Article 36 GDPR: Difference between revisions

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==Commentary==
==Commentary==
Directive 95/46/EC (the DPD) imposed a general obligation to notify the Data Protection Authority (DPA) of an operation which processed personal data. The rationale behind the provision was that the DPAs would conduct an assessment prior to the start of the processing operation and thereby manage the potentially high risks of certain operations. However, this general notification obligation did not always lead to a higher level of protection of personal data,  and instead produced significant administrative and financial burdens.<ref>Recital 89 GDPR.</ref> For these reasons, Article 36 GDPR restricts the notification obligation only to those processing operations which, following the Data Protection Impact Assessment (DPIA) referred to in [[Article 35 GDPR]], continue to present high risks for the data subject after the risk mitigation measures that the controller has considered are reasonable  are applied. Article 36 GDPR must therefore be read as one   element within a wider framework of obligations in line with the accountability principle under  [[Article 24 GDPR|Articles 5(2) and 24 GDPR]], and especially closely connected to [[Article 35 GDPR|Article 35 GDPR.]]<ref>''Alvarez Rigaudias, Spina'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 682 (Oxford University Press 2020) and ''Jandt'', in Kühling, Buchner, DS-GVO BDSG, Article 36 GDPR, margin number 1 (C.H. Beck 2020, 3rd Edition).</ref>
Directive 95/46/EC (the DPD) imposed a general obligation to notify the Data Protection Authority (DPA) of processing operation involving personal data. The rationale behind the provision was that the DPAs would conduct an assessment prior to the start of the processing operation and thereby manage certain potentially high risks. However, this general notification obligation did not always lead to a higher level of protection of personal data,  and instead produced significant administrative and financial burdens.<ref>Recital 89 GDPR.</ref>


=== (1) Conditions Triggering the Prior Consultation ===
For these reasons, paragraph 1 of Article 36 GDPR restricts the notification obligation only to those processing operations which, following the Data Protection Impact Assessment (DPIA) referred to in [[Article 35 GDPR]], continue to present high risks for the data subject after the risk mitigation measures considered reasonable by the controller were applied.<ref>Article 36 GDPR must therefore be read as one   element within a wider framework of obligations in line with the accountability principle under  [[Article 24 GDPR|Articles 5(2) and 24 GDPR]], and especially closely connected to [[Article 35 GDPR|Article 35 GDPR.]] See, ''Alvarez Rigaudias, Spina'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 682 (Oxford University Press 2020) and ''Jandt'', in Kühling, Buchner, DS-GVO BDSG, Article 36 GDPR, margin number 1 (C.H. Beck 2020, 3rd Edition).</ref> In such cases, in accordance with paragraph 2, the DPA must provide written guidance on how to resolve the issue, if necessary by exercising the intervention powers provided under Article 58 of the GDPR. The consultation procedure must be carried out promptly, as stipulated by the legislator's specified timelines. Paragraph 3 clarifies the elements that the controller must provide when consulting the supervisory authority. These include the roles assigned to any joint controllers or processors, the purposes and methods of the processing, measures taken to protect the rights and freedoms of data subjects, the DPIA as referred to in Article 35, as well as any other information requested by the DPA. Paragraph 4 imposes on Member States an obligation to consult the supervisory authority when adopting legislative measures involving the processing of personal data or a regulatory measure based on the law. Finally, paragraph 5 allows Member States to subject certain controllers to prior authorization, irrespective of the requirements of paragraph 1.  
Article 36(1) GDPR  establishes an obligation for the controller<ref>The obligation of prior consultation applies only to the controller or joint controllers according to the allocation of competences made in the joint controllership agreement referred to in Article 26 GDPR.</ref> to consult the DPA if the DPIA “''indicates that the processing would result in a high risk would result in a high risk in the absence of measures taken by the controller to mitigate the risk.''” 


The wording here is clearly problematic and has led to multiple interpretations by different commentators. As ''Kelleher & Murray'' have noted,<ref>''Kelleher & Murray'', EU Data Protection Law (Bloomsbury Professional 2018), p. 279.</ref> if interpreted literally (and in isolation) this provision seems to imply that the consultation should always take place whenever a high risk is indicated by the DPIA, irrespective of the measures and safeguards incorporated by the controller to mitigate these risks in this assessment (ie. in their “''absence''”). For example, ''Rucker & Kugler'' take this literal approach, affirming that “[''t]his means that the consultation obligation applies even if the controller has taken sufficient risk mitigation measures.''”<ref>''Rücker & Kugler'', New European General Data Protection Regulation, a practitioner's guide: ensuring compliant corporate practice (C.H. Beck, Hart, Nomos, 2018) p. 142.</ref> On the other hand, others such as ''Alvarez Rigaudias & Spina'' have interpreted that the prior consultation is only required when the high risk “''cannot be mitigated through appropriate  measures.''”<ref>''Alvarez Rigaudias, Spina'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 684 (Oxford University Press 2020).</ref>  
=== (1) Conditions triggering the prior consultation ===
Article 36(1) GDPR  establishes an obligation for the controller<ref>The obligation of prior consultation applies only to the controller or joint controllers according to the allocation of competences made in the joint controllership agreement referred to in Article 26 GDPR.</ref> to consult the DPA if the DPIA “''indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk.''” The wording here is clearly problematic and has led to multiple interpretations by different commentators. As ''Kelleher & Murray'' have noted,<ref>''Kelleher & Murray'', EU Data Protection Law (Bloomsbury Professional 2018), p. 279.</ref> if interpreted literally (and in isolation) this provision seems to imply that the consultation should always take place whenever a high risk is indicated by the DPIA, irrespective of the measures and safeguards incorporated by the controller to mitigate these risks in this assessment (ie. in their “''absence''”). For example, ''Rucker & Kugler'' take this literal approach, affirming that “[''t]his means that the consultation obligation applies even if the controller has taken sufficient risk mitigation measures.''”<ref>''Rücker & Kugler'', New European General Data Protection Regulation, a practitioner's guide: ensuring compliant corporate practice (C.H. Beck, Hart, Nomos, 2018) p. 142.</ref> On the other hand, others such as ''Alvarez Rigaudias & Spina'' have interpreted that the prior consultation is only required when the high risk “''cannot be mitigated through appropriate measures.''”<ref>''Alvarez Rigaudias, Spina'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 684 (Oxford University Press 2020).</ref>


