Article 6 GDPR

← Article 6: Lawfulness of processing →
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 6 - Lawfulness of processing

1. Processing shall be lawful only if and to the extent that at least one of the following applies:

(a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes;

(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;

(c) processing is necessary for compliance with a legal obligation to which the controller is subject;

(d) processing is necessary in order to protect the vital interests of the data subject or of another natural person;

(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;

(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.

2. Member States may maintain or introduce more specific provisions to adapt the application of the rules of this Regulation with regard to processing for compliance with points (c) and (e) of paragraph 1 by determining more precisely specific requirements for the processing and other measures to ensure lawful and fair processing including for other specific processing situations as provided for in Chapter IX.

3. The basis for the processing referred to in point (c) and (e) of paragraph 1 shall be laid down by:

(a) Union law; or

(b) Member State law to which the controller is subject.

The purpose of the processing shall be determined in that legal basis or, as regards the processing referred to in point (e) of paragraph 1, shall be necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. That legal basis may contain specific provisions to adapt the application of rules of this Regulation, inter alia: the general conditions governing the lawfulness of processing by the controller; the types of data which are subject to the processing; the data subjects concerned; the entities to, and the purposes for which, the personal data may be disclosed; the purpose limitation; storage periods; and processing operations and processing procedures, including measures to ensure lawful and fair processing such as those for other specific processing situations as provided for in Chapter IX. The Union or the Member State law shall meet an objective of public interest and be proportionate to the legitimate aim pursued.

4. Where the processing for a purpose other than that for which the personal data have been collected is not based on the data subject's consent or on a Union or Member State law which constitutes a necessary and proportionate measure in a democratic society to safeguard the objectives referred to in Article 23(1), the controller shall, in order to ascertain whether processing for another purpose is compatible with the purpose for which the personal data are initially collected, take into account, inter alia:

(a) any link between the purposes for which the personal data have been collected and the purposes of the intended further processing;

(b) the context in which the personal data have been collected, in particular regarding the relationship between data subjects and the controller;

(c) the nature of the personal data, in particular whether special categories of personal data are processed, pursuant to Article 9, or whether personal data related to criminal convictions and offences are processed, pursuant to Article 10;

(d) the possible consequences of the intended further processing for data subjects;

(e) the existence of appropriate safeguards, which may include encryption or pseudonymisation.

Relevant Recitals

Recital 39: Principles of Data Processing

Any processing of personal data should be lawful and fair. It should be transparent to natural persons that personal data concerning them are collected, used, consulted or otherwise processed and to what extent the personal data are or will be processed. The principle of transparency requires that any information and communication relating to the processing of those personal data be easily accessible and easy to understand, and that clear and plain language be used. That principle concerns, in particular, information to the data subjects on the identity of the controller and the purposes of the processing and further information to ensure fair and transparent processing in respect of the natural persons concerned and their right to obtain confirmation and communication of personal data concerning them which are being processed. Natural persons should be made aware of risks, rules, safeguards and rights in relation to the processing of personal data and how to exercise their rights in relation to such processing. In particular, the specific purposes for which personal data are processed should be explicit and legitimate and determined at the time of the collection of the personal data. The personal data should be adequate, relevant and limited to what is necessary for the purposes for which they are processed. This requires, in particular, ensuring that the period for which the personal data are stored is limited to a strict minimum. Personal data should be processed only if the purpose of the processing could not reasonably be fulfilled by other means. In order to ensure that the personal data are not kept longer than necessary, time limits should be established by the controller for erasure or for a periodic review. Every reasonable step should be taken to ensure that personal data which are inaccurate are rectified or deleted. Personal data should be processed in a manner that ensures appropriate security and confidentiality of the personal data, including for preventing unauthorised access to or use of personal data and the equipment used for the processing.

Recital 40: Lawfulness of Data Processing

In order for processing to be lawful, personal data should be processed on the basis of the consent of the data subject concerned or some other legitimate basis, laid down by law, either in this Regulation or in other Union or Member State law as referred to in this Regulation, including the necessity for compliance with the legal obligation to which the controller is subject or the necessity for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract.

Recital 41: Legal Basis or a Legislative Measure

Where this Regulation refers to a legal basis or a legislative measure, this does not necessarily require a legislative act adopted by a parliament, without prejudice to requirements pursuant to the constitutional order of the Member State concerned. However, such a legal basis or legislative measure should be clear and precise and its application should be foreseeable to persons subject to it, in accordance with the case-law of the Court of Justice of the European Union (the ‘Court of Justice’) and the European Court of Human Rights.

Recital 42: Proof and Requirements for Consent

Where processing is based on the data subject's consent, the controller should be able to demonstrate that the data subject has given consent to the processing operation. In particular in the context of a written declaration on another matter, safeguards should ensure that the data subject is aware of the fact that and the extent to which consent is given. In accordance with Council Directive 93/13/EEC a declaration of consent pre-formulated by the controller should be provided in an intelligible and easily accessible form, using clear and plain language and it should not contain unfair terms. For consent to be informed, the data subject should be aware at least of the identity of the controller and the purposes of the processing for which the personal data are intended. Consent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment.

Recital 43: Freely Given Consent

In order to ensure that consent is freely given, consent should not provide a valid legal ground for the processing of personal data in a specific case where there is a clear imbalance between the data subject and the controller, in particular where the controller is a public authority and it is therefore unlikely that consent was freely given in all the circumstances of that specific situation. Consent is presumed not to be freely given if it does not allow separate consent to be given to different personal data processing operations despite it being appropriate in the individual case, or if the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance.

Recital 44: Processing in the Context of a Contract

Processing should be lawful where it is necessary in the context of a contract or the intention to enter into a contract.

Recital 45: Legal Basis in Union or Member State Law

Where processing is carried out in accordance with a legal obligation to which the controller is subject or where processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority, the processing should have a basis in Union or Member State law. This Regulation does not require a specific law for each individual processing. A law as a basis for several processing operations based on a legal obligation to which the controller is subject or where processing is necessary for the performance of a task carried out in the public interest or in the exercise of an official authority may be sufficient. It should also be for Union or Member State law to determine the purpose of processing. Furthermore, that law could specify the general conditions of this Regulation governing the lawfulness of personal data processing, establish specifications for determining the controller, the type of personal data which are subject to the processing, the data subjects concerned, the entities to which the personal data may be disclosed, the purpose limitations, the storage period and other measures to ensure lawful and fair processing. It should also be for Union or Member State law to determine whether the controller performing a task carried out in the public interest or in the exercise of official authority should be a public authority or another natural or legal person governed by public law, or, where it is in the public interest to do so, including for health purposes such as public health and social protection and the management of health care services, by private law, such as a professional association.

Recital 46: Vital Interest of a Natural Person

The processing of personal data should also be regarded to be lawful where it is necessary to protect an interest which is essential for the life of the data subject or that of another natural person. Processing of personal data based on the vital interest of another natural person should in principle take place only where the processing cannot be manifestly based on another legal basis. Some types of processing may serve both important grounds of public interest and the vital interests of the data subject as for instance when processing is necessary for humanitarian purposes, including for monitoring epidemics and their spread or in situations of humanitarian emergencies, in particular in situations of natural and man-made disasters.

Recital 47: Overriding Legitimate Interests

The legitimate interests of a controller, including those of a controller to which the personal data may be disclosed, or of a third party, may provide a legal basis for processing, provided that the interests or the fundamental rights and freedoms of the data subject are not overriding, taking into consideration the reasonable expectations of data subjects based on their relationship with the controller. Such legitimate interest could exist for example where there is a relevant and appropriate relationship between the data subject and the controller in situations such as where the data subject is a client or in the service of the controller. At any rate the existence of a legitimate interest would need careful assessment including whether a data subject can reasonably expect at the time and in the context of the collection of the personal data that processing for that purpose may take place. The interests and fundamental rights of the data subject could in particular override the interest of the data controller where personal data are processed in circumstances where data subjects do not reasonably expect further processing. Given that it is for the legislator to provide by law for the legal basis for public authorities to process personal data, that legal basis should not apply to the processing by public authorities in the performance of their tasks. The processing of personal data strictly necessary for the purposes of preventing fraud also constitutes a legitimate interest of the data controller concerned. The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest.

Recital 48: Data Transfers Within a Group of Undertakings

Controllers that are part of a group of undertakings or institutions affiliated to a central body may have a legitimate interest in transmitting personal data within the group of undertakings for internal administrative purposes, including the processing of clients' or employees' personal data. The general principles for the transfer of personal data, within a group of undertakings, to an undertaking located in a third country remain unaffected.

Recital 49: Network and Information Security as a Legitimate Interest

The processing of personal data to the extent strictly necessary and proportionate for the purposes of ensuring network and information security, i.e. the ability of a network or an information system to resist, at a given level of confidence, accidental events or unlawful or malicious actions that compromise the availability, authenticity, integrity and confidentiality of stored or transmitted personal data, and the security of the related services offered by, or accessible via, those networks and systems, by public authorities, by computer emergency response teams (CERTs), computer security incident response teams (CSIRTs), by providers of electronic communications networks and services and by providers of security technologies and services, constitutes a legitimate interest of the data controller concerned. This could, for example, include preventing unauthorised access to electronic communications networks and malicious code distribution and stopping ‘denial of service’ attacks and damage to computer and electronic communication systems.

Recital 50: Compatible Purpose for Further Processing

The processing of personal data for purposes other than those for which the personal data were initially collected should be allowed only where the processing is compatible with the purposes for which the personal data were initially collected. In such a case, no legal basis separate from that which allowed the collection of the personal data is required. If the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, Union or Member State law may determine and specify the tasks and purposes for which the further processing should be regarded as compatible and lawful. Further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes should be considered to be compatible lawful processing operations. The legal basis provided by Union or Member State law for the processing of personal data may also provide a legal basis for further processing. In order to ascertain whether a purpose of further processing is compatible with the purpose for which the personal data are initially collected, the controller, after having met all the requirements for the lawfulness of the original processing, should take into account, inter alia: any link between those purposes and the purposes of the intended further processing; the context in which the personal data have been collected, in particular the reasonable expectations of data subjects based on their relationship with the controller as to their further use; the nature of the personal data; the consequences of the intended further processing for data subjects; and the existence of appropriate safeguards in both the original and intended further processing operations. Where the data subject has given consent or the processing is based on Union or Member State law which constitutes a necessary and proportionate measure in a democratic society to safeguard, in particular, important objectives of general public interest, the controller should be allowed to further process the personal data irrespective of the compatibility of the purposes. In any case, the application of the principles set out in this Regulation and in particular the information of the data subject on those other purposes and on his or her rights including the right to object, should be ensured. Indicating possible criminal acts or threats to public security by the controller and transmitting the relevant personal data in individual cases or in several cases relating to the same criminal act or threats to public security to a competent authority should be regarded as being in the legitimate interest pursued by the controller. However, such transmission in the legitimate interest of the controller or further processing of personal data should be prohibited if the processing is not compatible with a legal, professional or other binding obligation of secrecy.

