19
Jul
2007
Investigative function - OLAF
Opinion of 19 July 2007 on a notification for prior checking on regular monitoring of the implementation of the investigative function (Case 2007-73)
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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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18
Jul
2007
Silent monitoring - OHIM
Opinion of 18 July 2007 on a notification for prior checking on silent monitoring (Case 2007-128)
The processing operations consist in the selective monitoring of incoming phone calls processed by the Information Centre Sector. Incoming phone calls are firstly caught by the Switchboard of OHIM. Depending on the subject of the call, the Switchboard puts the call through either to a specific person in OHIM or to the Information Centre, which is competent to address general issues or further put the call through to a specific person in OHIM.
During a “Silent Monitoring” exercise, incoming callers are firstly asked for their prior consent to participate in the monitoring exercise. Upon their consent, a third party, namely the responsible person in the Information Centre Sector, is silently listening to the conversation. While a call is monitored, a background signal is continuously emitted so that both the caller and the Switchboard or Information Centre are aware that the call is monitored by a third person. The call is not further monitored when it is put through to a specific person in OHIM.
Therefore, the purposes of the processing operations referred to in the present notification for prior check, are to assess the quality of the service provided by the Switchboard and by the Information Centre as follows:
- Switchboard: Quality control and improvement of services in compliance with the Service Level Agreement concluded with the external provider (contractor).
- Information Centre: Quality control, improvement of services, staff appraisal.
The EDPS has issued an opinion on this procedure which 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 mainly as concerns avoidance of the use of Article 5(c) of the Regulation as the basis for lawfulness regarding the processing operation conducted vis-à-vis the Switchboard. On the contrary, Article 5(a) of the Regulation has to be used in this regard. Furthermore, a method to guarantee the accuracy of the data should be found. This could be done either by recording the monitored calls or by sharing with the data subject the results of the monitoring in an immediate manner (e.g. after each day of the monitoring exercise), in such a way that the results are documented and discussed as soon as possible after the listening.
16
Jul
2007
Early Warning System EWS - Parliament
Opinion of 16 July 2007 on the notification for prior checking regarding the "Early Warning System (EWS)" dossier (Case 2007-147)
The Early Warning System (EWS) mainly circulates confidential information on third parties (natural or legal persons) among the various departments of the Parliament. That information concerns beneficiaries of Community funds who have committed fraud, administrative errors or irregularities and also beneficiaries that threaten the financial interests of the European Community. The information may also concern natural persons with powers of representation, action or supervision over legal persons.
The EWS was the subject of a very detailed Commission Decision. Some of the institutions have done no more than exchange information using the Commission's EWS database. The European Parliament's services, though, decided to draw on the Commission's Decision in creating a system of their own, which is currently being set up. Some warnings established by the Commission are simply provided for by the Parliament. The EDPS has already issued a number of opinions concerning the EWS: on the Commission's EWS, an opinion on the proposed revision of the FR and its implementing rules, and finally an opinion on the use of the Commission's EWS database by the Court of Justice.
The main recommendations made by the EDPS in his opinion on the Parliament's EWS concern data quality, the setting up of personal files for all persons with whom the Parliament has contractual relationships, so that data on them can be kept up to date, rights of access and rectification, and informing the data subjects.
11
Jul
2007
Monitoring cases - OLAF
Opinion of 11 July 2007 on a notification for prior checking on monitoring cases (Case 2006-548)
OLAF engages in processing of personal data when it opens a Monitoring case. These are cases where OLAF would be competent to conduct an external investigation, but where a Member State or other authority is in a better position to do so. OLAF main action in such cases consists in monitoring the activities of the national authorities or EU institutions that are responsible for a case in order to ensure that the appropriate judicial or administrative actions are taken to protect the Community's financial interests. The type of personal information processed by OLAF in these cases includes identification, professional data and information concerning activities related to matters which are the subject of monitoring.
The EDPS has issued an opinion on the processing of personal data in the context of OLAF's Monitoring cases. The Opinion concludes that on a general basis the data processing complies with the principles established in the data protection Regulation. However the EDPS did make some recommendations. Among others, the EDPS asked OLAF to ensure that individuals whose data are processed by OLAF are informed of the data processing that takes place in the context of Monitoring cases. It also suggested some amendments to the privacy statement and asked OLAF to conduct a preliminary evaluation of the necessity of the 20 years conservation period vis-à-vis the purpose of such conservation.
Available languages: English, French
10
Jul
2007
Sickness insurance scheme
Opinion of 10 July 2007 on a notification for prior checking related to management of the sickness insurance scheme (Case 2004-238)
PMO.3 is responsible, among others, for the management of the Sickness Insurance Scheme for officials, temporary agents and retired staff of EU (EU staff members). This Scheme was established pursuant to Article 72 of the Staff Regulations. In the context of the management of the scheme, PMO 3 must process personal data of EU staff members, including information related to the insured parties' health (prescriptions from doctors, statement fees related to the purchase of pharmaceutical products, medical reports, etc).
The EDPS has issued an opinion on the management of the scheme which concludes that on a general basis the scheme complies with the principles established in the data protection regulation. However the EDPS did make some recommendations mainly as concerns raising awareness among non-medical PMO.3 staff regarding medical secrecy, the need to reassess the conservation period for data related to medical conditions and suggested some changes in the privacy policy. The EDPS further suggested limiting the transfer of information to the Management of Committee in the context of the appeals ex Article 90 of the Staff Regulations. In particular, the EDPS recommended removing identification information as it is unnecessary in order for the Committee to provide its reports.
Available languages: English, French