Article 35 GDPR

← Article 35 - Data protection impact assessment →
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 35 - Data protection impact assessment

1. Where a type of processing in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall, prior to the processing, carry out an assessment of the impact of the envisaged processing operations on the protection of personal data. A single assessment may address a set of similar processing operations that present similar high risks.

2. The controller shall seek the advice of the data protection officer, where designated, when carrying out a data protection impact assessment.

3. A data protection impact assessment referred to in paragraph 1 shall in particular be required in the case of:

(a) a systematic and extensive evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling, and on which decisions are based that produce legal effects concerning the natural person or similarly significantly affect the natural person;

(b) processing on a large scale of special categories of data referred to in Article 9(1), or of personal data relating to criminal convictions and offences referred to in Article 10; or

(c) a systematic monitoring of a publicly accessible area on a large scale.

4. The supervisory authority shall establish and make public a list of the kind of processing operations which are subject to the requirement for a data protection impact assessment pursuant to paragraph 1. The supervisory authority shall communicate those lists to the Board referred to in Article 68.

5. The supervisory authority may also establish and make public a list of the kind of processing operations for which no data protection impact assessment is required. The supervisory authority shall communicate those lists to the Board.

6. Prior to the adoption of the lists referred to in paragraphs 4 and 5, the competent supervisory authority shall apply the consistency mechanism referred to in Article 63 where such lists involve processing activities which are related to the offering of goods or services to data subjects or to the monitoring of their behaviour in several Member States, or may substantially affect the free movement of personal data within the Union.

7. The assessment shall contain at least:

(a) a systematic description of the envisaged processing operations and the purposes of the processing, including, where applicable, the legitimate interest pursued by the controller;

(b) an assessment of the necessity and proportionality of the processing operations in relation to the purposes;

(c) an assessment of the risks to the rights and freedoms of data subjects referred to in paragraph 1; and

(d) the measures envisaged to address the risks, including safeguards, security measures and mechanisms to ensure the protection of personal data and to demonstrate compliance with this Regulation taking into account the rights and legitimate interests of data subjects and other persons concerned.

8. Compliance with approved codes of conduct referred to in Article 40 by the relevant controllers or processors shall be taken into due account in assessing the impact of the processing operations performed by such controllers or processors, in particular for the purposes of a data protection impact assessment.

9. Where appropriate, the controller shall seek the views of data subjects or their representatives on the intended processing, without prejudice to the protection of commercial or public interests or the security of processing operations.

10. Where processing pursuant to point (c) or (e) of Article 6(1) has a legal basis in Union law or in the law of the Member State to which the controller is subject, that law regulates the specific processing operation or set of operations in question, and a data protection impact assessment has already been carried out as part of a general impact assessment in the context of the adoption of that legal basis, paragraphs 1 to 7 shall not apply unless Member States deem it to be necessary to carry out such an assessment prior to processing activities.

11. Where necessary, the controller shall carry out a review to assess if processing is performed in accordance with the data protection impact assessment at least when there is a change of the risk represented by processing operations.

Relevant Recitals

Recital 75: Risks to the Rights and Freedoms of Natural Persons

The risk to the rights and freedoms of natural persons, of varying likelihood and severity, may result from personal data processing which could lead to physical, material or non-material damage, in particular: where the processing may give rise to discrimination, identity theft or fraud, financial loss, damage to the reputation, loss of confidentiality of personal data protected by professional secrecy, unauthorised reversal of pseudonymisation, or any other significant economic or social disadvantage; where data subjects might be deprived of their rights and freedoms or prevented from exercising control over their personal data; where personal data are processed which reveal racial or ethnic origin, political opinions, religion or philosophical beliefs, trade union membership, and the processing of genetic data, data concerning health or data concerning sex life or criminal convictions and offences or related security measures; where personal aspects are evaluated, in particular analysing or predicting aspects concerning performance at work, economic situation, health, personal preferences or interests, reliability or behaviour, location or movements, in order to create or use personal profiles; where personal data of vulnerable natural persons, in particular of children, are processed; or where processing involves a large amount of personal data and affects a large number of data subjects.

