Opinion 11/2019 on the draft list of the competent supervisory authority of the Czech Republic regarding the processing operations exempt from the requirement of a data protection impact assessment (Article 35(5) GDPR)

Adopted 1 Opinion 11 /2019 on the draft list of the com petent supervisory authority of the Czech Republic regarding the processing operations exempt from the requirement of a data protection impact assessment (Article 35(5) GDPR) Adopted on 10 July 2019 Adopted 2 Adopted 3 The European Data Protection Board Having regar d to Article 63, Article 64(2) and Article 35 (1) , (5), (6) of the Regulation 2016/679/EU 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 (here i n after “GDPR”), Having regard to Article 51 (1 )( b) of Directive 2016/680 EU 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 prosecu tion 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 (hereafte r “Law Enforcement Directive”) , Having regard to the EEA Agreement and in particular to Annex XI and Protocol 37 thereof, as amended by the Decision of the EEA joint Committee No 154/2018 of 6 July 2018, Having regard to Article 10 and 22 of its Rules of Procedure of 25 May 2018, revised on 23 November 2018, Whereas: (1) Th e main role of th e Board is to ensure the consistent application of the Regulation 2016/679 (here in after GDPR) throughout the European Economic Area. In compliance with Article s 35(6) and 64 ( 2 ) GDPR, the Board shall issue an opinion where a supervisory authority (SA) inten ds to adopt a list of processing operations not subject to the requirement for a data protection impact ass essment pursuant to Article 35(5 ) GDPR. The aim of this opinion is therefore to create a harmonised approach with regard to processing that is cross border or that can affect the free flow of personal data or natural person across the European Union. Even though the GDPR doesn’t impose a single list, it does promote consistency. The Board seeks to achieve this objective in its opinions by ensuring that the lists do not contradict the cases where the GDPR explicitly states that a type of processing should undergo a DPIA, by recommend ing SAs to remove some criteria which , the Board consider s not correlated with the absence of likelihood of high risks for data subjects, by recommend ing them to limit the scope of the types of processing in order not to contradict the general rules defined in the DPIA guidelines from the Article 29 Working Party, endorsed by the EDPB, and finally by recommend in g them to use some criteria in a harmonized manner. (2) With reference to Article 35 ( 5 ) and (6) GDPR, the competent supervisory authorities may establish lists of the kind of processing operations which are not subject to the requirement for a data protection impact assessment (hereinafter “DPIA”). They shall, however, apply the consistency mechanism where such lists involve processing operations, which are related to the offering of goods or services to data subjects or to the monitoring of their behaviour in several Member States, or may substantially affect the free movement of personal data within the Union. (3) The EDPB ensures pursuant to Article 70 (1) of the GDPR the consistent application of Regulation 2016/679 throughout the European Economic Area. Under Article 64(2) , the consistency mechanism may be triggered by a supervisory authority, the EDPB Chair or the Commission for any matter of general application or producing effects in more than one Member State. The EDPB shall issue an opinion on the matter s ubmitted to it provided that it has not already issued an opinion on the same matter. Adopted 4 (4) W hile the draft lists of the competent supervisory authorities are subject to the consistency mechanism, this does not mean that the lists should be identical. The compe tent supervisory authorities have a margin of discretion with regard to the national or regional context and should take into account their local legislation. The aim of the EDPB assessment/opinion is not to reach a single EU list but rather to avoid signi ficant inconsistencies that may affect the equivalent protection of the data subjects across the EEA . (5) The carrying out of a DPIA is only mandatory for the co ntroller pursuant to Article 35 (1) GDPR where processing is “likely to result in a high risk to the rights and freedoms of natural persons”. The national SAs can issue lists concerning certain processing activities which always require a DPIA (blacklists) per Article 35(4) as well as lists where no DPIA is necessary per Article 35(5) (whitelists). Wh en a processing does not fall within either of these two lists and is not mentioned Article 35(3) GDPR, an ad hoc decision will have to be made by the data controller based on whether the “ likely to result in a high risk to the rights and freedoms of natur al persons ” criterion is met. According to Recital 91 of the GDPR a DPIA will not be mandatory when the processing is carried out by an individual physician, other health care professional or a lawyer, as it is not of a sufficient large scale. This excepti on covers only partially the cases when a DPIA will not be necessary, i.e. when there is no high risk to the rights and freedoms of natural persons. (6) The lists produced by the competent supervisory authorities support a common objective , namely to identify the kind of processing operations for which the national SA s are certain that , under no circumstances , they will result in a high risk , and processing operations the national SA s deem unlikely to result in a high risk , and therefore do not require a DPIA. The Board refers to the Working Party 29 Guidelines on DPIA (WP248 rev.01) 1 , which sets out criteria to consider in determining processing operations “ likely to result in a high risk ”. 2 As set out in these guidelines, in m ost cases, a data controller can consider that a processing meeting two criteria would require a DPIA to be carried out. However, in some cases, a data controller can consider that a processing meeting only one of these criteria requires a DPIA. (7) The opinio n of the EDPB shall be adopted pursuant to Article 64( 3) GDPR in conjunction with Article 10 (2) of the EDPB Rules of Procedure within eight weeks from the first working day after the Chair and the competent supervisory authority have decided that the file is complete. Upon decision of the Chair, this period may be extended by a further six weeks taking into account the complexity of the subject matter. HAS ADOPTED THE FOLLOWING OPINION: 1 SUMMARY OF THE FACTS The competent supervisory authority of t he Cze ch Republic has submitted its draft list to the EDPB. The decision on the completeness of the file was taken on 10 April 2019 . The period until which the opinion has to be adopted has been extended until 17 July 2019 . 1 Guidelines on Data Protection Impact Assessment (DPIA) and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679, adopted on 4 April 2017 and revised on 4 October 2017 2 Recitals 75, 76, 92, 116 GDPR. Adopted 5 2 ASSESSMENT 2.1 General reasoning of the EDPB regarding the submitted list Any list submitted to the EDPB has been interpreted as further specifying on the one hand Article 35 GDPR , which will prevail in any case , and on the other hand recital 91 . Thus, no list can be exhaustive. This opinion does not reflect upon items submitted by the Czech Supervisory Authority , which were deemed outside the scope of Article 35(6) GDPR. This refers to items that neither relate “to the offering of goods or services to data subjects” in several Member States nor to the monitoring of the behaviour of data subjects in several Member States. Additionally, they are not likely to “substan tially affect the free movement of personal data within the Union”. However, for the sake of clarity, the Board will enumerate the items of the list, which were deemed outside the scope of Article 35(6) GDPR. Further, any processing operations that relate to law enforcement were deemed out of scope, as they are not in scope of the GDPR. This opinion will not comment on any item s on the list , which fall within the scope of recital 91 . The opinion s on the Article 35( 4 ) GDPR lists also aim ed at defining a co nsistent core of processing operations, which the Board requested all Supervisory Authorities to add to their list if not already present in order to ensure consistency. The Article 35(5) GDPR lists may not exempt these general processing operations as a r ule. The lists established by SAs pursuant to Article 35(5) GDPR are inherently non - exhaustive. These lists contain types of processing regarding which national SAs are certain that , under no circumstances, they will result in a high risk to the rights an d freedom of natural persons , and processing operations the national SAs deem unlikely to result in a high risk . Such lists cannot enumerate all cases in which a DPIA will not be necessary. In any event , the obligation of the controller or processor to assess the risk of the processing and to comply with the other obligations imposed by the GDPR remain applicable . When this opinion remains silent on an item from the list , it means that the Board is not asking the Czech Supervisory Authority to take f urther action. Finally, the Board recalls that transparency is key for data controllers and data processors. In order to clarify the entries in the list, the Board is of the opinion that making an explicit reference in the lists to the criteria set out in the guidelines could improve this transparency. 2.2 Application of the consistency mechanism to the draft list The draft list submitted by the Czech Supervisory Authority relates to the offering of goods or services to data subjects, relates to the monitori ng of their behaviour in several Member States and/or may substantially affect the free movement of personal data within the Union mainly because the processing operations in the submitted draft list are not limited to data subjects in this country. 2.3 Analysis of the draft list Taking into account that: a. Article 35 (1) GDPR requires a DPIA when the processing activity is likely to result in a high risk to the rights and freedoms of natural persons; and b. Article 35 (3) GDPR provides a non - exhaustive list of types of processing that require a DPIA, Adopted 6 the Board is of the opinion that: R EFERENCE TO THE GUID ELINES The Board is of the opinion that the analysis done in the Working Party 29 Guidelines WP248 is a core element for ensuring consistency across the Union. Thus, it recommend s the different Supervisory Authorities to add a statement to the document containing their list that clarifies that their list is based on these guidelines and that it complements and further specifies the guidelines. A CCOUNTING , H UMAN R ESOURCES , AND S OCIAL AND H EALTH I NSURANCE P ROCESSING The Board notes that the processing of accounting, human resources ( HR ), and social and health insurance data is a broad item that might involve categories of personal data, the processing of wh ich is likely to pose a high risk to the rights and freedoms of natural persons. The Board recommends that the processing