Article 91 GDPR

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Article 91 - Existing data protection rules of churches and religious associations
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Chapter 10: Delegated and implementing acts

Legal Text


Article 91 - Existing data protection rules of churches and religious associations

1. Where in a Member State, churches and religious associations or communities apply, at the time of entry into force of this Regulation, comprehensive rules relating to the protection of natural persons with regard to processing, such rules may continue to apply, provided that they are brought into line with this Regulation.

2. Churches and religious associations which apply comprehensive rules in accordance with paragraph 1 of this Article shall be subject to the supervision of an independent supervisory authority, which may be specific, provided that it fulfils the conditions laid down in Chapter VI of this Regulation.

Relevant Recitals

Recital 4: The processing of personal data should be designed to serve mankind. The right to the protection of personal data is not an absolute right; it must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality. This Regulation respects all fundamental rights and observes the freedoms and principles recognised in the Charter as enshrined in the Treaties, in particular the respect for private and family life, home and communications, the protection of personal data, freedom of thought, conscience and religion, freedom of expression and information, freedom to conduct a business, the right to an effective remedy and to a fair trial, and cultural, religious and linguistic diversity.

Recital 54: The processing of special categories of personal data may be necessary for reasons of public interest in the areas of public health without consent of the data subject. Such processing should be subject to suitable and specific measures so as to protect the rights and freedoms of natural persons. In that context, ‘public health’ should be interpreted as defined in Regulation (EC) No 1338/2008 of the European Parliament and of the Council (11), namely all elements related to health, namely health status, including morbidity and disability, the determinants having an effect on that health status, health care needs, resources allocated to health care, the provision of, and universal access to, health care as well as health care expenditure and financing, and the causes of mortality. Such processing of data concerning health for reasons of public interest should not result in personal data being processed for other purposes by third parties such as employers or insurance and banking companies.

Recital 55: Moreover, the processing of personal data by official authorities for the purpose of achieving the aims, laid down by constitutional law or by international public law, of officially recognised religious associations, is carried out on grounds of public interest.

Recital 165: This Regulation respects and does not prejudice the status under existing constitutional law of churches and religious associations or communities in the Member States, as recognised in Article 17 TFEU.

Commentary

Article 91 GDPR allows “churches and religious associations or communities” to be subject to their own set of data protection rules, distinct from the GDPR, on the condition that these rules are comprehensive enough, and already applied before the entry into force of the GDPR. Furthermore, in case these rules are incomplete or contradictory, they must be brought in line with the GDPR itself.

By implication, if, at the time of the entry into force of the GDPR, churches and religious associations or communities did not have a comprehensive set of data protection rules, the GDPR applies to them in its entirety. Given that such bodies usually process large quantities of sensitive data, and in particular data relating or revealing religious or philosophical beliefs, it is important to ensure that they respect the rights and freedoms of data subjects.

(1) Conditions for the derogation to apply

Churches and religious associations or communities may continue to apply preexisting and comprehensive data protection rules under the following conditions.

Churches and religious associations or communities

The controller must fall within a specific category of actors, i.e. “churches and religious associations or communities”. The GDPR does not define these concepts. However, the European framework seems to embrace a broad definition of them. For instance, under Article 10(1)(b) of Directive 2011/95/EU: “The concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief and as a consequence of religious organisation”.[1]

Based on these specifications, typical examples of concerned organisations may include the Roman Catholic Church, and all the catholic associations or communities that belong to it (parishes, monasteries, convents, etc), the Federation of Islamic Organizations in Europe and all the organizations that operate under it (including national organizations or local mosques), or the European Jewish Congress and the different communities it brings together (including national coordinating committees and local Jewish communities).

The concept of "churches and religious associations or communities" should however not be interpreted restrictively and may also include smaller religious, philosophical or non-confessional organizations.[2] In the case C-25/17, Jehovan todistajat, for example, the CJEU seems to have recognized the Jehovah's Witness community as a religious association, and ruled that the processing of personal data by Jehovah witnesses in the context of their door-to-door preaching activities was subject to EU data protection law.[3] The same could also apply to other philosophical or religious movements active in the EU, such as Buddhist communities, the Church of Scientology or Freemasons. In practice, however, only organizations which were already allowed, in one or several Member States, to adopt and apply their own set of binding data protection rules are concerned by the derogation prescribed in Article 91 GDPR. This amounts to a handful of religious organizations in a limited number of Member States, where a separation between state law and law deriving from a religious order was allowed for historical reasons.

May continue to apply preexisting data protection rules

If an entity or group qualifies as church or as a religious association or community, the derogation may apply provided that the conditions set out below are met. Tosoni, and we agree with him, argues that “Article 91 arguably allows the pre-existing data protection rules of religious organisations to operate as a lex specialis where such organisations process data for strictly religious purposes”.[4]

The data protection rules must have existed prior to the entry into force of the GDPR (“apply, at the time of entry into force of this Regulation”). This is a rule whose logic escapes us, as it seems to unreasonably restrict the beneficiaries of the exemption to churches and other groups that already applied their own rules in the past, thereby limiting this freedom for groups wishing to take the same step in the future.

Comprehensive data protection rules

The rules in question must then be “comprehensive”. The GDPR does not provide clear indications in this respect. In any case, Tosoni again, with an absolutely correct quote, states that, in light of the case-law, the level of “comprehensiveness” must be reasonably high. In fact, in the case ECJ, C-223/98, Adidas AG, 14.10.1999, the Advocate General noted that, even after the adoption of the DPD, “[t]he Community institutions have not introduced comprehensive rules governing the protection of personal data”.[5] If, therefore, the special rules do not reach this level of completeness, the GDPR will return fully applicable.

Provided that they are brought into line with this Regulation

Finally, the church or other religious group must update the existing framework and bring into line with the GDPR. The adaptation must be substantial and lead to a basic equivalence in relation to all aspects of the Regulation. There may still be some necessary and minor divergences from the Regulation (ultimately, preserving different beliefs and traditions is the final goal of Article 91). Such discrepancies, however, must be strictly necessary to achieve the ultimate aim of the provision, which is to protect the religious freedom of the persons concerned.

(2) DPA supervision

Religious organisations that fulfill the requirements listed in Paragraph 1 and therefore continue to apply their special rules must be subject to the supervision of an independent supervisory authority. It can either be a new authority or the one responsible for monitoring the application of the GDPR. In any case, all the conditions specified in Chapter VI GDPR must be met.

Decisions

→ You can find all related decisions in Category:Article 91 GDPR

References

  1. In this sense Tosoni, who adds how “in principle, the concepts of' churches and religious associations or communities should also be interpreted broadly. For instance, in the Jehovah, Witnesses case, the CJEU seems to (implicitly) recognise that the Jehovas Witnesses community should be considered a religious association or community for the purposes of Article 17 TFEU and the DPD, and the Advocate General's Opinion in the same case suggests that this may be true also under Article 91 GDPR”. See, Tosoni, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 91 GDPR, p. 1263 (Oxford University Press 2020).
  2. Tosoni, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 91 GDPR, p. 1263 (Oxford University Press 2020).
  3. D'Ath Florence and De Smedt Stéphanie, “Arrêt Jehovan todistajat: clarification du champ d’application matériel de la législation en matière de protection des données et de la notion de responsable conjoint du traitement”, in Journal de Droit Européen, 2019/2, pp. 67-69.
  4. Tosoni, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 91 GDPR, p. 1263 (Oxford University Press 2020).
  5. Tosoni, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 91 GDPR, p. 1263 (Oxford University Press 2020).