# Opinion 3/2018 on the draft list of the competent supervisory authority of Bulgaria regarding the processing operations subject to the requirement of a data protection impact assessment (Article 35.4 GDPR)

- Type: Guidance
- Source: EDPB
- Identifier: opinion-32018-on-the-draft-list-of-the-competent-supervisory-en
- Date: 2018-10-03
- Original: https://www.edpb.europa.eu/documents/opinion-of-the-board-art-64/opinion-32018-on-the-draft-list-of-the-competent-supervisory_en
- Canonical: https://overview.legal/posts/126291
- Topics: Genetic Data, Data Controller, Types of Special Categories of Personal Data, Joint Controllers, DPIA, Monitoring, Transparency, Privacy Impact Assessment, Special Categories of Data, Supervisory Authorities

## Summary

Opinion 3 /2018 on the draft list of the competent supervisory authority of Bulgaria regarding the processing operations subject to the requirement of a data protection impact assessment (Article 35.4 GDPR) Adopted on 25th September 2018 2 Contents 1. Summary of the Facts ................................ ................................ ................................ ........ 4 2. Assessment ................................ ................................ ................................…

## Full text

Opinion 3 /2018 on the draft list of the competent supervisory authority of Bulgaria regarding the processing operations subject to the requirement of a data protection impact assessment (Article 35.4 GDPR) Adopted on 25th September 2018 2 Contents 1. Summary of the Facts ................................ ................................ ................................ ........ 4 2. Assessment ................................ ................................ ................................ ........................ 5 2.1 General reasoning of the EDPB regarding the submitted list ................................ ..... 5 2.2 Application of the consistency mechanism to the draft list ................................ ....... 6 2.3 Analysis of the draft list ................................ ................................ ............................... 6 Indicative nature of the list ................................ ................................ ................................ 6 Reference to the Guidelines ................................ ................................ .............................. 6 Biometric data ................................ ................................ ................................ .................... 6 Genetic data ................................ ................................ ................................ ....................... 7 Biometric ‘and’ genetic data ................................ ................................ .............................. 7 Location data ................................ ................................ ................................ ..................... 7 Exceptions to information to be provided to the data subject according to Article 14.5 GDPR ................................ ................................ ................................ ................................ .. 7 Referencing a specific legal basis ................................ ................................ ....................... 7 Joint Controllership ................................ ................................ ................................ ............ 8 Territorially - distributed or cross - border information systems ................................ ......... 8 Migration from one system to at least one other ................................ ............................. 8 Processing using new/innovative technology ................................ ................................ ... 8 3. Conclusions / Recommendations ................................ ................................ ...................... 8 4. Final Remarks ................................ ................................ ................................ ..................... 9 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 (hereinafter “GDPR”), Having regard to the EEA Agreement and in particular to Annex XI and Prot ocol 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, Whereas: (1) The main role of the Board is to ensure the consistent application of the Regulation 2016/679 (here after GDPR) throughout the European Economic Area . In compliance with article 64.1 GDPR, the Board has to issue an opinion where a supervisory authority intends to adopt a list of processing operations subject to the requi rement for a data protection impact assessment pursuant to article 35.4 GDPR. The aim of this opinion is therefore to create a harmonized approach with regard to processing that is cross border or that can affect the free flow of personal data or natural p erson 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, second ly 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 harmonized manner. (2) With reference to A rticle 35 (4) and (6) GD PR, 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 whe re 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) 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 supervisory authorities have a margin of discretion with regard to t he 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 inconsistencies that may affect the equivalent protection of the d ata subjects. (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 4 persons”. Article 35 (3) GDPR illustrates what is l ikely 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 can 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 carried out, however, in some cases, a data controller can consi der 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 operations likely to result in a high risk and processing operation s, 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 authorities does not affect the consistent application of the GDPR. (6 ) T wenty - two competent supervisory authorities have submitted their draft lists to the EDPB. A global assessment of these draft lists supports the objective of a consistent application of the GDPR even though the complexity of the subject matter increa ses. (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 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 OPINION : 1. Summary of the Facts The Commission for Personal Data Prot ection ( hereafter Bulgarian Supervisory Authority) has submitted its draft list to the EDPB. The decision on the completeness of the file was taken on 5th July 2018 . This period until which the opinion to be adopted has been extended until the 25th of September taking into account the complexity of the subject matter considering that at the same time twenty - two competent supervisory authorities submitted the draft lists and thus the need for a global assessment arose . 