Recital 94 sheds some light on this provision, if only by essentially contradicting it, as ''Kelleher & Murray'' also note.<ref>''Kelleher & Murray'', EU Data Protection Law (Bloomsbury Professional 2018), p. 279.</ref> According to this Recital, what actually triggers the consultation is when a DPIA indicates that without the adoption of mitigating measures the processing would result in a high risk “''and the controller is of the opinion that the risk cannot be mitigated by reasonable means in terms of available technologies and costs of implementation.''” The Article 29 Working Party (WP29) further elaborates on this point, clarifying that “''[w]henever the data controller cannot find sufficient measures to reduce the risks to an acceptable level (i.e. the residual risks are still high), consultation with the supervisory authority is required.''”<ref>WP29, Guidelines on Data Protection Impact Assessment (DPIA) and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679, 4 October 2017, p. 19.</ref> Therefore, there are essentially two conditions for the application of the rules. First, the processing must present a high risk to the rights and freedoms of the data subject as defined in [[Article 35 GDPR|Articles 35(1)]], [[Article 35 GDPR|(3)]] and [[Article 35 GDPR|(4) GDPR]]. Second, after a DPIA has been carried out, the controller cannot find reasonable and sufficient  mitigating measures  to bring the risk to an acceptable level. It may of course be the case that, from a technical point of view, no containment measures exist.<ref>Some commentators give the example of blockchain technology, and propose that a consultation in this case would have the role of assessing the processing operation in line with the principle of proportionality. The DPA would then assess whether the operation is necessary and proportionate in a democratic society (suitable to achieving a legitimate aim, the least intrusive yet equally effective mean, as well as properly balancing the risks to individuals against the interest of the controller and society). See, ''Alvarez Rigaudias, Spina'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 684 (Oxford University Press 2020).</ref>
Regardless of the interpretation chosen, this part of the provision seems to be structurally flawed. As a matter of fact, either the controller is certain about the fact that the processing entails high risks that cannot be mitigated by measures they are willing to adopt, or they have doubts about it. In the first case - the one which seems to be endorsed by the wording of Article 36(1) - the controller should simply avoid to undertake the processing. It is not clear how an advice from a supervisory authority, which has arguably a higher standard of protection of fundamental rights, could change this assessment. The second case would make more sense legally and logically, but it seems to be contradicted by the explicit wording of paragraph 1, which implies that a DPIA gave negative result.


However, it may also happen that some measures exist but the controller decides not to adopt them because, say, they are too expensive.<ref>Some commentators emphasise that controllers would then risk that the DPA arrives at a different result after weighing the risks of the processing operation against the economic interests of the controllers in choosing not to take the appropriate mitigating measures. See ''Jandt'', in Kühling, Buchner, DS-GVO BDSG, Article 36 GDPR, margin number 5 (C.H. Beck 2020, 3rd Edition).</ref> In both cases, the prior consultation procedure is triggered and the DPA could prohibit the controller from moving forward with the processing operation, ''de facto'' making the prior consultation procedure work as an authorisation.<ref>''Jandt'', in Kühling, Buchner, DS-GVO BDSG, Article 36 GDPR, margin number 5 (C.H. Beck 2020, 3rd Edition).</ref> Under Article 36(1), the controller needs to consult the DPA after having conducted a DPIA but prior to processing. However, there can be exceptional cases when a controller needs to consult the DPA after the start of the processing operation. Such a situation could occur when technical or organizational changes alter the risk assessment and lead to residual risks which cannot be mitigated by the controller.<ref>''Alvarez Rigaudias, Spina'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 683 (Oxford University Press 2020).</ref>
Recital 94 sheds some light on this provision, if only by essentially contradicting it, as ''Kelleher & Murray'' also note.<ref>''Kelleher & Murray'', EU Data Protection Law (Bloomsbury Professional 2018), p. 279.</ref> According to this Recital, what actually triggers the consultation is a situation where a DPIA indicates that without the adoption of mitigating measures the processing would result in a high risk “''and the controller is of the opinion that the risk cannot be mitigated by reasonable means in terms of available technologies and costs of implementation.''” The Article 29 Working Party (WP29) further elaborates on this point, clarifying that “''[w]henever the data controller cannot find sufficient measures to reduce the risks to an acceptable level (i.e. the residual risks are still high), consultation with the supervisory authority is required.''”<ref>WP29, Guidelines on Data Protection Impact Assessment (DPIA) and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679, 4 October 2017, p. 19.</ref> Therefore, there are essentially two conditions for the application of the rules. First, the processing must present a high risk to the rights and freedoms of the data subject as defined in [[Article 35 GDPR|Articles 35(1)]], [[Article 35 GDPR|(3)]] and [[Article 35 GDPR|(4) GDPR]]. Second, after a DPIA has been carried out, the controller cannot find reasonable and sufficient  mitigating measures  to bring the risk to an acceptable level. It may of course be the case that, from a technical point of view, no containment measures exist.<ref>Some commentators give the example of blockchain technology, and propose that a consultation in this case would have the role of assessing the processing operation in line with the principle of proportionality. The DPA would then assess whether the operation is necessary and proportionate in a democratic society (suitable to achieving a legitimate aim, the least intrusive yet equally effective mean, as well as properly balancing the risks to individuals against the interest of the controller and society). See, ''Alvarez Rigaudias, Spina'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 684 (Oxford University Press 2020).</ref> However, it may also happen that some measures exist but the controller decides not to adopt them because, say, they are too expensive.<ref>Some commentators emphasise that controllers would then risk that the DPA arrives at a different result after weighing the risks of the processing operation against the economic interests of the controllers in choosing not to take the appropriate mitigating measures. See ''Jandt'', in Kühling, Buchner, DS-GVO BDSG, Article 36 GDPR, margin number 5 (C.H. Beck 2020, 3rd Edition).</ref> In both cases, the prior consultation procedure is triggered and the DPA shall provide an advice. In addition, the DPA may adopt further measures under Article 58 GDPR, such as the prohibition of the processing. In this case, that may be understood as a second, merely potential phase, the prior consultation procedure ''de facto'' works as an authorisation.<ref>''Jandt'', in Kühling, Buchner, DS-GVO BDSG, Article 36 GDPR, margin number 5 (C.H. Beck 2020, 3rd Edition).</ref>


