Banner1.png
Banner3.png

Article 2 GDPR

From GDPRhub
Article 2: Material scope
Gdpricon.png
Chapter 10: Delegated and implementing acts

Legal Text[edit | edit source]

Article 2 - Material scope

1. This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which from part of a filing system or are intended to form part of a filing system.

2. This Regulation does not apply to the processing of personal data:

(a) in the course of an activity which falls outside the scope of Union law;
(b) by the Member States when carrying out activities which fall within the scope of Chapter 2 of Title V of the TEU;
(c) by a natural person in the course of a purely personal or household activity;
(d) by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.

3. For the processing of personal data by the Union institutions, bodies, offices and agencies, Regulation (EC) No 45/2001 applies. Regulation (EC) No 45/2001 and other Union legal acts applicable to such processing of personal data shall be adapted to the principles and rules of this Regulation in accordance with Article 98.

4. This Regulation shall be without prejudice to the application of Directive 2000/31/EC, in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive.

Relevant Recitals[edit | edit source]

Recital 13: Harmonisation of Protection and Advantages for Small and Medium-Sized Enterprises
In order to ensure a consistent level of protection for natural persons throughout the Union and to prevent divergences hampering the free movement of personal data within the internal market, a Regulation is necessary to provide legal certainty and transparency for economic operators, including micro, small and medium-sized enterprises, and to provide natural persons in all Member States with the same level of legally enforceable rights and obligations and responsibilities for controllers and processors, to ensure consistent monitoring of the processing of personal data, and equivalent sanctions in all Member States as well as effective cooperation between the supervisory authorities of different Member States. The proper functioning of the internal market requires that the free movement of personal data within the Union is not restricted or prohibited for reasons connected with the protection of natural persons with regard to the processing of personal data. To take account of the specific situation of micro, small and medium-sized enterprises, this Regulation includes a derogation for organisations with fewer than 250 employees with regard to record-keeping. In addition, the Union institutions and bodies, and Member States and their supervisory authorities, are encouraged to take account of the specific needs of micro, small and medium-sized enterprises in the application of this Regulation. The notion of micro, small and medium-sized enterprises should draw from Article 2 of the Annex to Commission Recommendation 2003/361/EC.

Recital 14: Not Applicable to Legal Persons
The protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence, in relation to the processing of their personal data. This Regulation does not cover the processing of personal data which concerns legal persons and in particular undertakings established as legal persons, including the name and the form of the legal person and the contact details of the legal person.

Recital 15: Technologically Neutral Protection
In order to prevent creating a serious risk of circumvention, the protection of natural persons should be technologically neutral and should not depend on the techniques used. The protection of natural persons should apply to the processing of personal data by automated means, as well as to manual processing, if the personal data are contained or are intended to be contained in a filing system. Files or sets of files, as well as their cover pages, which are not structured according to specific criteria should not fall within the scope of this Regulation.

Recital 16: Not Applicable to National Security and Common Foreign and Security Policy Activities
This Regulation does not apply to issues of protection of fundamental rights and freedoms or the free flow of personal data related to activities which fall outside the scope of Union law, such as activities concerning national security. This Regulation does not apply to the processing of personal data by the Member States when carrying out activities in relation to the common foreign and security policy of the Union.

Recital 17: Adaptation of Regulation (EC) No 45/2001
Regulation (EC) No 45/2001 of the European Parliament and of the Council applies to the processing of personal data by the Union institutions, bodies, offices and agencies. Regulation (EC) No 45/2001 and other Union legal acts applicable to such processing of personal data should be adapted to the principles and rules established in this Regulation and applied in the light of this Regulation. In order to provide a strong and coherent data protection framework in the Union, the necessary adaptations of Regulation (EC) No 45/2001 should follow after the adoption of this Regulation, in order to allow application at the same time as this Regulation.

Recital 18: Household Exception
This Regulation does not apply to the processing of personal data by a natural person in the course of a purely personal or household activity and thus with no connection to a professional or commercial activity. Personal or household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities. However, this Regulation applies to controllers or processors which provide the means for processing personal data for such personal or household activities.

Recital 19: Not Applicable to Criminal Prosecution Activities
The protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security and the free movement of such data, is the subject of a specific Union legal act. This Regulation should not, therefore, apply to processing activities for those purposes. However, personal data processed by public authorities under this Regulation should, when used for those purposes, be governed by a more specific Union legal act, namely Directive (EU) 2016/680 of the European Parliament and of the Council. Member States may entrust competent authorities within the meaning of Directive (EU) 2016/680 with tasks which are not necessarily carried out for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and prevention of threats to public security, so that the processing of personal data for those other purposes, in so far as it is within the scope of Union law, falls within the scope of this Regulation. With regard to the processing of personal data by those competent authorities for purposes falling within scope of this Regulation, Member States should be able to maintain or introduce more specific provisions to adapt the application of the rules of this Regulation. Such provisions may determine more precisely specific requirements for the processing of personal data by those competent authorities for those other purposes, taking into account the constitutional, organisational and administrative structure of the respective Member State. When the processing of personal data by private bodies falls within the scope of this Regulation, this Regulation should provide for the possibility for Member States under specific conditions to restrict by law certain obligations and rights when such a restriction constitutes a necessary and proportionate measure in a democratic society to safeguard specific important interests including public security and the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security. This is relevant for instance in the framework of anti-money laundering or the activities of forensic laboratories.

