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: 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: 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 (11), 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: 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: 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 sensitive data, and in particular data relating to religious or philosophical beliefs. As a consequence, it is particularly important that religious organizations comply with data protection law whenever they process personal data in the framework of their religious activities. For historical reasons, however, 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 applies on the conditions that these rules are comprehensive enough, in line with the GDPR, and were already applicable before the entry into force of the GDPR. By contrast, if churches and religious associations or communities did not have a comprehensive set of data protection rules at the time of the entry into force of the GDPR, it must be assumed that the GDPR applies to them in its entirety.

(1) Conditions for the derogation to apply

For the derogation of Article 91 GDPR to become relevant, the following conditions apply: (i) the controller must be a church, a religious association or a religious community ; (ii) the controller must have adopted and applied, before the entry into force of the GDPR, its own set of data protection rules; and finally (iii) 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, and ruled that the processing of personal data by Jehovah witnesses in the context of their door-to-door preaching activities was subject to EU data protection law. The same could also apply to other minority religious or philosophical groups, such as the Freemasons, the Church of Scientology or Buddhist communities. In practice, however, only well-established organizations which were already allowed, at the national level, to adopt and apply their own set of binding data protection rules are concerned by the derogation prescribed in Article 91 GDPR. This means that only a handful of religious organizations are de facto concerned by Article 91 GDPR, at the exclusion of most minority religious or philosophical groups.

Preexisting data protection rules

If an entity or group qualifies as "church" or as a "religious association or community", the derogation prescribed in Article 91 GDPR may apply, provided that such organization already adopted and applied its own set of binding data protection rules prior to the entry into force of the GDPR (i.e. prior to 25 May 2016).

As a consequence, only a handful of preexisting religious organizations may benefit from the derogation of Article 91 GDPR. Although the logic behind this rule is understandable (i.e. allowing for the continuous separation between state law and, for example, canon law in some member States), it seems to unreasonably restrict the beneficiaries of Article 91 GDPR for the future, and therefore to unduly discriminate between established religious organizations and more recent religious or philosophical movements.

Tosoni argues - and we agree with him - that “Article 91 arguably allows the pre-existing data protection rules of religious organisations to operate as a lex specialis where such organisations process data for strictly religious purposes”.

As far as the Roman Catholic Church is concerned, Italy and Poland are two Member States where Article 91 GDPR is likely to apply, since the Catholic Church did adopt and apply, prior to the entry into force of the GDPR, a specific set of binding data protection rules regulating the processing of personal data for religious purposes. By contrast, in Belgium or France, the Catholic Church did not adopt such rules and is therefore de facto subject to the GDPR.

Rules that are comprehensive and in line with the GDPR

The third and final conditions for the derogation of Article 91 GDPR to apply is that the rules in question must be “comprehensive” and "in line with the GDPR", or must be brought in line with the GDPR. By implication, if it is found that the lex specialis of a religious association do not reach this level of completeness, the GDPR will remain fully applicable.

The GDPR does not provide any clear indications as to the level of similarity which must exist between the GDPR and the lex specialis for the latter to be considered as comprehensive and compatible enough.

Finally, the church or other religious group must update the existing framework and bring into line with the GDPR. The adaptation must be substantial and lead to a basic equivalence in relation to all aspects of the Regulation. There may still be some necessary and minor divergences from the Regulation (ultimately, preserving different beliefs and traditions is the final goal of Article 91). Such discrepancies, however, must be strictly necessary to achieve the ultimate aim of the provision, which is to protect the religious freedom of the persons concerned.

(2) 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 new authority or the one responsible for monitoring the application of the GDPR. In any case, all the conditions specified in Chapter VI GDPR must be met.

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)