=== (2) Procedural Aspects ===
Under Article 36(1), the controller needs to consult the DPA after having conducted a DPIA but prior to processing. However, there can be exceptional cases when a controller needs to consult the DPA after the start of the processing operation. Such a situation could occur when technical or organizational changes alter the risk assessment and lead to residual risks which cannot be mitigated by the controller.<ref>''Alvarez Rigaudias, Spina'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 683 (Oxford University Press 2020).</ref>
According to Article 36(2) GDPR, where the DPA is of the opinion that the intended processing referred to in paragraph 1 would infringe the GDPR, in particular where the controller has insufficiently identified or mitigated the risk, the DPA has to provide written advice to the controller within eight weeks, which can be extended by another six weeks if the processing operation is especially complex.<ref>The supervisory authority shall inform the controller and, where applicable, the processor, of any such extension within one month of receipt of the request for consultation together with the reasons for the delay.</ref> During the consultation process, the DPA would first need to assess whether the controller has correctly identified the risks as well as the appropriate mitigating measures. In this context, the DPA must look at both legal aspects and the latest available technologies that would help mitigate the risks.<ref>''Jandt'', in Kühling, Buchner, DS-GVO BDSG, Article 36 GDPR, margin number 7 (C.H. Beck 2020, 3rd Edition).</ref> In addition, the DPA would need to look at the broader societal context of the processing operation and decide whether the potentially high risks it entails are proportionate even  when appropriate (even if not sufficient) mitigation measures have been adopted, or according to the interests at stake (for e.g. an underlying public or private interest, and no objective possibility of mitigation).<ref>''Alvarez Rigaudias, Spina'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 685 (Oxford University Press 2020).</ref>  A contested point about the nature of the consultation procedure is whether the advice of the DPA is indeed merely an advice, or whether it can be seen as an approval on moving forward with the processing operation.<ref>In this context, questions would also relate to whether the result of the consultation procedure can be seen as legally binding decision and therefore subject covered by Article 78 GDPR. See, ''Alvarez Rigaudias, Spina'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 686 (Oxford University Press 2020).</ref> The use of the term "''advice''", however, leaves little doubt in this respect. Therefore, although the submission of the consultation must be carried out before the processing starts, it does not actually prevent the controller from carrying out the processing despite the high risks involved.<ref>''Reibach'', in Taeger, Gabel, DSGVO BDSG, Article 36 GDPR, margin number 12 (C.H. Beck 2019, 3th Edition).</ref> The controller is free to ignore  the advice received in the consultation, but assumes all responsibility if the DPA subsequently decides to sanction it for an eventual violation related to the processing it was advised on. This interpretation, moreover, is consistent with the reference that Article 36(2) GDPR itself makes to [[Article 58 GDPR]]. In the event of a breach, the DPA may always issue a corrective measure under [[Article 58 GDPR]]. The submission of the consultation, which must be carried out before the start of the processing, does not prevent the controller from carrying out the processing despite the high risks involved.<ref>''Reibach'', in Taeger, Gabel, DSGVO BDSG, Article 36 GDPR, margin number 12 (C.H. Beck 2019, 3th Edition).</ref> Finally, in the absence of a response within the fixed deadline, it can be implicitly assumed that the authority has no further recommendations.
 
