Article 91 GDPR

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

Legal Text

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

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

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

Relevant Recitals

Recital 4: Balance Against Other Fundamental Rights

The processing of personal data should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. This Regulation respects all fundamental rights and observes the freedoms and principles recognised in the Charter as enshrined in the Treaties, in particular the respect for private and family life, home and communications, the protection of personal data, freedom of thought, conscience and religion, freedom of expression and information, freedom to conduct a business, the right to an effective remedy and to a fair trial, and cultural, religious and linguistic diversity.

Recital 54: Processing of Health Data for Reasons of Public Interest

The processing of special categories of personal data may be necessary for reasons of public interest in the areas of public health without consent of the data subject. Such processing should be subject to suitable and specific measures so as to protect the rights and freedoms of natural persons. In that context, ‘public health’ should be interpreted as defined in Regulation (EC) No 1338/2008 of the European Parliament and of the Council, namely all elements related to health, namely health status, including morbidity and disability, the determinants having an effect on that health status, health care needs, resources allocated to health care, the provision of, and universal access to, health care as well as health care expenditure and financing, and the causes of mortality. Such processing of data concerning health for reasons of public interest should not result in personal data being processed for other purposes by third parties such as employers or insurance and banking companies.

Recital 55: Processing by Authorities to Achieve Aims of Religious Associations

Moreover, the processing of personal data by official authorities for the purpose of achieving the aims, laid down by constitutional law or by international public law, of officially recognised religious associations, is carried out on grounds of public interest.

Recital 165: No Prejudice to the Status of Churches and Religious Associations or Communities Under Current Constitutional Law

This Regulation respects and does not prejudice the status under existing constitutional law of churches and religious associations or communities in the Member States, as recognised in Article 17 TFEU.

Commentary

Religious organizations usually process large quantities of personal data relating to their members, and in particular data relating to religious or philosophical beliefs, which are considered sensitive personal data pursuant to Article 9 GDPR. As a consequence, ensuring that these organizations comply with data protection law is essential to protect the rights and freedoms of data subjects who are (or were) members of such organizations.

For historical reasons, however, specific religious organizations may benefit from a particular status in some Member States, which allows them to apply and adopt their own set of binding rules, distinct from national law. For example, as far as the Roman Catholic Church is concerned, some Member States allow for canon law to apply instead of national law for matters falling within the competences of the church.

Article 91 GDPR takes this reality into account by allowing, under certain circumstances, churches and religious associations or communities to be subject to their own set of data protection rules, distinct from the GDPR. This derogation is however subject to stringent conditions, as further detailed below. By implication, churches and religious associations or communities that do not meet these conditions remain bound by the GDPR in its entirety.

Conditions for the derogation to apply

For the derogation of Article 91 GDPR to become relevant, the following conditions must be fulfilled: (i) first, the controller or processor must qualify as a church, a religious association or a religious community ; (ii) second, the controller must have adopted and applied, before the entry into force of the GDPR, its own set of data protection rules; and (iii) third, this set of data protection rules must be comprehensive enough and in line with the GDPR (or must otherwise be brought in line with the GDPR).

Churches and religious associations or communities

The controller must fall within a specific category of actors, i.e. “churches and religious associations or communities”. The GDPR does not define these concepts. The EU legislators seems however to have embraced a broad definition of the notion of religion in general. For instance, under Article 10(1)(b) of Directive 2011/95/EU, “[t]he concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief and as a consequence of religious organisation”.

Based on these specifications, typical examples of religious organisations may include the Roman Catholic Church, and all the catholic associations or communities that belong to it (parishes, monasteries, convents, etc), the Federation of Islamic Organizations in Europe and all the organizations that operate under it (from national associations to local mosques), or the European Jewish Congress and the different communities it brings together (including national coordinating committees and local Jewish communities). Based on the broad definition given to the concept of religion by the EU legislator, the notion of religious associations could further include smaller religious, philosophical or non-confessional organizations. In the case C-25/17, Jehovan todistajat, for example, the CJEU seems to have recognized the Jehovah's Witnesses community as a religious association. In theory, the same considerations could also apply to other minority religious or philosophical groups, such as the Freemasons, the Church of Scientology or Buddhist communities.

Preexisting data protection rules

The second condition for the derogation prescribed in Article 91 GDPR to apply is that the religious organisations must have already adopted and applied their own set of data protection rules prior to the entry into force of the GDPR (i.e. prior to 25 May 2016).

