Article 1 GDPR
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Legal Text[edit | edit source]
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[edit | edit source]
Commentary[edit | edit source]
Article 1 GDPR sets out the general framework regarding the processing of personal data in Europe. First, paragraph 1 defines the two main objectives of the Regulation: personal data protection and free movement of data. Then, paragraph 2 enshrines the protection of the individual's fundamental rights and freedoms, especially when they are connected to their personal data. Finally, paragraph 3 clarifies that the free movement of personal data may not be prohibited or restricted for reasons relating to the protection of personal data.
(1) Subject-Matter[edit | edit source]
Article 1(1) establishes the GDPR's two main aims. From one side, it aims at protecting natural persons with regard to the processing of their personal data. On the other side, it recognizes the EU internal market interest in the free movement of such data.
Data protection or free flow of data?[edit | edit source]
It seems clear that, at least occasionally, the right to the protection of personal data may conflict with a range of other freedoms, such as the free movement of personal data. Although conflicting views exist, the approach that gives the right to data protection prevalence over other legally relevant interests should be preferred.
In this regard, it has been convincingly noted that the fundamental rights to privacy, personality and data protection are the backbone of a free legal system and that there can be no freedom where the individual is not in control of their data, feels observed, tracked or continuously assessed. Indeed, Recital 4 clearly states that “The processing of personal data should be designed to serve mankind”, not the opposite.
Natural persons[edit | edit source]
Further, Article 1(1) clarifies that the GDPR applies to the processing of personal data concerning natural persons. It follows that the Regulation does not apply to the processing of data belonging to companies or other legal entities. Non-EU citizens can rely on the GDPR as its application is independent of nationality or place of residence (see, Recital 2).
(2) Protection of Fundamental Rights and Freedoms[edit | edit source]
The wording of Article 1(2) offers interesting insights into the protective scope of the GDPR. According to this provision, 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.
First, they “simply” protect personal data. For example, Article 35 requires controllers to conduct Data Protection Impact Assessments, and Article 32 obliges them and any processor to implement adequate technical and organizational safeguards regarding the processing. However, the very same rules seem to concurrently be aimed at protecting other “fundamental rights and freedoms”.
The list of fundamental rights and freedoms protected by the GDPR is not defined. Certainly, one can refer to the Charter of Fundamental Rights of the European Union (“the Charter”). The Charter, which is EU primary law, provides for “the right to the protection of personal data” of a natural person under Article 8(1). Some requirements to the processing of data follow from Article 8(2) of the Charter, which explicitly mentions the principles of fairness and purpose limitation, as well as lawfulness. Another essential reference seems to be Article 7 of the Charter, which concerns the right to respect for “private and family life” and “communications”.
However, the fundamental rights and freedoms enshrined in Articles 7 and 8 of the Charter 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.
(3) Free Movement of Personal Data[edit | edit source]
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.
This provision accepts that processing of personal data may be essential for certain economic activities and therefore becomes relevant to the functioning of the EU internal market, which is recognised as an area of free trade of goods, services and capital. Consequently, it appears that where the use of personal data gives rise to the offer of a service, the data protection regulations cannot lead to a limitation in the provision of that service.
A particularly rigid reading of such provision could open the door to a proprietary conception of personal data. However, such an approach seems dogmatically incorrect. This is not only because our identity is not tradeable, but also because it seems to conflict with the very logic of the GDPR, whose main purpose is precisely to control and eventually block the unconditional use of personal data. Indeed, all the provisions concerning the principles of processing (transparency, minimisation, fairness), legal bases, the rights of the data subject and the various obligations related to the security of processing seem to be unequivocally going in this direction.
Let us assume that a controller located in one European country X decides to outsource, under Article 28 GDPR, part of its processing activities to a processor located in another Member State. After a technical assessment, the controller concludes that the processor is unable to provide “sufficient safeguards to implement appropriate technical and organisational measures”. The communication of data in this case will not take place because it would breach data protection law.
In this sense, the text of Article 1(3) GDPR does not seem sufficiently precise and should be interpreted in a GDPR-consistent fashion. In particular, under paragraph 3, the free movement of personal data cannot be limited or restricted outside the cases expressly provided for by the GDPR and any other applicable European or national law.
Finally, Article 1(3) facilitates the harmonization of data protection across EU, as well as Iceland, Liechtenstein and Norway as part of the European Economic Area (EEA). Restrictions to transfers to non-EU/EEA countries (third countries) follow from Chapter V GDPR.
Decisions[edit | edit source]
→ You can find all related decisions in Category:Article 1 GDPR
References[edit | edit source]
- 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).
- Hornung et al, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 1 GDPR, margin number 29 (Beck 2019) (accessed 2 September 2021).
- Hornung and Spiecker in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 1 GDPR, margin number 1 (Beck 2019) (accessed 2 September 2021).
- Hornung and Spiecker in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 1 GDPR, margin number 36 (Beck 2019) (accessed 2 September 2021).
- Hornung and Spiecker in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 1 GDPR, margin number 40 (Beck 2019) (accessed 3 September 2021).