=== (2) Procedural aspects ===
According to Article 36(2) GDPR, where the DPA is of the opinion that the intended processing referred to in paragraph 1 would infringe the GDPR, in particular where the controller has insufficiently identified or mitigated the risk, the DPA has to provide written advice to the controller within eight weeks, which can be extended by another six weeks if the processing operation is especially complex.<ref>The supervisory authority shall inform the controller and, where applicable, the processor, of any such extension within one month of receipt of the request for consultation together with the reasons for the delay.</ref>  
 
==== When intended processing infringes this Regulation ====
In application of paragraph 1, the obligation of prior consultation is triggered when there is a remaining risk after the implementation of measures (as mentioned above). However, the analysis conducted by the DPA is not limited to assessing only the aspect of risk. On the contrary, the authority must ensure that the indicated processing is fully compliant with the entire GDPR. This means that the scope of assessment extends to compliance with the processing principles outlined in Article 5 and any other specific requirements imposed by the Regulation. These include transparency obligations (Articles 13 and 14), the ability to exercise data subject rights (Articles 15-22), and any other elements mandated by the GDPR. With that being said, particular focus should be placed on evaluating the adequacy of risk identification and mitigation measures. In this context, the DPA must look at the latest available technologies that would help mitigate the risks.<ref>''Jandt'', in Kühling, Buchner, DS-GVO BDSG, Article 36 GDPR, margin number 7 (C.H. Beck 2020, 3rd Edition).</ref> In addition, the DPA would need to look at the broader societal context of the processing operation and decide whether the potentially high risks it entails are proportionate even  when appropriate (even if not sufficient) mitigation measures have been adopted, or according to the interests at stake (for e.g. an underlying public or private interest, and no objective possibility of mitigation).<ref>''Alvarez Rigaudias, Spina'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 685 (Oxford University Press 2020).</ref>  
 
==== The supervisory authority provides written advice ====
The use of a written form for the DPA's advice allows for later verification of the complete implementation by the data controller, ensuring compliance. A contested point about the nature of the consultation procedure is whether the "''advice''" of the DPA is indeed merely an advice, or whether it can be seen as an approval on moving forward with the processing operation.<ref>In this context, questions would also relate to whether the result of the consultation procedure can be seen as legally binding decision and therefore subject covered by Article 78 GDPR. See, ''Alvarez Rigaudias, Spina'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 686 (Oxford University Press 2020).</ref> The use of the term "''advice''", however, leaves little doubt in this respect. Therefore, although the submission of the consultation must be carried out before the processing starts, it does not actually prevent the controller from carrying out the processing despite the high risks involved.<ref>''Reibach'', in Taeger, Gabel, DSGVO BDSG, Article 36 GDPR, margin number 12 (C.H. Beck 2019, 3th Edition).</ref> The controller is free to ignore  the advice received in the consultation, but assumes all responsibility if the DPA subsequently decides to sanction it for an eventual violation related to the processing it was advised on.<ref>''Reibach'', in Taeger, Gabel, DSGVO BDSG, Article 36 GDPR, margin number 12 (C.H. Beck 2019, 3th Edition).</ref> However, the practical relevance of the matter is limited. Under Article 36(2) GDPR, the DPA may, in fact, exercise any power provided under Article 58 in addition to providing advice. This includes the possibility of imposing measures such as blocking processing activities in the case of particularly significant violations. Therefore, the practical enforceability of the advice depends on any additional actions that the authority decides to take.
 
==== Within a period of up to eight weeks ====
The DPA shall respond to the consultation within an eight-week period. Such timeframe represents a compromise in the consultation process. On one hand, the supervisory authority needs a certain amount of time to make its assessment. On the other hand, the data controller has an interest in receiving a prompt response, as delays can have economic implications.<ref>Jandt, in Kühling, Buchner, DS-GVO BDSG, Article 36 GDPR, margin number 9 (C.H. Beck 2020, 3rd Edition).</ref> The supervisory authority may be granted a six-week extension if the activities are particularly complex, which can often be the case when new technologies are involved. The extension must be explained within one month. These deadlines may be suspended until the supervisory authority has obtained all the necessary information it requested.  
=== (3) Information to be provided to the DPA ===
=== (3) Information to be provided to the DPA ===
Under Article 36(3) GDPR, the controller shall provide the DPA with a range of information, including a description of: the responsibilities of the controller, joint controllers and processors involved in the processing, in particular for processing within a group of undertakings (Article 36(3)(a) GDPR); the purposes and means of the intended processing (Article 36(3)(b) GDPR);<ref>This information should be already available to the controller due to the previously done DPIA. See, [https://gdprhub.eu/Article%2035%20GDPR Article 35(7)(a) GDPR.]</ref> the measures and safeguards provided to protect the rights and freedoms of data subjects, including all technical, organisational or legal safeguards that mitigate the risks of processing (Article 36(3)(c) GDPR); the contact details of the Data Protection Officer (DPO) (Article 36(3)(d) GDPR); a copy of the DPIA (Article 36(3)(e) GDPR) as well as any other information requested by the DPA (Article 36(3)(f) GDPR). Furthermore, the DPO will need to act as contact point throughout the consultation process.<ref>[https://gdprhub.eu/Article%2039%20GDPR See Article 39(1)(e) GDPR].</ref>  
Under Article 36(3) GDPR, the controller shall provide the DPA with a range of information, including a description of: the responsibilities of the controller, joint controllers and processors involved in the processing, in particular for processing within a group of undertakings (Article 36(3)(a) GDPR); the purposes and means of the intended processing (Article 36(3)(b) GDPR);<ref>This information should be already available to the controller due to the previously done DPIA. See, [https://gdprhub.eu/Article%2035%20GDPR Article 35(7)(a) GDPR.]</ref> the measures and safeguards provided to protect the rights and freedoms of data subjects, including all technical, organisational or legal safeguards that mitigate the risks of processing (Article 36(3)(c) GDPR); the contact details of the Data Protection Officer (DPO) (Article 36(3)(d) GDPR);<ref>Furthermore, the DPO will need to act as contact point throughout the consultation process. [https://gdprhub.eu/Article%2039%20GDPR See Article 39(1)(e) GDPR].</ref> a copy of the DPIA (Article 36(3)(e) GDPR) as well as any other information requested by the DPA (Article 36(3)(f) GDPR).


