Article 36 GDPR

← Article 36 - Prior consultation →
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 36 - Prior consultation

1. The controller shall consult the supervisory authority prior to processing where a data protection impact assessment under Article 35 indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk.

2. Where the supervisory authority is of the opinion that the intended processing referred to in paragraph 1 would infringe this Regulation, in particular where the controller has insufficiently identified or mitigated the risk, the supervisory authority shall, within period of up to eight weeks of receipt of the request for consultation, provide written advice to the controller and, where applicable to the processor, and may use any of its powers referred to in Article 58. That period may be extended by six weeks, taking into account the complexity of the intended processing. The supervisory authority shall inform the controller and, where applicable, the processor, of any such extension within one month of receipt of the request for consultation together with the reasons for the delay. Those periods may be suspended until the supervisory authority has obtained information it has requested for the purposes of the consultation.

3. When consulting the supervisory authority pursuant to paragraph 1, the controller shall provide the supervisory authority with:

(a) where applicable, the respective responsibilities of the controller, joint controllers and processors involved in the processing, in particular for processing within a group of undertakings;

(b) the purposes and means of the intended processing;

(c) the measures and safeguards provided to protect the rights and freedoms of data subjects pursuant to this Regulation;

(d) where applicable, the contact details of the data protection officer;

(e) the data protection impact assessment provided for in Article 35; and

(f) any other information requested by the supervisory authority.

4. Member States shall consult the supervisory authority during the preparation of a proposal for a legislative measure to be adopted by a national parliament, or of a regulatory measure based on such a legislative measure, which relates to processing.

5. Notwithstanding paragraph 1, Member State law may require controllers to consult with, and obtain prior authorisation from, the supervisory authority in relation to processing by a controller for the performance of a task carried out by the controller in the public interest, including processing in relation to social protection and public health.

Relevant Recitals

Recital 84: Data Protection Impact Assessment

In order to enhance compliance with this Regulation where processing operations are likely to result in a high risk to the rights and freedoms of natural persons, the controller should be responsible for the carrying-out of a data protection impact assessment to evaluate, in particular, the origin, nature, particularity and severity of that risk. The outcome of the assessment should be taken into account when determining the appropriate measures to be taken in order to demonstrate that the processing of personal data complies with this Regulation. Where a data-protection impact assessment indicates that processing operations involve a high risk which the controller cannot mitigate by appropriate measures in terms of available technology and costs of implementation, a consultation of the supervisory authority should take place prior to the processing.

Recital 89: Abolishment of Indiscriminate General Notification

Directive 95/46/EC provided for a general obligation to notify the processing of personal data to the supervisory authorities. While that obligation produces administrative and financial burdens, it did not in all cases contribute to improving the protection of personal data. Such indiscriminate general notification obligations should therefore be abolished, and replaced by effective procedures and mechanisms which focus instead on those types of processing operations which are likely to result in a high risk to the rights and freedoms of natural persons by virtue of their nature, scope, context and purposes. Such types of processing operations may be those which in, particular, involve using new technologies, or are of a new kind and where no data protection impact assessment has been carried out before by the controller, or where they become necessary in the light of the time that has elapsed since the initial processing.

Recital 94: Consultation of the Supervisory Authority in Case of High Risk

Where a data protection impact assessment indicates that the processing would, in the absence of safeguards, security measures and mechanisms to mitigate the risk, result in a high risk to the rights and freedoms of natural persons and the controller is of the opinion that the risk cannot be mitigated by reasonable means in terms of available technologies and costs of implementation, the supervisory authority should be consulted prior to the start of processing activities. Such high risk is likely to result from certain types of processing and the extent and frequency of processing, which may result also in a realisation of damage or interference with the rights and freedoms of the natural person. The supervisory authority should respond to the request for consultation within a specified period. However, the absence of a reaction of the supervisory authority within that period should be without prejudice to any intervention of the supervisory authority in accordance with its tasks and powers laid down in this Regulation, including the power to prohibit processing operations. As part of that consultation process, the outcome of a data protection impact assessment carried out with regard to the processing at issue may be submitted to the supervisory authority, in particular the measures envisaged to mitigate the risk to the rights and freedoms of natural persons.

Recital 95: Assistance by the Processor

The processor should assist the controller, where necessary and upon request, in ensuring compliance with the obligations deriving from the carrying out of data protection impact assessments and from prior consultation of the supervisory authority.

Recital 96: Consultation of the Supervisory Authority in Case of Legislative or Regulatory Measures

A consultation of the supervisory authority should also take place in the course of the preparation of a legislative or regulatory measure which provides for the processing of personal data, in order to ensure compliance of the intended processing with this Regulation and in particular to mitigate the risk involved for the data subject.