Recital 84: Data Protection Impact Assessment

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

Recital 89: Abolishment of Indiscriminate General Notification

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

Recital 90: Impact Assessment Modalities and Scope

In such cases, a data protection impact assessment should be carried out by the controller prior to the processing in order to assess the particular likelihood and severity of the high risk, taking into account the nature, scope, context and purposes of the processing and the sources of the risk. That impact assessment should include, in particular, the measures, safeguards and mechanisms envisaged for mitigating that risk, ensuring the protection of personal data and demonstrating compliance with this Regulation.

Recital 91: Conditions Necessitating an Impact Assessment

This should in particular apply to large-scale processing operations which aim to process a considerable amount of personal data at regional, national or supranational level and which could affect a large number of data subjects and which are likely to result in a high risk, for example, on account of their sensitivity, where in accordance with the achieved state of technological knowledge a new technology is used on a large scale as well as to other processing operations which result in a high risk to the rights and freedoms of data subjects, in particular where those operations render it more difficult for data subjects to exercise their rights. A data protection impact assessment should also be made where personal data are processed for taking decisions regarding specific natural persons following any systematic and extensive evaluation of personal aspects relating to natural persons based on profiling those data or following the processing of special categories of personal data, biometric data, or data on criminal convictions and offences or related security measures. A data protection impact assessment is equally required for monitoring publicly accessible areas on a large scale, especially when using optic-electronic devices or for any other operations where the competent supervisory authority considers that the processing is likely to result in a high risk to the rights and freedoms of data subjects, in particular because they prevent data subjects from exercising a right or using a service or a contract, or because they are carried out systematically on a large scale. The processing of personal data should not be considered to be on a large scale if the processing concerns personal data from patients or clients by an individual physician, other health care professional or lawyer. In such cases, a data protection impact assessment should not be mandatory.

Recital 92: Broader Data Protection Impact Assessments

There are circumstances under which it may be reasonable and economical for the subject of a data protection impact assessment to be broader than a single project, for example where public authorities or bodies intend to establish a common application or processing platform or where several controllers plan to introduce a common application or processing environment across an industry sector or segment or for a widely used horizontal activity.

Recital 93: Data Protection Impact at Public Authorties and Bodies

In the context of the adoption of the Member State law on which the performance of the tasks of the public authority or public body is based and which regulates the specific processing operation or set of operations in question, Member States may deem it necessary to carry out such assessment prior to the processing activities.

Commentary

Article 35 requires the controller to carry out a Data Protection Impact Assessment (DPIA) when a certain processing operation, or a set of operations with similar characteristics, presents a high risk to the rights and freedoms of natural persons. The DPIA, is one of the most innovative elements of the accountability principle (see Article 24 GDPR). takes into account the nature, scope, context and purposes of the processing, evaluates its potential risks and consider any remedy which can minimise or reduce such risks. The provision in question regulates the cases in which the DPIA is mandatory, what the minimum content is and other procedural aspects relating to the process of forming the analysis.

(1) Mandatory DPIA

The DPIA is an analysis document that takes into account the nature, scope, context and purposes of the processing, evaluates its potential risks and consider any remedy which can minimise or reduce such risks. The party required to prepare the DPIA is the controller. Processors and device manufacturers are therefore not responsible for preparing the analysis. However, under Article 28(3)(f) GDPR, the processor shall assist the controller by providing all necessary information. The DPO is also involved in the drafting of the DPIA under Article 35(2) GDPR and Article 39(1)(c) GDPR. The DPO’s advice is recorded by the controller. Data subjects can also be involved in the preparation of the document as stipulated by Article 35(9) GDPR.

Controllers must carry out a DPIA only if the processing “is likely to result in a high risk to the rights and freedoms of natural persons”. Therefore, WP29 considers that a DPIA is not required when: (i) the processing is not "likely to result in a high risk to the rights and freedoms of natural persons"; (ii) the nature, scope, context and purposes of the processing are very similar to the processing for which DPIA have been carried out; (iii) the processing operations have been checked by a supervisory authority before May 2018 in specific conditions that have not changed; a processing operation, pursuant to point (c) or (e) of article 6(1), has a legal basis in EU or Member State law, where the law regulates the specific processing operation and where a DPIA has already been carried out as part of the establishment of that legal basis (Article 35(10) GDPR); the processing is included on the optional list (established by the supervisory authority) of processing operations for which no DPIA is required (Article 35(5) GDPR).