=== (4) Member State's Prior Consultation Obligation ===
=== (4) Member state's prior consultation obligation ===
When preparing a proposal for primary or secondary legislation under national law related to processing, Member States should also carry out a prior consultation process with the DPA. However, this procedure is different in nature and scope than the one in Article 36(1) GDPR, since it involves those preparing national law provisions and not controllers, and it could be related to processing which does not necessarily result in high risks for data subjects’ rights and freedoms. Furthermore, from a procedural perspective, it is not subject to the same deadline as Article 36(1) GDPR, and it is still disputed whether the outcome of the procedure rather resembles that of [[Article 58 GDPR|Article 58(3)(a) GDPR]] or [[Article 58 GDPR|Article 58(3)(b) GDPR]].<ref>With regards to consultations in the context of legislative initiatives based on Article 36(4), it is still disputed whether the outcome of the procedure rather resembles that of Article 58(3)(a) GDPR or Article 58(3)(b) GDPR. See, ''Alvarez Rigaudias, Spina'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 686 (Oxford University Press 2020); ''Jandt'', in Kühling, Buchner, DS-GVO BDSG, Article GDPR, margin number 11 (C.H. Beck 2020, 3rd Edition).</ref>  
When preparing a proposal for primary or secondary legislation under national law related to processing, Member States should also carry out a prior consultation process with the DPA. However, this procedure is different in nature and scope than the one in Article 36(1) GDPR, since it involves the law maker and not controllers, and it could be related to processing operations which do not necessarily result in high risks for data subjects’ rights and freedoms. As a matter of fact, unlike paragraph 1, the text of the provision does not mention any "high risk" for the rights and freedoms of data subjects as a requirement for this consultation obligation. Furthermore, from a procedural perspective, it is not subject to the same deadline of Article 36(1) GDPR, and it is still disputed whether the outcome of the procedure rather resembles that of [[Article 58 GDPR|Article 58(3)(a) GDPR]] or [[Article 58 GDPR|Article 58(3)(b) GDPR]].<ref>With regards to consultations in the context of legislative initiatives based on Article 36(4), it is still disputed whether the outcome of the procedure rather resembles that of Article 58(3)(a) GDPR or Article 58(3)(b) GDPR. See, ''Alvarez Rigaudias, Spina'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 686 (Oxford University Press 2020); ''Jandt'', in Kühling, Buchner, DS-GVO BDSG, Article GDPR, margin number 11 (C.H. Beck 2020, 3rd Edition).</ref>  


=== (5) Member State Law May Provide for Stricter Requirements ===
=== (5) Member state law may provide for stricter requirements ===
Unlike the consultation process under Article 36(1) GDPR, this provision establishes that Member State law may require controllers to not only seek advice, but also a prior authorisation from the DPA, in order to carry out certain types of processing related performing tasks in the public interest.
Unlike the consultation process under Article 36(1) GDPR, this provision establishes that Member State law may require controllers to seek not only advice, but also a prior authorisation from the DPA, in order to carry out certain types of processing related performing tasks in the public interest.


==Decisions==
==Decisions==

Latest revision as of 08:51, 21 July 2023

Article 36 - Prior consultation
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Chapter 10: Delegated and implementing acts

Legal Text


Article 36 - Prior consultation

1. The controller shall consult the supervisory authority prior to processing where a data protection impact assessment under Article 35 indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk.

2. Where the supervisory authority is of the opinion that the intended processing referred to in paragraph 1 would infringe this Regulation, in particular where the controller has insufficiently identified or mitigated the risk, the supervisory authority shall, within period of up to eight weeks of receipt of the request for consultation, provide written advice to the controller and, where applicable to the processor, and may use any of its powers referred to in Article 58. That period may be extended by six weeks, taking into account the complexity of the intended processing. The supervisory authority shall inform the controller and, where applicable, the processor, of any such extension within one month of receipt of the request for consultation together with the reasons for the delay. Those periods may be suspended until the supervisory authority has obtained information it has requested for the purposes of the consultation.

3. When consulting the supervisory authority pursuant to paragraph 1, the controller shall provide the supervisory authority with:

(a) where applicable, the respective responsibilities of the controller, joint controllers and processors involved in the processing, in particular for processing within a group of undertakings;
(b) the purposes and means of the intended processing;
(c) the measures and safeguards provided to protect the rights and freedoms of data subjects pursuant to this Regulation;
(d) where applicable, the contact details of the data protection officer;
(e) the data protection impact assessment provided for in Article 35; and
(f) any other information requested by the supervisory authority.

4. Member States shall consult the supervisory authority during the preparation of a proposal for a legislative measure to be adopted by a national parliament, or of a regulatory measure based on such a legislative measure, which relates to processing.

5. Notwithstanding paragraph 1, Member State law may require controllers to consult with, and obtain prior authorisation from, the supervisory authority in relation to processing by a controller for the performance of a task carried out by the controller in the public interest, including processing in relation to social protection and public health.

