by Taylor Wessing

The Article 29 Working Party has published guidance on Data Protection Officers, the data portability right and on identifying a lead Supervisory Authority for the purposes of the General Data Protection Regulation.

What's the issue?

The new General Data Protection Regulation (GDPR) will apply from 25 May 2018. It brings in a number or new rights for data subjects and obligations on data controllers and processors. As with any piece of legislation, particularly something as significant as the GDPR, it's one thing understanding what's written on the page and another applying it in your organisation.

What's the development

The Article 29 Working Party (WP) (soon to become the European Data Protection Board), has, as promised, published guidance on the data portability right, appointing Data Protection Officers, and identifying the lead Supervisory Authority (SA). Further guidance on other aspects is expected later this year.

What does this mean for you?

For those to whom the concepts dealt with in the guidance are new, the WP puts flesh on the bones of the legislation and offers examples of best practice and interpretation.

Possibly of most interest is the guidance on identifying the lead SA. As the WP points out, the GDPR fails to deal with borderline cases and complex situations, particularly where non-EU organisations are involved. The WP says:

  • an organisation which does not have an establishment in the EU will not be able to take advantage of the one stop shop mechanism. The appointment of a representative within the EU will not be sufficient to trigger the one stop shop mechanism. Controllers without an EU establishment will need to deal with the SA in each Member State in which they are active, through their local representative; and
  • where there is cross-border processing with the data controller established in several Member States but where there is no central administration in the EU and the decisions around data processing are taken exclusively outside the EU, it is up to the organisation processing the data to designate the establishment which will act as the main establishment. Forum shopping is not allowed and the designated main establishment must have the authority to implement decisions about the data processing activities and take on liability for any breach of the GDPR with sufficient assets to support it. If the organisation does not designate a main establishment then it will not be possible for a lead SA to be appointed and the organisation will be regulated by relevant local SAs. The burden of proof in terms of the appointment of a main establishment lies with the relevant controllers and processors and the relevant SAs may decide which SA should be the lead authority by objectively assessing relevant evidence. The WP advises organisations to keep effective records to back up their choice of main establishment.

Read more

Key points of interest:

DPOs

  • Appointment of DPO – WP recommends documentation of internal analysis as to whether a DPO is mandatory
  • What is a public authority? – to be determined in accordance with national law
  • Recommendation – it is good practice to appoint a DPO where private organisations carry out public tasks or exercise public authority and the DPO should cover all processing operations
  • What are "core activities"? – these should be interpreted as the key operations necessary to achieve the controller's or processor's goals
  • What is "large scale" – factors to be considered include number of data subjects, volume of data, duration or permanence of processing and geographical extent
  • What is "regular and systematic monitoring"? – all forms of tracking and profiling on the internet but not exclusive to the internet. The WP says "regular" means one or more of: ongoing or occurring at particular intervals, recurring or repeated at fixed times, constantly or periodically taking place. "Systematic" means one or more of: occurring according to a system, pre-arranged organised or methodical, taking place as part of a general plan for data collection; carried out as part of a strategy
  • Data relating to criminal convictions – Article 37(1) discusses personal data relating to "criminal convictions and offences" in terms of what is special data but the WP says this should be read as "or"
  • Controller/processor – where a controller is required to appoint a DPO, the processor may not necessarily be required to do so but it may be seen as good practice
  • Duty of confidentiality – this should not prevent the DPO from contacting and seeking the advice of the SA
  • Contact details – good practice to inform the SA and employees of the contact details of the DPO
  • Resources and independence – emphasis on ensuring access to senior management, inclusion at all stages, no comeback for exercising duties
  • DPO not personally responsible – duties like record keeping, appropriate organisational and technical measures etc. are the responsibility of data controller so DPO has no personal liability under the GDPR.

