Article 23 GDPR

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Article 23 - Restrictions
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Chapter 10: Delegated and implementing acts

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 on Article 23

Data protection principles, data subject rights and controller obligations are not absolute ideas. 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 requested by Article 23(2) GDPR.

Provided that the measure is valid and lawful as it successfully passed the assessment above, in light of the accountability principle (Article 5(2) GDPR), the controller should document the application of restrictions on concrete cases by keeping a record of their application. This record should include the practical reasons for the restrictions, which grounds among those listed in Article 23(1) GDPR, its 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. When the restriction is lifted, data subjects can exercise all their rights. 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,[1] is not absolute, but relative. 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[2]should be interpreted narrowly, only applied in specifically provided circumstances and only when certain conditions are met”.[3] 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.[4] 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 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.[5]

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.[6] Moreover, the EDPB stipulates that restrictions must not necessarily be limited in time or linked to a timeframe, to meet the foreseeability criterion.[7] In this respect, the restrictive measure must be sufficiently clear and give citizens an adequate indication of the circumstances that must be met for controllers to invoke it lawfully.[8] 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.[9] 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.[10] Lastly, the legislative measure should clearly state how the restriction serves the objective.[11]

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),  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.

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, and then only if the essence of the fundamental rights is respected and 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.[12] The same applies to any other right of the data subject, like the right to lodge a complaint with a DPA, Article 77 GDPR.[13]

First, the necessity of a restriction must be assessed. The EDPB notes that one must to identify the objective “in sufficient detail” to assess whether the objective is necessary.[14] If, for example, a restriction is grounded on Article 23(1)(d) GDPR, but some information can be disclosed because it will not jeopardise the investigation, then this must be disclosed since it is not necessary to restrict the disclosure.[15] Moreover, the CJEU applies a test of strict necessity when assessing any limitation to the rights to personal data protection, and privacy.[16] The ECtHR maintains the same benchmark, depending on the context, i.e., in the case of secret surveillance measures.[17]

Then, only when the necessity is proven, the proportionality of the measure will be assessed.[18] 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 Quadeature du net as an example of CJEU case law where the state did not adhere to what was strictly necessary, since in that case, service providers were required to provide access to personal data generally and indiscriminately.[19] Lastly, any proposed restriction measure should be accompanied with evidence proving why the measure is necessary and proportionate.[20] 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.[21] The EDPB lists “restrictions 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.[22]

Qualified Public Interest

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

(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.[24] Public security covers the protection of human life, particularly in cases of “natural or manmade disasters”.[25] Moreover, according to the Administrative Court of Baden-Württemberg, the ground of ‘public security’ can prevent a restriction of processing pursuant to Article 18 GDPR, of an entry in a civil register.[26]

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

When personal data is processed for this specific purpose by a competent authority, the GDPR does not apply, since this processing is within the scope of the Law Enforcement Directive.[27] However, recital 19 GDPR clarifies that, when a private (non-competent) body processes personal data for the above-mentioned purpose, the GDPR applies. Moreover, the recital explains that this is, i.e., relevant “in the framework of anti-money laundering or the activities of forensic laboratories”. However, once the omitted information can no longer jeopardise the investigation that is carried out, it must be provided.[28]

(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”.[29] The EDPB notes, however, that the financial burden 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.[30] Lastly, the EDPB notes that the right to object [to] the processing of pseudonymised personal data for the development of a benchmark document that clarifies which compensation is fair, according to the type of damage, but only when appropriate safeguards are in place.[31]

(f) Judicial Independence

The EDPB mentions that “the scope of these restrictions should be aligned with national legislation regulating these matters”.[32] Moreover, Bäcker and Paal note this ground does not include criminal proceedings, since in such a case, Article 23(1)(d) GDPR applies.[33]

(g) Breaches of Ethics

Breaches of ethics for regulated professions (one can think of medical doctors or lawyers) are also a ground for restrictions. The EDPB notes that this ground only applies in cases where there is no criminal offence (since in such a case, Article 23(1)(d) GDPR applies).[34]