Relevant Recitals

Recital 84: Data Protection Impact Assessment
In order to enhance compliance with this Regulation where processing operations are likely to result in a high risk to the rights and freedoms of natural persons, the controller should be responsible for the carrying-out of a data protection impact assessment to evaluate, in particular, the origin, nature, particularity and severity of that risk. The outcome of the assessment should be taken into account when determining the appropriate measures to be taken in order to demonstrate that the processing of personal data complies with this Regulation. Where a data-protection impact assessment indicates that processing operations involve a high risk which the controller cannot mitigate by appropriate measures in terms of available technology and costs of implementation, a consultation of the supervisory authority should take place prior to the processing.

Recital 89: Abolishment of Indiscriminate General Notification
Directive 95/46/EC provided for a general obligation to notify the processing of personal data to the supervisory authorities. While that obligation produces administrative and financial burdens, it did not in all cases contribute to improving the protection of personal data. Such indiscriminate general notification obligations should therefore be abolished, and replaced by effective procedures and mechanisms which focus instead on those types of processing operations which are likely to result in a high risk to the rights and freedoms of natural persons by virtue of their nature, scope, context and purposes. Such types of processing operations may be those which in, particular, involve using new technologies, or are of a new kind and where no data protection impact assessment has been carried out before by the controller, or where they become necessary in the light of the time that has elapsed since the initial processing.

Recital 94: Consultation of the Supervisory Authority in Case of High Risk
Where a data protection impact assessment indicates that the processing would, in the absence of safeguards, security measures and mechanisms to mitigate the risk, result in a high risk to the rights and freedoms of natural persons and the controller is of the opinion that the risk cannot be mitigated by reasonable means in terms of available technologies and costs of implementation, the supervisory authority should be consulted prior to the start of processing activities. Such high risk is likely to result from certain types of processing and the extent and frequency of processing, which may result also in a realisation of damage or interference with the rights and freedoms of the natural person. The supervisory authority should respond to the request for consultation within a specified period. However, the absence of a reaction of the supervisory authority within that period should be without prejudice to any intervention of the supervisory authority in accordance with its tasks and powers laid down in this Regulation, including the power to prohibit processing operations. As part of that consultation process, the outcome of a data protection impact assessment carried out with regard to the processing at issue may be submitted to the supervisory authority, in particular the measures envisaged to mitigate the risk to the rights and freedoms of natural persons.

Recital 95: Assistance by the Processor
The processor should assist the controller, where necessary and upon request, in ensuring compliance with the obligations deriving from the carrying out of data protection impact assessments and from prior consultation of the supervisory authority.

Recital 96: Consultation of the Supervisory Authority in Case of Legislative or Regulatory Measures
A consultation of the supervisory authority should also take place in the course of the preparation of a legislative or regulatory measure which provides for the processing of personal data, in order to ensure compliance of the intended processing with this Regulation and in particular to mitigate the risk involved for the data subject.

Commentary

Directive 95/46/EC (the DPD) imposed a general obligation to notify the Data Protection Authority (DPA) of processing operation involving personal data. The rationale behind the provision was that the DPAs would conduct an assessment prior to the start of the processing operation and thereby manage certain potentially high risks. However, this general notification obligation did not always lead to a higher level of protection of personal data,  and instead produced significant administrative and financial burdens.[1]

For these reasons, paragraph 1 of Article 36 GDPR restricts the notification obligation only to those processing operations which, following the Data Protection Impact Assessment (DPIA) referred to in Article 35 GDPR, continue to present high risks for the data subject after the risk mitigation measures considered reasonable by the controller were applied.[2] In such cases, in accordance with paragraph 2, the DPA must provide written guidance on how to resolve the issue, if necessary by exercising the intervention powers provided under Article 58 of the GDPR. The consultation procedure must be carried out promptly, as stipulated by the legislator's specified timelines. Paragraph 3 clarifies the elements that the controller must provide when consulting the supervisory authority. These include the roles assigned to any joint controllers or processors, the purposes and methods of the processing, measures taken to protect the rights and freedoms of data subjects, the DPIA as referred to in Article 35, as well as any other information requested by the DPA. Paragraph 4 imposes on Member States an obligation to consult the supervisory authority when adopting legislative measures involving the processing of personal data or a regulatory measure based on the law. Finally, paragraph 5 allows Member States to subject certain controllers to prior authorization, irrespective of the requirements of paragraph 1.

(1) Conditions triggering the prior consultation

Article 36(1) GDPR  establishes an obligation for the controller[3] to consult the DPA if the DPIA “indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk.” The wording here is clearly problematic and has led to multiple interpretations by different commentators. As Kelleher & Murray have noted,[4] if interpreted literally (and in isolation) this provision seems to imply that the consultation should always take place whenever a high risk is indicated by the DPIA, irrespective of the measures and safeguards incorporated by the controller to mitigate these risks in this assessment (ie. in their “absence”). For example, Rucker & Kugler take this literal approach, affirming that “[t]his means that the consultation obligation applies even if the controller has taken sufficient risk mitigation measures.[5] On the other hand, others such as Alvarez Rigaudias & Spina have interpreted that the prior consultation is only required when the high risk “cannot be mitigated through appropriate measures.[6]

Regardless of the interpretation chosen, this part of the provision seems to be structurally flawed. As a matter of fact, either the controller is certain about the fact that the processing entails high risks that cannot be mitigated by measures they are willing to adopt, or they have doubts about it. In the first case - the one which seems to be endorsed by the wording of Article 36(1) - the controller should simply avoid to undertake the processing. It is not clear how an advice from a supervisory authority, which has arguably a higher standard of protection of fundamental rights, could change this assessment. The second case would make more sense legally and logically, but it seems to be contradicted by the explicit wording of paragraph 1, which implies that a DPIA gave negative result.