Commentary

Directive 95/46/EC (the DPD) imposed a general obligation to notify the Data Protection Authority (DPA) of processing operation involving personal data. The rationale behind the provision was that the DPAs would conduct an assessment prior to the start of the processing operation and thereby manage certain potentially high risks. However, this general notification obligation did not always lead to a higher level of protection of personal data,  and instead produced significant administrative and financial burdens.

For these reasons, paragraph 1 of Article 36 GDPR restricts the notification obligation only to those processing operations which, following the Data Protection Impact Assessment (DPIA) referred to in Article 35 GDPR, continue to present high risks for the data subject after the risk mitigation measures considered reasonable by the controller were applied. In such cases, in accordance with paragraph 2, the DPA must provide written guidance on how to resolve the issue, if necessary by exercising the intervention powers provided under Article 58 of the GDPR. The consultation procedure must be carried out promptly, as stipulated by the legislator's specified timelines. Paragraph 3 clarifies the elements that the controller must provide when consulting the supervisory authority. These include the roles assigned to any joint controllers or processors, the purposes and methods of the processing, measures taken to protect the rights and freedoms of data subjects, the DPIA as referred to in Article 35, as well as any other information requested by the DPA. Paragraph 4 imposes on Member States an obligation to consult the supervisory authority when adopting legislative measures involving the processing of personal data or a regulatory measure based on the law. Finally, paragraph 5 allows Member States to subject certain controllers to prior authorization, irrespective of the requirements of paragraph 1.

(1) Conditions triggering the prior consultation

Article 36(1) GDPR  establishes an obligation for the controller to consult the DPA if the DPIA “indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk.” The wording here is clearly problematic and has led to multiple interpretations by different commentators. As Kelleher & Murray have noted, if interpreted literally (and in isolation) this provision seems to imply that the consultation should always take place whenever a high risk is indicated by the DPIA, irrespective of the measures and safeguards incorporated by the controller to mitigate these risks in this assessment (ie. in their “absence”). For example, Rucker & Kugler take this literal approach, affirming that “[t]his means that the consultation obligation applies even if the controller has taken sufficient risk mitigation measures.” On the other hand, others such as Alvarez Rigaudias & Spina have interpreted that the prior consultation is only required when the high risk “cannot be mitigated through appropriate measures.”

Regardless of the interpretation chosen, this part of the provision seems to be structurally flawed. As a matter of fact, either the controller is certain about the fact that the processing entails high risks that cannot be mitigated by measures they are willing to adopt, or they have doubts about it. In the first case - the one which seems to be endorsed by the wording of Article 36(1) - the controller should simply avoid to undertake the processing. It is not clear how an advice from a supervisory authority, which has arguably a higher standard of protection of fundamental rights, could change this assessment. The second case would make more sense legally and logically, but it seems to be contradicted by the explicit wording of paragraph 1, which implies that a DPIA gave negative result.

Recital 94 sheds some light on this provision, if only by essentially contradicting it, as Kelleher & Murray also note. According to this Recital, what actually triggers the consultation is a situation where a DPIA indicates that without the adoption of mitigating measures the processing would result in a high risk “and the controller is of the opinion that the risk cannot be mitigated by reasonable means in terms of available technologies and costs of implementation.” The Article 29 Working Party (WP29) further elaborates on this point, clarifying that “[w]henever the data controller cannot find sufficient measures to reduce the risks to an acceptable level (i.e. the residual risks are still high), consultation with the supervisory authority is required.” Therefore, there are essentially two conditions for the application of the rules. First, the processing must present a high risk to the rights and freedoms of the data subject as defined in Articles 35(1), (3) and (4) GDPR. Second, after a DPIA has been carried out, the controller cannot find reasonable and sufficient  mitigating measures  to bring the risk to an acceptable level. It may of course be the case that, from a technical point of view, no containment measures exist. However, it may also happen that some measures exist but the controller decides not to adopt them because, say, they are too expensive. In both cases, the prior consultation procedure is triggered and the DPA shall provide an advice. In addition, the DPA may adopt further measures under Article 58 GDPR, such as the prohibition of the processing. In this case, that may be understood as a second, merely potential phase, the prior consultation procedure de facto works as an authorisation.

Under Article 36(1), the controller needs to consult the DPA after having conducted a DPIA but prior to processing. However, there can be exceptional cases when a controller needs to consult the DPA after the start of the processing operation. Such a situation could occur when technical or organizational changes alter the risk assessment and lead to residual risks which cannot be mitigated by the controller.

