Article 1 GDPR
Legal Text
1. This Regulation lays down rules relating to the protection of natural persons with regard to the processing of personal data and rules relating to the free movement of personal data.
2. This Regulation protects fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data.
3. The free movement of personal data within the Union shall be neither restricted nor prohibited for reasons connected with the protection of natural persons with regard to the processing of personal data.
Relevant Recitals
Commentary
Article 1 GDPR is mainly programmatic and sets out the general objectives of the GDPR. While this is relevant for the understanding and interpretation of the GDPR, Article 1 has limited legal relevance for controllers and data subjects in daily practice. The aims can function as guiding principles to interpreting the GDPR.[1]
(1) Subject-Matter
Article 1(1) establishes the GDPR's two main aims of the GDPR. First, it aims at protecting natural persons with regard to the processing of their personal data, at the same time it recognizes the EU internal market interest in the free movement of such data. Both objectives are already named in the title of the GDPR.
Data protection and the free flow of data
The European Union is based on the idea of a common market, that provide for four freedoms, namely the free movement of goods, capital and people, as well as the freedom to establish and provide services. Different national data protection laws - or indeed the lack of such laws - would conflict with these freedoms. If Member States would for example prohibit that personal data flows to another Member State where there is no equivalent protection, trade between these Member States would be more complicated.
Example: If France would protect personal data, but Germany would not, the French protections could only be enforced if personal data would not leave France. Such national limitations would limit the European common market.
Consequently the GDPR aims to provide a common level of protection, allowing personal data to flow freely within the European common market.[2]
Limit to natural persons
Article 1(1) also clarifies that the GDPR applies to the processing of personal data concerning natural persons. It follows that the GDPR does not apply to the processing of data belonging to companies, public bodies or other legal entities.[3]
However, if data about a legal entity contains or relates to a natural person or a natural person engages in a professional activity, such data is still within the scope of the GDPR, as clarified by the CJEU in C-398/15 - Salvatore Manni.[4]
Example: If the "Peter Smith Limited" company is wholly owned by Peter Smith, who is also the only manager of the company, information as to the revenue about "Peter Smith Limited" can be directly linked to Peter Smith, making the GDPR applicable to such information. Equally, the email peter.smith@examplecompany.com that is used professionally by Peter Smith can be linked to Peter Smith and therefore relates to a natural person. It does not matter if this person acts in a commercial or private capacity.
You can find more details about the scope of the term 'personal data' under Article 4(1) GDPR.
Human rights approach
Non-EU citizens can rely on the GDPR as its application is generally independent of nationality.[5] This is also in line with Article 8 CFR ("Everyone has the right to the protection of personal data") as the right to data protection is a human right, that generally applies to all humans, not just EU citizens.
Example: A Chinese or South African citizen can generally be subject to the GDPR, as the right to data protection is a human right, not a citizen right.
While citizenship is not a factor in the GDPR, there are other geographic factors that limit the application of the GDPR. You can find further details about the territorial scope in Article 3 GDPR.
(2) Protection of Fundamental Rights and Freedoms
According to Article 1(2), the Regulation generally protects the fundamental rights and freedoms of the individual as well as “in particular” the right to the protection of personal data. Thus, the provisions of the GDPR on the protection of personal data seem to have two objectives. One the one hand, the protection of personal data - which may not come as a surprise. On the other hand, the legislator took the view that the protection of personal data also (indirectly) protects other “fundamental rights and freedoms”.[6]
Case Law: In the joined cases C‑293/12 and C‑594/12 - Digital Rights Ireland on so-called 'data retention' where communication meta data was stored for up to two year for criminal investigations, the CJEU held that 'it is not inconceivable that the retention of the data in question might have an effect on ... their exercise of the freedom of expression guaranteed by Article 11 of the Charter.'
Protection of the fundamental right to data protection
Article 8(1) CFR provides for “the right to the protection of personal data” of a natural person. Some requirements to the processing of data follow from Article 8(2) CFR, which explicitly mentions the principles of fairness and purpose limitation, as well as lawfulness.
Protection of other fundamental rights and freedoms
Another essential fundamental right that is clearly protected by the GDPR is the right to privacy in Article 7 CFR. It concerns the right to respect for “private and family life” and “communications” and is distinct and often broader than the right to data protection in Article 8 CFR.
However, the fundamental rights and freedoms enshrined in Articles 7 and 8 of the CFR do not appear to be the only interests protected by the GDPR. Indeed, processing operations are able to impact other fundamental rights such as personality rights, freedom of expression, freedom of information, freedom of communication, the right of assembly, freedom of religion and other anti-discrimination rights.[7][8] The fundamental rights to privacy, personality and data protection are a backbone of a free society. There can be no freedom where the individual is not in control of their data, feels observed, tracked or continuously assessed.[9] Indeed, Recital 4 clearly states that “The processing of personal data should be designed to serve mankind”, not the opposite.
Example: A person may be only really free to vote, if the secrecy of the ballot is ensured. If a person has to fear that her political believes get known to her employer, spouse or friends, she may not actually vote for her real convictions.
The right to data protection can therefore be seen as an enabler for other fundamental rights. The protection of personal data often forms a precondition for the exercise of other fundamental rights.
Conflicts with other fundamental rights
Obviously the right to data protection can conflict with a range of other interests, such as the right to freedom of speech, commercial interests, public interests or security and safety interests.
Recital 4 accepts that the right to data protection has to be balanced against these other interests and fundamental rights, but also highlights that these other rights and interests were already taken into consideration when the GDPR was drafted. There is consequently no need to "balance" the GDPR against other rights for a second time, as the GDPR is already the result of a political balancing of Article 8 CFR and other rights and interests.
The GDPR foresees flexible provisions, like the recognition of legitimate interests in Article 6(1)(f) GDPR which allows to balance conflicting rights e.g. in the case of fraud prevention or the need to enforce legal claims. There are also a number of opening clauses, like Article 85 on the freedom of speech or Article 86 on freedom of information. In many cases Member States have the option to come up with legal requirements to process personal data in the public interest or restrict the GDPR insofar as these national laws are necessary and proportionate.[10]
Some commentators have highlighted that Recital 4 also refers to the freedom to conduct a business under Article 16 CFR - indicating that this would allow to limit the GDPR at times. However, Article 16 CFR is generally understood to only protect the right to start a business and to manage own resources. It is closely related to the right to choose an occupation and the right to engage in work in Article 15 CFR.[11] Article 16 CFR also clarifies that any business must be conducted "in accordance with Union law and national laws". The GDPR is one of these laws and can consequently not be overridden via Article 16 CFR.
Interpretation in light of fundamental rights
The fact that the GDPR implements the protection of fundamental rights in secondary legislation, also requires that the GDPR is interpreted in the light of these fundamental rights, as repeatedly held by the CJEU.[12] This means that any interpretation of the GDPR that would disproportionally limit the right to data protection under Article 8 CFR would could not be sustained. This also allows to apply the proportional test under Article 52(1) CFR to many GDPR cases.[13]
In its case law, the CJEU has also repeatedly stressed ,[14] that the GDPR (and the previous Directive 95/46/EC) is aiming for a "high level of protection".[15] This clause was regularly used to come to a more protective interpretation of the GDPR by the CJEU. The clause "high level of protection" is taken from Recitals 6 and 10 of the GDPR. Although conflicting views exist,[16] the approach that gives the right to data protection prevalence over other legally relevant interests should be preferred[17] to uphold the "high level of protection" foreseen by the GDPR.
Existing CJEU case law holds useful examples of the current state of play. The court has for example held that terrorist prevention does not allow to keep meta data of phone records.[18] Equally, public interest in financial transparency in the public sector was not seen to override the interest of employees[19] or recipients of subsidies.[20] While these judgments were mainly concerning public sector violations of Article 7 and 8 CFR, they seem to also apply to private actors, given that the GDPR must be interpreted in light of the CFR.
Example: If Article 8 CFR prohibits governments to keep phone records to fight terrorism and serious crime, it seems hard to argue that private entities could collect communication data for purposes that are even less serious claiming a legitimate interest. Such a legitimate interest would have to override the red lines set in the CJEU case law, given that the GDPR must be interpreted in the light of Article 8 CFR.
(3) Free Movement of Personal Data
Under Article 1(3) GDPR, the free movement of personal data within the Union shall be neither restricted nor prohibited for reasons related to personal data protection. The provision is mainly aimed at Member States, which may have an interest to pass so-called data localization laws.