Recital 94 sheds some light on this provision, if only by essentially contradicting it, as Kelleher & Murray also note.[7] According to this Recital, what actually triggers the consultation is a situation where a DPIA indicates that without the adoption of mitigating measures the processing would result in a high risk “and the controller is of the opinion that the risk cannot be mitigated by reasonable means in terms of available technologies and costs of implementation.” The Article 29 Working Party (WP29) further elaborates on this point, clarifying that “[w]henever the data controller cannot find sufficient measures to reduce the risks to an acceptable level (i.e. the residual risks are still high), consultation with the supervisory authority is required.[8] Therefore, there are essentially two conditions for the application of the rules. First, the processing must present a high risk to the rights and freedoms of the data subject as defined in Articles 35(1), (3) and (4) GDPR. Second, after a DPIA has been carried out, the controller cannot find reasonable and sufficient  mitigating measures  to bring the risk to an acceptable level. It may of course be the case that, from a technical point of view, no containment measures exist.[9] However, it may also happen that some measures exist but the controller decides not to adopt them because, say, they are too expensive.[10] In both cases, the prior consultation procedure is triggered and the DPA shall provide an advice. In addition, the DPA may adopt further measures under Article 58 GDPR, such as the prohibition of the processing. In this case, that may be understood as a second, merely potential phase, the prior consultation procedure de facto works as an authorisation.[11]

Under Article 36(1), the controller needs to consult the DPA after having conducted a DPIA but prior to processing. However, there can be exceptional cases when a controller needs to consult the DPA after the start of the processing operation. Such a situation could occur when technical or organizational changes alter the risk assessment and lead to residual risks which cannot be mitigated by the controller.[12]

(2) Procedural aspects

According to Article 36(2) GDPR, where the DPA is of the opinion that the intended processing referred to in paragraph 1 would infringe the GDPR, in particular where the controller has insufficiently identified or mitigated the risk, the DPA has to provide written advice to the controller within eight weeks, which can be extended by another six weeks if the processing operation is especially complex.[13]

When intended processing infringes this Regulation

In application of paragraph 1, the obligation of prior consultation is triggered when there is a remaining risk after the implementation of measures (as mentioned above). However, the analysis conducted by the DPA is not limited to assessing only the aspect of risk. On the contrary, the authority must ensure that the indicated processing is fully compliant with the entire GDPR. This means that the scope of assessment extends to compliance with the processing principles outlined in Article 5 and any other specific requirements imposed by the Regulation. These include transparency obligations (Articles 13 and 14), the ability to exercise data subject rights (Articles 15-22), and any other elements mandated by the GDPR. With that being said, particular focus should be placed on evaluating the adequacy of risk identification and mitigation measures. In this context, the DPA must look at the latest available technologies that would help mitigate the risks.[14] In addition, the DPA would need to look at the broader societal context of the processing operation and decide whether the potentially high risks it entails are proportionate even  when appropriate (even if not sufficient) mitigation measures have been adopted, or according to the interests at stake (for e.g. an underlying public or private interest, and no objective possibility of mitigation).[15]

The supervisory authority provides written advice

The use of a written form for the DPA's advice allows for later verification of the complete implementation by the data controller, ensuring compliance. A contested point about the nature of the consultation procedure is whether the "advice" of the DPA is indeed merely an advice, or whether it can be seen as an approval on moving forward with the processing operation.[16] The use of the term "advice", however, leaves little doubt in this respect. Therefore, although the submission of the consultation must be carried out before the processing starts, it does not actually prevent the controller from carrying out the processing despite the high risks involved.[17] The controller is free to ignore  the advice received in the consultation, but assumes all responsibility if the DPA subsequently decides to sanction it for an eventual violation related to the processing it was advised on.[18] However, the practical relevance of the matter is limited. Under Article 36(2) GDPR, the DPA may, in fact, exercise any power provided under Article 58 in addition to providing advice. This includes the possibility of imposing measures such as blocking processing activities in the case of particularly significant violations. Therefore, the practical enforceability of the advice depends on any additional actions that the authority decides to take.

Within a period of up to eight weeks

The DPA shall respond to the consultation within an eight-week period. Such timeframe represents a compromise in the consultation process. On one hand, the supervisory authority needs a certain amount of time to make its assessment. On the other hand, the data controller has an interest in receiving a prompt response, as delays can have economic implications.[19] The supervisory authority may be granted a six-week extension if the activities are particularly complex, which can often be the case when new technologies are involved. The extension must be explained within one month. These deadlines may be suspended until the supervisory authority has obtained all the necessary information it requested.

(3) Information to be provided to the DPA

Under Article 36(3) GDPR, the controller shall provide the DPA with a range of information, including a description of: the responsibilities of the controller, joint controllers and processors involved in the processing, in particular for processing within a group of undertakings (Article 36(3)(a) GDPR); the purposes and means of the intended processing (Article 36(3)(b) GDPR);[20] the measures and safeguards provided to protect the rights and freedoms of data subjects, including all technical, organisational or legal safeguards that mitigate the risks of processing (Article 36(3)(c) GDPR); the contact details of the Data Protection Officer (DPO) (Article 36(3)(d) GDPR);[21] a copy of the DPIA (Article 36(3)(e) GDPR) as well as any other information requested by the DPA (Article 36(3)(f) GDPR).

