Some of the procedures that EU institutions put in place pose risks to the data protection rights and freedoms of individuals.
Under the old legal framework (Regulation (EC) 45/2001), EU institutions were obliged to notify us before putting in place risky data processing operations.
In general, our prior checking Opinions were public.
Regulation 2018/1725 builds on the old Regulation and mirrors the General Data Protection Regulation (EU) 2016/679 (GDPR) that applies to most organisations processing personal data in the Member States. Compared to the previous rules, Regulation 2018/1725 aligns documentation obligations more closely to the risks caused by processing personal data. This means for example that the documentation requirements for a EUI’s newsletter subscription will be lower than for a system using ‘intelligent CCTV’ covering publicly accessible space or a database profiling travellers for screening purposes.
Depending on the process at hand, EU institutions processing personal data ('controllers') may not have to go through all the steps below (these steps are described in the Accountability on the ground toolkit):
• Generate basic documentation (called ‘records’) for all processes;
• Check if the process is likely to result in high risks to the people whose data are processed and consult the DPO if it appears to do so;
• If the EU institution needs to do a data protection impact assessment (DPIA), they analyse those risks in more detail and develop specific safeguards/controls to manage them;
• If the results of the DPIA still indicate high residual data protection risks, the EU institution has to file a prior consultation with the EDPS (see Articles 40 and 90 of Regulation 2018/1725 respectively for administrative and operational personal data).
Article 39 of Regulation 2016/794 on Europol provides for an ad hoc prior consultation mechanism for new type of processing of operational data, namely data processed by Europol to support the Member States in preventing and combating serious crime and terrorism. Similarly, Article 72 of Regulation 2017/1939 on the European Public Prosecutor Office (EPPO) provides a specific prior consultation mechanism for the processing of operational data, namely data processed in the context of criminal investigations and prosecutions undertaken by the EPPO. Regulation 2018/1725, including the standard prior consultation mechanism, applies to Europol's and EPPO's processing of administrative data, which includes data on staff and visitors, for example.
Where an EU institution is unsure whether to notify us a data processing operation for prior consultation, their DPO can consult us for advice to confirm.
As for the old prior checking Opinions, in general the prior consultation Opinions are public, but we may delete sensitive elements where necessary, related to security for example. Some opinions, which are by nature sensitive, in particular in the police and justice area, may not be published. For the sake of transparency, these Opinions are summarised in our Annual Report.
Opinion on notifications for prior checking received from the Data Protection Officers of certain Community agencies concerning the "Staff recruitment procedures".
Avis du 6 mai 2009 sur la notification d'un contrôle préalable de la Cour de justice à propos du dossier "horaire flexible" (Dossier 2007-437)
Avis du 6 mai 2009 sur la notification de contrôle préalable concernant les "Evaluations et rapports de stage" (Dossier 2009-030)
The European Food Safety Authority processes personal data of its staff related to probationary periods. The purpose of processing the personal data of staff members is to meet the requirements of the Staff Regulations and the Conditions of Employment of other Servants of the European Communities (CEOS). The probationary report itself aims at providing an objective summary assessment of the staff member's performance, competences and conduct during the initial period of the engagement.
The opinion advises EFSA to pay special attention to the principle of data quality and prior to automated solutions being introduced the EDPS should be consulted.
Opinion of 29 April 2009 on a notification for prior checking on Voice Logging at the Joint Research Centre Institute for Energy (JRC-IE) in Petten (Case 2008-014)
This case concerned the recording of incoming and outgoing calls as well as records the calling telephone number, the called telephone number, date, time and length of the conversation at the JRC-IE in Petten the purpose of being able to check the content of the calls to the lines concerned in the event of an operational incident, emergencies and to be able to evaluate emergency training exercises at a later stage. These calls may also furnish evidence for investigations into potential threats to the institution.
The EDPS opinion particularly examines the lawfulness of the processing operation as the recording of calls is a violation to the principle of confidentiality of communications. The EDPS acknowledged that the processing was lawful as based on mandatory national legislation applicable in the field of nuclear facilities. The EDPS also made recommendations on the information to the persons concerned notably to external persons calling the switchboard and who must be informed that the communication will be recorded for security purposes at the start of the call.
Avis du 27 avril 2009 sur la notification de contrôle préalable concernant les procédures de sélection des experts nationaux détachés (Dossier 2008-747)
FRA organises and manages the selection process of national experts for secondment in order to select the best suited candidates for a particular position. In order to select the best suited candidates, applicants have to follow various procedures (eligibility tests, interviews, etc). Such procedures entail the collection and further processing of candidates' personal data for the purposes of evaluating their competences for a given position.
In his opinion, the EDPS concluded that FRA has substantially followed all the principles of the Regulation. Nevertheless the EDPS recommended, among others, that FRA: