Article 91 GDPR: Difference between revisions

Revision as of 17:05, 12 August 2021

← Article 91 - Existing data protection rules of churches and religious associations →

Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 91 - Existing data protection rules of churches and religious associations

1. Where in a Member State, churches and religious associations or communities apply, at the time of entry into force of this Regulation, comprehensive rules relating to the protection of natural persons with regard to processing, such rules may continue to apply, provided that they are brought into line with this Regulation.

2. Churches and religious associations which apply comprehensive rules in accordance with paragraph 1 of this Article shall be subject to the supervision of an independent supervisory authority, which may be specific, provided that it fulfils the conditions laid down in Chapter VI of this Regulation.

Relevant Recitals

54

55

165

171

Commentary

Article 91 provides for a limited derogation from the requirements of the GDPR subject to stringent conditions. In particular, the derogation applies only if the entities that intend to benefit from it qualify as “churches and religious associations or communities” which had already been applying comprehensive data protection rules prior to the entry into force of the GDPR and that such rules are brought in line with the GDPR itself.

(1) Conditions for the derogation to apply

Churches and religious associations or communities may continue to apply pre-existing and comprehensive data protection rules under the following conditions.

Churches and religious associations or communities

The controller must fulfil the definition of “churches and religious associations or communities”. The GDPR does not define the concepts. However, the European framework seems to embrace a broad definition of them. For instance, under Article 10(1)(b) of Directive 2011/95/EU: “The concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief and as a consequence of religious organisation”.^[1]

May continue to apply

This is the derogation clause. If an entity qualifies as church, religious association or community, the derogation may apply provided that the conditions set out below are met. Tosoni, and we agree with him, argues that “Article 91 arguably allows the pre-existing data protection rules of religious organisations to operate as a lex specialis where such organisations process data for strictly religious purposes”.^[2]

Pre-existing data protection rules

The data protection rules must have existed prior to the entry into force of the GDPR (“apply, at the time of entry into force of this Regulation”). This is a rule whose logic escapes us, as it seems to unreasonably restrict the beneficiaries of the exemption to churches and other groups that already applied their own rules in the past, thereby limiting this freedom for groups wishing to take the same step in the future.

Comprehensive data protection rules

The rules in question must then be “comprehensive”. The GDPR does not provide clear indications in this respect. In any case, Tosoni again, with an absolutely correct quote, states that, in light of the case-law, the level of “comprehensiveness” must be reasonably high. In fact, in the case ECJ, C-223/98, Adidas AG, 14.10.1999, the Advocate General noted that, even after the adoption of the DPD, “[t]he Community institutions have not introduced comprehensive rules governing the protection of personal data”.^[3] If, therefore, the special rules do not reach this level of completeness, the GDPR will return fully applicable.

Provided that they are brought into line with this Regulation

Finally, the church or other religious group must update the existing framework and bring into line with the GDPR. The adaptation must be substantial and lead to a basic equivalence in relation to all aspects of the Regulation. There may still be some necessary and minor divergences from the Regulation (ultimately, preserving different beliefs and traditions is the final goal of Article 91). Such discrepancies, however, must be strictly necessary to achieve the ultimate aim of the provision, which is to protect the religious freedom of the persons concerned.

(2) DPA supervision

Religious organisations that fulfil the requirements listed in Paragraph 1 and therefore continue to apply their special rules must be subject to the supervision of an independent supervisory authority. It can either be a new authority or the one responsible for monitoring the application of the GDPR. In any case, all the conditions specified in Chapter VI GDPR must be met.

Decisions

→ You can find all related decisions in Category:Article 91 GDPR

References

↑ In this sense Tosoni, who adds how “in principle, the concepts of' churches and religious associations or communities should also be interpreted broadly. For instance, in the Jehovah, Witnesses case, the CJEU seems to (implicitly) recognise that the Jehovas Witnesses community should be considered a religious association or community for the purposes of Article 17 TFEU and the DPD, and the Advocate General's Opinion in the same case suggests that this may be true also under Article 91 GDPR”. See, Tosoni, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 91 GDPR, p. 1263 (Oxford University Press 2020).
↑ Tosoni, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 91 GDPR, p. 1263 (Oxford University Press 2020).
↑ Tosoni, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 91 GDPR, p. 1263 (Oxford University Press 2020).

Artikel 91. Datenschutz in Kirchen und Religionsgemeinschaften: Blog on data protection in religious organizations (in German)
List of laws and specific supervisory authorities according to Art. 91 GDPR (in German)

[1] In this sense Tosoni, who adds how “in principle, the concepts of' churches and religious associations or communities should also be interpreted broadly. For instance, in the Jehovah, Witnesses case, the CJEU seems to (implicitly) recognise that the Jehovas Witnesses community should be considered a religious association or community for the purposes of Article 17 TFEU and the DPD, and the Advocate General's Opinion in the same case suggests that this may be true also under Article 91 GDPR”. See, Tosoni, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 91 GDPR, p. 1263 (Oxford University Press 2020).

[2] Tosoni, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 91 GDPR, p. 1263 (Oxford University Press 2020).

[3] Tosoni, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 91 GDPR, p. 1263 (Oxford University Press 2020).

[1]

[2]

[3]

@@ Line 192: / Line 192: @@
 == Relevant Recitals==
-'''Recital 165:''' No Prejudice of the Status of Churches and Religious Associations
 == Commentary ==
-''You can help us fill this section!''
+Article 91 provides for a limited derogation from the requirements of the GDPR subject to stringent conditions. In particular, the derogation applies only if the entities that intend to benefit from it qualify as “churches and religious associations or communities” which had already been applying comprehensive data protection rules prior to the entry into force of the GDPR and that such rules are brought in line with the GDPR itself.
+=== (1) Conditions for the derogation to apply ===
+Churches and religious associations or communities may continue to apply pre-existing and comprehensive data protection rules under the following conditions.
+==== Churches and religious associations or communities ====
+The controller must fulfil the definition of “churches and religious associations or communities”. The GDPR does not define the concepts. However, the European framework seems to embrace a broad definition of them. For instance, under Article 10(1)(b) of Directive 2011/95/EU: “''The concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief and as a consequence of religious organisation''”.<ref>In this sense Tosoni, who adds how “''in principle, the concepts of' churches and religious associations or communities should also be interpreted broadly. For instance, in the Jehovah, Witnesses case, the CJEU seems to (implicitly) recognise that the Jehovas Witnesses community should be considered a religious association or community for the purposes of Article 17 TFEU and the DPD, and the Advocate General's Opinion in the same case suggests that this may be true also under Article 91 GDPR''”. See, ''Tosoni'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 91 GDPR, p. 1263 (Oxford University Press 2020).</ref>
+==== May continue to apply ====
+This is the derogation clause. If an entity qualifies as church, religious association or community, the derogation may apply provided that the conditions set out below are met. Tosoni, and we agree with him, argues that “''Article 91 arguably allows the pre-existing data protection rules of religious organisations to operate as a lex specialis where such organisations process data for strictly religious purposes''”.<ref>''Tosoni'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 91 GDPR, p. 1263 (Oxford University Press 2020).</ref>
+==== Pre-existing data protection rules ====
+The data protection rules must have existed prior to the entry into force of the GDPR (“''apply, at the time of entry into force of this Regulation''”). This is a rule whose logic escapes us, as it seems to unreasonably restrict the beneficiaries of the exemption to churches and other groups that already applied their own rules in the past, thereby limiting this freedom for groups wishing to take the same step in the future.
+==== Comprehensive data protection rules ====
+The rules in question must then be “''comprehensive''”. The GDPR does not provide clear indications in this respect. In any case, Tosoni again, with an absolutely correct quote, states that, in light of the case-law, the level of “''comprehensiveness''” must be reasonably high. In fact, in the case ECJ, C-223/98, Adidas AG, 14.10.1999, the Advocate General noted that, even after the adoption of the DPD, “''[t]he Community institutions have not introduced comprehensive rules governing the protection of personal data''”.<ref>''Tosoni'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 91 GDPR, p. 1263 (Oxford University Press 2020).</ref> If, therefore, the special rules do not reach this level of completeness, the GDPR will return fully applicable.
+==== Provided that they are brought into line with this Regulation ====
+Finally, the church or other religious group must update the existing framework and bring into line with the GDPR. The adaptation must be substantial and lead to a basic equivalence in relation to all aspects of the Regulation. There may still be some necessary and minor divergences from the Regulation (ultimately, preserving different beliefs and traditions is the final goal of Article 91). Such discrepancies, however, must be strictly necessary to achieve the ultimate aim of the provision, which is to protect the religious freedom of the persons concerned.
+=== (2) DPA supervision ===
+Religious organisations that fulfil the requirements listed in Paragraph 1 and therefore continue to apply their special rules must be subject to the supervision of an independent supervisory authority. It can either be a new authority or the one responsible for monitoring the application of the GDPR. In any case, all the conditions specified in Chapter VI GDPR must be met.
 == Decisions ==