(4) Member state's prior consultation obligation

When preparing a proposal for primary or secondary legislation under national law related to processing, Member States should also carry out a prior consultation process with the DPA. However, this procedure is different in nature and scope than the one in Article 36(1) GDPR, since it involves the law maker and not controllers, and it could be related to processing operations which do not necessarily result in high risks for data subjects’ rights and freedoms. As a matter of fact, unlike paragraph 1, the text of the provision does not mention any "high risk" for the rights and freedoms of data subjects as a requirement for this consultation obligation. Furthermore, from a procedural perspective, it is not subject to the same deadline of Article 36(1) GDPR, and it is still disputed whether the outcome of the procedure rather resembles that of Article 58(3)(a) GDPR or Article 58(3)(b) GDPR.[22]

(5) Member state law may provide for stricter requirements

Unlike the consultation process under Article 36(1) GDPR, this provision establishes that Member State law may require controllers to seek not only advice, but also a prior authorisation from the DPA, in order to carry out certain types of processing related performing tasks in the public interest.

Decisions

→ You can find all related decisions in Category:Article 36 GDPR

References

  1. Recital 89 GDPR.
  2. Article 36 GDPR must therefore be read as one   element within a wider framework of obligations in line with the accountability principle under  Articles 5(2) and 24 GDPR, and especially closely connected to Article 35 GDPR. See, Alvarez Rigaudias, Spina, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 682 (Oxford University Press 2020) and Jandt, in Kühling, Buchner, DS-GVO BDSG, Article 36 GDPR, margin number 1 (C.H. Beck 2020, 3rd Edition).
  3. The obligation of prior consultation applies only to the controller or joint controllers according to the allocation of competences made in the joint controllership agreement referred to in Article 26 GDPR.
  4. Kelleher & Murray, EU Data Protection Law (Bloomsbury Professional 2018), p. 279.
  5. Rücker & Kugler, New European General Data Protection Regulation, a practitioner's guide: ensuring compliant corporate practice (C.H. Beck, Hart, Nomos, 2018) p. 142.
  6. Alvarez Rigaudias, Spina, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 684 (Oxford University Press 2020).
  7. Kelleher & Murray, EU Data Protection Law (Bloomsbury Professional 2018), p. 279.
  8. WP29, Guidelines on Data Protection Impact Assessment (DPIA) and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679, 4 October 2017, p. 19.
  9. Some commentators give the example of blockchain technology, and propose that a consultation in this case would have the role of assessing the processing operation in line with the principle of proportionality. The DPA would then assess whether the operation is necessary and proportionate in a democratic society (suitable to achieving a legitimate aim, the least intrusive yet equally effective mean, as well as properly balancing the risks to individuals against the interest of the controller and society). See, Alvarez Rigaudias, Spina, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 684 (Oxford University Press 2020).
  10. Some commentators emphasise that controllers would then risk that the DPA arrives at a different result after weighing the risks of the processing operation against the economic interests of the controllers in choosing not to take the appropriate mitigating measures. See Jandt, in Kühling, Buchner, DS-GVO BDSG, Article 36 GDPR, margin number 5 (C.H. Beck 2020, 3rd Edition).
  11. Jandt, in Kühling, Buchner, DS-GVO BDSG, Article 36 GDPR, margin number 5 (C.H. Beck 2020, 3rd Edition).
  12. Alvarez Rigaudias, Spina, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 683 (Oxford University Press 2020).
  13. The supervisory authority shall inform the controller and, where applicable, the processor, of any such extension within one month of receipt of the request for consultation together with the reasons for the delay.
  14. Jandt, in Kühling, Buchner, DS-GVO BDSG, Article 36 GDPR, margin number 7 (C.H. Beck 2020, 3rd Edition).
  15. Alvarez Rigaudias, Spina, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 685 (Oxford University Press 2020).
  16. In this context, questions would also relate to whether the result of the consultation procedure can be seen as legally binding decision and therefore subject covered by Article 78 GDPR. See, Alvarez Rigaudias, Spina, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 686 (Oxford University Press 2020).
  17. Reibach, in Taeger, Gabel, DSGVO BDSG, Article 36 GDPR, margin number 12 (C.H. Beck 2019, 3th Edition).
  18. Reibach, in Taeger, Gabel, DSGVO BDSG, Article 36 GDPR, margin number 12 (C.H. Beck 2019, 3th Edition).
  19. Jandt, in Kühling, Buchner, DS-GVO BDSG, Article 36 GDPR, margin number 9 (C.H. Beck 2020, 3rd Edition).
  20. This information should be already available to the controller due to the previously done DPIA. See, Article 35(7)(a) GDPR.
  21. Furthermore, the DPO will need to act as contact point throughout the consultation process. See Article 39(1)(e) GDPR.
  22. With regards to consultations in the context of legislative initiatives based on Article 36(4), it is still disputed whether the outcome of the procedure rather resembles that of Article 58(3)(a) GDPR or Article 58(3)(b) GDPR. See, Alvarez Rigaudias, Spina, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 36 GDPR, p. 686 (Oxford University Press 2020); Jandt, in Kühling, Buchner, DS-GVO BDSG, Article GDPR, margin number 11 (C.H. Beck 2020, 3rd Edition).