Article 23 GDPR

← Article 23 - Restrictions →

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 23 - Restrictions

1. Union or Member State law to which the data controller or processor is subject may restrict by way of a legislative measure the scope of the obligations and rights provided for in Articles 12 to 22 and Article 34, as well as Article 5 in so far as its provisions correspond to the rights and obligations provided for in Articles 12 to 22, when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard:

(a) national security;

(b) defence;

(c) public security;

(d) the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security;

(e) other important objectives of general public interest of the Union or of a Member State, in particular an important economic or financial interest of the Union or of a Member State, including monetary, budgetary and taxation a matters, public health and social security;

(f) the protection of judicial independence and judicial proceedings;

(g) the prevention, investigation, detection and prosecution of breaches of ethics for regulated professions;

(h) a monitoring, inspection or regulatory function connected, even occasionally, to the exercise of official authority in the cases referred to in points (a) to (e) and (g);

(i) the protection of the data subject or the rights and freedoms of others;

(j) the enforcement of civil law claims.

2. In particular, any legislative measure referred to in paragraph 1 shall contain specific provisions at least, where relevant, as to:

(a) the purposes of the processing or categories of processing;

(b) the categories of personal data;

(c) the scope of the restrictions introduced;

(d) the safeguards to prevent abuse or unlawful access or transfer;

(e) the specification of the controller or categories of controllers;

(f) the storage periods and the applicable safeguards taking into account the nature, scope and purposes of the processing or categories of processing;

(g) the risks to the rights and freedoms of data subjects; and

(h) the right of data subjects to be informed about the restriction, unless that may be prejudicial to the purpose of the restriction.

Relevant Recitals

Recital 73: Restrictions by Member States

Restrictions concerning specific principles and the rights of information, access to and rectification or erasure of personal data, the right to data portability, the right to object, decisions based on profiling, as well as the communication of a personal data breach to a data subject and certain related obligations of the controllers may be imposed by Union or Member State law, as far as necessary and proportionate in a democratic society to safeguard public security, including the protection of human life especially in response to natural or manmade disasters, the prevention, investigation and prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security, or of breaches of ethics for regulated professions, other important objectives of general public interest of the Union or of a Member State, in particular an important economic or financial interest of the Union or of a Member State, the keeping of public registers kept for reasons of general public interest, further processing of archived personal data to provide specific information related to the political behaviour under former totalitarian state regimes or the protection of the data subject or the rights and freedoms of others, including social protection, public health and humanitarian purposes. Those restrictions should be in accordance with the requirements set out in the Charter and in the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Commentary on Article 23

Data protection principles, data subject rights and controller obligations are not absolute ideas. They can each be limited, restricted or lightened by way of Union or Member State law. In order to be lawful, however, the limitation must fulfill the requirements set out in Article 23 GDPR.

In particular, the measure must (1) respect the essence of the right to data protection, (2) be foreseeable in its effects, (3) reflect a qualified public interest, (4) address only those rights and obligations which can be limited according to the GDPR, (5) necessary, (6) proportionate and (7) provide for specific safeguards and information as requested by Article 23(2) GDPR.

Provided that the measure is valid and lawful as it successfully passed the assessment above, in light of the accountability principle (Article 5(2) GDPR), the controller should document the application of restrictions on concrete cases by keeping a record of their application. This record should include the practical reasons for the restrictions, which grounds among those listed in Article 23(1) GDPR, its timing and the outcome of the case-specific necessity and proportionality test.

The controller should lift the restrictions as soon as the circumstances that justify them no longer apply. When the restriction is lifted, data subjects can exercise all their rights. If the controller does not allow data subjects to exercise their rights after the restriction has been lifted, the data subject can submit a complaint to the supervisory authority against the controller, in accordance with Article 57(1)(f) GDPR.

(1) Appropriate Restrictions

The right to personal data protection is laid down in Article 8 CFR. This right, as is underlined by the CJEU,^[1] is not absolute, but relative. Hence, Article 52(1) of the Charter allows the enactment of limitations to this right, if the provisions’ requirements are fulfilled. Following this rationale, Article 23 GDPR allows Member States and the Union to restrict, limit, or lighten the rights of the data subject, “provided for in Articles 12 to 22, Article 34, as well as Article 5 in so far as its provisions correspond to the rights and obligations provided for in Articles 12 to 22”.