Recital 20: Respect to the Independence of the Judiciary
While this Regulation applies, inter alia, to the activities of courts and other judicial authorities, Union or Member State law could specify the processing operations and processing procedures in relation to the processing of personal data by courts and other judicial authorities. The competence of the supervisory authorities should not cover the processing of personal data when courts are acting in their judicial capacity, in order to safeguard the independence of the judiciary in the performance of its judicial tasks, including decision-making. It should be possible to entrust supervision of such data processing operations to specific bodies within the judicial system of the Member State, which should, in particular ensure compliance with the rules of this Regulation, enhance awareness among members of the judiciary of their obligations under this Regulation and handle complaints in relation to such data processing operations.

Recital 21: Application without Prejudice to the Application of Directive 2000/31/EC
This Regulation is without prejudice to the application of Directive 2000/31/EC of the European Parliament and of the Council, in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive. That Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between Member States.

Recital 27: Not Applicable to Deceased Persons
This Regulation does not apply to the personal data of deceased persons. Member States may provide for rules regarding the processing of personal data of deceased persons.

Commentary[edit | edit source]

Article 2 GDPR sets out the material scope of the GDPR. Paragraph 1 clarifies that the Regulation applies to any processing of personal data by automated means or to the non-automated processing of personal data that is or is intended to be stored in a filing system. Paragraph 2 provides for exceptions that exclude the applicability of the GDPR, such as data processing relating to activities outside the scope of European law or relating to purely personal or domestic activities. Paragraph 3 confirms the validity of sector-specific data protection laws for the processing carried out by European institutions provided that these regulations are brought into compliance with the GDPR pursuant to Article 98 of the same Regulation. Finally, Paragraph 4 clarifies that the rules of Directive 2000/31/EC are not affected by the provisions of the GDPR.

(1) Material Scope[edit | edit source]

The GDPR applies to the processing of personal data by automated means. The expression "automated means" is not defined in the GDPR but, according to the scholars, should be understood broadly and includes all procedures in which at least part of a data processing is carried out automatically using a given program without further human intervention. [1]

The data processing must be fully or partially automated. In any case, there is partial automation when an individual data processing operation is carried out partly manually and partly automatically. This is the case, for example, when personal data is entered manually into a digital database. In addition, partial automation can also be assumed if several data processing operations, some of which are carried out manually and some of which are automated, are sufficiently closely linked in a coherent processing process. [2]

In addition, the GDPR applies to non-automated processing of personal data if the personal data forms part of a filing system, or is intended for this purpose.[3] The concept of "Filing system" is defined in Article 4(6) and Recital 15 GDPR. The GDPR reproduces the definition of ‘filing system’ provided in Article 2(c) Directive 95/46/EC verbatim.[4] The concept of a ‘filing system’ under the Directive 95/46/EC has been addressed by the CJEU in Jehovan todistajat,[5] as well as by various Attorney General opinions.[6]

It is irrelevant which form the personal data takes. Structured as well as unstructured data will fall under the material scope of the GDPR as long as it concerns personal data.

As the material scope of the GDPR concerns the processing of personal data, anonymized data falls outside the GDPR. The question of whether data is “personal” or “anonymous” is a technical and factual question. There is, however, a very high barrier for data to be considered anonymous as the probability of re-identification is normally considered high. Pseudonymised data falls under the GDPR.

(2) Exceptions[edit | edit source]

If the elements in Article 2(1) are fulfilled, the GDPR applies unless the processing falls under one of the exceptions named in Article 2(2)(a)-(d) GDPR.

(a) Activities which Fall Outside the Scope of Union Law[edit | edit source]

The first category of excluded processing relates to processing for activities "which falls outside the scope of Union law". [7]

The wording is not particularly helpful because it is not always simple to clarify what the "scope of Union law" is. In practice, however, the problems of interpretation seem to have a limited impact. One of the competences of the European Union is in fact to establish an internal market in which the free flow of data is guaranteed. It follows that all data processing activities directly or indirectly related to the functioning of the internal market will be considered included in the scope of Union law (and therefore excluded from this exception).

In this perspective, processing activities carried out by individuals and companies will almost always be included in the scope of Union law (in so far they are useful or instrumental to the internal market). The same can be said for activities carried out by public authorities as a consequence of the strong European competences in most states activities.