The free movement of personal data is limited to the Union, meaning the European Economic Area (EEA). The EEA includes all EU Member States, Iceland, Liechtenstein and Norway. The status of various special territories of EU Member States require additional checks, as some form part of the EEA, while others do not. The UK is not a Member State anymore.
Non-EU/EEA countries do not benefit form the free flow of personal data. In fact, the CJEU has set rather high standards for international data transfers.[21] The free flow of personal data is explicitly limited to the EEA. Rules on transfers to non-EU/EEA countries ("third countries") can be found in Chapter V of the GDPR.
Example: When a Czech controller is storing personal data with a Norwegian cloud provider, the companies do not have to worry about international data flows, because the GDPR prohibits limitations on such data flows. When a Spanish controller is however using a Swiss provider, there needs to be an additional legal basis for these data flows.
There is a live discussion if the free flow of personal data only protects data flowing between systems that are on EEA territory, or if systems on non-EEA territory, that are under the effective control of an EEA controller or processor would still benefit from the free flow of personal data, given that the GDPR would still apply to them. The European Commission has recently taken an entity-based approach (focusing on the question if the controlling entity falls under the territorial scope in Article 3 GDPR), not a data-based approach (focusing on the question if the data is physically staying in the EEA).[22] The wording of the GDPR does not seem to support an entity-based approach.[23] At the same time, however, the definition of the GDPR's territorial scope of application is explicitly uncoupled from the question of whether the processing 'takes place in the Union or not' (cf. Art. 3(1)).
- ↑ Hornung and Spiecker in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 1 GDPR, margin number 1 (Beck 2019) (accessed 2 September 2021).
- ↑ See Recital 10
- ↑ See Recital 14
- ↑ CJEU in C-398/15 - Salvatore Manni, paragraph 34 with further references.
- ↑ See Recital 2 GDPR
- ↑ Hornung and Spiecker in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 1 GDPR, margin number 36 (Beck 2019) (accessed 2 September 2021).
- ↑ See Recital 4
- ↑ Hornung and Spiecker in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 1 GDPR, margin number 40 (Beck 2019) (accessed 3 September 2021).
- ↑ Hornung et al, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 1 GDPR, margin number 29 (Beck 2019) (accessed 2 September 2021).
- ↑ See for example Article 23 GDPR
- ↑ Bezemek, in Holoubek/Lienbacher, GRC-Kommentar, Article 16, marginal numbers 6 and 7 (MANZ 2014).
- ↑ See for example CJEU in C-311/18 - Schrems II, paragraphs 99, 101, 105, 122, 137, 138, 140, 149, 161, 178, 198 or 199.
- ↑ See for example CJEU in C-311/18 - Schrems II, paragraphs 174, 178 and 185.
- ↑ See for example C-40/17 Fashion ID, paragraph 50, with further references to C‑101/01 Lindqvist, C‑524/06 Huber or C‑468/10 and C‑469/10 ASNEFF and FECEMD
- ↑ See Recital 6 and 10
- ↑ Scorza, in Riccio, Scorza, Belisario, GDPR e normativa privacy - Commentario, Article 62 GDPR (Wolters Kluwer 2018).
- ↑ Hornung et al, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 1 GDPR, margin number 28 (Beck 2019) (accessed 2 September 2021). In the same direction, Hijmans, in Kuner et al, The EU General Data Protection Regulation (GDPR): A Commentary, p. 56 (Oxford University Press 2020).
- ↑ See CJEU in Joined Cases C‑293/12 and C‑594/12, Digital Rights Ireland
- ↑ See CJEU in C-465/00 Österreichischer Rundfunk.
- ↑ See CJEU in Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke und Eifert.
- ↑ See for example CJEU in C-364/14 Schrems I and C-311/18 Schrems II.
- ↑ See Article 1(1) of Commission Implementing Decision (EU) 2021/914 and the European Commission's FAQs available at https://ec.europa.eu/info/sites/default/files/questions_answers_on_sccs_en.pdf, page 13.
- ↑ Article 1(3) GDPR focuses on the "movement of personal data within the Union", Article 44 GDPR equally regulated the "transfer of personal data", not the transfer to an entity that is not governed by the GDPR.
Decisions
→ You can find all related decisions in Category:Article 1 GDPR