(h) Exercise of Official Authority

This ground expands on the grounds listed in Article 23(1)(a)-(e) and (g), by clearly stating that, even if the official authorities monitor or inspect only occasionally, limitations to data subjects’ rights can also be justified, “to the exercise or official authority of the grounds listed in 23(1)(a) to (e), and (g) GDPR.[35]

(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 an administrative inquiry/disciplinary proceedings following on allegations of harassment in the workplace. In such a case, the identity of the alleged victim or witness whistleblower should be protected, which leads to the necessary restriction of the right to access of any other data subject, to protect the victim/witness against retaliation or any other negative consequences.[36]

(j) Enforcement of Civil Law

Lastly, whereas the protection of court proceedings and the applicable procedural rules is covered by Article 23(1)(f), limitations to protect the individual interests of a (potential) litigant fall under the ground in Article 23(1)(j).

(2) Specific Requirements

Article 23(2) GDPR outlines a list of requirements that the restrictive measure must respect to be acceptable from a more specific data protection perspective. In particular, any restrictive measure shall contain specific provisions at least, where relevant[37], as to:

(a) The Purposes of the Processing or Categories of Processing

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(b) The Categories of Personal Data

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(c) The Scope of the Restrictions Introduced

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(d) The Safeguards to Prevent Abuse

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(e) The Specification of the Controller or Categories of Controllers

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(f) The Storage Periods and Applicable Safeguards

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(g) The Risks to the Rights and Freedoms of Data Subjects

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(h) The Right of Data Subjects to be Informed about the Restriction

