Opinion 6/2019 on the draft list of the competent supervisory authority of Spain regarding the processing operations subject to the requirement of a data protection impact assessment (Article 35.4 GDPR)

4 GDPR) Adopted on 12 March 201 9 Adopted 2 Contents 1 Summary of the Facts ................................ ................................ 4 2 Assessment ................................ ................................ ..... 1 General reasoning of the EDPB regarding the submitted list ................................ 2 Application of the consistency mechanism to the draft list ................................ 3 Analysis of the draft list ................................ ................................ 6 B IOMETRIC DATA ................................ ................................ 6 G ENETIC DATA ................................ ................................ .... 6 3 Conclusions / Recommendations ................................ ................................ 6 4 Final Remarks ................................ ................................ . 6 Adopted 3 The European Data Protection Board Having regard to Article 63, Article 64 (1a), (3) - (8) and Article 35 (1), (3), (4), (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 (hereafter “GDPR”), Having regard to Article 51 (1b) 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 p rosecution 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 (hereafter “Law Enforcement Directive”).

Having regard to the EEA Agreement and in particu lar 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, as revised on 2 3 November 2018 , Whereas: (1) The main r ole of the Board is to ensure the consistent application of the Regulation 2016/679 (hereafter GDPR) throughout the European Economic Area . 4 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 firstly by requesting SAs to include some types of processing in their lists, secondly by requesting them to remove some criteria which the Board doesn’t consider as necessarily creating high risks for data subjects, and finally by requesting them to use some criteria in a harmoni zed manner.

(2) With reference to Article 35 (4) and (6) GDPR, the competent supervisory authorities shall establish lists of the kind of processing operations which are 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 substan tially affect the free movement of personal data within the Union. (3) While 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 competent superviso ry 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 significant inconsi stencies that may affect the equivalent protection of the data subjects. Adopted 4 (4) The carrying out of a DPIA is only mandatory for the controller pursuant to Article 35 (1) GDPR where processing is “likely to result in a high risk to the rights and freedoms of natural persons”. Article 35 (3) GDPR illustrates what is likely to result in a high risk. This is a non - exhaustive list. The Working Party 29 in the Guidelines on data protection impact assessment 1 , as endorsed by the EDPB 2 , has clarified criteria that ca n help to identify when processing operations are subject to the requirement for a DPIA. The Working Party 29 Guidelines WP248 state that in most cases, a data controller can consider that a processing meeting two criteria would require a DPIA to be carrie d out, however, in some cases a data controller can consider that a processing meeting only one of these criteria requires a DPIA.

(5) The lists produced by the competent supervisory authorities support the same objective to identify processing operation s likely to result in a high risk and processing operations, which therefore require a DPIA. As such , the criteria developed in the Working Party 29 Guidelines should be applied when assessing whether the draft lists of the competent supervisory authoritie s does not affect the consistent application of the GDPR. (6) Twenty - two competent supervisory authorities received an opinion on their draft lists from the EDPB on 5 September 2018. A further 4 SAs received an opinion on their draft lists on 7 December 2018 and two further SAs received an opinion on the 23 January 2019. (7) The opinion 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 da y 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 1. The competent supervisory authority of Spain has submitted its draft list to the EDPB. The decision on the completeness of the file was taken on 29 January 201 9 . 2. T he period until which the opinion has to be adopted has been set until 8 May 2019. 1 WP29, Guidelines on Data Protection Impact Assessment and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679 (WP 248 rev. 01). 2 EDPB, Endorsement 1/2018 . 1 General reasoning of the EDPB regarding the submitted list 3. 1, which will prevail in any case. Thus, no list can be exhaustive. 4. 10 GDPR, the Board is of the opinion that if a DPIA has already been carried out as part of a general impact assessment in the context of the adoption of the legal basis the obligation to carry out a DPIA in accordance with par agraphs 1 to 7 of article 35 GDPR does not apply, unless the Member State deems it necessary.

5. Further, if the Board requests a DPIA for a certain category of processing and an equivalent measure is already required by national law, the Agencia Española de Protección de Datos (hereafter Spanish Supervisory Authority ) shall add a reference to this measure. 6. 6 GDPR. This ref ers 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 “substantially affect t he free movement of personal data within the Union”. This is especially the case for items relating to national legislation and in particular where the obligation to carry out a DPIA is stipulated in national legislation. Further, any processing operations that relate to law enforcement were deemed out of scope, as they are not in scope of the GDPR. 7. The Board has noted that several supervisory authorities have included in their lists some types of processing which are necessarily local processing.

6, the Board will not comment on those local processing. 8. The opinion aims at defining a consistent core of processin g operations that are recurrent in the lists provided by the SAs. 9. This means that, for a limited number of types of processing operations that will be defined in a harmonised way, all the Supervisory Authorities will require a DPIA to be carried out and t he Board will recommend the SAs to amend their lists accordingly in order to ensure consistency. 10. When this opinion remains silent on DPIA list entries submitted, it means that the Board is not asking the Spanish Supervisory Authority to take further action. 11. The Spanish Supervisory Authority has notified a translation mistake in the provided list. The term “interested party” thus will be interpreted in the meaning of “Data Subject”, associated with the corresponding rights and freedoms . 12. 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, for each type of processing, to the cri teria set out in the guidelines could improve this transparency. 2 Application of the consistency mechanism to the draft list 13. The draft list submitted by the Spanish Supervisory Authority relate s to the offering of goods or services to data subjects, relate s to the monitoring of their behaviour in several Member States and/or Adopted 6 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. 3 Analysis of the draft list 14. 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, the Board is of the opinion that: B IOMETRIC DATA 15. The list submitted by the Spanish Supervisory Authority for an opinion of the Board does not currently require a DPIA to be done for the processing of biometric data for the purpose of uniquely identifying a natural person. As such, the Board requests the Spanish Supervisory Authority to amend its list accordingly, by adding explicitly the processing of biometric data for the purpose of uniquely identifying a natural person in conjunction with at least one other criterion to its list, to be applied without prejudice to article 35(3) GDPR. G ENETIC DATA 16. The list submitted by the Spanish Supervisory Authority for an opinion of the Board does not currently require a DPIA to be done for the processing of genetic data. The Board is of the opinion that the processing of genetic data on its own i s not necessarily likely to represent a high risk.

However, the processing of genetic data in conjunction with at least one other criterion requires a DPIA to be carried out. As such, the Board requests the Spanish Supervisory Authority to amend its list a ccordingly, by adding explicitly the processing of genetic data in conjunction with at least one other criterion to its list, to be applied without prejudice to article 35(3) GDPR. 3 CONCLUSIONS / RECOMM ENDATIONS 17. The draft list of the Spanish Supervisory Aut hority may lead to an inconsistent application of the requirement for a DPIA and the following changes need to be made:  Regarding biometric data: the Board requests the Spanish Supervisory Authority to amend its list accordingly, by adding explicitly the p rocessing of biometric data for the purpose of uniquely identifying a natural person in conjunction with at least one other criterion to its list.  Regarding genetic data: the Board requests the Spanish Supervisory Authority to amend its list by adding explicitly the processing of genetic data in conjunction with at least one other criterion to its list .

18. This opinion is addressed to the Spanish Supervisory Authority and will be made public pursuant to Article 64 (5b) GDPR. 19. According to Article 64 (7) and (8) GDPR, the supervisory authority shall communicate to the Chair by electronic means within two weeks after receiving the opinion, whether it will amend or maintain its draft list. The supervisory authority sha ll communicate the final decision to the Board for inclusion in Adopted 7 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)