European Union: The European Watchdogs Issue First Guidelines On GDPR

Last Updated: February 2 2017
Article by Catherine Muyl

The new (EU) 2016/679 General Data Protection Regulation (GDPR) will enter into force on 25 May 2018. Its scope is broader than that of the current 95/46/CE Directive, which means that more companies headquartered outside of the EU will have to comply with European data protection rules than under the current regime.

The 95/46/CE Directive set up a European body, the Article 29 Working Party, on which representatives of all European Supervisory Authorities (SAs) sit. In order to avoid inconsistencies in the approaches adopted by the national SAs, the Working Party has been publishing opinions and guidelines on key concepts used in the Directive.  On 13 December 2016 the Working Party adopted three guidelines and FAQs on three key aspects of the GDPR.

1. The right to data portability

Article 20 of the GDPR creates a new right to data portability. This means that when a data subject has provided personal data concerning him or her to a data controller in a structured, commonly used and machine-readable format, and wishes to switch to a new data controller, the data subject has the right to obtain the data and transmit that data to that new controller.  The Working Party Guidelines and FAQs on the right to data portability provide examples and explanations about how this new rule should be interpreted.  The right to portability applies not only to information actively provided by the data subject, but also to the raw data generated by the use of a service or device, such as search history, Internet traffic data, location data, or attributes tracked by a fitness or health tracker.

2. Data Protection Officers (DPOs)

Under the 95/46/ CE Directive, there was no obligation for data controllers to appoint a DPO. However, the practice developed in several Member States. Under the new GDPR, a number of organizations will have to appoint a DPO. This is the case, for example, where the core activities of the controller or the processor consist of processing operations which require regular and systematic monitoring of data subjects on a large scale.  The Working Party Guidelines and FAQs on DPOs clarify the provisions of the GDPR.  "Core activities" are the key operations necessary to achieve the company's goals. Whether an activity is carried out on a "large scale" will depend on a number of factors, including duration and geographical extent. "Regular and system monitoring" is not confined to online environment and online tracking. It includes the operation of telecommunications network, location tracking and fitness and health data via wearable devices.  The DPO does not have to be someone working within the company, but he/she must be able to speak the language of the country where the data is processed in order to communicate efficiently with data subjects and SAs.  DPOs are not personally responsible in case of non-compliance with the GDPR.

3.  Identifying a controller or processor's lead supervisory authority

During the negotiation of the GDPR, multinational organizations that are currently supervised by a number of national SAs — taking different approaches to privacy — were in favor of the "one-stop-shop mechanism".  Under the GDPR, data subjects will be able to file complaints that relate to their country only with their local SA.  However, the GDPR has introduced a new concept, that of "cross-border processing" which occurs either when the processing of personal data takes place in the context of several establishments in several Member States or where the activity of one establishment substantially affects or is likely to substantially affect data subjects in several Member States.  In the GDPR, the general rule is that the supervision of cross-border processing is led by one supervisory authority, called the Lead Supervisory Authority.  The Guidelines and FAQs for identifying a controller or processor's Lead Supervisory Authority explain that SAs will interpret "substantially affects" on a case-by-case basis, taking into account the context of the processing, the type of data, the purpose of the processing and factors such as whether the processing causes or is likely to cause, damage to individuals.

The general principle is that the central administration in the EU will be the main establishment, unless another establishment takes the decision about the purposes and means of the processing, and have the power to have such decisions implemented.  There are borderline cases and complex situations, for example where the controller is established in several member States, but there is no central administration in the EU and decisions about the processing are taken exclusively outside the EU. The GDPR does not deal with this and the Working Party suggests that the company designates the establishment which will act as the main establishment. If no such establishment is designated then it will not be possible to designate a lead authority. Forum shopping is not permitted: the relevant SA may decide which SA is the lead authority objectively assessing relevant evidence.  The "one-stop-shop" mechanism will not apply to data controllers without any establishment in the EU who will have to appoint one local representative in the EU to deal with local SAs in all Member States where they are active.

Stakeholders have until the end of January to comment on these guidelines.  A fourth set of guidelines on Data Protection Impact Assessment and Certification is expected to be issued later in 2017.

To view Foley Hoag's Security, Privacy and The Law Blog please click here

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

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

Events from this Firm
12 Oct 2018, Other, Boston, United States

The New England Electricity Restructuring Roundtable has been meeting bimonthly since 1995 to discuss current topics related to important changes in the electric power industry in Massachusetts and throughout New England.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must 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