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Opinions Prior Check and Prior Consultations

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.

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7
Nov
2008
Opinions Prior Check and Prior Consultations

Promotion of Officials and Regrading of Temporary Agents - OHIM

Opinion of 7 November 2008 on the notification for prior checking regarding the Internal Promotion of Officials and Regrading of Temporary Agents (Case 2008-095)

The purpose of the processingis to conduct the yearly internal promotion/regrading exercise for members of staff. At the beginning of each yearly exercise, the lists of the staff members eligible for promotion and regrading are published on the OHIM's Intranet. A database of staff members to whom promotion/regrading points may be awarded is set up containing administrative data synchronised from a human resources module. The database is made accessible for the respective Directors for a limited period of time so that they can attribute the promotion/regrading points. The members of the Management Committee have to agree on a proposal of points to be awarded. An individual notification of the proposed points is sent to the staff members concerned who may lodge an appeal against the notification within ten working days to the Joint Evaluation and Promotion Committee (JEPC). Before the Appointing Authority takes a formal decision concerning promotions, the JEPC shall examine and issue an opinion on the list of candidates for promotion. It shall also issue an opinion on the overall awarding of promotion points. Wherever relevant, it shall formulate recommendations to the Appointing Authority. The final promotion/regrading points are awarded by the Appointing Authority and notified to the staff member concerned. The lists of promoted/regraded staff members are published on OHIM's Intranet.
 
The EDPS examined the procedure and concluded that there is no reason to believe that there is a breach of the provisions of Regulation (EC) 45/2001 provided that certain considerations are taken into account notably that the conservation period be reassessed after the first ten years based on practical experience; the recipients be made aware that they shall process the personal data they receive in the course of the promotions procedure only for that purpose; and that information is provided on categories of data processed, notably in the data base, and the recipients of the data other than the Management Committee and the HRD's Personnel Administration Sector.
Available languages: English, French
Topics
Privacy in the EU Institutions
Staff Evaluation
5
Nov
2008
Opinions Prior Check and Prior Consultations

Radiation exposure - Commission

Opinion of 5 November 2008 on the notification for prior checking regarding occupational radiation exposure data (Case 2007-0383)

In order to ensure the legitimate performance of radiological surveillance and the implementation of fundamental principles governing operational protection of exposed workers the DG TREN Health Protection Cell (DG TREN H4) is processing personal data of staff members who are occupationally exposed to ionising radiation in the course of their work. Under special service contracts, approved laboratories deliver the results of occupational protection monitoring concerning staff members classified as occupationally exposed to ionising radiation.
 
The radiological surveillance and occupational monitoring data are entered manually into the Microsoft ACCESS bases Personal Dosimetry database of DG TREN H4. Data relevant to the personal radiology protection and surveillance are registered in individual radiation pass books. Following an occupational health examination, the medical service of the Commission submits information (yes/no) concerning the individual physical fitness of the staff members.
 
The EDPS delivered a prior checking opinion considering that there is no reason to believe that there is a breach of the provisions of the Regulation provided notably that the right of access and rectification of personal data of the persons concerned is not conditioned to "specific circumstances"; information is provided on the categories of recipients and right to have recourse to EDPS at any time; individuals receive the information listed in Article 12 (privacy statement) before the processing operation is launched; and that the confidentiality and security of communications is guaranteed when information is transferred between subcontractors and the DG TREN-H4, and between DG TREN-H4 and the national competent authorities.
Available languages: English, French
Topics
Privacy in the EU Institutions
Health Data in the Workplace
3
Nov
2008
Opinions Prior Check and Prior Consultations

Traffic violations - Commission

Opinion of 3 November 2008 on the notification for prior checking on "Traffic violations with official vehicles of the Commission managed by the Infrastructure and Logistics Office - Brussels (OIB)" (Case 2008-395)

Within the European Commission, the Mobility and Supplies Unit, which is responsible for managing the car pool, deals with offences against the highway code committed by the drivers of official Commission vehicles managed by the OIB. The purposes of the processing operation are to examine whether, when traffic violations are committed by the drivers of official Commission vehicles, the immunity granted by the Protocol on Privileges and Immunities can be invoked, and to provide administration and follow-up.

The proposed data processing operation complies with Regulation (CE) No 45/2001, if the Commission:

  • reminds anyone who receives or processes data in the context of the procedure for handling penalty notices that the data may not be used for other purposes;
  • complies with Articles 8 and 9 as regards the transfer of data to the competent authorities;
  • as well as publishing the privacy statement on the internet, sends it to all data subjects concerned by this processing operation at the same time as the document on the procedure for forwarding the penalty notice;
  • updates the "Information for the attention of drivers of official Commission vehicles" to make the necessary changes (name of the controller and details of the data recipients).
Available languages: English, French
Topics
Privacy in the EU Institutions
Investigations
22
Oct
2008
Opinions Prior Check and Prior Consultations

Quality checks - OHIM

Opinion of 22 October 2008 on the notification for prior checking regarding quality checks (Case 2008-437)

This prior checking notification followed upon staff complaints and was only submitted to the EPPS upon his specific request. It concerns a system of internal quality checks during which (i) the work products of OHIM's trademark examiners are reviewed and (ii) the results are reported in a database created for this purpose. The primary purpose of these systematic checks is to improve the overall quality of OHIM's work products. However, the results of the quality checks (i) are also used to evaluate the quality of work of each examiner and (ii) inform management decisions regarding measures that may individually affect the examiners, such as performance appraisals, promotion, contract renewals, disciplinary measures, or training.

The EDPS recommended the adoption of a clear and formal internal decision to strengthen the legal basis of the operation and provide much needed clarity and certainty to staff members. This decision should clearly describe the system of the ex-ante quality checks, including their intended purpose, and provide for appropriate data protection safeguards, as recommended in the Opinion. Instead of fragmental email-communications, the EDPS also urged OHIM to adopt a formal data protection notice and make it available permanently on OHIM's intranet site. In addition, the EDPS emphasised that all possible efforts should be made to improve the level of accuracy, reliability, and consistency of the data. In any event, data included in the database should only be used as one of several factors to be considered in the decision-making process. Whenever data stored in the database are used for purposes which may individually affect staff members, they must also be heard and be given the opportunity to put forward their positions.

Available languages: English, French
Topics
Privacy in the EU Institutions
Staff Evaluation
Procurements, Grants, Experts
22
Oct
2008
Opinions Prior Check and Prior Consultations

eHest training - Council

Opinion of 22 October 2008 on the notification for prior checking regarding eHEST training (Computer based Hostile Environment Security Training) (Case 2008-387)

The Directorate Security Office of the Council organises a specific training in order to raise the security awareness and to mitigate risks for all personnel deployed on EU-led missions outside the EU in an operational capacity under Title V of the EU Treaty.
 
The training, called "eHEST" is a web-based training application with an automated evaluation function. Users are required to submit their data as part of the online registration process. The eHEST training programme envisages three tests. Only if the two first tests are passed with success, the final test can be accessed. The final test leads to certification which is a condition to the deployment in some areas.
 

The EDPS has issued an opinion relating to the processing of personal data in the context of the eHEST training. The EDPS concludes that on a general basis the procedure complies with the principles established in the data protection regulation. However the EDPS did make some recommendations as concerns the conservation of data and the information of the data subjects.

Available languages: English, French
Topics
Privacy in the EU Institutions
Staff Evaluation