In practice, this presupposes that the religious organizations (i) must have been allowed, under national law, to adopt such rules in the first place (cf. special regime); and (ii) must have made use of that possibility before 25 May 2016.

Although the logic behind this second condition is understandable (i.e. allowing for the continuous separation between religious organisations and the state in the EU countries where such organisations already operated under a special regime), it also restricts the beneficiaries of Article 91 GDPR for the future. New religious groups, for example, cannot fulfill that condition because of the temporal limitation that it contains. As a result, it can be argued that Article 91 GDPR unduly discriminates between pre-established religious organizations and more recent or new religious groups.

Because of the stringent character of that second condition, only a handful of religious organizations benefit in practice from the derogation of Article 91 GDPR. The Jehovah Witnesses community of Finland, for example, did not have their own specific set of data protection rules in place prior to the entry into force of the GDPR. Hence, in the case C-25/17 mentioned above, the CJEU considered that the processing of personal data in the context of their door-to-door preaching activities was subject to EU data protection law.

As far as the Roman Catholic Church is concerned, the derogation of Article 91 GDPR would only apply in Poland and in Italy - two Member States where the Catholic Church took advantage of its special status to adopt their own specific set of binding data protection rules in 1997 and 1999 respectively, i.e. prior to the entry into force of the GDPR. By contrast, in other Member States, the Catholic Church did not adopt such rules and is thus subject to the GDPR. As an illustration of this, in June 2020, an administrative court in Slovenia upheld a decision from the Slovenian DPA regarding the processing of personal data by a small parish of the Roman Catholic Church. The case was initiated by an individual who had requested his personal data to be erased from the Baptismal Register, because he was no longer a member of the church. The parish claimed however that it was required to keep these data on the basis of the Protection of Documents and Archives and Archival Institutions Act, which classifies the registry as archival material of outstanding national importance. The Slovenian DPA concluded that the parish did not violate data protection law by rejecting the request for erasure of the individual in question, because its archiving obligation prohibited such deletion. This decision was upheld by the administrative court in second instance. Even if the complaint of the individual was ultimately dismissed, this case shows that the parish in question was subject to the GDPR because, in Slovenia, the Roman Catholic Church did not adopt its own rules on data protection prior to 25 May 2016.

Even in a situation when a religious organisation would have adopted its own set of data protection rules prior to 25 May 2016, Tosoni argues - and we agree with him - that such special rules would in any case only operate “as a lex specialis where such organisations process data for strictly religious purposes”. In other words, the processing operations that fall outside of the religious activities of the concerned organisations would remain subject to the GDPR.

Rules that are comprehensive and in line with the GDPR

The third and final condition for the derogation of Article 91 GDPR to apply is that the lex specialis of the religious organisation must be “comprehensive” and "brought in line with the GDPR". By implication, if it is found that the lex specialis of a religious association does not reach this level of completeness, or was not brought in line with the GDPR, the latter will apply instead.

As a result of this condition, the Roman Catholic Church of Poland and Italy amended their existing data protection rules to bring them in line with the GDPR in 2018. The applicable decrees provide, for example, that the church must keep a record of processing activities, appoint a DPO and notify data breaches when they occur.

The GDPR does not provide any clear indications as to the level of comprehensiveness and equivalence which must exist between the GDPR and the lex specialis. It can be assumed however that the general principles of data protection law as enshrined in Article 5 GDPR must be complied with, and that the rights of the data subjects as found in the GDPR must also be available under the lex specialis. In other words, there must exist a basic level of equivalence between the lex specialis and the GDPR. There may still be minor divergences from the GDPR when necessary to achieve the ultimate aim of the provision, which is to protect the independence of churches and religious associations or communities.

DPA supervision

Religious organisations that fulfill the requirements listed in Paragraph 1 and therefore continue to apply their special rules must be subject to the supervision of an independent supervisory authority. It can either be a specific authority established by a religious organisation itself, or the general DPA responsible for monitoring the application of the GDPR at the regional or national level. In both cases, all the conditions specified in Chapter VI GDPR relating to supervisory authorities must be met. For example, the authority must be sufficiently independent in line with Article 52 GDPR.

In Poland, the Roman Catholic Church has made use of that possibility by establishing a specific supervisory authority in charge of monitoring the processing activities of the Church in that country, referred to as the Church Data Protection Inspector (Kościelny Inspektor Ochrony Danych). Whether such authority meets all the requirements set in Chapter VI GDPR remains to be assessed.

Decisions

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

References

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