activities envisaged by the Czech Supervisory Authority’s DPIA list be restricted to processing which is not large scale and is mandatory by law. P ROCESSING R ELATED TO B USINESS A CTIVITIES The Board notes that the processing related to business activities is a broad item that might involve categories of personal data, the processing of which is likely to pose a high risk to the rig hts and freedoms of natural persons. For this reason, the Board recommends that the Czech Supervisory Authority reduces the scope of this item by covering only business - to - customers relations , excluding the processing of sensitive data or data of highly pe rsonal nature and by excluding data process ing on a large scale . P ROCESSING OPERATIONS CONSISTING IN DIRECT MARKETING The Board notes that “ p rocessing operation consisting in direct marketing including customer profiling based on customer choice of items o r displayed items for the catalogue of offered goods, products and services posted at the controller´s website made during one single visit by a customer ” is a broad description that include s processing likely to pose a high risk to the rights and freedoms of natural persons. For this reason, the Board recommends that the Czech Supervisory Authority limit the scope of this item by explicitly excluding the processing of special categories of data and data of a highly personal nature, and by excluding process ing that target s vulnerable data subjects deliberately. P ROCESSING INVOLVING THE TAKING OF FOOTAG E BY A CAMERA INSTAL LED ON A VEHICLE The Board notes, that processing consisting of the “t aking footage by camera installed on a vehicle which monitors a neces sary range in front of or behind the vehicle for the purpose of securing documentation of traffic accident and its investigation by competent authorities ” might involve categories of personal data, the processing of which is likely to pose a high risk to t he rights and freedoms of natural persons. For this reason, the Board recommends that the Czech Supervisory Authority remove this item from its list. S IGNIFICANCE OF THE I TEMS ON THE 35(5) GDPR LIST The Board notes that the mere fact that processing activi ty falls within the scope of a 35(5) GDPR list does not mean that a controller is exempt from the general obligations of the GDPR. Hence, an assessment of the risks for the rights and freedoms of natural persons, their likelihood and severity, needs to be undertaken by the controller and processor in order to ensure a level of security appropriate to the risk in compliance with Article 32 GDPR. For the sake of clarity, t he Board encourages the Czech Supervisory Authority to include in its list a paragraph t hat mentions the distinction in the application of Articles 32 and 35 of the GDPR. Adopted 7 2.4 List items considered out of scope of Article 35(6) GDPR The Board is of the view that the following item on the list fall s outside the scope of Article 35(6) GDPR : 1  processing operation or set of processing operations regulated by law, on condition that a DPIA has been done within the process of a general assessment of impacts of the intended piece of legislation and the processing operation is not incorporated into a common system of the controller and interconnected with other processing operations carried out by the same controller; Therefor e, the Board does not have any comments on th is item. 3 CONCLUSIONS / RECOMMENDATIONS The draft list of the Czech Supervisory Authority may lead to an inconsistent application of Article 35 GDPR and the following changes need to be made:  Regarding the reference to the guidelines: the Board recommends the Supervisory Authority of the Czech Republic to amend its docume nt accordingly.  Regarding Accounting, HR, and Social and Health Insurance Processing: The Board recommends that the processing activities envisaged by the Czech Supervisory Authority’s DPIA list are restricted to processing which are not large scale and ar e mandatory by law.  Regarding p rocessing Related to Business Activities: the Board recommends that this item be amended to restrict the scope to business - to - customers only and to exclud e the processing of sensitive data or data of a highly personal nature , and to exclude large scale processing .  Regarding processing operations consisting in direct marketing: the Board recommends that this item be amended to restrict the scope by excluding processing of special categories of data and data of a highly personal nature, as well as processing deliberately targeting vulnerable subjects as a specific group .  Regarding processing involving the taking of footage by a camera installed on a vehicle: the Board recommends that the Czech Supervi sory Authority remove this item from its list.  Regarding the significance of items listed: the Board encourages the Czech Supervisory Authority to clarify that its list is without prejudice to any other obligation stipulated by the GDPR . 1 This view is strictly tied to the present list and does not apply necessarily to similar items in the lists submitted by other Supervisory Authorities. Adopted 8 4 FINAL REMARKS T his opinion is addressed to the Úřad pro ochranu osobních údajů ( Czech Supervisory Authority) and will be made public pursuant to Article 64( 5 )( b) GDPR. The Czech S upervisory A uthority shall communicate the final decision to the Board for inclusion in the register of decisions which have been subject to the consistency mechanism, in accordance with Article 70(1) (y) GDPR. For the European Data Protection Board The Chair (Andrea Jelinek)