Article 10 GDPR

← Article 10: Processing of personal data relating to criminal convictions and offences →
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 10: Processing of personal data relating to criminal convictions and offences

Processing of personal data relating to criminal convictions and offences or related security measures based on Article 6(1) shall be carried out only under the control of official authority or when the processing is authorised by Union or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects. Any comprehensive register of criminal convictions shall be kept only under the control of official authority.

Relevant Recitals

Recital 19: Not Applicable to Criminal Prosecution Activities

The protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of 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 and the free movement of such data, is the subject of a specific Union legal act. This Regulation should not, therefore, apply to processing activities for those purposes. However, personal data processed by public authorities under this Regulation should, when used for those purposes, be governed by a more specific Union legal act, namely Directive (EU) 2016/680 of the European Parliament and of the Council. Member States may entrust competent authorities within the meaning of Directive (EU) 2016/680 with tasks which are not necessarily carried out for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and prevention of threats to public security, so that the processing of personal data for those other purposes, in so far as it is within the scope of Union law, falls within the scope of this Regulation. With regard to the processing of personal data by those competent authorities for purposes falling within scope of this Regulation, Member States should be able to maintain or introduce more specific provisions to adapt the application of the rules of this Regulation. Such provisions may determine more precisely specific requirements for the processing of personal data by those competent authorities for those other purposes, taking into account the constitutional, organisational and administrative structure of the respective Member State. When the processing of personal data by private bodies falls within the scope of this Regulation, this Regulation should provide for the possibility for Member States under specific conditions to restrict by law certain obligations and rights when such a restriction constitutes a necessary and proportionate measure in a democratic society to safeguard specific important interests including public security and 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. This is relevant for instance in the framework of anti-money laundering or the activities of forensic laboratories.

Recital 50: Compatible Purpose for Further Processing

The processing of personal data for purposes other than those for which the personal data were initially collected should be allowed only where the processing is compatible with the purposes for which the personal data were initially collected. In such a case, no legal basis separate from that which allowed the collection of the personal data is required. If the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, Union or Member State law may determine and specify the tasks and purposes for which the further processing should be regarded as compatible and lawful. Further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes should be considered to be compatible lawful processing operations. The legal basis provided by Union or Member State law for the processing of personal data may also provide a legal basis for further processing. In order to ascertain whether a purpose of further processing is compatible with the purpose for which the personal data are initially collected, the controller, after having met all the requirements for the lawfulness of the original processing, should take into account, inter alia: any link between those purposes and the purposes of the intended further processing; the context in which the personal data have been collected, in particular the reasonable expectations of data subjects based on their relationship with the controller as to their further use; the nature of the personal data; the consequences of the intended further processing for data subjects; and the existence of appropriate safeguards in both the original and intended further processing operations. Where the data subject has given consent or the processing is based on Union or Member State law which constitutes a necessary and proportionate measure in a democratic society to safeguard, in particular, important objectives of general public interest, the controller should be allowed to further process the personal data irrespective of the compatibility of the purposes. In any case, the application of the principles set out in this Regulation and in particular the information of the data subject on those other purposes and on his or her rights including the right to object, should be ensured. Indicating possible criminal acts or threats to public security by the controller and transmitting the relevant personal data in individual cases or in several cases relating to the same criminal act or threats to public security to a competent authority should be regarded as being in the legitimate interest pursued by the controller. However, such transmission in the legitimate interest of the controller or further processing of personal data should be prohibited if the processing is not compatible with a legal, professional or other binding obligation of secrecy.

Commentary

Article 10 GDPR is a complementary provision to the Law Enforcement Directive (LED). It aims to ensure that criminal data processing is still carried out in accordance with the GDPR’s principles and with appropriate safeguards when the LED is not directly applicable. Article 2(2)(d) GDPR excludes any processing that falls under the scope of the LED from the scope of the GDPR. Article 10 GDPR is intended to extend the protection of the GDPR to the processing of certain criminal data that is not included in the scope of the LED. Specifically, this includes data that has the potential to lead to stigmatisation, which may lead to profound effects on different aspects of a data subjects' life due to its sensitive nature. For example, when data is inappropriately processed in the employment context.

This position was affirmed by the Court of Justice in Case C‑439/19, Latvijas Republikas Saeima. In this judgment, the Court noted that data processed under Article 10 GDPR warrants a higher standards of protection for processing and grant of access, as the data which falls under its scope has the potential to expose the data subject to stigmatisation and social disapproval. At paragraphs 74 and 75, the Court observed that the risk of stigmatisation in itself amounts to severe interference in the data subject's private and professional life for the purposes of Articles 7 and 8 of the Charter, consequently justifying stricter thresholds for processing.