Data portability

  • Primary aim – to facilitate switching service providers
  • Data portability tools – data controllers should offer different technical implementations of data portability rights e.g. direct download together with transmission direct to another data controller
  • No connected data retention requirement – there is no additional requirement to start retaining data simply to service a potential data portability request
  • Receiving unconnected data – where a new data controller receives personal data which is not relevant to the purpose of the new processing, it should not be kept and processed
  • Purpose of new processing – the new data controller must clearly and directly state the purpose of the new processing before any request for transmission of the portable data
  • Data portability vs other rights – a request to receive data is without prejudice to the other rights a data subject may have in relation to data processed by the controller to whom the portability request is made
  • No automatic trigger or deletion – there is no automatic trigger for data erasure or a change of retention period where the data is requested under the portability right
  • What data is covered? – processing operations must be based either on the data subject's consent or on a contract to which the data subject is a party and the data processing must be carried out by automated means
  • What data is covered by the portability right? – only personal data but this includes pseudonymous data which can be clearly linked to a data subject . Data controllers should not take an overly restrictive interpretation. Transferred records may contain personal data relating to multiple people. Where such records are transmitted, the new data controller should not process the personal data of third parties for any purpose which would affect their rights and freedoms
  • Data provided by the data subject – this covers data knowingly and actively provided by the data subject and observed data provided by virtue of the data subject's use of the service of device concerned. Inferred and derived data created by the data controller on the basis of provided data are not covered i.e. data about the data subject's activity or behaviour is covered but analysis of that behaviour or activity is not
  • Personal data concerning other data subjects – where personal data of a third party is included in a transferred data set, another ground for lawfulness of processing must be identified e.g. legitimate interest, in particular where the purpose of the data controller is to provide a service to the data subject that allows the latter to process personal data for a purely personal or household activity e.g. contacts in email or details of bank account activity. The new processing must not affect the rights and freedoms of the third parties and the receiving controller must not use the third party data for its own purposes
  • Risk reduction – all data controllers, both sending and receiving, should take steps to reduce risks to third parties such as implementing tools to enable data subjects to select the relevant data and exclude data of other data subjects and to implement consent mechanisms for other data subjects involved
  • Information to data subjects – data controllers must inform data subjects of their new right and the WP recommends that they clearly explain the differences between the types of data a data subject can receive using the portability and access rights. Data controllers are also urged to provide information about the data portability right before any account closure and receiving data controllers should provide data subjects with complete information about the nature of the personal data required to allow them to perform their services
  • Identification of data subject – data controllers must implement an authentication procedure in order to strongly ascertain the identity of the data subject requesting his or her personal data or more generally exercising their rights under the GDPR
  • Time of response – it is good practice to manage user expectations by defining the timeframe in which a data portability request can typically be answered and communicating this to data subjects
  • Rejection of or charging for portability – there should be very few cases where a data controller can justify refusal to deliver information even where multiple requests are made, especially where a service specialises in automated processing of personal data e.g. an information society service provider. Overall costs of implementing processes to deal with data portability requests should not be taken into consideration when determining whether a request is excessive
  • Expected data format – data must be provided in a format which supports re-use. Interoperability is the key outcome. While formats are not specified, those subject to costly licensing constraints would not be considered appropriate. The aim is interoperability, not compatibility of systems. Industry is encouraged to develop appropriate tools and a common set of interoperable standards and formats e.g. APIs
  • Metadata – data controllers should provide as many metadata with the data as possible at the best possible level of granularity which preserves the precise meaning of exchanged information
  • Large and complex data sets – it may be appropriate to provide the data subject with a summary, explaining the way the data is structured, to allow the data subject to select subsets to be ported
  • Security – the data controllers must guarantee appropriate security and the data controller is responsible for ensuring ported data is delivered to the right destination

Identifying a lead supervisory authority (SA)

  • Cross-border processing – appointing a lead SA is only relevant where there is cross-border processing i.e. establishments in more than one Member State or where the processing substantially affects or is likely to substantially affect data subjects in more than one Member State
  • "Substantially affects" – this takes the ordinary English meaning. Ultimately, SAs will decide on case by case basis taking a set of factors into account, examples of which are given in the guidance
  • Main establishment – where decisions are taken is key
  • Main establishment where not place of central administration – Recital 36 provides useful guidance. The key is to identify where effective and real exercise of management activities that determine main decisions about data processing takes place. The data controller identifies this but it can be challenged by the SA concerned
  • Borderline cases and complex situations – e.g. where there is cross-border processing activity with the controller established in several Member States but where there is no central administration in the EU and decisions about the processing are taken exclusively outside the EU. The WP notes that the GDPR does not deal with this and suggests that the company designate the establishment which will act as the main establishment. The designated establishment must have the authority to implement decisions about the processing activity and to take liability including having sufficient assets. If no such establishment is designated then it will not be possible to designate a lead authority. Note that forum shopping is not permitted. The relevant SAs (and ultimately the EDPB) may decide which SA is the lead authority objectively assessing relevant evidence. The burden of proof falls on the controllers and processors concerned so effective records would help.
  • SA concerned – the appointment of a lead authority should not prevent other SAs having a say in how matters are dealt with. The procedures under the GDPR need to be followed
  • Companies not established within the EU – if the company does not have an establishment in the EU, the mere presence of a representative in a Member State does not trigger the one stop shop system. Controllers without any establishment in the EU must deal with local SAs in every Member State they are active in through their local representative.
  • Processors – Recital 36 states that in cases involving both controller and processor, the competent lead SA should be the lead SA for the data controller

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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

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

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.