Article 1 GDPR

← Article 1: Subject-matter and objectives →
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 1: Subject-matter and objectives

1. This Regulation lays down rules relating to the protection of natural persons with regard to the processing of personal data and rules relating to the free movement of personal data.

2. This Regulation protects fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data.

3. The free movement of personal data within the Union shall be neither restricted nor prohibited for reasons connected with the protection of natural persons with regard to the processing of personal data.

Relevant Recitals

Recital 1: The Right to Data Protection as a Fundamental Right

The protection of natural persons in relation to the processing of personal data is a fundamental right. Article 8(1) of the Charter of Fundamental Rights of the European Union (the ‘Charter’) and Article 16(1) of the Treaty on the Functioning of the European Union (TFEU) provide that everyone has the right to the protection of personal data concerning him or her.

Recital 2: Respect of Fundamental Rights and Freedoms

The principles of, and rules on the protection of natural persons with regard to the processing of their personal data should, whatever their nationality or residence, respect their fundamental rights and freedoms, in particular their right to the protection of personal data. This Regulation is intended to contribute to the accomplishment of an area of freedom, security and justice and of an economic union, to economic and social progress, to the strengthening and the convergence of the economies within the internal market, and to the well-being of natural persons.

Recital 3: Directive 95/46/EC Harmonisation Goal

Directive 95/46/EC of the European Parliament and of the Council seeks to harmonise the protection of fundamental rights and freedoms of natural persons in respect of processing activities and to ensure the free flow of personal data between Member States.

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 5: Cross-Border Cooperation for the Exchange of Personal Data

The economic and social integration resulting from the functioning of the internal market has led to a substantial increase in cross-border flows of personal data. The exchange of personal data between public and private actors, including natural persons, associations and undertakings across the Union has increased. National authorities in the Member States are being called upon by Union law to cooperate and exchange personal data so as to be able to perform their duties or carry out tasks on behalf of an authority in another Member State.

Recital 6: Technological Transformation to Ensure a High Level of Protection

Rapid technological developments and globalisation have brought new challenges for the protection of personal data. The scale of the collection and sharing of personal data has increased significantly. Technology allows both private companies and public authorities to make use of personal data on an unprecedented scale in order to pursue their activities. Natural persons increasingly make personal information available publicly and globally. Technology has transformed both the economy and social life, and should further facilitate the free flow of personal data within the Union and the transfer to third countries and international organisations, while ensuring a high level of the protection of personal data.

Recital 7: Control Over Own Personal Data

Those developments require a strong and more coherent data protection framework in the Union, backed by strong enforcement, given the importance of creating the trust that will allow the digital economy to develop across the internal market. Natural persons should have control of their own personal data. Legal and practical certainty for natural persons, economic operators and public authorities should be enhanced.

Recital 8: National Implementation

Where this Regulation provides for specifications or restrictions of its rules by Member State law, Member States may, as far as necessary for coherence and for making the national provisions comprehensible to the persons to whom they apply, incorporate elements of this Regulation into their national law.

Recital 9: Fragmentation under Directive 95/46/EC

The objectives and principles of Directive 95/46/EC remain sound, but it has not prevented fragmentation in the implementation of data protection across the Union, legal uncertainty or a widespread public perception that there are significant risks to the protection of natural persons, in particular with regard to online activity. Differences in the level of protection of the rights and freedoms of natural persons, in particular the right to the protection of personal data, with regard to the processing of personal data in the Member States may prevent the free flow of personal data throughout the Union. Those differences may therefore constitute an obstacle to the pursuit of economic activities at the level of the Union, distort competition and impede authorities in the discharge of their responsibilities under Union law. Such a difference in levels of protection is due to the existence of differences in the implementation and application of Directive 95/46/EC.

Recital 10: Equivalent Level of Protection and Homogeneous Application

In order to ensure a consistent and high level of protection of natural persons and to remove the obstacles to flows of personal data within the Union, the level of protection of the rights and freedoms of natural persons with regard to the processing of such data should be equivalent in all Member States. Consistent and homogenous application of the rules for the protection of the fundamental rights and freedoms of natural persons with regard to the processing of personal data should be ensured throughout the Union. Regarding the processing of personal data for compliance with a legal obligation, for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, Member States should be allowed to maintain or introduce national provisions to further specify the application of the rules of this Regulation. In conjunction with the general and horizontal law on data protection implementing Directive 95/46/EC, Member States have several sector-specific laws in areas that need more specific provisions. This Regulation also provides a margin of manoeuvre for Member States to specify its rules, including for the processing of special categories of personal data (‘sensitive data’). To that extent, this Regulation does not exclude Member State law that sets out the circumstances for specific processing situations, including determining more precisely the conditions under which the processing of personal data is lawful.

Recital 11: Strengthening of Rights and Enforcement

Effective protection of personal data throughout the Union requires the strengthening and setting out in detail of the rights of data subjects and the obligations of those who process and determine the processing of personal data, as well as equivalent powers for monitoring and ensuring compliance with the rules for the protection of personal data and equivalent sanctions for infringements in the Member States.

