Article 88 GDPR

← Article 88 - Processing in the context of employment →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 88 - Processing in the context of employment

1. Member States may, by law or by collective agreements, provide for more specific rules to ensure the protection of the rights and freedoms in respect of the processing of employees' personal data in the employment context, in particular for the purposes of the recruitment, the performance of the contract of employment, including discharge of obligations laid down by law or by collective agreements, management, planning and organisation of work, equality and diversity in the workplace, health and safety at work, protection of employer's or customer's property and for the purposes of the exercise and enjoyment, on an individual or collective basis, of rights and benefits related to employment, and for the purpose of the termination of the employment relationship.

2. Those rules shall include suitable and specific measures to safeguard the data subject's human dignity, legitimate interests and fundamental rights, with particular regard to the transparency of processing, the transfer of personal data within a group of undertakings, or a group of enterprises engaged in a joint economic activity and monitoring systems at the work place.

3. Each Member State shall notify to the Commission those provisions of its law which it adopts pursuant to paragraph 1, by 25 May 2018 and, without delay, any subsequent amendment affecting them.

Relevant Recital

Recital 155: Processing of Employees' Personal Data

Member State law or collective agreements, including ‘works agreements’, may provide for specific rules on the processing of employees' personal data in the employment context, in particular for the conditions under which personal data in the employment context may be processed on the basis of the consent of the employee, the purposes of the recruitment, the performance of the contract of employment, including discharge of obligations laid down by law or by collective agreements, management, planning and organisation of work, equality and diversity in the workplace, health and safety at work, and for the purposes of the exercise and enjoyment, on an individual or collective basis, of rights and benefits related to employment, and for the purpose of the termination of the employment relationship.

Commentary

Article 88 GDPR allows Member States to further regulate for the processing of personal data in the context of an employment relationship. Given the wide disparities between Member States’ labour laws, Article 88 GDPR prescribes minimum harmonisation, in an attempt to confront a melting pot of legal principles, which are near impossible to fully reconcile.

Article 88(1) GDPR acts as an opening clause, permitting states to further regulate for data protection in the context of employment, while Article 88(2) GDPR sets conditions to the use of the opening clause, establishing a minimum threshold from which Member States cannot derogate from. In other words, if a Member State chooses to use the opening clause under Article 88(1) GDPR, any rules introduced must meet the criteria imposed by Article 88(2) GDPR. Lastly, Article 88(3) GDPR imposes an obligation on Member States to notify the Commission of any laws which it adopts pursuant to Article 88(1) GDPR.

(1) May, by law or by collective agreements

The first paragraph of Article 88 GDPR provides that Member States may, by law or by collective agreements, provide for more specific rules regulating the processing of employees’ personal data in the employment context. In doing so, Article 88(1) GDPR provides an opening clause, widening the capacity for Member States to further regulate for the protection of personal data in the employment context. It further specifies the two regulatory instruments through which Member States may rely on in the adoption of rules under Article 88(1) GDPR, the first of which is national law, and the second is collective agreement.

The GDPR is a regulation and thus has direct effect. Therefore, notwithstanding a data subject’s employment status or of any measures adopted under domestic law, they enjoy all the rights and protections afforded by the GDPR regardless of whether their Member State adopts legislation under Article 88(1) GDPR. Rather, the purpose of Article 88 GDPR is to permit Member States to further regulate on data processing in the employment context in a manner that ‘would best suit the needs of their own particular legal system, while at the same time keeping in line with the rules set by the GDPR.’ Therefore, Article 88 GDPR acts as a ‘reinforcement’ clause, as Member States are free to adopt more protective rules or maintain the minimum standards required by the GDPR.

May

Article 88(1) GDPR’s use of the discretionary verb ‘may’ establishes that Member States are not obliged to further regulate for employee data protection. The Article simply grants Member States regulatory leeway, which they can, but do not have to use. Nonetheless, Article 88(1) GDPR, provides a non-exhaustive list of matters which Member States may decide to provide more specific rules for. This list includes processing of individuals’ personal data for the purposes of recruitment, performance of employment contracts, management, planning and organisation of work, equality and diversity in the workplace, health and safety at work, protection of employer's or customer's property and for the purposes of the exercise and enjoyment of social benefits in the course of employment or after the termination of the employment relationship. Essentially, this list is suggestive and if Member States choose to further regulate the matter, they are not bound to the content outlined in Article 88(1) GDPR.

By law

Article 88(1) GDPR provides that Member States may establish more specific rules for the protection of employees’ personal data by law. The concept of ‘law’ encompasses all legal norms enacted by a Member State, including statutory instruments and legal provisions that rank below secondary legislation.

By collective agreement

The second means through which Member States may establish more specific rules for the protection of employees’ personal data is by collective agreement. The GDPR does not define these terms. Consequently, the meaning of collective agreement is to be interpreted autonomously from Union law, and not from Member States’ definition in national legislation.

Union law does not have a single definition of collective agreement. Nonetheless, on a basic level, collective agreements can be defined as ‘agreements concluded between single employers or their organisations, on the one hand, and organisations of workers such as trade unions, on the other. These agreements establish the content of individual contracts of employment and regulate relationships between the parties.’

Member States’ labour laws determine whether and on what level collective agreements on this matter may be concluded. For a collective agreement to fall within Article 88’s scope, it must give rise to a legal obligation within the meaning of Article 6(1)(c) GDPR. For example, non-binding collective agreements (such as those under English law) that do not give rise to a legal obligation, are invalid for the purposes of Article 88 GDPR.

