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 of 22 December 2006 on a notification for prior checking on the "Management of personal data of Auxiliary Conference Interpreters (ACI) stored in Signalétique (application of the central database CORALIN)" (Case 2006-364)
Opinion of 8 December 2006 on the notifications of prior checking regarding the "Medical files - Parliament crèche" and "Medical files - private crèches" (Cases 2006-267 and 2006-268)
The EDPS has, inter alia, recommended that the persons responsible for managing the medical data should be reminded they are subject to a professional secrecy obligation and that the data subjects should be informed of the main reasons for limiting their right of access and of their right to have recourse to the EDPS. The EDPS has also stressed that all the information – both compulsory and optional – set out in Articles 11 and 12 should be included in a note in time for the next applications for admission and that the contract between the processors (the private crèches) and the controller (the Parliament) should mention all the points set out in Articles 21, 22 and 23(2) of the Regulation.
Opinion of 6 December 2006 on a notification for prior checking on the Early Warning System (Case 2005-120)
Opinion of 16 November 2006 on the notification for prior checking regarding the "Public procurement" case (Case 2006-398)
Opinion of 14 November 2006 on the notification for prior checking on the "Selection of contract staff with a view to recruitment by the European institutions or by Community bodies, offices and agencies" (Case 2005-366)