Article 87 GDPR

← Article 87 - Processing of the national identification number →
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 87 - Processing of the national identification number

Member States may further determine the specific conditions for the processing of a national identification number or any other identifier of general application. In that case the national identification number or any other identifier of general application shall be used only under appropriate safeguards for the rights and freedoms of the data subject pursuant to this Regulation.

Commentary

National identification numbers (NIN) or identifiers of general application as understood in Article 87 GDPR are numbers used by public authorities for identifying a particular person, so that public services might be provided to that person while also respecting their right to privacy. Member States have either adopted a system organised around a unique identifier, or around multiple identifiers for each citizen. Among the various identifiers of general application which may exist, one may for example refer to national registration numbers, national tax identifiers, ID or passport numbers, as well as social security numbers.

NIN and other identifiers of general application provide many advantages. For example, they may facilitate the processing of personal data for the public administration. Although they are most commonly used by public actors, such as social security institutions or tax authorities, they can also in some instances be used by private actors, such as insurance companies, banks, or private employers, either to provide services or to prevent fraud (e.g. money laundering). The risks pertaining to the use of these identifiers can nevertheless be significant. If processed in an unsecured manner, they can notably lead to identity theft.

The complexity and sensitivity of the issue, which is linked to that of state sovereignty, has led the EU legislator not to fully harmonise these rules under the GDPR. Since there are no specific rules in this respect at the EU level, it is up to each Member State to determine the conditions under which these identifiers can be processed, beyond the general rules and principles set out in the GDPR.

NIN or other identifiers of general application are not ipso facto characterised as a special category of data in the sense of Article 9 GDPR. However, each Member State has the possibility at the national level to characterise such identifiers as sensitive personal data, and to impose additional conditions on controllers or processors that process them. This was already the case under Article 8(7) of the DPD, the precursor of Article 87 GDPR. In many Member States, the processing of NIN and other identifiers of general application is therefore more strictly regulated, as well as usually limited to specific categories of actors for specific purposes.

Article 87 GDPR further provides that if a Member State decides to adopt specific measures regarding the processing of identifiers, it also has to implement appropriate safeguards to ensure the protection of the rights and freedoms of citizens. Article 87 GDPR nonetheless does not specify which additional safeguards should be implemented, once again leaving Member States with a broad margin of discretion in this respect.

In line with this provision, Member States around the EU have adopted different approaches regarding the processing of NIN and other identifiers of general application. For instance, Belgium adopted a specific law in this respect decades ago, and it has been amended and completed over time by several royal decrees. Similar laws have been adopted in Austria, Finland, France, the Netherlands, or Portugal (to name a few). Such provisions establish which actors can process national registration numbers, as well as the conditions for such processing to take place.