However, since these are exceptions to the general rule of personal data protection, these restrictions^[2] “should be interpreted narrowly, only applied in specifically provided circumstances and only when certain conditions are met”.^[3] Moreover, even when restrictions apply, the accountability principle (Article 5(2) GDPR) still applies. Hence, controllers must always be able to demonstrate compliance with the EU data protection framework.^[4] Lastly, the legislator must assess whether the restriction is limited to what is strictly necessary.

There are several requirements that need to be met, before a restriction is lawful:

Criteria

All restrictions, regardless of purpose, must comply with the following criteria:

Essence

This means that any restriction that renders the fundamental right void of its content, cannot be justified. Hence, a general exclusion of data subjects’ rights with regard to all processing operations, would not respect the essence. The same goes for a general limitation to the rights mentioned in Article 23 of all data subjects, even if this relates to specific data processing operations or concerns specific controllers.^[5]

Foreseeability

The restriction must be specified in Union or Member State law. As recital 41 specifies, this legislative measure must not necessarily be a legislative act adopted by a parliament. What is important, is that it is “clear and precise”, so that its application is “foreseeable to persons subject to it, in accordance with the case-law of the CJEU […] and the ECtHR”. This requirement is sufficed when citizens have an “adequate indication” of the circumstances and conditions under which controllers can impose such restrictions.^[6] Moreover, the EDPB stipulates that restrictions must not necessarily be limited in time or linked to a timeframe, to meet the foreseeability criterion.^[7] In this respect, the restrictive measure must be sufficiently clear and give citizens an adequate indication of the circumstances that must be met for controllers to invoke it lawfully.^[8] It could be that the ground for the restriction is not limited in time because that ground needs to be safeguarded permanently, i.e., safeguarding the “protection of judicial independence and judicial proceedings”. Of course, this needs to be assessed in light of the principle of necessity and proportionality.^[9] However, if the ground for restriction is, in itself, limited in time, i.e., because of a state of emergency, the restriction must also be limited in time and cannot work retroactively.^[10] Lastly, the legislative measure should clearly state how the restriction serves the objective.^[11]

Limited Scope

Under Article 23(1) GDPR, the legislative measure can only interfere with the “obligations and rights provided for in Articles 12 to 22 and Article 34, as well as [the principles in] Article 5." The rights which can be restricted are those to transparent information (Article 12 GDPR), information (Articles 13 and 14 GDPR), access (Article 15 GDPR), rectification (Article 16 GDPR), erasure (Article 17 GDPR), restriction of processing (Article 18 GDPR), notification obligation regarding rectification or erasure of personal data or restriction of processing (Article 19 GDPR), data portability (Article 20 GDPR), object (Article 21 GDPR), refusal of automated individual decision making (Article 22 GDPR). This means that any other data subjects’ rights, such as the right to lodge a complaint to the supervisory authority (Article 77 GDPR), or other controller obligations, cannot be restricted.

Necessity and Proportionality

The EDPB notes that Article 5 is one of the most important provisions of the GDPR, and stipulates that restrictions to the principles need to be justified by an exceptional situation, and then only if the essence of the fundamental rights is respected and proportionate and necessary. Moreover, provisions of Article 5 that do not correspond to the rights and obligations in Articles 12 to 22 GDPR, cannot be restricted.^[12] The same applies to any other right of the data subject, like the right to lodge a complaint with a DPA, Article 77 GDPR.^[13]

First, the necessity of a restriction must be assessed. The EDPB notes that one must to identify the objective “in sufficient detail” to assess whether the objective is necessary.^[14] If, for example, a restriction is grounded on Article 23(1)(d) GDPR, but some information can be disclosed because it will not jeopardise the investigation, then this must be disclosed since it is not necessary to restrict the disclosure.^[15] Moreover, the CJEU applies a test of strict necessity when assessing any limitation to the rights to personal data protection, and privacy.^[16] The ECtHR maintains the same benchmark, depending on the context, i.e., in the case of secret surveillance measures.^[17]