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Decisions

→ You can find all related decisions in Category:Article 23 GDPR

References

  1. CGEU, Joined Cases C-92/09 and C-93/09, Schecke, para 48.
  2. The term “restrictions” is not defined in the GDPR. However, the EDPB defines it as follows: “any limitation of scope of the obligations and rights provided for in Articles 12 to 22 and 34 GDPR as well the corresponding provisions in Article 5 in accordance with Article 23 GDPR” (see EDPB, ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 6, para 7-8).
  3. EDPB, ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 5, para 3.
  4. EDPB, ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 6, para 5.
  5. Per general EU law, any restriction to a fundamental right cannot violate the restricted right’s very essence. For this reason, the EDPB Guidelines 10/2020 on restrictions under Article 23 GDPR reject the idea of extensive restrictive measures that, for instance, exclude all data subjects’ rights about all processing operations carried out by a controller. See, EDPB, Guidelines 10/2020 on restrictions under Article 23 GDPR, 18 December 2020, p. 6-7.
  6. EDPB, ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 8, para 17.
  7. EDPB, ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 8, para 18.
  8. EDPB, Guidelines 10/2020 on restrictions under Article 23 GDPR, 18 December 2020, p. 7, which also review the case law of the Court of Justice of the European Union (CJEU) and of the European Court of Human Rights (ECtHR). See in particular footnote 8 of the Guidelines which mentions European Court  of  Human Rights,  14  September 2010, Sanoma Uitgevers B.V. v. The Netherlands, EC:ECHR:2010:0914JUD003822403, margin number 83: “Further, as regards the words “in accordance with the law” and “prescribed by law” which appear in Articles  8 to 11 of the  Convention, the Court observes that it has always understood the term “law” in its “substantive” sense, not its “formal” one; it has included both “written law”, encompassing enactments of lower ranking statutes and regulatory measures taken by professional regulatory bodies under  independent rule-making powers delegated to them by Parliament, and unwritten law. “Law” must be understood to include both statutory law and judge-made “law”. In sum, the “law”is the provision in force as the competent courts have interpreted it”. On the notion of "provided for by law", the criteria  developed  by the  European  Court of  Human  Rights should  be  used as  suggested  in CJEU  Advocates General opinions in joined cases C203/15 and C698/15, Tele2Sverige AB, ECLI:EU:C:2016:572, paragraphs 137-154 or in case C-70/10, Scarlet Extended, ECLI:EU:C:2011:255, margin number 99.
  9. EDPB, ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 8, para 18.
  10. EDPB, ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 8, para 18.
  11. EDPB, ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 8, para 18.
  12. EDPB in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 11 para 37.
  13. EDPB in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 11.
  14. The necessity of a measure can only be assessed if both the measure and the pursued interest are adequately defined. If these are not adequately defined then it is impossible for a third party to assess proportionality. See, Guidelines 10/2020 on restrictions under Article 23 GDPR, 18 December 2020, p. 10.
  15. EDPB in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 12 para 41.
  16. EDPB referring to CJEU, judgment of 16 December 2008, case C-73/07, Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy and Satamedia Oy, ECLI:EU:C:2008:727, paragraph 56, in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 12, para 41.
  17. EDPB referring to ECtHR, Szabo and Vissy v. Hungary, 12 January 2016, paragraph 73, in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 12 para 41.
  18. EDPB in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 12 para 42.
  19. EDPB referring to CJEU, judgment of 6 October 2020, La Quadrature du net and others joined cases C-511/18, C-512/18 and C-520/18, ECLI:EU:C:2020:791, paragraph 210, in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 12 para 44.
  20. If a measure is necessary to protect the qualified public interest, then its proportionality must also be assessed. In particular, following the EDPB reading, a proposed restriction should be supported by evidence describing the problem to be addressed by that measure, how it will be addressed, and why existing or less intrusive measures are not sufficient. See, EDPB, Guidelines 10/2020 on restrictions under Article 23 GDPR, 18 December 2020, p. 11.
  21. EDPB in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 12 para 45.
  22. EDPB in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 13 para 46.
  23. EDPB, Guidelines 10/2020 on restrictions under Article 23 GDPR, 18 December 2020, p. 8.
  24. Paal, in Paal & Pauly, DS-GVO Art. 23, para 17 (C.H.Beck 2021).
  25. EDPB referring to recital 73 GDPR, in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 9 para(s) 23 (and 26).
  26. The civil register "serves as a basis for information for the administration, the administration of justice, religious societies under public law and the public. It is recognised in supreme court jurisprudence 'that the individual cannot completely withdraw from his environment without good reason, but must remain accessible and accept that others - also with state assistance - make contact with him' (BVerwG, NJW 2006, 3367ff.). Available here.
  27. Article 1(1) in conjunction with Article 2(1) Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on 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, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA.
  28. EDPB referring to “Opinion 1/15 of the CJEU (Grand Chamber) on the Draft PNR Agreement between Canada and the European Union, 26 July 2017, ECLI:EU:C:2017:592”, in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 9 para 25.
  29. EDPB referring to recital 73 GDPR, in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 10 para 27.
  30. EDPB in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 10 para 27.
  31. EDPB in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 10 para 28.
  32. EDPB in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 10 para 30.
  33. Paal, in Paal & Pauly, DS-GVO Art. 23, para 33 (C.H.Beck 2021) and Bäcker, in Kühling & Buchner, DS-GVO BDSG, Art. 23, para 25 (C.H.Beck 2020).
  34. EDPB in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 10 para 32.
  35. EDPB in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 10 para 32. The EDPB refers to Article 23(2)(h) instead of Article 23(1)(h), but this is clearly a typo.
  36. EDPB in ‘Guidelines 10/2020 on restrictions under Article 23 GDPR’ Version 2.0 (2021). p. 11 para 34.
  37. According to the EDPB, Guidelines 10/2020 on restrictions under Article 23 GDPR, 18 December 2020, p. 11, the interpretation of the  expression “where relevant” in Article 23 (2) GDPR is „linked to the circumstances“. In any case, any exception needs to be  duly justified by the legislator.