Recital 12: Article 16(2) TFEU Mandate

Article 16(2) TFEU mandates the European Parliament and the Council to lay down the rules relating to the protection of natural persons with regard to the processing of personal data and the rules relating to the free movement of personal data.

Commentary

Article 1 GDPR is mainly programmatic and sets out the general objectives of the GDPR. While this is relevant for the understanding and interpretation of the GDPR, Article 1 has limited legal relevance for controllers and data subjects in daily practice. The aims can function as guiding principles to interpreting the GDPR.

(1) Subject-matter

Article 1(1) establishes the GDPR's two main aims. First, it aims at protecting natural persons with regard to the processing of their personal data, at the same time it recognizes the EU internal market interest in the free movement of such data. Both objectives are already named in the title of the GDPR.

Data protection and the free flow of data

The European Union is based on the idea of a common market, that provide for four freedoms, namely the free movement of goods, capital and people, as well as the freedom to establish and provide services. Different national data protection laws - or indeed the lack of such laws - would conflict with these freedoms. If Member States would, for example, prohibit the transfer of personal data to another Member State where there is no equivalent protection, trade between these Member States would be more complicated.

Example: If France would protect personal data, but Germany would not, the French protections could only be enforced if personal data would not leave France. Such national limitations would limit the European common market.

Consequently the GDPR aims to provide a common level of protection, allowing personal data to flow freely within the European common market.

Limit to natural persons

Article 1(1) also clarifies that the GDPR applies to the processing of personal data concerning natural persons. It follows that the GDPR does not apply to the processing of data belonging to companies, public bodies or other legal entities.

However, if data about a legal entity contains or relates to a natural person or a natural person engages in a professional activity, such data is still within the scope of the GDPR, as clarified by the CJEU in C-398/15 - Salvatore Manni.

Example: If the 'Peter Smith Limited' company is wholly owned by Peter Smith, who is also the only manager of the company, information as to the revenue about 'Peter Smith Limited' can be directly linked to Peter Smith, making the GDPR applicable to such information. Equally, the email peter.smith@examplecompany.com that is used professionally by Peter Smith can be linked to Peter Smith and therefore relates to a natural person. It does not matter if this person acts in a commercial or private capacity.

You can find more details about the scope of the term 'personal data' under Article 4(1) GDPR.

Human rights approach

Non-EU citizens can rely on the GDPR as its application is generally independent of nationality. This is also in line with Article 8 CFR ("Everyone has the right to the protection of personal data") as the right to data protection is a human right, that generally applies to all humans, not just EU citizens.

Example: A Chinese or South African citizen can generally be subject to the GDPR, as the right to data protection is a human right, not a citizen right.

While citizenship is not a factor in the GDPR, there are other geographic factors that limit the application of the GDPR. You can find further details about the territorial scope in Article 3 GDPR.

(2) Protection of fundamental rights and freedoms

According to Article 1(2), the Regulation generally protects the fundamental rights and freedoms of the individual as well as 'in particular' the right to the protection of personal data. Thus, the provisions of the GDPR on the protection of personal data seem to have two objectives. On the one hand, the protection of personal data - which may not come as a surprise. On the other hand, the legislator took the view that the protection of personal data also (indirectly) protects other 'fundamental rights and freedoms'.

Case Law: In the joined cases C‑293/12 and C‑594/12 - Digital Rights Ireland - on so-called 'data retention' where communication metadata was stored for up to two year for criminal investigations, the CJEU held that "it is not inconceivable that the retention of the data in question might have an effect on... their exercise of the freedom of expression guaranteed by Article 11 of the Charter".

Protection of the fundamental right to data protection

Article 8(1) CFR provides for 'the right to the protection of personal data' of a natural person. Some requirements to the processing of data follow from Article 8(2) CFR, which explicitly mentions the principles of fairness and purpose limitation, as well as lawfulness.

Protection of other fundamental rights and freedoms

Another essential fundamental right that is clearly protected by the GDPR is the right to privacy in Article 7 CFR. This concerns the right to respect for 'private and family life' and 'communications' and is distinct from, and often broader than, the right to data protection in Article 8 CFR.

However, the fundamental rights and freedoms enshrined in Articles 7 and 8 of the CFR do not appear to be the only interests protected by the GDPR. Indeed, processing operations are able to impact other fundamental rights such as personality rights, freedom of expression, freedom of information, freedom of communication, the right of assembly, freedom of religion and other anti-discrimination rights. The fundamental rights to privacy, personality and data protection are the backbone of a free society. There can be no freedom where the individual is not in control of their data, feels observed, tracked or continuously assessed. Indeed, Recital 4 clearly states that “the processing of personal data should be designed to serve mankind”, not the opposite.

Example: A person may be only really free to vote, if the secrecy of the ballot is ensured. If a person is afraid that her political beliefs may become known to her employer, spouse or friends, she may not actually vote according to her true convictions.

The right to data protection can therefore be seen as an enabler for other fundamental rights. The protection of personal data often forms a precondition for the exercise of other fundamental rights.

Conflicts with other fundamental rights

Obviously the right to data protection can conflict with a range of other interests, such as the right to freedom of speech, commercial interests, public interests or security and safety interests.