Then, only when the necessity is proven, the proportionality of the measure will be assessed.^[18] If the measure exceeds what is strictly necessary to safeguard the objectives listed in Article 23(1)(a) to (j), this measure is not proportionate. The EDPB lists La Quadeature du net as an example of CJEU case law where the state did not adhere to what was strictly necessary, since in that case, service providers were required to provide access to personal data generally and indiscriminately.^[19] Lastly, any proposed restriction measure should be accompanied with evidence proving why the measure is necessary and proportionate.^[20] Hence, it should describe the problem addressed, how it will be addressed, why other (less intrusive) measures don’t suffice, and demonstrate how this measure meets the State’s or EU’s objective.^[21] The EDPB lists “restrictions contribute to safeguarding public health in a state of emergency” as an example, and stipulates that a measure can only restrict the data subject’s rights, but not deny them.^[22]

Qualified Public Interest

The grounds for restrictions are exhaustively listed in Article 23(1) GDPR.^[23]

(a) National Security, (b) Defense and (c) Public Security

These grounds, listed in Article 23(1)(a)-(c) are closely related. National security refers to both the internal, and external security of Member States.^[24] Public security covers the protection of human life, particularly in cases of “natural or manmade disasters”.^[25] Moreover, according to the Administrative Court of Baden-Württemberg, the ground of ‘public security’ can prevent a restriction of processing pursuant to Article 18 GDPR, of an entry in a civil register.^[26]

(d) Prevention, Investigation, Detection or Prosecution of Criminal Offenses

When personal data is processed for this specific purpose by a competent authority, the GDPR does not apply, since this processing is within the scope of the Law Enforcement Directive.^[27] However, recital 19 GDPR clarifies that, when a private (non-competent) body processes personal data for the above-mentioned purpose, the GDPR applies. Moreover, the recital explains that this is, i.e., relevant “in the framework of anti-money laundering or the activities of forensic laboratories”. However, once the omitted information can no longer jeopardise the investigation that is carried out, it must be provided.^[28]

(e) Economic and Financial Interests

One can think of examples like the keeping of public registers, or “the further processing of archived personal data to provide specific information related to the political behaviour under former totalitarian state regimes”.^[29] The EDPB notes, however, that the financial burden on public budgets (to comply with the data subjects’ rights) are not sufficient to justify a public interest to restrict these rights. As an example, the EDPB also stipulates that any restriction by a Tax Administration to the data subject’s right of access, is only justified if this person is under an investigation by this administration, and the right of access would jeopardise the investigation. Moreover, this restriction must be lifted as soon as the investigation is over. When such a restriction is justified, appropriate safeguards like “indirect access” (when the supervisory authority exercises the right on behalf of the data subject to verify whether the restriction is lawful) must be implemented.^[30] Lastly, the EDPB notes that the right to object [to] the processing of pseudonymised personal data for the development of a benchmark document that clarifies which compensation is fair, according to the type of damage, but only when appropriate safeguards are in place.^[31]

(f) Judicial Independence

The EDPB mentions that “the scope of these restrictions should be aligned with national legislation regulating these matters”.^[32] Moreover, Bäcker and Paal note this ground does not include criminal proceedings, since in such a case, Article 23(1)(d) GDPR applies.^[33]

(g) Breaches of Ethics

Breaches of ethics for regulated professions (one can think of medical doctors or lawyers) are also a ground for restrictions. The EDPB notes that this ground only applies in cases where there is no criminal offence (since in such a case, Article 23(1)(d) GDPR applies).^[34]

(h) Exercise of Official Authority

This ground expands on the grounds listed in Article 23(1)(a)-(e) and (g), by clearly stating that, even if the official authorities monitor or inspect only occasionally, limitations to data subjects’ rights can also be justified, “to the exercise or official authority of the grounds listed in 23(1)(a) to (e), and (g) GDPR.^[35]

(i) Protection of the data subject or the rights and freedoms of others

There are also cases where a data subject’s rights can be limited to protect another data subject. As an example, the EDPB lists an administrative inquiry/disciplinary proceedings following on allegations of harassment in the workplace. In such a case, the identity of the alleged victim or witness whistleblower should be protected, which leads to the necessary restriction of the right to access of any other data subject, to protect the victim/witness against retaliation or any other negative consequences.^[36]

(j) Enforcement of Civil Law

Lastly, whereas the protection of court proceedings and the applicable procedural rules is covered by Article 23(1)(f), limitations to protect the individual interests of a (potential) litigant fall under the ground in Article 23(1)(j).

(2) Specific Requirements

Article 23(2) GDPR outlines a list of requirements that the restrictive measure must respect to be acceptable from a more specific data protection perspective. In particular, any restrictive measure shall contain specific provisions at least, where relevant^[37], as to: