Article 1 GDPR
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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.
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.
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 the transfer of personal data 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.
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.
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.
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 email@example.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. 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. On 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'.
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. This concerns the right to respect for 'private and family life' and 'communications' and is distinct from, 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. The fundamental rights to privacy, personality and data protection are the 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. 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 is afraid that her political beliefs may become known to her employer, spouse or friends, she may not actually vote according to her true 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.
Common Misunderstanding: Some lawyers argue that the GDPR would have to be 'balanced' with the right to conduct a business under Article 16 CFR. However, Article 16 CFR has a limited scope and e.g. ensures that everyone can open a business and can decide over business partners. There is also only a freedom to conduct a business 'in accordance with community law' - not in violation of community law (such as the GDPR).
While there is no general balancing test, the GDPR foresees specific 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 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.
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.
Case Law: In C-311/18 - Schrems II on data transfers from the EU to the US, where secret services can access such personal data, the CJEU has highlighted that the GDPR must be interpreted in light of the CFR. This is not only limited to the right to data protection in Article 8 CFR and the closely related right to privacy in Article 7 GDPR, but for example also includes the right to an effective remedy and to a fair trial under Article 47 CFR.
This means that any interpretation of the GDPR that would disproportionally limit the right to data protection under Article 8 CFR could not be sustained. This also allows the application of the proportionality test under Article 52(1) CFR, which often leads to a clear answer when interpreting the GDPR.
In its case law, the CJEU has also repeatedly stressed that the GDPR (and the previous Directive 95/46/EC) is aiming for a "high level of protection". This term was regularly used to convey a more protective interpretation of the GDPR by the CJEU, and is taken from Recitals 6 and 10 of the GDPR. Although conflicting views exist, the approach that gives the right to data protection prevalence over other legally relevant interests is preferred by the CJEU, in order to uphold the this high level of protection foreseen by the GDPR.
Existing CJEU case law contains useful examples of the current state of play. In the joined cases C‑293/12 and C‑594/12 - Digital Rights Ireland the CJEU has, for example, held that the prevention of terrorism does not allow the retention of meta data from phone records.
Similarly, in other cases, public interest in financial transparency in the public sector was not seen to override the interest of employees or recipients of subsidies. 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 in the joined cases C‑293/12 and C‑594/12 - Digital Rights Ireland the CJEU prohibited governments to keep phone records to fight terrorism and serious crime, it seems hard to argue that private entities could claim a legitimate interest under Article 6(1)(f) GDPR for communication data for purposes that are even less serious. Such a legitimate interest would have to cross 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 from the free flow of personal data. In fact, the CJEU has set rather high standards for international data transfers. 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. However, when a Spanish controller is using a Swiss provider, there needs to be an additional legal basis for these data flows.
There is an ongoing discussion on whether 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 of whether the controlling entity falls under the territorial scope in Article 3 GDPR), not a data-based approach (focusing on the question of whether the data is physically staying in the EEA). The wording of the GDPR does not seem to support an entity-based approach. 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).
- Bezemek, in Holoubek/Lienbacher, GRC-Kommentar, Article 16, marginal numbers 6 and 7 (MANZ 2014).
- See for example Article 23 GDPR
- 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.
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