The DPIA must take place before the processing begins. If the processing began before the GDPR came into force there is logically no possibility of a prior impact assessment. However DPIAs should be seen as a continuous process rather than as a one-time exercise. For these reasons, it would be advisable to carry out a new DPIA in such circumstances.

(2) Involvement of the Data Protection Officer

Where an obligation to carry out the DPIA exists, the Data Protection Officer (DPO) has to be involved in the procedure. The controller has to consult the designated DPO for their advice. The DPO involvement should be documented in writing in order to demonstrate that the advice has been sought. The controller is not obliged to follow the DPO’s opinion. In this case, the controller should motivate and document its reasons.

(3) Likely to Result in a High Risk

Article 35(3) provides enumerates a list of “inherently” risky processing operations which always require a previous DPIA. This is the case, when processing involves (a) a systematic and extensive evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling, and on which decisions are based that produce legal effects concerning the natural person or similarly significantly affect the natural person; (b) processing on a large scale of special categories of data referred to in Article 9(1) GDPR, or of personal data relating to criminal convictions and offences referred to in Article 10 GDPR; or (c) a systematic monitoring of a publicly accessible area on a large scale. The above-mentioned circumstances, however, do not constitute an exclusive list. It follows that a DPIA may be required also for different types of processing which are not mentioned in the list.

The use of the phrase "in particular" means that the list provided by Article 35(3) GDPR is not exhaustive. On the basis of this argument, the WP29 has developed a list of criteria for assessing the high risk of a certain type of processing, including, among others, the existence of assessment or scoring operations, the presence of automated decision-making, systematic monitoring, the use of particular categories of data, the existence of large-scale data processing, matching operations between different databases, personal data relating to vulnerable individuals, the use of new technologies and, finally, the fact that the processing may inhibit the data subject from exercising his or her rights or using a certain service.

In most cases, a data controller can consider that a processing meeting two criteria would require a DPIA to be carried out. In general, the WP29 considers that the more criteria are met by the processing, the more likely it is to present a high risk to the rights and freedoms of data subjects, and therefore to require a DPIA, regardless of the measures which the controller envisages to adopt. However, "in some cases, a data controller can consider that a processing meeting only one of these criteria requires a DPIA". Conversely, a processing operation may correspond to the above mentioned cases and still be considered by the controller not to be “likely to result in a high risk”. In such cases "the controller should justify and document the reasons for not carrying out a DPIA".

(4)(5) Specifications through DPAs

Every DPA shall establish a list of processing operations for which a DPIA is always required ("positive" list) under Article 35(1) GDPR. At the same time, the DPAs may draft a list of processing operations which do not require a DPIA ("negative" list). In both cases, the national DPAs are obliged to communicate the lists to the EDPB according to Article 68 GDPR. The lists are available online on the EDPB's website.

(6) Consistency Mechanism is Required to Adopt Lists

Where the lists referred to in paragraph 4 and 5 involve processing activities which are related to the offering of goods or services to data subjects or to the monitoring of their behaviour in several Member States, or may substantially affect the free movement of personal data within the Union, the competent supervisory authority shall communicate them to the EDPB and apply the consistency mechanism referred to in Article 63 GDPR.

(7) DPIA Minimum Requirements

Article 35(7) GDPR sets out a list of minimum requirement which shall be dealt with in the DPIA.

To begin, under Article 35(7)(a) GDPR, the assessment must provide a systematic description of the envisaged processing operations and its purposes. In practice, the first step of the DPIA must provide a clear description of the processing operations under observation. This step includes the description of the data flow and the systematic indication of the legal basis of the processing, including any legitimate interests pursued by the controller.

In accordance with Article 35(7)(b) GDPR, the assessment will then have to ponder and explain the necessity and proportionality of each processing with regard to the single purpose pursued. The controller shall explain for which reason a processing or a set of processing is necessary to pursue a specific purpose. In doing so, it also has to justify why other less intrusive processing is not suitable for the purpose.

