Article 23 GDPR
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Legal Text[edit | edit source]
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[edit | edit source]
Commentary[edit | edit source]
Overview[edit | edit source]
Data protection principles, data subjects’ rights and controllers’ obligations are not absolute ideas. They can be respectively limited, restricted or lightened by way of Union or Member State law. In order to be lawful, however, the limitation must fulfil 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.
Essence[edit | edit source]
In terms of 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 (hereafter: “Guidelines”) reject the idea of extensive restrictive measures that, for instance, exclude all data subjects’ rights about all processing operations carried out by a controller.
Foreseeability[edit | edit source]
The legislative measures seeking to restrict the scope of data processing principles, data subject rights or controller’s obligations must be foreseeable for the data subject. 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.
Qualified public interest[edit | edit source]
For the measure to be admissible, it must pursue one or more specific public interests mentioned in Article 23(2) GDPR. Such a list is exhaustive meaning that restrictions cannot be placed under any other conditions than those mentioned in paragraph 2.
Limited scope[edit | edit source]
Under Article 23(1), 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 right which can be restricted are those to transparent information (Article 12 GDPR), information (Articles 13 and 14 GDPR), access (Article 15 GDPR), rectification (Article16 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 (Article77 GDPR) – or other controllers’ obligations cannot be restricted.
Necessity[edit | edit source]
The necessity of a measure can only be assessed if both the measure and the pursued interest are adequately defined. If these they are not, then it is impossible for a third party to assess the next element (proportionality). Therefore, the measure shall be considered unlawful. 
Proportionality[edit | edit source]
If a measure is necessary to protect the qualified public interest, then its proportionality will be assessed. In particular, following the EDPB reading, a proposed restriction measure should be supported by evidence describing the problem to be addressed by that measure, how it will be addressed by it, and why existing or less intrusive measures cannot sufficiently address it. 
Specific requirements[edit | edit source]
Article 23(2) 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 , 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.
Controller’s obligations[edit | edit source]
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 SA against the controller, in accordance with Article 57(1)(f) GDPR.
 EDPB Guidelines 10/2020 on restrictions under Article 23 GDPR, p. 6.
 Guidelines, 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, paragraph 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, paragraph 99.
 Guidelines, § 20, p. 8.
 This is the reading that we give to Guidelines, §39 (first two sentences), p. 10.
 Guidelines, § 41, p. 11.
 According to the EDPB Guidelines, 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 (Guidelines, § 46, p. 11).
Decisions[edit | edit source]
→ You can find all related decisions in Category:Article 23 GDPR