Recital 171: Repeal of Directive 95/46/EC and Transition Phase

Directive 95/46/EC should be repealed by this Regulation. Processing already under way on the date of application of this Regulation should be brought into conformity with this Regulation within the period of two years after which this Regulation enters into force. Where processing is based on consent pursuant to Directive 95/46/EC, it is not necessary for the data subject to give his or her consent again if the manner in which the consent has been given is in line with the conditions of this Regulation, so as to allow the controller to continue such processing after the date of application of this Regulation. Commission decisions adopted and authorisations by supervisory authorities based on Directive 95/46/EC remain in force until amended, replaced or repealed.

Commentary

Paragraph 1 of Article 6 GDPR is based on Article 7 of the previous Data Protection Directive 95/46/EC. As a general rule, personal data may not be processed without complying with on of six exceptions ("legal basis").

Paragraphs 2 and 3 deal with the options for Member States to implement laws that make processing under 6(1)(c) and (e) necessary.

Paragraph 4 is actually linked to the "purpose limitation" principle in Article 5(1)(b) GDPR and further expands on what a "compatible purpose" is.

On this Article, please see Guidelines 8/2020 on the targeted addressing of users of social media

Guidelines 8/2020 on the targeted addressing of users of social media

(1) Legal basis for processing

Overview

Prohibition - with six exceptions

Article 6(1) GDPR generally prohibits processing operations ("processing shall be lawful only if") unless at least one of the six legal basis under (a) to (f) are fulfilled.

The general prohibition of data processing flows from the fact that under Article 8(2) of the Charter, the right to data protection is a fundamental rights ("data must be processed ... on the basis of the consent of the person concerned or some other legitimate basis laid down by law"). It is therefore important that the requirement to have a legal basis is interpreted in the light of the Charter and the principle of proportionality in Article 52(1) CFR. The system of Article 6(1) as a general prohibition, unless there is a justification is criticized in some Member States, but not unusual for a fundamental right. Just like other fundamental rights (e.g. the right to property, freedom of expression or the right to physical integrity), the default position is, that others may not interfere with a data subject's right to data protection, unless there is a justification.

"[...] the first subparagraph of Article 6(1) of the GDPR sets out an exhaustive and restrictive list of the cases in which processing of personal data can be regarded as lawful. Thus, in order to be capable of being regarded as such, processing must fall within one of the cases provided for in that provision [...]".

CJEU - C‑621/22 - Koninklijke Nederlandse Lawn Tennisbond, margin number 33..

No hierarchy

Given that this is the type of legal basis that the average data subject is confronted with the most consent is usually seen as more prominent than the other five legal basis. In fact, there is no hierarchy between the various legal basis. It is a matter controllers to choose the legal basis they wish to rely on. Each legal basis has specific features, upsides and downsides from the perspective of controllers and data subjects.

Multiple legal bases

While at least one legal basis has to be fulfilled, it is possible that there are multiple legal basis that a controller can rely at the same time ("at least one"). However, as long as one of the legal bases in Article 6(1) GDPR applies, it is not necessary to determine whether that processing also falls within the scope of another legal basis.

Using multiple legal basis may however raise transparency issues under Article 5(1)(a), if a data subject for example thinks that personal data is processed solely based on consent (which can be withdrawn at any time), while in fact the controller also relies on another legal basis like a legal obligation (which does not allow for a withdrawal by the data subject). The data subjects would the be tricked into thinking that they have more agency than they really have.

Necessity

The concept of "necessity" is used five of the six legal basis (Article 6(1)(b) to (f) GDPR). Only consent does not contain the requirement, as consent must be "specific" anyways. The concept of "necessity" must be interpreted as in the light of applicable European law and is also known under Article 52(1) of the Charter of Fundamental Rights. Therefore, its interpretation must fully reflect the objectives of data protection law.

"Assessing what is ‘necessary’ involves ascertaining whether in practice the legitimate data processing interests pursued cannot reasonably be achieved just as effectively by other means less restrictive of the fundamental rights and freedoms of data subjects. If there are reasonable, just as effective, but less intrusive alternatives, the processing may not be considered to be ‘necessary’. In this context, the CJEU expressly recalled that the condition relating to the need for processing must be examined in conjunction with the ‘data minimisation’ principle enshrined in Article 5(1)(c) GDPR, in accordance with which personal data must be ‘adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed’. The Court also emphasised that a processing should be carried out ‘only in so far as is strictly necessary’ for the purposes of the legitimate interest identified. This requirement of strict necessity is also emphasised, for instance, in Recital 47 GDPR, which states that ‘[t]he processing of personal data strictly necessary for the purposes of preventing fraud […] constitutes a legitimate interest of the data controller concerned.’"

EDPB, 'Guidelines 1/2024 on processing of personal data based on Article 6(1)(f) GDPR', 8 October 2024 (Version 1), margin number 29 Footnotes (including references to the CJEU case law) were excluded in this quote.

The CJEU generally follows a concept of strict necessity and a narrow interpretation.

Case Law: In C‑524/06 - Huber on a German central register to manage matters in relation to foreign nationals the CJEU held that the “concept [of necessity] ...has its own independent meaning in Community law and ... must be interpreted in a manner which fully reflects the objective of [Directive 95/46/EC]”. The CJEU held that such a register must not contain any information other than what is necessary for the purpose of implementing specific laws on foreign nationals.

From a systematic point of view any legal basis under Article 6(1) GDPR constitutes an exemption to the general prohibition of data processing. As such, the exemption itself and all the wording it carries, including the "necessity" requirement, must be interpreted narrowly.

Regarding the use of personal data after a traffic accident the CJEU held:

"As regards the condition relating to the necessity of processing personal data, it should be borne in mind that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary [...]"

CJEU - C-13/16 - Rīgas satiksme, margin number 30..

Regarding an European law requiring the publication of recipients of agricultural subsidies the CJEU held that:

"[...] limitations in relation to the protection of personal data must apply only in so far as is strictly necessary [...]"

CJEU - Joined Cases C-92/09 and C-93/09 - Volker and Markus, margin number 86..

Regarding the handling of personal data in documents published in commercial registers, the CJEU elaborated:

"That requirement of necessity is not met where the objective of general interest pursued can reasonably be achieved just as effectively by other means less restrictive of the fundamental rights of data subjects, in particular the rights to respect for private life and to the protection of personal data guaranteed in Articles 7 and 8 of the Charter, since derogations and limitations in relation to the principle of protection of such data must apply only in so far as is strictly necessary [...]"

CJEU - C-200/23 - Agentsia po vpisvaniyata, margin number 111..

Regarding a sports federation's disclosure of its members personal data to third parties, namely, in this case, a company that sells sports products and a provider of casino games, for advertising or marketing purposes, in particular so that that company and provider may send advertising messages and special offers to those members, the CJEU held:

"[...] as regards the condition that such processing be necessary for the purposes of that interest and, in particular, the existence of means that are less restrictive of the fundamental rights and freedoms of data subjects and equally appropriate, it must be stated that it would, in particular, be possible for a sports federation [...], wishing to disclose its members’ personal data to third parties for consideration, to inform its members beforehand and to ask them whether they want their data to be transmitted to those third parties for advertising or marketing purposes.

[...]

That solution would make it possible for the members concerned, in accordance with the data minimisation principle referred to in paragraph 43 of the present judgment, to retain control over the disclosure of their personal data and thus to limit the disclosure of those data to what is in fact necessary and relevant in relation to the purposes for which those data are transmitted and processed [...]".

CJEU - C‑621/22 - Koninklijke Nederlandse Lawn Tennisbond, margin number 51 et seq..

Despite the narrow interpretation of strict necessity, a controller is not prohibited from using personal data, just because there is a theoretical alternative that does not include the use of personal data, only realistic alternative must be considered. Processing that is "useful" but not objectively "necessary" is not covered and hence not allowed.

For example EDPB Guidelines 2/2019 on Article 6(1)(b) have clarified that assessing what is "necessary" involves a factual analysis of the processing operations and their purpose(s) and whether less intrusive alternatives that achieve the same goal exist. If there are realistic, less intrusive processing operations, then the other more intrusive ones must be excluded – i.e. they are not "necessary" under EU law. Thus, Article 6(1)(b) does not “cover processing which is useful but not objectively necessary for performing the contractual service”.

(a) Consent

The option to give consent is explicitly named as a fundamental right in Article 8(2) CFR. It is therefore important that it is interpreted in the light of the Charter and the principle of proportionality in Article 52(1) CFR.

Like other rights, the right to data protection can be waived by the data subject, by providing consent to the processing of their personal data. Given that data subjects are usually the weaker party in any transaction, the GDPR foresees a number of conditions that controllers have to comply with to obtain valid consent. This approach is very similar to other protections when fundamental rights are waived (e.g. gifting real estate may need the involvement of a notary, surgeries require detailed information and consent under Article 3(2) of the Charter). Compared to the waiver of other fundamental rights, consenting to data procession is has however become rather ubiquitous.

Consent is the most prominent legal basis, as it is the only one that data subjects are regularly confronted with. However, it is not the prime or even the most desirable legal basis. Typically consent is the "last option", as Article 6(1)(b) to (e) GDPR provide for a legal basis for most daily processing operations, without the need to seek consent.

Example: Josephine is the new data protection officer for an online shop. She realizes that the check-out page requires consent under Article 6(1)(a) to the processing of personal data for processing the payment and for delivering the products. As this is already covered by "necessary for the performance of a contract" under Article 6(1)(b), she removes this consent clause. This is not just more transparent for data subjects, as they are not tricked to believe that they can withdraw the consent, but it also makes the online form quicker to click through.

Consent is regularly criticized in the legal literature and by the public. Criticism seems to be largely fed by bad consent practices, but not necessarily by shortcomings of the letter of the law. If the conditions for consent are properly applied, it allows data subjects to exercise their right to informational self-determination. While it is correct that data subjects can be overwhelmed with these decisions, a liberal legal order requires that data subjects have agency over their rights, which includes waiving them. Given that Article 8(2) of the Charta explicitly foresees consent as one of the legal bases for data processing, consent is here to stay.

EDPB Guidelines: Guidelines 5/2020 on consent under the GDPR with detailed analysis by the authorities, see also Guidelines 03/2022 on deceptive design patterns in social media platform interfaces: how to recognise and avoid them

Joint reading of provisions

To ensure that consent is not only a legal fiction ("click fatigue"), the GDPR introduces a number of conditions that are meant to ensure that data subjects have a genuine choice when it comes to the processing of their data. Unfortunately the relevant elements are spread over different Articles of the GDPR:

• According to the available definition provided in Article 4(11) GDPR, consent must be freely given, specific, informed, and unambiguous.

• Furthermore, under Article 7 GDPR, a controller must be able to demonstrate that consent was given, consent must be distinguishable from other matters in any written declaration, can be withdrawn at any time and the provision of a contract may not be made conditional on consent.

• Finally, Article 8 GDPR stipulates that specific requirements must be respected when consent is given by children.

Consequently, the conditions for valid consent are split between Articles 4(11), 6(1)(a), 7 and 8 GDPR and require a joint reading of the different articles. See the commentary on Articles 7 and 8 GDPR for further details.

There is a slightly different concept of "explicit consent" in Articles 9(1)(a), 22(2)(c) and 49(1)(a) GDPR. See the commentary on Article 9(1)(a) GDPR for explicit consent.

Capacity

Generally, consent must be given directly by the data subject or a nominated representative. National law determines if a data subject lacks the legal capacity to make legally binding declarations, including declarations under the GDPR.

In the case of minors acting in the context of an "information society service", Article 8(1) GDPR provides a minimum age of 16 year. Member States may reduce that age limit - but not below 13 year. There is currently no rule in the GDPR about the age for consent outside of "information society services". This means there is also no rules in the GDPR for the age of consent in any offline context.

Freely given

Consent has to be freely given, which means that the data subjects must have the option to freely and genuinely choose to say "yes" to the processing of their personal data. Just like other legally relevant declaration, consent is void if the data subject was for example physically forced to consent. However, the notion of "freely given" is much broader under Article 6(1)(4) GDPR, as illustrated by the rules in Articles 4(11), 7 or 8 GDPR, as well as Recital 43. If consent is "freely given" under the GDPR requires a holistic and also economic analysis of the options for a data subject. The wholistic approach should lead to better results than previous approaches, but also uses vaguer concepts.

Power imbalance

Whether the option to refuse is genuinely given depends on the processing operation and service as well as the respective roles of the controller and the data subject in a given transaction. Not every abstract power imbalance makes consent invalid, however typical examples can be derived:

• Relationships with public authorities
• Employer-employee-relationships
• Use of major digital services with limited alternatives, for example because of a "network effect".

In other words, employers, governments or companies (especially those with a dominant market position) will typically be able to force data subjects to consent against their true wishes. In this perspective, Recital 43 GDPR highlights that if there is a "clear imbalance between the data subject and the controller" consent should not be considered a valid legal basis for the processing.

Example: A sales representative has to "consent" that his mobile phone is tracked to ensure that he does not cheat on his time sheet and does not use the company car for private trips. Obviously the employee will be able to challenge the consent, if he only agreed to keep his job.

Conditional consent

Recital 43 and Article 7(4) GDPR further deal with the situation of "bundled consent", i.e. when the performance of a contract is made conditional on consent. While such bundled consent is not automatically void, the law requires that "utmost account shall be taken" if the provision of a contract is made conditional on consent.

Example: An app that costs € 1,99 per month requires that any new users agree to the terms and conditions when singing up. On the next screen the users must also consent to the sharing of their personal data with third parties for advertisement reasons. The use of personal data is not necessary for using the app. Necessary processing to use the core functions of the app can however be based on Article 6(1)(b) GDPR.

For further indications on the issue of bundled consent and the criteria to assess the freely given requirement, see Article 7(4) GDPR.

Informed

Consent must be informed. This is especially challenging in highly complex technological environments. As controller may have the technical, practical and legal knowledge to understand the relevant processing information and take months or years to develop this understanding, while an average data subject may not have any relevant education or knowledge but most make a choice within seconds or at best minutes. Under the GDPR, the controller must overcome this information asymmetry to get valid consent.

Content of information

Beyond the specific purpose, Articles 4(11) and 6(1)(a) GDPR do not specify which exact information must be provided to the data subject when asking for consent. Article 7(3) GDPR requires to inform the data subject about their right to withdraw consent prior to giving consent. Recital 42 adds the identity of the controller, but also clarifies that this is a minimum standard: "For consent to be informed, the data subject should be aware at least of the identity of the controller and the purposes of the processing for which the personal data are intended."

Further information may depend on the specific purpose and processing operations that consent is sought for. Articles 13 and 14 GDPR can be seen as instructive, insofar as relevant for the processing operation. When personal data is shared, it may be necessary to inform about the individual recipients. Overall data subjects must be able to understand the circumstances of the processing of their personal data to estimate the consequences and implications of giving their consent.

Form of information

Consent should be sought using clear and plain language and be provided in an intelligible and easily accessible form. Especially euphemisms and wording that is more inspired by marketing than the facts is not clear. Equally, overly legal and technical descriptions are not clear and plain either.

Under Article 7(2) GDPR information to the data subject in the moment of consent under Article 6(1)(a) must be distinguished from any other matter. Just adding a link to the very broad information that needs to be provided under Articles 13 and 14 GDPR is therefore not leading to valid consent. Simply linking to a lengthy privacy policy is also not making information "easily accessible", as data subjects will hardly find the relevant information needed to make a decision on the specific processing that is based on consent.

Common Misunderstanding: A mere confirmation that users "agree to the privacy policy" is in most cases not easily accessible, if the privacy policy usually concerns a lot of additional information and is not limited to only processing under Article 6(1)(a) GDPR. If the privacy policy also concerns multiple processing operations such cases consent is also not "specific" (see below).

Overall the controller has the (sometimes difficult) task to explain the use of personal data in a short, clear and plain way, without using overly technical or legal jargon, so that an average data subjects have a clear understanding of what they should consent to.

Specific

In accordance with the principle of transparency from Article 5(1)(b) GDPR consent must be provided for specific and legitimate purposes. When the processing has multiple purposes, consent should be given for all of them separately. A blanket consent to all kinds of purposes is therefore not valid. For example, "I agree to the processing of my data for advertisement, product improvement and the sharing with business partners" is not specific and therefore invalid.

Example: An online shop has a checkout page, where users must "consent to the use of your data for marketing, the transfer to non-EU providers and the sparing of data with partners". Any consent to these three purposes, would usually fail the "specific" element required for consent. Equally, just naming "partners" is likely not specific enough if there are specific known recipients.

The principle of specificity of consent in Article 4(11) GDPR is confirmed by Article 6(1)(a) which requires consent to be given for “for one or more specific purposes”. This seems in line with the case law of the Court of Justice of the EU, according to which consent must refer to specific processing activities, clearly identified, also in order to allow the user to effectively understand the operations being carried out.

Unambiguous

Consent must be given unambiguously in the form of clear and affirmative action, however no specific form is required. Consent must be an unambiguous act, including any oral, written or other form of signifying the agreement to have personal data processed. In a digital environment consent is typically given by checking a box ("opt-in"), choosing technical settings that indicate the data subject’s acceptance of the proposed processing or clicking a button.

Example: At a wedding, the photographer asks a group to stand underneath the tree if they want to be on the picture, which will go to the couple"s wedding website. Marcel and Alex make their way underneath the tree and waive at the camera. They have given unambiguous consent.

Conversely, silence, pre-ticked boxes or inactivity should not constitute consent. This has been stressed through recent case law by the Court of Justice where a pre-checked checkbox which the user had to deselect in order to refuse their consent cannot show any active behaviour. Similarly, actions which are not clearly affirmative include the simple use of a webpage. A user may simply ignore that a webpage uses data in a certain way. This ambiguity extends to assigning certain actions a legal meaning through a disclaimer (e.g. "by using our webpage you agree to X"). Accordingly, it is in practice impossible to ascertain whether a user had actually given their consent by not deselecting the pre-ticked checkbox or had just not noticed the information provided.

Case Law: In C‑673/17 - Planet49 a pre-checked checkbox which the data subject had to deselect in order to refuse their consent was not seen as valid consent, because not deactivating the box cannot be seen as active behaviour.

Withdrawal

Consent can be withdrawn at any time. Withdrawing of consent shall be as easy as it was giving it. The controller has to inform the data subject on the possibility to withdraw consent prior to the processing. For further information, see the commentary on Article 7(3) GDPR.

Example: An fitness app allows customers to opt-in to share their sports data online with a simple button. To stop the online sharing, the app requires sending an email to the app provider, including the app ID and a verification that the sender is actually the data subject.

Duty to demonstrate consent

Article 7(1) GDPR further requires that a controller can demonstrate that the data subject has given consent. This goes beyond the mere burden of proof under Article 6(1)(a) GDPR and Article 5(2) GDPR and requires appropriate documentation or other options to demonstrate consent, like documentation that technical measures were in place, requiring clicking a check-box before proceeding.

EDPB Guidelines: on this provision there are EDPB Guidelines 05/2020 on consent under Regulation 2016/679

(b) Contract

Most daily business requires rather simple and foreseeable processing of personal data. To ensure that these standard processing operations are not limited and do not need the data subject"s consent, Article 6(1)(b) GDPR legalizes these processing operations by law.

Example: A data subject buys a product in an online shop. To perform this contract the controller may need to process the data subject"s credit card details. The details may be transferred to financial institutions for payment purposes. The buyer’s name and physical address can be shared with the shipment service for product delivery.

While contract and consent must be clearly separated, Article 6(1)(b) GDPR is usually also based on a (civil law) agreement of the data subject and therefore related to the notion of informational self-determination.

The EDPB has issued its Guidelines 2/2019 on the processing of personal data under Article 6(1)(b) GDPR with a detailed analysis of Article 6(1)(b) GDPR.

Necessary

General information on necessity can be found above under the overview on Article 6(1) under "necessity". The concept of necessity means that processing must be limited to what is strictly necessary. This does not mean that only indispensable processing is allowed. Unreasonable alternatives are not taken into account, but merely "useful" additional processing is not "necessary"

Example: A gym that is requesting core information from customers (e.g. name, address) can use the "necessary" for the performance of a contract clause. However, the use of entry and exit data to measure the use of the gym is only "necessary" under the contract if the gym is paid per entry, not per month. There may be other legal basis to process such data, but it is not "necessary" under the contract.

Usually most contracts are imposed by the controller, not the data subject. If a controller could arbitrarily add elements to the scope of its contracts as to make any processing activity "necessary", then the reference to "necessity" itself would become useless (and contracts would become, indeed, a tool to bypass e.g the requirement to ask for valid consent under Article 6(1)(a) for any where there is no other legal basis.

Case Law: In it"s Binding Decision 3/2021 on Meta (Facebook) the EDPB held that adding elements in terms and conditions that are aimed at making behavioral advertisement do not make the "necessary" under Article 6(1)(b) GDPR, as the core contract has to be determined not by artificially added elements, but by the expectations of data subject. In the case of Facebook, data subjects mainly see this as a communication tool.

In practice, the assessment should be driven by questions such as: what is the nature of the service being provided to the data subject? What are its distinguishing characteristics in the view of an average data subject? What is the exact rationale of the contract (i.e. its substance and fundamental object) and essential elements? What are the mutual perspectives and expectations of the parties to the contract? How is the service promoted or advertised to the data subject? Would an ordinary user of the service reasonably expect that, considering the nature of the service, the envisaged processing will take place in order to perform the contract to which they are a party?

Common Misunderstanding: Just because processing is related to a contract, or merely useful for the performance of a contract, does not mean that it is strictly necessary for the performance of a contract.

Existence of a valid contract

A contract under Article 6(1)(b) GDPR must be valid. Void contracts cannot serve as a legal basis under Article 6(1)(b) GDPR.

It is a matter of applicable contract law if a specific contract or clause is valid. While some contractual elements are regulated on a European level (for example the minimum requirements under the Unfair Terms Directive 93/13/EEC for terms and conditions), civil law is generally a matter of each Member State. Especially in the consumer context, a contract may be subject to the laws of the Member State where each consumer resides (see e.g. Articles 17 to 19 of the Brussles-Ia Regulation (EU) No 1215/2012).

Example: A Spanish controller and a French consumer concluded a contract that would be valid in Spain, but is void under the applicable French law. The lack of any valid contract means there is also no legal basis under Article 6(1)(b) GDPR.

However, certain contractual defects seem to be common to many European legal traditions: for example, intention, misrepresentation and duress. However, beyond such standard cases there are circumstances in which a breach does not necessarily lead to a contract being void, but only allows contract partners to successfully challenge the contract.

The EDPB Guidelines 2/2019 have clarified that these rules must be taken into account in assessing the validity of a national contract: “contracts and contractual terms must comply with […] consumer protection laws in order for processing based on those terms to be considered fair and lawful”. In conclusion, in order to understand whether a contract is valid or not, a controller must first identify the applicable law and, second, verify whether the contract is valid under that law (including any applicable EU law).

Prior to entering into a contract

Under Article 6(1)(b) GDPR, data processing may also be lawful in pre-contractual situations at the request of the data subject.

Example: A data subject asks a sales representative for curtains to send information on their products and to schedule an appointment at the data subject"s house. The parties have not (yet) formed a contract, but the sales representative may use the data subject"s details to the extent that this is necessary for the pre-contractual steps.

EDPB Guidelines 2/2019 point out that “this provision would not cover unsolicited marketing or other processing which is carried out solely on the initiative of the data controller, or at the request of a third party”.

End of contract

Where the processing is based on the performance of a contract, the end of such a contract (e.g. in the case of fulfillment or termination) makes this legal basis vanish, the processing of personal data under Article 6(1)(b) GDPR is no longer allowed. As the controller typically still needs to process personal data after a contract is fulfilled or terminated, the same data can be still be processed for other legal purposes.

Example: Already the privacy policy of the controller included that the relevant personal data is not only processed for the performance of the contract, but also compliance with a legal obligations under Article 6(1)(c) GDPR (e.g. tax records) and the establishment, exercise or defense of legal claims under Article 6(1)(f) GDPR (e.g. to manage guarantee claims and alike).

You can find more information on such other legal basis in the commentary on Article 6(1)(c) to (f) below.

EDPB Guidelines: On this provision there are the EDPB Guidelines 06/2020 on the interplay of the Second Payment Services Directive and the GDPR EDPB Guidelines: on this provision there are the EDPB Guidelines 2/2019 on the processing of personal data under Article 6(1)(b) GDPR in the context of the provision of online services to data subjects

(c) Legal obligation

The GDPR recognises that under many European and Member State"s laws controllers may be obliged to collect, store, and otherwise process personal information. Under Article 6(1)(c), such processing operations are considered lawful if they are necessary to fulfil these obligations.

Example: An employer processes personal data for social insurance purposes or under a duty to document compliance with workers' rights. A bank keeps records and shares them with authorities under money laundering legislation. A company keeps all relevant financial information under a duty to keep documentation on paid taxes for a certain number of years.

Necessary

Information on necessity can be found above under the overview on Article 6(1) under "necessity". The concept of necessity means that processing must be limited to what is strictly necessary. This does not mean that only indispensable processing is allowed. Unreasonable alternatives are not taken into account, but merely "useful" additional processing is not "necessary"

Compliance with a legal obligation

The legal obligation must originate directly from the law. ‘Member State law’ refers to all material law of that Member State. It may not result from a contractual arrangement, non-binding government requests or any form of "guidelines" or "best practice documents" and like that do not have the force of law. It is a matter of the national constitutional law to determine what constitutes obligations with the force of law. In some Member States this may include secondary legislation (e.g. "statutory instruments" or ministerial "directives"), local laws or ordinances, all the way to collective bargaining agreements that are given the force of law in some Member States.

Example: A controller gets a request from the police to disclose certain information. The police says it has a right to get that information. Once the controller takes a closer look, it turns out that under applicable national law, the police may ask the controller for such information and hope for their voluntary support, but the controller has no obligation to comply with this request. The controller cannot share the information under Article 6(1)(c) GDPR, as there is no "legal obligation".

Article 6(1)(c) GDPR only covers "obligations" under national law, meaning regulations that require a certain processing operation. Article 6(1)(c) does not cover situations where the law permits certain conduct or processing operations. In certain cases, there may however be options to use Article 6(1)(f) GDPR to process personal data.

The legal provision which defines the legal obligations for the controller does not need to be specific to each individual processing. It must, however, be sufficiently clear, precise and foreseeable and, in particular, define the purposes of the processing. Processing that goes beyond these legal obligations is not lawful under this provision. Any obligation to process data under another law must itself be proportionate (Article 7 and 8 EU Charter of Fundamental Rights) and in compliance with Article 6(2) and (3) GDPR.

Union or Member State law

According to Article 6(3) GDPR, the legal obligations may only be based in Union law or Member State law to which the controller is subject. This means that:

• Union or Member State law trigger Article 6(1)(c) GDPR, this includes laws that make foreign obligation enforceable in the Union or Member State.
• Any third country law (even if it applies to the controller under the laws of that third country) do not fall under Article 6(1)(c) GDPR.
• Any Members State law that the controller is not subject to (e.g. the laws of another Member State than his establishment) do not apply.

Obligations under third country law may, according to some views, be a factor to assess a possible "legitimate interest" under Article 6(1)(f) GDPR.

Specifications in Member State law

Equally to Article 6(1)(c) GDPR, Article 6(2) and (3) GDPR require that Union or Member State law fulfill certain criteria. See commentary on Article 6(2) and (3) below for the commentary on this element.

To which the controller is subject

Article 6(1)(c) GDPR only covers situations where the controller is subject to a direct legal obligation. Obligations on the data subject or a third party do not trigger Article 6(1)(c) GDPR.

(d) Vital interest

A data processing may also be lawful if it is necessary to protect the vital interests of the data subject or of another natural person. The underlying assumption here is that the right to life takes precedence over data protection and - in the case of the vital interests of the data subject - the data subject is assumed to consent to the processing.

Example: The data subject is rushed to the hospital and the doctors check their medial data systems to ensure that they are fully aware of any potential complications from preexisting conditions or allergically reactions.

In practice many situations where data for the "vital interests" are processed my concern special categories of personal data (e.g. health data) and are therefore regulated by Article 9 GDPR.

Necessary

Information on necessity can be found above under the overview on Article 6(1) under "necessity". The concept of necessity means that processing must be limited to what is strictly necessary. This does not mean that only indispensable processing is allowed. Unreasonable alternatives are not taken into account, but merely "useful" additional processing is not "necessary"

Protection

Article 6(1)(d) GDPR only requires the aim to protect vital interests. The mere effort seems to be sufficient.

Vital interests

Recital 46 clarifies that vital interests are "essential for the life" of the data subject. It follows that data processing on this ground “requires that a situation of concrete and imminent danger exists for the data subject or a third (natural) person”.

The provision does not require that the natural person subjectively wants to have his or her vital interests protected. The provision could consequently also apply in situations of self-harm or natural persons that do not care about the protection of their vital interests. Such an interpretation would potentially go against the concept of informational self-determination.

Natural person

According to the provision the "vital interests of the data subject or another natural person" must be protected. As data subjects are defined as natural persons under Article 4(1) GDPR, the provision could equally read "any natural person".

(e) Public interest

Article 6(1)(e) GDPR allows processing for tasks carried out in the public interest or in the exercise of official authority vested in the controller, if the processing is based on EU or Member State law. The Member States have vastly different traditions in allocating tasks in the public interest. In recent decades, many tasks that were typically allocated to the government were outsources to private or quasi-private entities. Article 6(1)(e) GDPR consequently follows a "functional" approach. It does not matter if the controller is a public authority, a private entity or a publicly owned entity. Examples of entities that carry out tasks in the public interest or exercise official authority:

• Certain tasks of notary publics, lawyers, probation services or tax accountants;
• A private limited company, fully owned by the Member State, that is tasked with air-traffic control and licensing pilots;
• Private entities tasked with technical inspections on behalf of the government (e.g. chimney sweepers);
• Political parties in the administration of elections;
• Private or non-profit health care providers or ambulance services operating on behalf of the government;
• Utility providers that are e.g. tasked with operating "smart meters";

Necessary

Information on necessity can be found above under the overview on Article 6(1) under "necessity". The concept of necessity means that processing must be limited to what is strictly necessary. This does not mean that only indispensable processing is allowed. Unreasonable alternatives are not taken into account, but merely "useful" additional processing is not "necessary".

Therefore, a processing must not only be carried out in the public interest to meet the requirement of this provision; the processing has to genuinely meet the objectives of the pursued public interest without going beyond what is necessary in order to achieve these objectives.

Performance of a task carried out in the public interest

The first branch covers Union or Member State laws that require public or private entities to process personal data for a task carried out in the public interest.

Example: In a Member State public but also private entities are operating the ambulance services. This includes a government department but also non-profits operating ambulances. Equally full-time emergency doctors, but also local doctors in the countryside are involved in the system. They are all coordinated by a single software system. The legal basis is a national law that uses the options under Article 6(1)(e) GDPR.

The exercise of official authority vested in the controller  

The second branch covers Union or Member State laws that require public or private entities to process personal data when exercising official authority.

Example: A Member State has outsourced issuing and revocation of certain licenses to a private entity. The law transfers certain authority to that entity that requires the use of personal data. The entity can rely on Article 6(1)(e) GDPR.

Specifications in Union or Member State law

Equally to Article 6(1)(c) GDPR, Article 6(2) and (3) GDPR require that Union or Member State law fulfill certain criteria. See commentary on Article 6(2) and (3) below for the commentary on this element.

(f) legitimate interest

Article 6(1)(f) GDPR establishes a legal basis for the processing of personal data when the “processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child”.

While Articles 6(1)(a) GDPR deals with situations where data subjects waived their rights and Articles 6(1)(b) to (e) deal with common purposes where processing is allowed, Article 6(1)(f) deals solely with situations where the controller or a third party has an interest that conflicts with the data subjects' fundamental right to data protection.

There are three cumulative conditions (explained in more detail further below) that must be met in order for a processing to fall under the legal basis of Article 6(1)(f) GDPR:

1. the pursuit of a legitimate interest by the controller or by a third party (i.e. controllers ought to verify whether their interest is actually “legitimate”);
2. the need to process personal data for the purposes of the legitimate interests pursued; and,
3. the interests or fundamental freedoms and rights of the person concerned by the data protection do not take precedence over the legitimate interest of the controller or of a third party (i.e. balancing test).

In general, the evaluation whether a processing activity can be based on the legal basis of legitimate interest is entirely in the hands of the data controller who, taking into account the conditions described above, has discretion in how to perform such evaluation. However, the EDPB provides some guidance on how to perform such assessment.

In accordance with the accountability principle under Article 5(2) GDPR, a controller invoking this legal basis is responsible for, and has to be able to demonstrate, compliance with each of those cumulative conditions. Therefore, the controller should document the performance of the legitimate interest assessment accordingly. Also, if a Data Protection Officer is appointed by the controller, they should be involved by the controller in this assessment.

If a controller wants to rely on legitimate interest under Article 6(1)(f) GDPR for the processing of personal data for various purposes, the controller has to assess the validity of this legal basis for each of those purposes.

Flexible but legally uncertain

Article 6(1)(f) GDPR is the "catch all" balancing test for anything not foreseen by Articles 6(1)(b) to (e) GDPR, where the controller does not seek consent, but takes the view that the rights of the controller or a third party override the rights of the data subject. However, this legal basis should not be considered a last resort, if no other legal basis is applicable, neither should it be used to circumvent legal requirements of other legal bases.

"[...] Article 6(1)(f) should not be considered as an “open door” to legitimise all data processing activities which do not fall under any of the other legal bases in Article 6(1) GDPR. Rather, it should be recalled that Article 6(1)(f), like each of the legal bases set out in Article 6(1) GDPR, must be interpreted restrictively."

EDPB, 'Guidelines 1/2024 on processing of personal data based on Article 6(1)(f) GDPR', 8 October 2024 (Version 1), margin number 9 (available here).

Even though the controller has to perform a careful assessment for each planned processing activity based on the legal basis of legitimate interest and follow a specific methodology, the flexibility and open-endedness of this clause also leads to major legal uncertainty for controllers and data subjects.

While Article 7(f) of the previous Data Protection Directive 95/46/EC also foresaw the option to process based on an overriding "legitimate interest" the previous Directive allowed Member States to implement more specific provisions for certain situations (e.g. video surveillance, credit ranking and alike). Given that the GDPR is now a directly applicable Regulation, there is no room for such national "interpretations". Nevertheless, many Member States have kept their national "legitimate interest" implementations, despite lacking the necessary jurisdiction. While this approach is meant to provide more legal certainty, it actually adds even more uncertainty.

During the GDPR negotiations, Article 6(1)(f) was one of the major battle grounds between the legislator and industry lobbyists. The European Commission foresaw a right of the Commission itself to pass delegated acts that would further define Article 6(1)(f) GDPR - this was rejected by the European Parliament. Various proposals to add explanatory lists of what does and what does not constitute a legitimate interest were not getting a majority, as each side was unwilling to agree that certain elements are included or excluded.

One of the political solutions was to "park" some of these suggestions in Recitals 47 to 49 GDPR, as one side was able to argue that the matter is now "in the GDPR" and the other side was able to highlight that the Recitals are not legally binding. When it comes to the contentious issue of advertisement the legislator finally added the remarkable line that "direct marketing" (not all advertisement) "may" constitute a legitimate interest. There is no indication as to when this "may" or "may not" be a legitimate interest.

Article 6(1)(f) GDPR consequently requires a delicate balancing of relevant interests. The balancing act in question is not a straightforward balancing test which would simply consist of weighing two easily quantifiable and easily comparable "weights" against each other.

Pursuit of a legitimate interest (1st step in the assessment)

Whether the interest is legitimate

As highlighted by the EDPB, the a distinction must be made between concept of interest and the concept of purpose (for more information on the concept of purpose see Article 5(1)(b) GDPR). Interest is the general objective that a controller intends to pursue (i.e. ensuring the occupational safety of its employees). The purpose, on the other hand, is the specific aim of a certain processing activity (for instance, implementation of specific access control procedures to only allow trained personnel in certain areas of the workplace) and can include a broad range of activities, whether trivial or very compelling, straightforward or more controversial.

"A 'purpose' is the specific reason why the data are processed: the aim or intention of the data processing. An 'interest', on the other hand, is the broader stake or benefit that a controller or third party may have in engaging in a specific processing activity. For example, a controller may have an interest in promoting its products, whereas this interest may be advanced by processing personal data for direct marketing purposes."

EDPB, '1/2024 on processing of personal data based on Article 6(1)(f) GDPR', 8 October 2024 (Version 1), margin number 14.

Only an legitimate interest can be invoked by a controller in order to base a processing activity on the legal basis of Article 6(1)(f) GDPR. There are three cumulative requirements for an interest to be considered legitimate:

First, the interest hast so be lawful, i.e. the controller can legitimately pursue it and it is not contrary to EU or national law. However, it is not necessary that the interest is determined or enshrined in law. For example, the CJEU did not rule out that, in principle, also a commercial interest of the controller could be regarded as a legitimate interest.

"As regards, first, the condition relating to the pursuit of a ‘legitimate interest’, it should be emphasised that, in the absence of a definition of that concept in the GDPR, as the Court has previously held, a wide range of interests is, in principle, capable of being regarded as legitimate [...]".

CJEU - C‑621/22 - Koninklijke Nederlandse Lawn Tennisbond, margin number 38..

As to what “law” means in this case, in the absence of updated guidance, reference should be made to the instructions provided by the WP29 in Opinion 3/2013 on purpose limitation, according to which the notion of "law" must be interpreted in an extensive manner, including all forms of written or common law, as interpreted by the competent courts and supplemented by other official sources. The above seems to be confirmed by the recent guidelines on contract-based treatment. There, the EDPB clarified that the contract (and thus, by analogy, the legitimate interest) must be valid i.e. “must comply with the requirements of contract laws and, as the case may be for consumer contracts, consumer protection laws in order for processing based on those terms to be considered fair and lawful”. Also, reference can be made to the Cookie Banner Taskforce, deeming the usage of legitimate interest for activities such as “create a personalised content profile” unlawful. The taskforce agreed that such processing requires consent according to Article 5(4) ePrivacy Directive.

Second, the pursued interest has to be clearly and precisely articulated in order to ensure that the assessment of necessity and the balancing of interests can be performed in a an accurate and proper manner. Therefore, a interest only expressed in vague or general terms is not sufficiently articulated to assess its legitimacy and therefore cannot be a legitimate interest.

Third, the persuaded interest must not be just speculative. To the contrary, the pursued interest must be real and present. This means that the legitimate interest must be present at the date of the processing of personal data; a mere hypothetical interest is not sufficient.

A wide variety of interests can potentially fulfil all three conditions and be therefore considered legitimate. Recital 47 GDPR additionally mentions a relevant and appropriate relationship between the data subject and the controller as potential indicator for the existence of a legitimate interest. However, such a relationship is neither necessary nor a guarantor for a interest to be legitimate.

Pursued by the controller or by a third party

The legitimate interest at stake must also be “pursued by the controller or a third party”. However, the interest pursued by a controller should be related to the actual activities of that controller.

For example: A social media platform can not rely on a legitimate interest of preventing, detecting and prosecuting criminal offences, for the sharing of personal data with law-enforcement agencies, since this is unrelated to its economic and commercial activity and can therefore not constitute a legitimate interest pursued by the social media platform.

The pursue of interests of one or more third parties can also subject of this provision. Regularly, a processing activity will be in the interest of the controller as well as in the interest of third parties. The clarification of the specific beneficiaries of a processing activity prior to the actual processing is therefore crucial in order to assess the necessity of the processing and to perform a proper balancing test. The EDPB provides some guidance on contexts in which personal data may be processed in the interest of a third party, mentioning cases like the defence of legal claims, the disclosure of data for transparency and accountability purposes, and scientific research.

Even if some interests pursued by a controller could also benefit the general public, it should be pointed out that the general public itself does not constitute a third party under Article 6(1)(f) GDPR.

In situations where personal data is processed for a purpose other than that for which the data was initially collected (e.g. when data is initially collected for purposes of the controller and then further processed in the legitimate interest of a third party), the rules for further processing (also called "secondary use") under Articles 5(1)(b) and 6(4) GDPR apply. In the absence of consent or a law explicitly allowing it such a further processing, “is permitted only if it is compatible with the purpose of the initial processing”).

Additionally, it should be noted that according to Article 6(1) GDPR, public authorities cannot invoke the legal basis of Article 6(1)(f) GDPR in the performance of their tasks.

Necessary for the purposes (2nd step in the assessment)

Necessity is a condition for all legal bases but consent. Therefore, see the paragraph on necessity in general above.

"Second, with regard to the condition that the processing of personal data be necessary for the purposes of the legitimate interests pursued, that condition requires the referring court to ascertain that the legitimate data processing interests pursued cannot reasonably be achieved just as effectively by other means less restrictive of the fundamental rights and freedoms of data subjects, in particular the rights to respect for private life and to the protection of personal data guaranteed by Articles 7 and 8 of the Charter [...]"

CJEU - C‑621/22 - Koninklijke Nederlandse Lawn Tennisbond, margin number 42..

Balancing Test (4rd step in the assessment)

Overridden by interests of the data subject

The fact that the controller has a legitimate interest and the processing is necessary for the pursued legitimate interest is not enough for a controller to rely on Article 6(1)(f) as a legal basis for the processing. The third condition is that the legitimate interest pursued is not overridden by the interests and fundamental rights and freedoms of the data subjects. Therefore, the it is necessary to perform a balancing test between the legitimate interests of the controller or of a third party on the one hand and the interests or fundamental freedoms and rights of the data subjects on the other hand.

"This “balancing exercise” between the fundamental rights, freedoms and interests at stake must be performed for each processing to be based on legitimate interest as a legal basis, and must be done before carrying out the relevant processing operation(s)."

EDPB, 'Guidelines 1/2024 on processing of personal data based on Article 6(1)(f) GDPR', 8 October 2024 (Version 1), margin number 7 (available here).

To do so, the EDPB suggests a four-step test including:

1. assessing the data subjects' interest, fundamental rights and freedoms;
2. identifying the impact of the processing on data subjects (e.g. the nature of the processed data, the context of the processing, and any further consequences of the processing);
3. the reasonable expectations of the data subject; and
4. the balancing of the opposing rights and interests (taking into account any possible mitigation measures like additional safeguards).

"It should be recalled that the purpose of the balancing exercise is not to avoid any impact on the interests and rights of the data subjects altogether. Rather, its purpose is to avoid a disproportionate impact and to assess the weight of these aspects in relation to each other."

EDPB, '1/2024 on processing of personal data based on Article 6(1)(f) GDPR', 8 October 2024 (Version 1), margin number 33.

Data subjects' interests or fundamental rights and freedoms

In general, the definition of “fundamental rights and freedom” includes all the traditional rights foreseen in the European constitutions, the Charter of Fundamental Rights of the EU as well as the European Convention on Human Rights. This obviously includes the right to the protection of personal data, personal and family life, freedom of expression and human dignity. In addition to the fundamental rights of the data subject, other “freedoms or interests” must also be taken into account. This includes the interest not to suffer any economic disadvantages, regardless of whether the damage occurs following the publication of personal data or in another way, such as via a discriminatory personalised pricing policy. The EDPB also lists various other freedoms and interests like the prohibition of discrimination and personal interests.

Finally, it should be noted that - unlike in the case of the controller’s interests - the data subject's interest apparently does not have to be legitimate. A wider scope to the protection of individuals’ interests and rights is therefore implied. This means that even individuals engaged in unlawful activities should not be subject to disproportionate interference regarding their rights and interests. For example, “an individual who may have perpetrated theft in a supermarket could still see his interests prevailing against the publication of his picture and private address on the walls of the supermarket and/or on the Internet by the owner of the shop.”

Identifying the impact on the data subject

Once the data subjects' interests and fundamental rights have been identified, an assessment of the impact (negative as well as positive) on data subjects should be performed by the controller. In order to perform a comprehensive assessment, the EDPB recommends to consider among others: (i) the nature of the processed data, (ii) the context of the processing, and (iii) any further consequences of the processing.

Several elements can be useful at this stage, including the likelihood that a risk can materialise and the severity of its consequences. Also, the scale of the processing (i.e. the number of individuals potentially impacted as well as the volume of data) and other circumstances of the processing should be considered. Also of relevance is the way the information is being processed, whether it is shared with a large number of actors or persons or combined with other data sets. For example, in a case involving the lawfulness of a CCTV surveillance system, the CJEU considered different factors including whether the data to be processed were retrieved from publicly accessible sources or were rather related to the data subject’s private life; the nature of the data, particularly their sensitiveness; and the modalities of processing, including the number of persons having access to the data.

In general, it appears that the more sensitive the information involved is, the more consequences for the data subject there may be. It should be noted that the processing of special categories of data is only allowed in the cases listed in Article 9(2) GDPR. Reference can also be made to the factors a controller has to consider also during the assessment of risks connected to a processing activity (among others, see commentary on Article 24, 25 and 32).

Article 6(1)(f) GDPR explicitly mentions situations "in particular where the data subject is a child". This indicates that a balancing test needs to take the specific interests and expectations of a child into account.

In the context of the balancing test and the potential impact on the data subject importance should be attached to the relationship between the data subjects and the controller. E.g. the CJEU held that the transfer of personal data by a sports association to a provider of casino games for marketing activities did not appear to be characterised by a relevant and appropriate relationship between the association and its members whose personal data were transmitted.

Also, any potential harmful effects and other consequences on the data subjects must be considered in course of the balancing test.

"The controller may need to take into account also possible broader emotional impacts resulting from a data subject losing control over personal information, or realising that it has been misused or compromised. The chilling effect on protected behaviour, such as freedom of research or freedom of expression, that may result from continuous monitoring/tracking or from the risk of being identified, should also be given due consideration. For example, continuous online monitoring of online activities by a platform may give rise to the feeling that a data subject’s private life is being continuously observed."

EDPB, '1/2024 on processing of personal data based on Article 6(1)(f) GDPR', 8 October 2024 (Version 1), margin number 46.

The assessment of the (potential) impact on data subjects should not be made under the assumption that all data subjects have the same interests - especially, when it is likely that the some of the affected data subjects have diverging interests.

Reasonable expectations of the data subject

Recital 47 GDPR stipulates that the reasonable expectations of the data subjects should be considered. In particular, it is important to evaluate whether the status of the data controller, the nature of the relationship or the service provided, or the applicable legal or contractual obligations (or other promises made at the time of collection) could give rise to reasonable expectations of stricter confidentiality and stricter limitations on further use.

"[...] as regards the balancing of interests which it is for the referring court to carry out in the light of the specific circumstances of the dispute in the main proceedings, that court must take account, in particular, of the reasonable expectations of the data subject as well as the scale of the processing at issue and its impact on that person [...]"

CJEU - C‑621/22 - Koninklijke Nederlandse Lawn Tennisbond, margin number 54..

It is important to note that the reasonable expectations of a data subject could very well deviate from whatever is considered common practice or business standard in a certain sector. Also the fact that a processing activity is very established or has been taken place for a long time is not decisive for the question whether a processing is in the data subjects' reasonable expectations. Neither do the reasonable expectation of the data subject depend on the information provided by the data subject (e.g. in a privacy policy).

"While a failure to provide information can contribute to the data subjects being surprised, the mere fulfilment of information duties according to Articles 12, 13 and 14 GDPR is not sufficient in itself to consider that the data subjects can reasonably expect a given processing."

EDPB, 'Guidelines 1/2024 on processing of personal data based on Article 6(1)(f) GDPR', 8 October 2024 (Version 1), margin number 68.

The EDPB suggests that the assessment of the reasonable expectations should consider an "average" data subject (unless it is likely that different groups of data subjects with different characteristics are affected) and lists a number of elements, that could be considered for the assessment of what could be considered reasonable expectations.

Balancing of the opposing rights and interests

At the end of the balancing test is the assessment whether the identified pursued legitimate interests of the controller or third parties are overridden by the data subjects' interests or rights and freedoms. Only if that is not the case, the controller can base its processing of personal data on the legal basis of legitimate interest under Article 6(1)(f) GDPR. It is worth repeating that such assessment has to take place prior to the commencement of the processing activity.

In particular where the data subject is a child

In all the steps of the balancing test, special attention should be paid to the question whether also children could be affected by the processing activity. This is also directly stated in Article 6(1)(f) GDPR. In such a case the balancing test should be recalibrated and consider the fact that children (depending of the specific age group) might be less aware of any risks and consequences connected with the processing activity.

"While this does not mean that there will never be a situation in which the interests of the child can be overridden, it does mean that the interests of children as data subjects should have high priority and will very often outweigh the interests of the controller or third parties.

[…]

[…] Article 6(1)(f) GDPR may be invoked as a legal basis by a controller where the legitimate interests pursued coincide with the interests of the child. However, when there is a conflict between a controller’s legitimate interests (including regarding processing of personal data for commercial purposes) and the interests or fundamental rights and freedoms of a child, the interests or fundamental rights and freedoms of the child should in general prevail. […] [T]here are certain types of data processing operations, such as those consisting of extensive profiling and targeted advertising activities, which - subject to certain limited exceptions - will generally not align with the obligation to ensure specific protection of children."

EDPB, 'Guidelines 1/2024 on processing of personal data based on Article 6(1)(f) GDPR', 8 October 2024 (Version 1), margin number 94 et seq.

Whenever personal data of children are processed based on Article 6(1)(f) GDPR, the controller has to be able to demonstrate that the children's best interest were a primary consideration in the balancing test.

Additional safeguards

In case the legitimate interest test shows that the data subjects' interests or rights and freedoms overweight the legitimate interest of the controller or third parties, the controller could introduce additional safeguards (mitigation measures) in order to archive a balance a balance between the opposing interests. However, such measures can only be implemented in addition to all other requirements that the controller is obliged to anyway. Therefore, fulfilling an information obligation in accordance with Article 13 et seq. GDRP or granting data subjects the right to object in accordance with Article 21 GDPR to a data processing can not be considered additional safeguards or mitigation measures; providing additional information or waiving any requirements under Article 21 GDPR could however be considered as a mitigating measure.

"If the data subject’s interests, rights and freedoms seem to override the legitimate interest(s) being pursued, the controller may consider introducing mitigating measures to limit the impact of the processing on data subjects, in view of achieving a fair balance between the rights, freedoms and interests involved."

EDPB, '1/2024 on processing of personal data based on Article 6(1)(f) GDPR', 8 October 2024 (Version 1), margin number 56.

Other examples of mitigation measures include the “strict limitation on how much data is collected, or immediate deletion of data after use. While some of these measures may already be compulsory under the Directive, they are often scalable and leave room for controllers to ensure better protection of data subjects” as well as “providing an easily workable and accessible mechanism to ensure an unconditional possibility for data subjects to opt-out of the processing”.

These additional measures may in some cases help tip the balance and help ensure that the processing can be based on Article 6(1)(f), whilst simultaneously protecting the rights and interests of the data subjects. In any case, the controller has to perform the balancing test anew after the implementation of such additional safeguards and mitigation measures. Often, even the implementation of such measures will not change the outcome of a balancing test in favour of the interests or rights and freedoms of data subjects. In such cases Article 6(1)(f) GDPR can not be invoked as a legal basis for a processing activity.

Examples of overriding legitimate interest

The assessment if a legitimate interest overrides the interest of a data subject are always a case-by-case assessment. And it should be kept in mind that the assessment if a processing activity can be based on this legal basis could result in different outcomes in different contexts or situations. For example could the reasonable expectations of data subjects diverge immensely in different processing situations and controllers could implement different additional safeguards or could have different alternative methods to their disposal.

Controllers should therefore be careful when orientating on existing case law or examples found elsewhere. However, such examples can provide some useful guidance for controllers.

Some examples of situations in which legitimate interest under Article 6(1)(f) GDPR overrides the data subjects' freedoms and interests can be found in Recitals 47 to 49. As always, it must be stressed that Recitals are not legally binding, but nevertheless give a very good understanding of the views of the legislator. Generally the examples in Recitals 47 to 49 can be described as largely "defensive", in the sense that the data subject interfered with the rights of the controller or a third party and the controller is using personal data to defend against such situations. Only very limited examples seem to be "offensive", in the sense that the controller proactively interferes with the rights of the data subject.

To give some additional orientation, it can be referred to some typical examples of cases in which a legitimate interests might override the data subject's freedoms and interests:

• Processing for network and information security (see Recital 49), which may even be a legal duty under Articles 6(1)(c) and 32 GDPR.
• Protection of life, property and alike (like CCTV of areas with repeated offences or highly likely targets, such as a bank, if there are no feasible alternatives and safeguards like deletion periods and strictly limited access to recordings are ensured).
• Processing for the prevention of fraud (see Recital 47), such as "black lists" of known fraudsters.

The EDPB lists additional examples of legitimate interests in their Guidelines on legitimate interest.

However, it should be noted that the above mentioned interests should be articulated clearer and more precise when actually invoked by a controller for a specific processing activity.

On the other hand, the following situations are generally not seen as cases where a legitimate interest overrides the data subjects' freedoms and interests:

• Advertisement (other than "direct marketing" as under Article 13(2) of ePrivacy Directive 2002/58/EC, see below).
• Usually the use of personal data for mere profits is also a case where the data subjects' freedoms and interests generally override the pursued legitimate interests.

It should be noted however, that the CJEU confirmed that also a commercial interest of the controller could constitute a legitimate interest, provided that it is lawful.

The following processing could be considered edge cases in which controllers should be especially careful when considering each step of the assessment whether legitimate interest could be a legal basis for a processing activity:

• Direct marketing (the Recital says this "may" be a legitimate interest) other than so-called "soft spam" in existing customer relationships under Article 13(2) of the ePrivacy Directive 2002/58/EC.
• The sharing of information within a group of undertakings for internal administrative purposes "may" be a legitimate interest according to Recital 48.
• Use or personal data in search engines, based on the public interest in information under Article 11 of the Charter - but not the commercial interest of a search engine. However, this interest may be overridden in individual cases (see C‑131/12 - Google Spain and the "right to be forgotten").
• Transmission of personal data to competent authorities in connection with possible criminal acts or threats to public security.

Another area with a lot of legal uncertainty is the performance of profiling in connection or in advance of different processing purposes. The EDPB highlights elements that are particularly relevant for any cases such a profiling takes place, like the level of detail and comprehensiveness of the profile and the potential impact of the profile on the data subject.

(2) Member State law under Article 6(1)(c) and (e)

Paragraph 2 gives Member States competence in the public sector, since it allows them to adopt, or keep, their own (material) rules that regulate in which instances a controller can rely on the legal bases provided for in Article 6(1)(c) and Article 6(1)(e) GDPR. Member States can also "determine more precisely specific requirements" for the processing to, ultimately, ensure that this processing is lawful and fair. While Member States may "specify" the often abstract GDPR requirements, but they may not alter them or go beyond them. Through this wording it is apparent that these national provisions must stay within, and cannot go beyond the framework of the GDPR. They also concern specific processing situations under Articles 85 to 91 GDPR (freedom of expression, freedom of information, access to official documents, processing in the employment context and alike).

Example: A national law may require an employer to collect personal data on employees and provide them to social security providers or the tax authority under Article 6(1)(c) GDPR. Such laws may be kept, introduced or changed by the Member States and also add elements in the national law, like specific deletion period (e.g. "keep records for 5 years"), setting clearer purposes that limit the use of certain data (e.g. "only for taxation purposes") or add specific notice requirements.

Since this provision allows Member States to enact denser regulation, as well as more concrete requirements for controllers, some authors noted that this can lead to conflicts, not only between a Member State and the Commision (since the latter monitors the application of Union law), but also in case of different processing situations by the same controller or vis-à-vis the same data subject.

(3) Union and Member State law under Article 6(1)(c) and (e)

Union or Member State law

According to Article 6(3), the legal basis for processing under Article 6(1)(c) (legal obligation) and Article 6(1)(e) (public interest) must be laid down by (a) Union, or (b) Member State law. Contrary to Article 6(1)(c), however, the public interest processing does not have to be expressly laid down in a legal basis. It suffices if the processing is necessary to fulfil a task which serves the public interest, or in the exercise of official authority, and the task is described in a specific and clear manner.

It should be noted that the Member State law to which the controller is subject does not necessarily mean a legislative act adopted by a parliament. For example, the CJEU held that also national case-law could constitute such a legal basis.

"[…] as recital 41 of that regulation states, where it refers to a legal basis or a legislative measure, this does not necessarily require a legislative act adopted by a parliament, without prejudice to obligations provided for under the constitutional order of the Member State concerned. However, such a legal basis or legislative measure should be clear and precise and its application should be foreseeable to persons subject to it, in accordance with the case-law of the Court and the European Court of Human Rights.

[…]

In that regard, it should be noted that […] it cannot be ruled out that ‘Member State law to which the controller is subject’ within the meaning of point (b) of Article 6(3) of the GDPR also covers national case-law."

CJEU - Joined Cases C‑17/22 and C‑18/22 - HTB Neunte Immobilien Portfolio, margin number 68 and 71..

Requirements under non-EU/EEA laws, such as a US, Chinese or Swiss law requiring the processing of personal data, cannot be the basis for processing under Article 6(1)(c) or (e) GDPR. However, a duty under the law of another country may be a "legitimate interest" under Article 6(1)(f) GDPR, which can be the starting point of a balancing test.

Specific provisions

Moreover, the provision allows Member States to implement specific provisions contained in this legal basis, and suggests, inter alia, the general conditions governing the lawfulness of processing by the controller; the types of data which are subject to the processing; the data subjects concerned; the entities to, and the purposes for which, the personal data may be disclosed; the purpose limitation; storage periods; and processing operations and processing procedures. These concretisations are non-exhaustive and non-binding, but are certainly permissible specific provisions. Lastly, the constituent element ‘Member State law’ refers to all material law of that Member State.

Tensions between national laws and EU law

If Member States would pass such legislation without complying with the general principles of "proportionality" under Article 8 and 52 of the Charter, as well as Article 6(1)(2) and (3) GDPR, Articles 23 and 85 to 91 GDPR such national laws would be inapplicable, given the supremacy of EU law.

Case Law: In Joined Cases C-465/00, C-138/01 and C-139/01 - Österreichischer Rundfunk a national law foresaw to publish the income of employees of the public bodies, such as the public broadcaster for transparency reasons. The CJEU held that the disclosure of not only the amounts, but also the names of the recipients is only possible if it is truly necessary for and appropriate to the objective of proper management of public funds. While the CJEU seemed rather critical, the court left it to the Member State courts to make the ultimate determination.

After the passing of the GDPR in 2016, many Member States were lobbied by local interest groups to use any possible exception. Member States have in turn extensively passed laws that go beyond the opening clauses in the GDPR. This creates massive legal uncertainty, as such laws are on the books, but may not be applied in practice. It often takes years until local courts and the CJEU annuls these laws.

Case Law: The legislator in Austria has passed a total exception from all GDPR obligations for journalism. As this blanket exception went far beyond anything that is "proportionate" the Austrian Constitutional Court annulled the law. For example in Sweden a similar provision does still exist.

For the average controller, it is therefore important to ensure that national laws comply with EU law requirements and are not at risk of being annulled or declared inapplicable.

Relationship between Articles 6(2) and 6(3) GDPR

It is important to set out that it remains unclear how Articles 6(2) and 6(3) relate to one another, legally and systematically. The exact relationship between the two clauses remains disputed. Some authors ascribe a more declaratory nature to Article 6(2), and see Article 6(3) as the clause that offers the actual competence to enact material-specific data protection regulation. Other authors state that Article 6(2) does permit Member States to adopt material-specific regulation, and see Article 6(3) as a clause that sets out concrete requirements for this regulation. Finally, another group of authors that does not see these requirements as additional, but cumulative.