Article 35(7)(c) GDPR requires the controller to include an assessment of the risks to the rights and freedom of data subjects. A “risk” is a scenario describing an event and its consequences, estimated in terms of severity and likelihood. Risks can exist both within the controller's organization (e.g. employees, trainees, consultants) and from outside (e.g. hackers, suppliers) and do not have to be caused exclusively by humans (harmful computer code, animals, fire, natural disasters). The single risk is calculated by comparing the potential damage with the probability of its occurrence. It is generally possible to distinguish between “implied risk” and “residual risk”. The former refers to the probability of bad consequences if no preventive measures are taken by the controller. The latter is, on the contrary, the possible negative impact which is possible after certain measures are adopted.

Finally, under Article 35(7)(d) GDPR, the controller must select appropriate measures to mitigate the risk. These measures may be technical or organisational in nature, including legal safeguards arising from contracts or other legal sources. The controller shall then apply these measures to the previously identified risks and verify the extent to which they contribute to risk reduction. This makes it possible to calculate the so-called 'residual risk', which is the risk that cannot be eliminated even after the containment measures have been applied.

The data protection impact assessment must be documented, otherwise the controller would not be able to "systematically describe" the envisaged processing (Article 35(7)(a) GDPR) or share the assessment with the data protection authority under Article 36 GDPR. In general, the written form is the only way to provide proof of compliance. The GDPR does not require the publication of the report, but in the interests of transparency towards data subjects, the essential parts of the impact assessment report can and should be published or at least made available to interested parties.

Finally, Article 35(7) GDPR does not provide specific guidance on the structure, content and methodology of the DPIA. In order to facilitate the controller's task, some data protection authorities have provided DPIA templates. There is no obligation to use one or more of these models. However, they can be used as a methodological guide or template for an impact assessment.

(8) Codes of Conducts

Compliance with approved codes of conduct referred to in Article 40 GDPR by the relevant controllers or processors shall be taken into due account in assessing the impact of the processing operations performed by such controllers or processors, in particular for the purposes of a data protection impact assessment. Using an approved code of conduct significantly lower the effort for conducting the impact assessment and demonstrating compliance. However, there is no automatism that adherence to approved rules of conduct guarantees sufficient risk reduction in the specific case.

(9) Data Subjects May be Involved in the Drafting of the DPIA

Under Article 35(9) GDPR, the controller, “where appropriate” may “seek the views of data subjects or their representatives on the intended processing”. A tool to increase the transparency of the processing and the involvement of (potential) data subjects on the essential elements of the processing. Whether this is an obligatory or voluntary step is not entirely clear. Some authors focus on one part of the text ('where appropriate') and conclude that it is merely an option. This view, however, does not seem conclusive. The case, in fact, provides that 'where appropriate' the controller 'shall' seek the data subject's advice. The law does not use the verb "may" or "can", but the obligation "shall". This means that, where 'appropriate', the controller must seek the data subject's advice. Accordingly, we believe that the controller must give precise reasons as to whether the consultation is appropriate or not. The same effort seems to be required in case the controller do involve the data subjects but then decide to overcome their negative feedback.

(10) National Exemptions

There is no obligation to conduct a DPIA when the processing is based on European or member state law in terms of Article 6(1)(c) or (e) GDPR for which the law maker already conducted a general impact assessment (see also Recital 93 GDPR). In this regard, the law maker can decide to shift the DPIA to the process of law-making in order to reduce the resulting bureaucracy for public institutions relying on that law for their processing of personal data. However, the law maker is not obliged to do so and can still request controllers to carry out their own DPIA.

(11) Review of Processing and Updates

Article 35(11) GDPR requires the controller to assess if processing is performed in accordance with the data protection impact assessment. The fact that the DPIA may need to be updated once the processing has actually started is not a valid reason for postponing or not carrying out a DPIA. The DPIA is an ongoing process, especially where a processing operation is dynamic and subject to ongoing change. Carrying out a DPIA is a continual process, not a one-time exercise.

Decisions

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