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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04/04/2007
4
Apr
2007

Cross-border cooperation (Prüm Treaty)

Opinion on the initiative of 15 Member States with a view to adopting a Council Decision on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, OJ C 169, 21.07.2007, p. 2

Initiative published in OJ C 71, 28.03.2007, p. 35 PDF icon
15/05/2006
15
May
2006

Maintenance obligations

Opinion on the Proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (COM (2005)649 final), OJ C 242, 7.10.2006, p. 20

19/12/2005
19
Dec
2005

Data protection in the third pillar

Opinion on the Proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters (COM (2005)475 final), OJ C 47, 25.02.2006, p. 27

26/09/2005
26
Sep
2005

Data retention

Opinion on the Proposal for a Directive of the European Parliament and of the Council on the retention of data processed in connection with the provision of public electronic communication services and amending Directive 2002/58/EC (COM (2005)438 final), OJ C 298, 29.11.2005, p. 1

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