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 24 May 2012 on the notification for prior checking concerning the ‘Recording of the telephone line used for security guard service reports and calls concerning actions connected with the system for controlling access to Commission buildings (Brussels)’, European Commission (Case 2011-0987)
Opinion of 24 May 2012 on a notification for Prior Checking concerning the "Safe Mission Data" system, European Parliament (Case 2012-0105)
The purpose of collecting data in the "Safe Mission Data" system (SMD) of the European Parliament (EP) is to provide support to delegations outside the three places of work of the EP where a rapid and effective reaction is needed in emergency situations.
The key issue of the EDPS Opinion evolves around the fact that one of the very reasons to establish the SMD was the processing of health data to protect the vital interests of the data subject. In principle, the processing of health data is prohibited, but the consent of the data subject is one of the exceptions allowing for such processing.
The EDPS considers that this exception applies to the SMD: the health data processed in that context is provided by the data subjects on a voluntary basis by means of a collection form, which explicitly notes that there is no obligation to provide any such information. In his Opinion, the EDPS also notes the importance of keeping the health data up to date and accurate
Opinion of 15 May 2012 on the notification for prior checking concerning the case ‘Register of telephone calls (mobile telephony)’, European Investment Bank (Case 2009-0704)
EDPS opinion of 11 May 2012 on the notification for prior-checking concerning selection procedure for the Fusion for Energy (F4E) studentships scheme and management of the scheme (Case 2012-246)
Opinion of 11 May 2012 on the notification for prior checking concerning grant award and management procedures, Education Audiovisual and Culture Executive Agency (Case 2011-1083)