(2) Procedural aspects

According to Article 36(2) GDPR, where the DPA is of the opinion that the intended processing referred to in paragraph 1 would infringe the GDPR, in particular where the controller has insufficiently identified or mitigated the risk, the DPA has to provide written advice to the controller within eight weeks, which can be extended by another six weeks if the processing operation is especially complex.

When intended processing infringes this Regulation

In application of paragraph 1, the obligation of prior consultation is triggered when there is a remaining risk after the implementation of measures (as mentioned above). However, the analysis conducted by the DPA is not limited to assessing only the aspect of risk. On the contrary, the authority must ensure that the indicated processing is fully compliant with the entire GDPR. This means that the scope of assessment extends to compliance with the processing principles outlined in Article 5 and any other specific requirements imposed by the Regulation. These include transparency obligations (Articles 13 and 14), the ability to exercise data subject rights (Articles 15-22), and any other elements mandated by the GDPR. With that being said, particular focus should be placed on evaluating the adequacy of risk identification and mitigation measures. In this context, the DPA must look at the latest available technologies that would help mitigate the risks. In addition, the DPA would need to look at the broader societal context of the processing operation and decide whether the potentially high risks it entails are proportionate even  when appropriate (even if not sufficient) mitigation measures have been adopted, or according to the interests at stake (for e.g. an underlying public or private interest, and no objective possibility of mitigation).

The supervisory authority provides written advice

The use of a written form for the DPA's advice allows for later verification of the complete implementation by the data controller, ensuring compliance. A contested point about the nature of the consultation procedure is whether the "advice" of the DPA is indeed merely an advice, or whether it can be seen as an approval on moving forward with the processing operation. The use of the term "advice", however, leaves little doubt in this respect. Therefore, although the submission of the consultation must be carried out before the processing starts, it does not actually prevent the controller from carrying out the processing despite the high risks involved. The controller is free to ignore  the advice received in the consultation, but assumes all responsibility if the DPA subsequently decides to sanction it for an eventual violation related to the processing it was advised on. However, the practical relevance of the matter is limited. Under Article 36(2) GDPR, the DPA may, in fact, exercise any power provided under Article 58 in addition to providing advice. This includes the possibility of imposing measures such as blocking processing activities in the case of particularly significant violations. Therefore, the practical enforceability of the advice depends on any additional actions that the authority decides to take.

Within a period of up to eight weeks

The DPA shall respond to the consultation within an eight-week period. Such timeframe represents a compromise in the consultation process. On one hand, the supervisory authority needs a certain amount of time to make its assessment. On the other hand, the data controller has an interest in receiving a prompt response, as delays can have economic implications. The supervisory authority may be granted a six-week extension if the activities are particularly complex, which can often be the case when new technologies are involved. The extension must be explained within one month. These deadlines may be suspended until the supervisory authority has obtained all the necessary information it requested.

(3) Information to be provided to the DPA

Under Article 36(3) GDPR, the controller shall provide the DPA with a range of information, including a description of: the responsibilities of the controller, joint controllers and processors involved in the processing, in particular for processing within a group of undertakings (Article 36(3)(a) GDPR); the purposes and means of the intended processing (Article 36(3)(b) GDPR); the measures and safeguards provided to protect the rights and freedoms of data subjects, including all technical, organisational or legal safeguards that mitigate the risks of processing (Article 36(3)(c) GDPR); the contact details of the Data Protection Officer (DPO) (Article 36(3)(d) GDPR); a copy of the DPIA (Article 36(3)(e) GDPR) as well as any other information requested by the DPA (Article 36(3)(f) GDPR).

(4) Member state's prior consultation obligation

When preparing a proposal for primary or secondary legislation under national law related to processing, Member States should also carry out a prior consultation process with the DPA. However, this procedure is different in nature and scope than the one in Article 36(1) GDPR, since it involves the law maker and not controllers, and it could be related to processing operations which do not necessarily result in high risks for data subjects’ rights and freedoms. As a matter of fact, unlike paragraph 1, the text of the provision does not mention any "high risk" for the rights and freedoms of data subjects as a requirement for this consultation obligation. Furthermore, from a procedural perspective, it is not subject to the same deadline of Article 36(1) GDPR, and it is still disputed whether the outcome of the procedure rather resembles that of Article 58(3)(a) GDPR or Article 58(3)(b) GDPR.

(5) Member state law may provide for stricter requirements

Unlike the consultation process under Article 36(1) GDPR, this provision establishes that Member State law may require controllers to seek not only advice, but also a prior authorisation from the DPA, in order to carry out certain types of processing related performing tasks in the public interest.

Decisions

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