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

Data protection principles, data subject rights and controller obligations are not absolute. 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 laid out in Article 23(2) GDPR.

Provided that the measure is valid and lawful  (in the sense that it has successfully fulfilled the assessment above), the accountability principle  in Article 5(2) GDPR, would require the controller  to document and keep a record of the application of these restrictions  in concrete cases. This record should include the practical reasons for the restrictions, which grounds among those listed in Article 23(1) GDPR applied, their 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. 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, is relative, not absolute. 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 “should be interpreted narrowly, only applied in specifically provided circumstances and only when certain conditions are met”. 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. 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 their 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.

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. Moreover, the EDPB stipulates that restrictions must not necessarily be limited in time or linked to a timeframe, to meet the foreseeability criterion. In this respect, the restrictive measure must be sufficiently clear and give citizens an adequate indication of the circumstances that justify controllers to invoke it lawfully. 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. 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. Lastly, the legislative measure should clearly state how the restriction serves the objective.

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), and 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 under this provision.

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 if the essence of the fundamental rights are  respected, and if they are 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.

First, the necessity of a restriction must be assessed. The EDPB notes that one must identify the objective “in sufficient detail” to assess whether the objective is necessary. If, for example, a restriction is grounded on Article 23(1)(d) GDPR, but some information can be disclosed without jeopardising an  investigation, then it must be disclosed. The CJEU applies a test of strict necessity when assessing any limitation to the rights to personal data protection, and privacy. The ECtHR maintains the same benchmark depending on the context,  for example in the case of secret surveillance measures.

If, and only when, the necessity of the measure is proven, will its proportionality be assessed. 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 Quadrature du net and others as an example of CJEU case law where the state did not adhere to what was strictly necessary by requiring service providers  to provide access to personal data generally and indiscriminately. Lastly, any proposed restriction measure should be accompanied with evidence proving why the measure is necessary and proportionate.

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. The EDPB mentions “restrictions [that] 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.

Qualified Public Interest

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

(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. Public security covers the protection of human life, particularly in cases of “natural or manmade disasters”.

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

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

(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”. The EDPB notes, however, that financial burdens 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. Lastly, the EDPB has mentioned, for example, that in order to ensure a public interest objective related to the accessibility of the law, a public administration could restrict the right to object to the processing of pseudonymised personal data if it’s used to develop  a benchmark document that clarifies which compensation is fair according to a certain type of damage. However, it also notes that this kind of restriction may take place only when appropriate safeguards are in place.

(f) Judicial Independence

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

(g) Breaches of Ethics

Breaches of ethics for regulated professions (one can think of medical doctors or lawyers) are also a ground for restrictions. As in the previous provision, the EDPB notes that this ground only applies in cases where there is no criminal offence (in which case  Article 23(1)(d) GDPR would also apply).

(h) Exercise of Official Authority

This ground expands on some of  the grounds listed in this section by clearly stating that, limitations to data subjects’ rights and controllers’ obligations can also be justified, to safeguard a monitoring, inspection or regulatory function, if these are connectedto the exercise or official authority of the grounds listed in 23(1)(a) to (e), and (g) GDPR, even in the case that they are only occasionally connected.

(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 administrative inquiries, disciplinary proceedings or investigations on allegations of harassment in the workplace. In such cases, the person subject to these proceedings’ right of access could be restricted to protect an alleged victim or witness whistle-blower from retaliation, or conversely, the latter might see their right of access restricted to respect the privacy and data protection rights of the former.

(j) Enforcement of Civil Law

Lastly, whereas the protection of court proceedings and the applicable procedural rules are  covered by Article 23(1)(f), limitations to specifically safeguard the enforcement of civil law claims of potential litigants fall under Article 23(1)(j) GDPR.

(2) Specific Requirements

Any legislative measure adopted on the basis of Article 23(1), must contain, where relevant, specific provisions about the criteria listed in Article 23(2)(a) to (h) GDPR. The phrase “where relevant” is linked to the circumstances. Hence, the legislator needs to justify why it is not relevant to include such provisions in the legislative measure. Moreover, the EDPB highlights the importance of Recital 8 GDPR in this regard: the reason for the restriction, how and when it applies, should be comprehensible to persons to whom it applies.

Criteria

The legislative measure should clearly explain the purposes or categories of the processing (Article 23(2)(a)) to explain the objective of the restriction. The categories of personal data (Article 23(2)(b)), should also be listed. The EDPB notes that “Where possible, the controller can go further and list the specific data items to which the restriction of rights may apply, such as the preliminary results of an investigation, a decision opening an inquiry, etc.” Moreover, if special categories of personal data are involved, this should also be mentioned.