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 . 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 Art 35.1, which will prevail in any case. Thus , no list can be exhaustive. As the list provided by Bulgarian Supervisory Authority does not explici tly state this, the Board requests this explanation to be added to the document containing the list. In compliance with article 35.10 GDPR, the Board is of the opinion that if a DPIA has already been carried out as part of a general impact assessment in th e context of the adoption of the legal basis the obligation to carry out a DPIA in accordance with paragraphs 1 to 7 of article 35 GDPR does not apply, unless the Member State deems it necessary. Further, if the Board requests a DPIA for a certain category of processing and an equivalent measure is already required by national law, the Bulgarian Supervisory Authority shall add a reference to this measure. This opinion does not reflect upon items submitted by the Bulgarian Supervisory Authority , which were d eemed outside the scope of Article 35.6 GDPR. T h is refers to items that neither relate “ to the offering of goods or services to data subjects ” in several Member States n or to the monitoring of the behaviour of data subjects in several Member States . Additi onally , they are not likely to “ substantially affect the 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. The Board has noted that se veral supervisory authorities have included in their lists some types of processing which are necessarily local processing. Given that only cross border processing and processing that may affect the free flow of personal data and data subjects are concerne d by Article 35.6, the Board will not comment on those local processing . The opinion a im s at defining a consistent core of processing operations that are recurrent in the lists provided by the SAs. This means that, for a limited number of types of process ing operations, that will be defined in a harmonised way, all the Supervisory Authorities will require a DPIA to be carried out and the Board will recommend the SAs to amend their lists accordingly in order to ensure consistency. When this opinion remains silent on DPIA list entries submitted, it means that the Board is not asking the Bulgarian Supervisory Authority to take further action. Finally, the Board recalls that transparency is key for data controllers and data processors. In order to clarify th e entries in the list, the Board is of the opinion that making an explicit 6 reference in the lists, for each type of processing, to the criteria set out in the guidelines could improve this transparency. Therefore, the Board considers that an explanation on which criteria have been taken into account by the Bulgarian Supervisory Authority to create its list could be added. 2.2 Application of the consistency mechanism to the draft list The submitted draft list by the Bulgarian 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 may substantially affect the free movement of personal data within the Union mainly because the processing operations in the submi tted draft list are not limited to data subjects in this country. 2.3 Analysis of the draft list Taking into account that : a. A rticle 35 ( 1 ) GDPR require s a DPIA when the processing activity is likely to result in a high risk to the rights and freedoms of natural persons; and b. A rticle 35 ( 3 ) GDPR provides a non - exhaustive list of types of processing that require a DPIA , the Board is of the opinion that : I NDICATIV E NATURE OF THE LIST As the list provided by Bulgarian Supervisory Authority does not explicitly state that its list is not exhaustive, the Board requests this explanation to be added to the document containing the list. R EFERENCE TO THE G UIDELINES The board is of the opinion that the analysis done in the Working Party 29 Guidelines WP248 are a core element for ensuring consistency across the Union. Thus, it requests the different Supervisor Authorities to add a statement to the document containing t heir list that clarifies that their list is based on these guidelines and that it complements and further specifies the guidelines. As the document of the Bulgarian Supervisory Authority does not contain such a statement, the B o ard recommends the Bulgari an Supervisory Authority to amend its document accordingly. B IOMETRIC DATA The list submitted by the Bulgarian Supervisory Authority for an opinion of the Board envisages that the processing of biometric data for the purpose of uniquely identifying a natural person, in conjunction with at least one other criterion, requires a DPIA. On this point, the Board acknowledges that the list a ligns with the aim of consistency. 7 G ENETIC DATA The list submitted by the Bulgarian Supervisory Authority for an opinion of the Board envisages that the processing of genetic data, in conjunction with at least one other criterion, requires a DPIA. The Boar d is of the opinion that the processing of genetic data on its own is 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. The Board ta kes note of the inclusion of this criterion in the list of Bulgarian Supervisory Authority . B IOMETRIC ‘ AND ’ GENETIC DATA The list submitted by the Bulgarian Supervisory Authority for an opinion includes a reference to biometric and genetic data (cumulative ly) as a separate entry. The Board has been informed by the Bulgarian Supervisory Authority that in the original language version biometric and genetic data are in fact considered separately. Therefore, the Board refers to the sections in the opinion on bi ometric data and genetic data respectively. L OCATION DATA The Board is of the opinion that consistency is one of the basic principle of the GDPR. The Board notes that a majority of the lists submitted explicitly contain a reference to the processing of loc ation data. As the list submitted by the Bulgarian Supervisory Authority for an opinion do not contain such a reference, the Board encourages the Bulgarian Supervisory Authority to include the processing of location data in its list, together with another criterion. E XCEPTIONS TO INFORMA TION TO BE PROVIDED TO THE DATA SUBJECT ACCORDING TO A RTICLE 14.5 GDPR The Board is of the opinion that types of processing activities that could deprive the data subjects from their rights do not represent a high risk on th eir own. Therefore, a processing activity conducted by the controller under article 14 GDPR and where the information to be given to the data subjects is subject to an exemption under article 14.5 (b) - (d) could require a DPIA to be carried out only in conj unction with at least on other criterion. The list submitted by the Bulgarian Supervisory Authority for an opinion of the Board does currently require a DPIA to be done for the processing of data where article 14(5), para (b), (c) and (d) applies on its ow n. The Board requests the Bulgarian Supervisory Authority to amend its list accordingly, by adapting the list entry by adding that it requires a DPIA only in conjunction with at least one other criterion. R EFERENCING A SPECIFI C LEGAL BASIS The Board is of the opinion that the use of a specific legal basis should not be a criterion leading to an obligation to do a DPIA, alone or with another criterion. Given that the list submitted by the Bulgarian Supervisory Authority for an opinion of the Board envisages this type of processing as requiring a data protection impact assessment, the Board requests the Bulgarian Supervisory Authority to amend its list accordingly, by removing the reference to any specific legal basis from its list. 8 J OINT C ONTROLLERSHIP The B oard is of the opinion that joint controllership should not be a criterion leading to an obligation to do a DPIA, alone or with another criterion. Thus, the processing of personal data under a joint controllership should not per se require a DPIA to be car ried out. The list submitted by the Bulgarian Supervisory Authority for an opinion of the Board does currently require a DPIA to be carried out when there is a processing under a joint controllership. The Board requests the Bulgarian Supervisory Authority to amend its list accordingly, by removing the item of processing under a joint controllership from its list. T ERRITORIALLY - DISTRIBUTED OR CROSS - BORDER INFORMATION S YSTEMS The Board is of the opinion that processing operations, which are conducted through territorially distributed or cross - border information systems, should not be a criterion leading to an obligation to do a DPIA, alone or with another criterion. Given that the list submitted by the Bulgarian Supervisory Authority for an opinion of the Board envisages this type of processing as requiring a data protection impact assessment, the Board requests the Bulgarian Supervisory Authority to amend its list accordingly, by removing the reference to processing operations which are conducted through territorially - distributed or cross - border information systems from its list . M IGRATION FROM ONE SY STEM TO AT LEAST ONE OTHER The Board is of the opinion that the migration from one system to another on its own is not necessarily likel y to represent a high risk. However, the migration from one system to another in conjunction with at least one other criterion does require a DPIA to be carried out. The list submitted by the Bulgarian Supervisory Authority for an opinion of the Board does currently require a DPIA to be carried out when there is a migration from one system to another on its own. The Board requests the Bulgarian Supervisory Authority to amend its list accordingly, by adding that the item referencing the migration from one sy stem to another requires a DPIA to be carried out only when in conjunction with at least one other criterion . P ROCESSING USING NEW / INNOVATIVE TECHNOLOG Y The list submitted by the Bulgarian Supervisory Authority for an opinion of the Board envisages that the processing of personal data using innovative technology in conjunction with at least one other criterion, requires a DPIA. The Board takes note of the inclusion of this criterion in the list. 3. Conclusions / Re commendations The draft list of the Bulgarian Supervisory Authority may lead to an inconsistent application of the requirement for a DPIA and the following changes need to ma d e :  Regarding the indicative nature of the list : the Board requests an explanation to be added to the document containing the list, stating its non - exhaustive nature.  Regarding the reference to the guidelines : the Board requests the Bulgarian Supervisory Authority to amend its document accordingly. 9  Regarding location data: the Board enc ourages the Bulgarian Supervisory Authority to include the processing of location data in its list, together with another criterion .  Regarding the exceptions to the information to be given to the data subjects according to article 14.5 GDPR: t he Board requests the Bulgarian Supervisory Authority to amend its list by adding that it requires a DPIA only in conjunction with at least one other criterion.  Regarding the link of a legal basis to high risk: the Board requests the Bulgarian Supervisory Authority to amend its list by removing the reference to any legal basis in its list.  Regarding joint controllers: the Board requests the Bulgarian Supervisory Authority to amend its list by removing the reference to joint controllership from its list.  Reg arding processing operations which are conducted through territorially - distributed or cross - border information systems: the Board requests the Bulgarian Supervisory Authority to amend its list by removing the reference to processing operations which are co nducted through territorially - distributed or cross - border i nformation systems from its list.  Regarding migration from one system to at least one other: the Board requests the Bulgarian Supervisory Authority to amend its list by adding that the item referen cing the migration from one system to another requires a DPIA to be carried out only when in conjunction with at least one other criterion. 4. Final Remarks This opinion is addressed to the Commission for Personal Data Protection (Bulgarian Supervisory Author ity) and will be made public pursuant to Article 64 (5b) GDPR. 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 mai ntain its draft list. Within the same period, it shall provide the amended draft list or where it does not intend to follow the opinion of the Board, it shall provide the relevant grounds for which it does not intend to follow this opinion, in whole or in part. For the European Data Protection Board The Chair (Andrea Jelinek)

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