Recital 4 accepts that the right to data protection has to be balanced against these other interests and fundamental rights, but also highlights that these other rights and interests were already taken into consideration when the GDPR was drafted. There is consequently no need to 'balance' the GDPR against other rights for a second time, as the GDPR is already the result of a political balancing of Article 8 CFR and other rights and interests.

Common Misunderstanding: Some lawyers argue that the GDPR would have to be 'balanced' with the right to conduct a business under Article 16 CFR. However, Article 16 CFR has a limited scope and e.g. ensures that everyone can open a business and can decide over business partners. There is also only a freedom to conduct a business 'in accordance with community law' - not in violation of community law (such as the GDPR).

While there is no general balancing test, the GDPR foresees specific flexible provisions, like the recognition of legitimate interests in Article 6(1)(f) GDPR which allows to balance conflicting rights e.g. in the case of fraud prevention or the need to enforce legal claims. There are also a number of opening clauses, like Article 85 on freedom of speech or Article 86 on freedom of information. In many cases Member States have the option to come up with legal requirements to process personal data in the public interest or restrict the GDPR insofar as these national laws are necessary and proportionate.

Interpretation in light of fundamental rights

The fact that the GDPR implements the protection of fundamental rights in secondary legislation, also requires that the GDPR is interpreted in the light of these fundamental rights.

Case Law: In C-311/18 - Schrems II on data transfers from the EU to the US, where secret services can access such personal data, the CJEU has highlighted that the GDPR must be interpreted in light of the CFR. This is not only limited to the right to data protection in Article 8 CFR and the closely related right to privacy in Article 7 CFR, but for example also includes the right to an effective remedy and to a fair trial under Article 47 CFR.

This means that any interpretation of the GDPR that would disproportionally limit the right to data protection under Article 8 CFR could not be sustained. This also allows the application of the proportionality test under Article 52(1) CFR, which often leads to a clear answer when interpreting the GDPR.

In its case law, the CJEU has also repeatedly stressed that the GDPR (and the previous Directive 95/46/EC) is aiming for a "high level of protection". This term was regularly used to convey a more protective interpretation of the GDPR by the CJEU, and is taken from Recitals 6 and 10 of the GDPR. Although conflicting views exist, the approach that gives the right to data protection prevalence over other legally relevant interests is preferred by the CJEU, in order to uphold the this high level of protection foreseen by the GDPR.

Existing CJEU case law contains useful examples of the current state of play. In the joined cases C‑293/12 and C‑594/12 - Digital Rights Ireland the CJEU has, for example, held that the prevention of terrorism does not allow the retention of meta data from phone records.

Similarly, in other cases, public interest in financial transparency in the public sector was not seen to override the interest of employees or recipients of subsidies. While these judgments were mainly concerning public sector violations of Article 7 and 8 CFR, they seem to also apply to private actors, given that the GDPR must be interpreted in light of the CFR.

Example: If in the joined cases C‑293/12 and C‑594/12 - Digital Rights Ireland the CJEU prohibited governments to keep phone records to fight terrorism and serious crime, it seems hard to argue that private entities could claim a legitimate interest under Article 6(1)(f) GDPR for communication data for purposes that are even less serious. Such a legitimate interest would have to cross the red lines set in the CJEU case law, given that the GDPR must be interpreted in the light of Article 8 CFR.

(3) Free movement of personal data

Under Article 1(3) GDPR, the free movement of personal data within the Union shall be neither restricted nor prohibited for reasons related to personal data protection. The provision is mainly aimed at Member States, which may have an interest to pass so-called data localization laws.

The free movement of personal data is limited to the Union, meaning the European Economic Area (EEA). The EEA includes all EU Member States, Iceland, Liechtenstein and Norway. The status of various special territories of EU Member States require additional checks, as some form part of the EEA, while others do not. The UK is not a Member State anymore.

Non-EU/EEA countries do not benefit from the free flow of personal data. In fact, the CJEU has set rather high standards for international data transfers. The free flow of personal data is explicitly limited to the EEA. Rules on transfers to non-EU/EEA countries ('third countries') can be found in Chapter V of the GDPR.

Example: When a Czech controller is storing personal data with a Norwegian cloud provider, the companies do not have to worry about international data flows, because the GDPR prohibits limitations on such data flows. However, when a Spanish controller is using a Swiss provider, there needs to be an additional legal basis for these data flows.

There is an ongoing discussion on whether the free flow of personal data only protects data flowing between systems that are on EEA territory, or if systems on non-EEA territory - that are under the effective control of an EEA controller or processor - would still benefit from the free flow of personal data, given that the GDPR would still apply to them. The European Commission has recently taken an entity-based approach (focusing on the question of whether the controlling entity falls under the territorial scope in Article 3 GDPR), not a data-based approach (focusing on the question of whether the data is physically staying in the EEA). The wording of the GDPR does not seem to support an entity-based approach. At the same time, however, the definition of the GDPR's territorial scope of application is explicitly uncoupled from the question of whether the processing 'takes place in the Union or not' (cf. Art. 3(1)).

Decisions

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