Provide for more specific rules to ensure the protection of rights and freedoms

While Member States are afforded discretion of whether to provide for more specific rules, when they choose to do so, these rules are subject to certain requirement. Article 88(1) GDPR acts as an opening clause, creating space for Member States to further regulate the relationship between the GDPR and domestic labour laws. However, Article 88(2) GDPR determines the scope of that regulatory freedom and establishes conditions to its use. There is a significant overlap between the first and second paragraphs of Article 88 GDPR, therefore neither provision can be interpreted without reference to the other. The opening clause should be read as containing two different functions, a permissive function (Article 88(1) GDPR) and a conditional function (Article 88(2) GDPR).

While Article 88(2) GDPR determines the scope of the opening clause, Article 88(1) GDPR establishes two objectives pursued by the opening clause. It provides that (i) rules must be more specific, and (ii) they must pursue the aim of ensuring the protection of the rights and freedoms of data subjects. Consequently, any interpretation of Article 88(2) GDPR must take into account these objectives.

(i) More specific

The first objective pursued by the opening clause under Article 88(1) GDPR, is to allow Member States to regulate for ‘more specific’ rules. Generally, this objective seeks to ensure that any rules introduced by Member States have a normative content related to data protection in the employment context, but which are distinct from the general rules laid down by the GDPR. Essentially, this objective aims that the opening clause will allow Member States to establish rules targeted to data protection in the employment context.

More targeted rules are necessary in the employment context, because data processed in the course of an employment relationship gives rise to power dynamics that are more unbalanced than in the traditional controller–data subject relationship.

(2) GDPR Equivalent

Article 88(2) GDPR obliges Member States, when they regulate matters related to employment data, to include in their provisions suitable and specific measures to safeguard the data subject's human dignity, legitimate interests and fundamental rights, with particular regard to the transparency of processing, the transfer of personal data within a group of undertakings, or a group of enterprises engaged in a joint economic activity and monitoring systems in the work place. Article 88 GDPR therefore allows Member States to adopt national laws (or equivalent instruments) on the processing of employment data as long as they are in line with the GDPR. Although this is already a consequence deriving from the primacy of EU law over national law, the GDPR affirms a clear mandate that seeks to ensure the protection of employee data. Hence, the GDPR requirements represent a minimum standard for Member States, which do not preclude Member States from including stricter safeguards.

Meaning of Employment or Employees

The terms “employment” or “employee” are not defined in the GDPR. Although there is therefore no clear definition of what both terms include, the WP29 issued an Opinion according to which there must be a certain degree of dependence between the employer and employee, which appears to exclude self-employed workers. Since Article 88(1) GDPR specifically refers to the processing of personal data which may take place at the stage of recruitment or after an employment relationship has been terminated, it can be inferred that job applicants as well as ex-employees can also be protected by specific rules at the national level with respect to the processing of their personal data by a prospective or ex-employer.  Further, since Article 88 GDPR does not distinguish between public and private employment, it can be deduced that both private employees and public servants are concerned.

Specific Considerations

The WP29, made a specific reference to consent in the context of an employment relationship in its Opinion on the processing of personal data in the employment context. According to Article 7 GDPR, consent must be freely given. However, an imbalance of power exists in an employment relationship, meaning that employer and employee are never on the same level. Consent should therefore not be regarded as an appropriate legal basis under Article 6 or Article 9 GDPR because of the nature of such a relationship, and in particular because the employee may fear the consequences of refusing to give consent. Thus, employers should rely on another legal basis for processing the personal data of their employees, such as the necessity to perform the employment contract, or the existence of a legal obligation to do so. The WP29 also established certain transparency requirements for the employer when processing employee data. Employees should be made fully aware of every processing activity regarding their data. The employer should in particular provide their employees with clear information when monitoring takes place, including the circumstances of such monitoring and possibilities to prevent their data being processed by monitoring technologies. Regarding transfers of data within the same group of companies, Article 48 GDPR specifies that a controller may rely on a legitimate interest to transfer employment data to a different controller within the same group. However, in any case, legitimate interest shall be carefully assessed to ensure that the interests of the data subject are respected and do not override the interest of the controller.

Case Law

The CJEU has to date dealt with several cases regarding the processing of personal data in the context of employment. The Rundfank case concerned the public disclosure of information regarding the salaries of employees in the public sector, based on public interest. The CJEU ruled that an interference in these employees' data protection rights could be valid if they pursued a legitimate aim and were proportionate to the aim pursued. The Worten case concerned the transfer of the working times of employees to a national authority responsible for monitoring working conditions. The CJEU stated that the working times of these employees fell within the definition of personal data, as they could be related to an identifiable person, and that in order to make them available to a third party, they must be necessary to perform the monitoring task imposed to the public authority. At present, questions regarding distance learning and the data privacy implications, including the processing of personal data of employees for videoconferencing, have been referred to the CJEU for consultation by a German administrative court.  

(3) Notification to the Commission

According to Article 88(3) GDPR, Member States must notify the Commission about any provisions in their national law pursuant to this Article. Currently, Austria, Bulgaria, Cyprus, the Czech Republic, Denmark, Estonia, Åland’s Finish province, France, Germany, Hungary, Ireland, Italy, Lithuania, Luxembourg, Poland, Romania, and Slovakia have issued notifications in this regard. For example, Italy makes reference in its national law on remote and home-work, compelling the employer to respect the employee's personality and moral freedom. Slovakian law contains a provision that allows the employer to publish the data of its employees when it is necessary for the fulfilment of the jobs, providing that respect, dignity and safety of the data subject are respected. Irish national law additionally refers to the processing of special categories of personal data for purposes of employment and social welfare law. France has included in its national law provisions regarding video surveillance in the work place, individual information about salaries, or pay slip processing. Germany's Federal law regulates employee consent, special categories of data, video surveillance, the processing of employee data documentation, and the compensation of employees for data breaches.

Decisions

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