"Article 10 of the GDPR is intended to ensure enhanced protection as regards processing which, because of the particular sensitivity of the data at issue, is liable to constitute a particularly serious interference with the fundamental rights to respect for private life and to the protection of personal data, guaranteed by Articles 7 and 8 of the Charter [...].

Since the data to which Article 10 of the GDPR refers relates to behaviour that gives rise to social disapproval, the grant of access to such data is liable to stigmatise the data subject and thereby to constitute a serious interference with his or her private or professional life.

[...]

Under the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others. They must apply only in so far as is strictly necessary and the legislation which entails the interference must lay down clear and precise rules governing the scope and application of the measure in question [...]."

CJEU - C-439/19 - Latvijas Republikas Saeima (Penalty points), margin number 74 et seq, 105.

Criminal “convictions” and “offences”

Article 10 GDPR allows for the processing of data relating to criminal convictions and offences. The term “convictions” makes reference to pronouncements of criminal penalties on perpetrators, instigators or assistants.

[T]he concept of ‘criminal offence’, which is decisive for determining whether Article 10 of the GDPR is applicable to personal data such as those at issue in the main proceedings, requires an autonomous and uniform interpretation throughout the European Union, having regard to the objective pursued by that provision and the context of which it forms part; the classification given by the Member State concerned to the offences in question is not conclusive in that regard as the classification may vary from one Member State to another [...].

CJEU - C‑474/24 - NADA Austria and Others, margin number 114.

Actors such as victims or witnesses are not included. However, there is discussion about whether suspects should be included. The notion of “offence" must be interpreted according to Member State law. In addition, the CJEU has established three criteria that must be examined when determining what constitutes a criminal proceeding: the legal classification of the offence under national law, the nature of the offence and the nature as well as degree of severity of the penalty that the person concerned is liable to incur.

Therefore, the enhanced protection provided for by Article 10 GDPR is generally limited to the criminal field alone and not to mere administrative offences not covered by criminal provisions.

In order to determine whether such access amounts to processing of personal data relating to ‘offences’, within the meaning of Article 10 of the GDPR, it is important to point out, first, that that concept refers exclusively to criminal offences and that the enhanced protection provided for by that article is limited to the criminal field alone, as is apparent inter alia from the history of the GDPR, from which it is clear that the EU legislature deliberately did not include the adjective ‘administrative’ in Article 10 of the GDPR [...].

CJEU - C‑474/24 - NADA Austria and Others, margin number 113.

The CJEU pointed out that the fact that a rule penalising a specific offence is directed towards all citizens indicates a criminal nature of the sanction while rules applying to a specific group of persons covered by a body of specific rules (e.g. disciplinary rules for a certain profession) indicates a mere civil nature of the rules (e.g. in case of a disciplinary procedure).

Conditions for the processing

The processing of data relating to criminal convictions and offences must be carried out either under the control of official authority or when the processing is authorised by Union or Member State law.

However, any processing still needs to rely on a legal basis under Article 6(1) GDPR and comply with the principles enshrined in Article 5 GDPR. Additionally, the processing will still be subject to other GDPR provisions that may be applicable, such as the obligation to carry out a data protection impact assessment from Article 35 GDPR or the obligation to designate a data protection officer from Article 37 GDPR.

Authorised entities

The processing shall only be carried out by public authorities and private entities that are entitled to do so under Member State law. In this regard, interpreting the norm sensu contrario, the public authorities are those not in the scope of Article 3(7) LED.

Processing by private entities shall happen under direct control of authorised entities; the authorised entity shall be fully or largely responsible for the processing. Mere supervision that does not, in practice, allow for the reliable control of the conditions of individual processing is not enough.

Alternatively, the processing can be authorised by Union or Member state law. Such law allowing private entities to process data relating to criminal convictions and offences must provide for appropriate safeguards for the rights and freedoms of data subjects. Specifically, the legitimate purpose(s) and and necessary requirements should be stipulated together with the applicable safeguards in such a provision.

Comprehensive registers

The last sentence of Article 10 GDPR states that any comprehensive register of criminal convictions must be kept only under the control of official authority. This provision further narrows the possibilities to process information about criminal convictions. A register can be considered comprehensive if it contains information concerning numerous data subjects. It is not necessary that such a register contains the information about all criminal convictions in the respective Member State. This provision excludes the possibility of private criminal databases.

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Decisions

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