The scope of restrictions (Article 23(2)(c)), specifies which rights or obligations are limited, and to which extent. The requirement to include safeguards to prevent abuse or unlawful access or transfer (Article 23(2)(d)), refers particularly to technical or organisational measures. The measure could, for example, contain the obligation for periodic measures to review the restriction. The requirement to specify the controller, or categories of controllers (Article 23(2)(e)), besides giving the data subjects a higher degree of legal certainty, also provides them with information regarding whom to address in order to exercise their rights once the restriction is over. Furthermore, the storage periods and applicable safeguards taking into account the nature, scope and  purposes of the processing or categories of processing (Article 23(2)(f)) must be clearly explained.

The risks to a data subject’s rights and freedoms should be previously assessed in the necessity and proportionality test. If there are such risks, then these should be included in the legislative measure (Article 23(2)(g)). If processing is "likely to result in a high risk" for the purposes of the GDPR, a Data Protection Impact Assessment (DPIA) should be conducted. According to the EDPB, such risks could include “discrimination, reduced human dignity, freedom of speech, the right  to privacy and data protection, a bigger impact on vulnerable groups (such as children or persons  with disability), to mention a few”.

Lastly, the legislator should always include the assessment of these risks in recitals or explanatory memorandum of the legislation, or in the DPIA itself.The last requirement, “the right to be informed about the restriction, unless prejudicial to the purpose of the restriction” (Article 23(2)(h)), could be fulfilled via a general data protection notice. As a general rule, data subjects should be informed about restrictions to exercise their rights. However,  for example, during the (very) preliminary stages of an investigation, notifying the data subject of  a restriction to exercise their rights, could hamper the investigation. Therefore, in such exceptional circumstances, this requirement can be set aside . However, in cases like these, once the  notification of  this restriction  would no longer hamper the investigation, the data subject should then be informed.

Consultation with the DPAs (Articles 36(4) and 57(1)(c) GDPR)

Pursuant to Article 36(4) GDPR, the DPA shall be consulted before a legislative measure under Article 23 GDPR is adopted. Moreover, Article 57(1)(c) GDPR requires the DPA to   give its advice on legislative measures regarding the protection of data subjects’ rights and freedoms. It follows from Article 58(3)(b) GDPR, that, if the DPA is not consulted, they can issue an opinion on any data-protection related issue. They can do this on their own initiative, to different Member State institutions, like the national parliament, government or other institutions, as well as to the public.

Non-observation of Article 23 requirements by a Member State

The EDPB stipulates that the European Commission, as Guardian of the Treaties,  must monitor the application of EU primary and secondary law, and  ensure uniform application throughout the EU. Moreover, it follows from the principle of supremacy of EU law (also see Case C-378/17) that all state organs should not apply national legislation that is contrary to EU law. Hence, any legislative measure pursuant to Article 23 GDPR that does not meet the requirements of the provision, cannot be applied.

Specific elements for Controllers and Processors

The EDPB highlighted a few elements for controllers and processors. First, although it is not listed in Article 30 GDPR, in light of the accountability principle (Article 5(2) GDPR) it is good practice that the controller keeps record of the application of restrictions on concrete cases. This record should list the reason, the ground(s), and the timing of the restriction, as well as the outcome of the necessity- and proportionality test, so that this can be made available to the DPA upon request. In any case, if the controller has a DPO, this peson should be involved in the restriction process, so that they can assess the restriction as well. Second, data subjects should be informed of the restrictions, at the latest when they do no longer apply. After the lifting of the restriction, the data subject can exercise all their rights. Third, if a controller infringes a legislative measure that imposes restrictions, the DPA can use their advisory, investigative, and corrective powers pursuant to Article 58 GDPR.

Territorial Application of National Law

The GDPR often refers to national law and provides for national opening clauses. Despite early criticism, the GDPR does not regulate the territorial application of such national law provisions, but leaves them to existing EU law or national law itself:

EU Regulations on Applicable Law

In some situations where the GDPR refers to national law, such as contract law in Article 6(1)(b) GDPR there is existing EU law provisions, like the Rome-I-Regulation (EC) No 593/2008 on the applicable contractual law.

National Use of Opening Clauses

In the case of most opening clauses or references, you have to refer to general rules of international law or provisions in national law for its application. This is especially relevant for the use of Article 23 GDPR by Member States or national implementations of specific processing regulations under Articles 85 to 91 GDPR. Equally, you would have to determine applicable Member State law to determined if any processing of personal data is "necessary" to comply with such an obligation under Article 6(1)(c) GDPR.

Decisions

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