European Data Protection Supervisor
European Data Protection Supervisor

Necessity & Proportionality

Necessity & Proportionality

Necessity is a fundamental principle when assessing the restriction of fundamental rights, such as the right to the protection of personal data. According to case-law, because of the role the processing of personal data entails for a series of fundamental rights, the limiting of the fundamental right to the protection of personal data must be strictly necessary.

Necessity shall be justified on the basis of objective evidence and is the first step before assessing the proportionality of the limitation.  Necessity is also fundamental when assessing the lawfulness of the processing of personal data. The processing operations, the categories of data processed and the duration the data are kept shall be necessary for the purpose of the processing.

 

Proportionality is a general principle of EU law. It restricts authorities in the exercise of their powers by requiring them to strike a balance between the means used and the intended aim. In the context of fundamental rights, such as the right to the protection of personal data, proportionality is key for any limitation on these rights.

More specifically, proportionality requires that advantages due to limiting the right are not outweighed by the disadvantages to exercise the right.  In other words, the limitation on the right must be justified. Safeguards accompanying a measure can support the justification of a measure.  A pre-condition is that the measure is adequate to achieve the envisaged objective. In addition, when assessing the processing of personal data, proportionality requires that only that personal data which is adequate and relevant for the purposes of the processing is collected and processed.

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12/04/2017
12
Apr
2017

Privacy-friendly policymaking made easier: EDPS issues the necessity toolkit

As part of our commitment to facilitating responsible and informed policymaking, the EDPS has published a necessity toolkit. The toolkit is designed to help policymakers identify the impact of new laws on the fundamental right to data protection and determine the cases in which the limitation of this right is truly necessary.

11/04/2017
11
Apr
2017

Necessity Toolkit

Necessity toolkit on assessing the necessity of measures that limit the fundamental right to the protection of personal data

21/02/2017
21
Feb
2017

Controls on cash entering or leaving the union

EDPS Comments on the Proposed Regulation on controls on cash entering or leaving the union

15/02/2017
15
Feb
2017

Ex-ante product quality audits - EUIPO

Prior checking Opinion concerning ex-ante product quality audits (Case 2016-0477)

Organisations such as EUIPO ensure the quality of their output in different ways. One such way is checking the quality of decisions before it leaves the organization (ex-ante), recording the error rate and trends in the type and category of errors - and using a database to record this monitoring process.
As staff members remain identifiable in the process and are given feedback at individual level on the basis of this processing operation, this might lead to implications for their performance evaluation(on such processing operations, see EDPS Guidelines in the area of staff evaluation ). This is why the organization needs to comprehensively inform those concerned, grant all data subjects’ rights and ensure the accuracy of the data processed.

12/12/2016
12
Dec
2016

Passenger ship safety regulatory framework

EDPS formal comments on the revision of passenger ship safety regulatory framework with regard to the registration of passengers and crew on board

21/09/2016
21
Sep
2016

Common European Asylum System

EDPS Opinion on the First reform package on the Common European Asylum System (Eurodac, EASO and Dublin regulations)

21/09/2016
21
Sep
2016

EU Smart Borders Package

EDPS Opinion on the Second EU Smart Borders Package, Recommendations on the revised Proposal to establish an Entry/Exit System

16/06/2016
16
Jun
2016

Necessity

Developing a 'toolkit' for assessing the necessity of measures that interfere with fundamental rights

24/09/2015
24
Sep
2015

Passenger Name Record

Second Opinion on the Proposal for a Directive of the European Parliament and of the Council on the use of Passenger Name Record data for the prevention, detection, investigation and prosecution of terrorist offences and serious crime

03/07/2015
3
Jul
2015

Risk Analysis - Frontex

Opinion on a notification for prior checking received from the Data Protection Officer of Frontex concerning the Processing of Personal Data for Risk Analysis (PeDRA) (Case 2015-0346)

Update of the notification for prior checking opinion received from the Data Protection Office of Frontex PDF icon
23/07/2014
23
Jul
2014

Single-member private limited liability companies

Opinion on the Commission Proposal for a Directive of the European Parliament and of the Council on single-member private limited liability companies

22/07/2014
22
Jul
2014

Early Warning System (EWS) - REA

Opinion on a notification for Prior Checking received from the Data Protection Officer of the Research Executive Agency regarding the processing operation on personal data concerning the "Early Warning System (EWS) at the Research Executive Agency" (Case 2012-0981)

17/04/2014
17
Apr
2014

European Terrorist Finance Tracking System (TFTS)

EDPS comments on the Communication from the Commission to the European Parliament and the Council on a European Terrorist Finance Tracking System (TFTS) and on the Commission Staff Working Document - Impact Assessment accompanying the Communication from the Commission to the European Parliament and the Council on a European Terrorist Finance Tracking System (TFTS)

09/09/2013
9
Sep
2013

Secretary General’s special files - EIB

Letter concerning the need to submit the EIB Secretary General’s special files for prior checking (Case 2013-0651)

18/07/2013
18
Jul
2013

Entry/Exit System (EES) and Registered Traveller Programme (RTP)

Opinion on the Proposals for a Regulation establishing an Entry/Exit System (EES) and a Regulation establishing a Registered Traveller Programme (RTP)

30/05/2013
30
May
2013

Transparency of measures regulating the prices of medicinal products

Opinion on the amended Commission proposal for a Directive on the transparency of measures regulating the prices of medicinal products for human use and their inclusion in the scope of public health insurance systems

17/04/2013
17
Apr
2013

Use of data collected for a specific purpose to a different purpose - EIB

Answer to a consultation under Article 46(d) on the use of data collected for a specific purpose to a different purpose (Case 2013-0279)

27/03/2013
27
Mar
2013

Insolvency proceedings

Opinion on the Commission proposal for a Regulation amending Council Regulation (EC) No 1346/2000 on insolvency proceedings

24/04/2012
24
Apr
2012

Anti-Counterfeiting Trade Agreement (ACTA)

Opinion on the proposal for a Council Decision on the Conclusion of the Anti-Counterfeiting Trade Agreement between the European Union and its Member States, Australia, Canada, Japan, the Republic of Korea, the United Mexican States, the Kingdom of Morocco, New Zealand, the Republic of Singapore, the Swiss Confederation and the United States of America

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