(4) Further processing

Article 8(2) of the Charter and Article 5(1)(b) GDPR require that personal data is only processed for original "specified, explicit and legitimate purposes" and that personal data is not "processed in a manner that is incompatible with those purposes". Especially the idea of re-use of personal data for "big data" projects and alike was at the heart of a lobby effort to limit purpose limitation in Article 5(1)(b) GDPR and allow the re-use and further use of personal data - which is in fact the antithesis of purpose limitation.

Consent

Article 6(4) GDPR foresees that a data subject can waive the protections under Article 5(1)(b) GDPR by giving consent, as defined in Articles 4(11), 6(1)(a), 7 and 8 GDPR. This option is consistent with the right to informational self-determination, where data subjects can give up their rights under the law.

Example: A data subject has provided her personal data at an online shop to process her order. The controller may ask the data subject to allow the re-use of this personal data to send a birthday gift via postal mail and thereby change the purpose to advertisement.

It is unclear if consent for the further use of special categories of personal data must be explicit, as required under Article 9(1)(a) GDPR. While the wording does not require explicit consent, a systematic interpretation would suggest that the change of purpose should meet the same requirements as consent to the processing of the original purpose when it comes to special categories of personal data.

Union or Member State Law

It is rather common that laws require the sharing of various information, such as evidence in procedures. Member States can maintain or pass such legislation and controllers may not cite purpose limitation to withhold information, as long as such laws "constitute a necessary and proportionate measure in a democratic society to safeguard the objectives referred to in Article 23(1) GDPR". Other objectives are not available to Member State law.

Example: An event has a participant list. The controller said the purpose of this list is merely the management of entry to the event. When a crime happened and the criminal procedure of a Member State allows to obtain any personal data for the purposes of criminal investigations, the purpose limitation by the original controller can be overridden in the public interest to allow the investigators to use this information for their criminal investigation.

When it comes to the reference to EU law, there would actually be no hierarchy between Article 6(4) GDPR and any other provision that goes beyond Article 6(4) GDPR. Consequently any later legislation would simply overturn or amend the provision and Article 6(4) GDPR would loose its meaning.

However, because such EU or Member State law interferes with purpose limitation in Article 8(2) of the Charter, any such EU or Member State law would have to comply with all requirements of Article 52 of the Charter, including the requirement to be "proportionate". It may be that legal requirements are not compatible with these requirements. EU law could therefore be subject to annulment, while Member State law would be inapplicable.

Compatible purposes

In addition to the option to process personal data for a (wholly) different purpose, Article 6(4) GDPR also foresees the option to have so-called "compatible" purposes. The idea of compatible purposes was derived from the definition of purpose limitation already known from Article 6(1)(b) of Directive 95/46/EC ("personal data must be ... collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes"). In simple terms, the fact that the Directive only prohibited processing that is "incompatible" with the original purpose, led to a line of argument that there must be "compatible" purposes too. Obviously this argumentum e contrario is rather simplistic and questionable as it can erode a core principle of EU data protection. Just because the legislator highlighted that "incompatible" use is prohibited does not automatically lead to the assumption that there are additional "compatible" purposes that are never mentioned in the law nor in Article 8(2) of the Charter. The idea of changing purposes also created a systematic conflicts with requirements to have an utmost "specific" purpose in a first step under Article 5(1)(b) GDPR or "specific" consent for a specific purpose, if the purpose can be changed anyways. Nevertheless, in a battle between the European Parliament and the Council, the idea of "compatible purposes" was codified in Article 6(4) GDPR after all.

Article 6(4) GDPR prescribes certain factors to be taken into account where a controller wishes to further process personal data for a "compatible" purpose, that it was not collected for initially. The factors set out in Article 6(4)(a) to (c) GDPR are not exhaustive. Notably, the new purpose does not need to be a "sub purpose" of the initial one. Rather, compatibility can exist where the initial and further purpose are “pursued ‘together’ in close vicinity” or where the further purpose is “a logical consequence of the initial purpose”.

Factors for the compatibility test

Generally the factors in Article 6(4)(a) to (e) GDPR are only examples ("inter alia") and are very vague. The true meaning of elements like the "context [of the] collection" allows almost any factor or argument to be taken into account. Given that such an assessment is usually done by a controller that seeks to expand the use of personal data beyond the limits of Article 5(1)(b) GDPR, a certain dynamic towards a rather permissible application of this paragraph is likely to occur in practice. To rely on further processing compatibility, controllers must be able to demonstrate that an assessment of all relevant risks was done.

(a) Link between purposes

Obviously for a new purpose to be "compatible", the original purpose and the new purpose must be related. To appreciate the compatibility of various purposes, the controller should take into account, among others, the existence of a link between the original and additional purpose, the general context in which the data are processed.

Already Article 5(1)(b) GDPR clarifies that, further processing for scientific or historical research purposes, or further processing for statistical purposes should be considered to be compatible lawful processing operations.

(b) Context of collection and relationship with data subject

The "context of the collection" and the "relationship with the data subject" seem to be very generic factors that can only be assessed on a case-by-case basis. A bank that focuses on confidentially in an upscale market and explicitly states "we will ever only use your personal information for purposes A, B and C" may raise certain expectations that would not suggest that personal data is further used questionable purposes.

Recital 50 GDPR adds that "the reasonable expectations of data subjects based on their relationship with the controller" should be considered. The context of the collection may give reasons why a data subject would or would not expect the further use for other purposes. The mere fact that many controllers take a certain action may not be obvious to the data subject and the widespread violation of the law does not make an act more legal. Consequently, the mere fact that many controllers use personal data in a "customer relationship system" cannot be seen as a reason why such use is per se "compatible" with the original purpose.

The relationship with the data subject may also point in either direction. Mutual trust may be a factor to suggest that certain steps will or will not be taken. The provision does not suggest that close relationship with the data subject may be a factor to use personal data further. For example, if a close relationship exists, it may be more practical and therefore more reasonable to ask for consent for the further use of personal data, while this may simply not be possible for data subjects that are hard to reach. At the same time a distant data subject may have less of an expectation that his or her personal data may be used for other purposes.

(c) Nature of personal data

While the provision highlights special categories of personal data under Article 9 GDPR and personal data related to criminal convictions and offences under Article 10 GDPR, it is not limited to such personal data ("in particular"). Other categories of usually more sensitive information may include financial details, log-in data and alike and should also be considered in any balancing test.

(d) Possible consequences

Obviously the possible consequences for any further use for the rights of the data subject must be considered when using personal data beyond the limits of Article 5(1)(b) GDPR. This is not limited to financial losses or other material damages, but also includes non-material damages (see Article 82(1) GDPR) and other non-material, emotional consequences or inconveniences, such as foreseeable problems to enforce the data subjects' rights under the GDPR.

(e) Safeguards

The controller may introduced (additional) appropriate safeguards to ensure that the processing of personal data for a compatible purpose is mitigated. The law names, as examples, encryption and pseudonymisation. While proper encryption is a baseline requirement under Article 32 GDPR and will in most cases not lead to any additional safeguard, pseudonymisation can limit the potential impact in cases of abuse. Some other safeguards are already foreseen by law, such as the need to inform about the change of purposes in Article 13(3) or 14(4) GDPR. Additional safeguard may include the use of anonymised data, an option to opt-out from processing for the compatible purpose, beyond the rights under Article 7(4) GDPR to withdraw consent and the right to object in Article 21 GDPR. Safeguards should be "appropriate", meaning neither going beyond what can reasonably be implemented and achieved, nor mere window dressing.

Tension between "compatible" purposes and Article 8(2) of the Charter

During the GDPR negotiations little attention was paid to the fact that the principle of purpose limitation has become an element of the fundamental right to data protection in Article 8(2) of the Charter. Especially the notion of "compatible purposes" seems to stretch the possibilities of the legislator. Given that Article 8(2) of the Charter does not foresee "compatible" purposes any such "compatible" purpose must be seen as a limitation of Article 8(2) of the Chater, which must comply with Article 52 of the Charter. The very vague nature of the open-ended compatibility test in Article 6(4) GDPR itself may already be conflicting with the requirement that any limitation of Charter rights must be foreseen by precise enough law. The CJEU has so far not been asked to assess the compatibility of Article 6(4) GDPR with Articles 8(2) and 52 of the Charter. As a minimum, Article 6(4) GDPR must be interpreted "in the light of the Charter", which may limit the application in many cases.

Tension with Article 5 and 12 GDPR in case of routine reliance on Article 6(4) GDPR

While Article 6(4) GDPR may be used for unforeseen needs to change the purpose, a structural re-use of personal data for initially undisclosed purposes may conflict with the duties under Article 5(1)(a) GDPR "fairness" and "transparency", the general requirement to define the purposes in Article 5(1)(b) GDPR during collection and the requirement to provide (initial) information in a "transparent, intelligible and easily accessible form, using clear and plain language" under Article 12(1) GDPR.

Duty to inform about a change in purposes

Under Article 13(3) or 14(4) GDPR the controller must inform the data subject prior to making any changes to the purpose. This includes any change based on Union or Member State law and the use of personal data for any "compatible" purpose.

Need to comply with all other provisions of the GDPR

The finding that a purpose is "compatible" or that there is a legal basis to process personal data for another purpose in Union or Member State law, does not mean that other provisions of the GDPR must not be complied with for such further processing.

Some authors rely on the (non-binding) Recital 50 GDPR to argue that processing for another purpose does not require a legal basis under Article 6(1) GDPR. However, the authors of the GDPR have highlighted that this was an error in the drafting. This view is also supported by a systematic reading of the law. The requirement to have a legal basis for any processing operation is enshrined in Article 8(2) of the Charter, Article 5(1)(a) GDPR and Article 6(1) GDPR. At the same time Article 6(4) GDPR clearly only further defines Article 5(1)(b) GDPR. Against the clear wording of the law and the obvious systematic relationship between Article 5(1)(b) and 6(4) GDPR, a non-binding Recital cannot override the law.

Consequently, further processing must still have a legal basis under Article 6(1) GDPR, be "fair" under Article 5(1)(a) GDPR and alike.

Decisions

→ You can find all related decisions in Category:Article 6 GDPR