Consequently, the only case of non-application of EU law seems to be provided for in Article 4(2) TFEU, according to which “national security remains the sole responsibility of the individual Member States”. It follows that all activities related to national security, such as data processing by intelligence services, are excluded from the scope of EU law. Recital 16 confirms this interpretation and adds that the following are also excluded from the scope of the Regulation “the processing of personal data by the Member States when carrying out activities in relation to the common foreign and security policy of the Union” (see letter (b) below).

(b) EU Common Foreign and Security Policy[edit | edit source]

Article 2(2)(b) excludes the applicability of the GDPR for the processing of personal data in the context of the Union’s common foreign and security policy (that is, the scope of Chapter 2 of Title V of the TEU). This field is not entirely deregulated as under Article 39 TEU the Council shall adopt rules on data protection in this fields (these rules have not yet been adopted). In any case, even when the exclusion applies, Articles 7 (protection of family life) and 8 (data protection) of the EU Charter of Fundamental Rights remain applicable. [8]

(c) Processing by a Natural Person in the Course of Purely Personal or Household Activity[edit | edit source]

Processing that falls under the exception of “household activities” are exempt from the GDPR. Only processing by data subjects themselves qualify for the household exemption.

The exemption follows the earlier Directive EC/95/46.

The decision in C-212/13 - Ryneš indicates that the CJEU takes a narrow view of the exemption to household activities. In the case, a camera system installed on a family home for the purposes of protecting the property was not considered to fall under the exception insofar as it also recorded a public space.

(d) Processing by Competent Authorities for the Purposes of the Prevention, Investigation, Detection or Prosecution of Criminal Offences or the Execution of Criminal penalties[edit | edit source]

While the GDPR does not apply to the processing operations mentioned in Article 2(2)(d) GDPR, this does not mean that this area does not enjoy data protection. As seen in CJEU - C-293/12 - Digital Rights Ireland and later the CJEU - Joined Cases of C-203/15 and C-698/15 - Tele2 Sverige, Primary Law still puts limitations on the use of personal data for these purposes.

More importantly, the enactment of Directive (EU) 2016/680 now regulates this area.

(3) Union Institutions[edit | edit source]

Where data is processed by the Union institutions, bodies, offices and agencies, Regulation (EC) No 45/2001 applies. The EUDPR, which revises Regulation (EC) No. 45/2001 to align it with the GDPR, was adopted in October 2018. Chapter IX of the EUDPR outlines general rules on data protection applicable EU law enforcement activities within the scope of Chapter 2 of Title V of the TFEU.

(4) Directive 2000/31/EC[edit | edit source]

The GDPR applies without prejudice to the application of Directive 2000/31/EC (‘the e-Commerce Directive’). Specific reference is made to Articles 12 to15 e-Commerce Directive, which concern the liability of intermediary service providers ("ISP") in situations where they merely transmit information, ‘cache’ information, or merely store information.

Decisions[edit | edit source]

→ You can find all related decisions in Category:Article 2 GDPR

References[edit | edit source]

  1. Baker in Wolff, Brink, BeckOK DatenschutzR, Article 2 GDPR, margin number 2 (Beck 2021, 36th ed.) (accessed 3 September 2021).
  2. Baker in Wolff, Brink, BeckOK DatenschutzR, Article 2 GDPR, margin number 3 (Beck 2021, 36th ed.) (accessed 3 September 2021).
  3. If the data is intended as part of a filing system, but is not processed by automated means, the collection of such data will constitute a processing operation even before it is organized into a filing system.
  4. Kranenborg, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 2 GDPR, p. 67 (Oxford University Press 2020).
  5. Kranenborg, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 2 GDPR, p. 67 (Oxford University Press 2020).
  6. See Opinion of Advocate General Kokott, 8 May 2008, Sautmedia, C‑73/07, margin number 34 (available here https://curia.europa.eu/juris/document/document.jsf;jsessionid=F087BE2C7DF508FA67FED22A4E923E46?text=&docid=67007&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=70631); Opinion of Advocate General Sharpston, 15 October 2009, Commission v Bavarian Lager, C-28/08 P, margin numbers 117-128 (available here https://curia.europa.eu/juris/document/document.jsf?text=&docid=72502&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=70631); Opinion of Advocate General Kokott, 20 July 2017, Nowak, C-434/16, margin number 69 (available here https://curia.europa.eu/juris/document/document.jsf?text=&docid=193042&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=70631); Opinion of Advocate General Mengozzi, 1 February 2018, Jehovan todistajat, C-25/17, margin numbers 53-59 (available here https://curia.europa.eu/juris/document/document.jsf?text=&docid=198949&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=70631).
  7. The competences of the Union are set out in the EU treaties. In particular, Title 1 of the TFEU sets out the exclusive competence of the Union. While the competences of the EU are carefully shared between Member States and the EU, the GDPR simply differentiates between non-Union law and Union law.
  8. In this sense, Baker, in BeckOK DatenschutzR, Article 2 GDPR, margin number 11 (Beck 2020, 36th ed.) (accessed 7 September 2021).