Print

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.

Filters

21
Jun
2007
Opinions Prior Check and Prior Consultations

Time recording system - ETF

Opinion of 21 June 2007 on the notification for prior checking regarding ETF's time recording system (Case 2007-209)

The Notification concerns ETF's electronic time recording system. The time recording exercise requires staff members to account for the use of their time spent at work by entering the hours worked and the activity carried out during those hours in a time-keeping database. The system is operated under the management of ETF’s Planning Monitoring and Evaluation Unit ("PMEU"). It is designed to enhance ETF’s capacity to plan, monitor, and account for the deployment of its human resources against strategic and operational planned objectives.

While designed for these purposes, there was a possibility that the database could also be used for performance evaluation. Therefore, the EDPS paid special attention to ensure that a number of his key recommendations are taken into account.  When commenting on the draft EDPS Opinion, ETF already noted that some of these recommendations have already been or will be implemented. Some key recommendations related to data quality and purpose limitation. The EDPS emphasized that the procedures for the exercise must be revised to ensure a higher level of accuracy, reliability, and consistency of the data. Even after such changes are implemented, ETF management must clearly and explicitly recognize the limitations of the reliability of the data to inform decisions that may individually affect data subjects. Therefore, data included in the database should only be used as one of several, only informative, rather than decisive, factors to be considered in the decision-making process. For the same reason, the database, on the individual level, can only be used for purposes directly relevant for the management of a specific project. In particular, the database cannot be used for purposes of performance appraisal, promotion, or assessing contract renewal, and the use of the database should not lead to dismissal, exclusion from contract renewals, promotion, or training opportunities, exclusion when tasks are allocated or team leaders and managers are selected, or to other similar prejudices to staff members. This does not mean that staff members who are unable to account for a productive use of their time cannot be dismissed or excluded when tasks are distributed. However, these decisions must be made based on information other than data in the database.

The EDPS also made important recommendations regarding the recipients. He noted that access to the database must be clearly limited on a need-to-know basis. In particular, access of the head of unit of the PMEU and his staff must not include access to individual data. Conservation periods must also be strictly limited to what is necessary to achieve the purpose of the processing operation. Only aggregate data should be retained for the five-year period provided for in ETF's Financial Regulation. As far as information to data subjects is concerned, the information provided to data subjects must be supplemented with reference to the right of recourse to the EDPS. In addition, communication of the purposes and uses of the database must be improved. The EDPS especially emphasises the importance of clear specification of any limitations on such uses.

Available languages: English, French
Topics
Privacy in the EU Institutions
Working Conditions
14
Jun
2007
Opinions Prior Check and Prior Consultations

Medical file (Luxembourg) - Parliament

Opinion of 14 June 2007 on a notification for prior checking regarding the "Medical Files - Luxembourg" case (Case 2004-203)

The prior checking refers to medical files at the European Parliament (EP) in Luxembourg, in particular monitoring health at work including pre-recruitment medical examinations and annual check-ups; medical emergencies at the workplace, preventive health care and various consultations.
 
The pre-recruitment medical examination carried out includes a medical questionnaire to be filled in by the candidate and a series of medical examinations. The doctor enters a summary of the examination and the conclusions in the medical questionnaire. He then sends the department concerned a declaration stating that the person is either fit or unfit to work.
 
The annual medical check-up is an administrative requirement for all officials and other staff in active employment. The annual medical check-up may be carried out either by one of the EP's Medical Officers or by a doctor chosen by the person concerned. In the latter case, the doctor must send the Medical Service as soon as possible the report on the medical check-up and the results of the examinations carried out.
 
The Medical Service ensures that medical check-ups are carried out. The Medical Service uses administrative follow-up files for medical files to keep track of annual medical check-ups..
 
The EDPS has carried out a prior check on these activities and has concluded that the proposed processing operation does not appear to infringe the provisions of Regulation (EC) No 45/2001, provided that account is taken of certain recommendations, in particular:
  • that, in general terms, the EP should undertake a thorough reassessment of the questions put in the questionnaire for the pre-recruitment medical examination and annual medical check-up in the light of the principles of adequacy, relevance and proportionality, for the purposes of judging fitness for service;
  • that it should consider the period of storage of medical data in the light of the recommendations made by the EDPS on 26 February 2007
  • that the EP introduce a procedure for non-recruited persons in respect of whom medical information has been recorded, so that they too have a right of access under Article 13 of Regulation (EC) No 45/2001;
  • that the EPrender data anonymous or, failing that, encrypt them before they are used for historical, scientific or statistical purposes;
  • that the EP supplement the information provided in the waiting rooms
Available languages: English, French
Topics
Privacy in the EU Institutions
Health Data in the Workplace