Austria S&D

Josef Weidenholzer

Country: Austria
Group: Progressive Alliance of Socialists and Democrats (S&D)
Party: Sozialdemokratische Partei Österreichs (SPÖ)

Member of Civil Liberties, Justice and Home Affairs
Substitute of Internal Market and Consumer Protection

Overview Josef Weidenholzer

Amendments: 126
...stronger: 99
...weaker: 10
...neutral: 17

Amendments by Josef Weidenholzer

(3) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data seeks to harmonise the protection of fundamental rights and freedoms of natural persons in respect of processing activities and to guarantee the free flowcrossborder exchange of personal data between Member States.
(15) This Regulation should not apply to processing of personal data by controllers or processors who are a natural person, which are exclusively when the processing of data is done for purely personal or domestic, such as correspondence and the holding of addresses, and without any gainful interest and thus without any connection with family matters that have been disclosed to them by the data subject himself or that they have received in a lawful manner. The exemption should not apply where the processing of personal data is done in pursuit of a professional or commercial activity. objective. Also, the nature of the personal data processed and whether it is available to a indefinite number of persons should be taken into account in determining whether the processing falls within the exemption. The exemption should also not apply to controllers or processors which provide the means for processing personal data for such personal or domestic activities.
(17) This Regulation should be without prejudice to the application of Directive 2000/31/EC, in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive.Directive 2000/31/EC.
(24) When using online services, individuals and households may be associated with online identifiers provided by their devices, applications, tools and protocols, such as Internet Protocol addresses or cookie identifiers. This may leave traces which, combined with unique identifiers and other information received by the servers, may be used to create profiles of the individuals and identify them. It follows that identification numbers, location data, online identifiers or other specific factors as such need not necessarily be considered as personal data in all circumstances.Reidentifiction of personal data, for instance by using retained online traces for the creation of profiles of the individuals, breaches of pseudonym and identification of the data subjects should be forbidden.
(29a) Within the limits of this regulation Member States should ensure that children can always have access to preventive and counselling services of the information society such as online counselling on sexual abuse, problems related to drug abuse or other psychological problems without needing the consent of their parent or legal custodian.
  Comment: No relevance for data protection Discuss this Rating
(29a) Workers’ personal data, especially sensitive data such as political orientation and membership of and activities in trade unions, must be protected in accordance with Articles 8, 12 and 28 of the Charter of Fundamental Rights of the European Union and Articles 8 and 11 of the European Convention on Human Rights, and may under no circumstances be used to put workers on so-called ‘blacklists’ to be passed on to other enterprises with the aim of discriminating against particular workers.
(31) In order for processing to be lawful, personal data should be processed on the basis of the consent of the person concerned or some other legitimate basis, laid down by law, either in this Regulation or in other Union or Member State law as referred to in this Regulation. In case of a child or a person lacking legal capacity, the consent should be given by the data subject’s legal representative.
(32) Where processing is based on the data subject’s consent, the controller should have the burden of proving that the data subject has given the consent to the processing operation. In particular in the context of a written declaration on another matter, safeguards should ensure that the data subject is aware that and to what extent consent is given. Similar to civil law terms (Directive 93/13/EEC) written declarations (privacy policies) should be as clear and transparent as possible given the form of processing. They should not contain hidden or disadvantageous clauses, such as the right to forward personal data to other controllers or secondary use of personal data. To encourage controllers to provide proper information, partly illegal clauses should be fully void.
(34) Consent should not provide a valid legal ground for the processing of personal data, where there is a clear imbalance between the data subject and the controller. This is especially the case where the data subject is in a situation of dependence from the controller, among others, where personal data are processed by the employer of employees' personal data in the employment context. Where the controller is a public authority, there would be is an imbalance only in the specific data processing operations where the public authority can impose an obligation by virtue of its relevant public powers and the consent cannot be deemed as freely given, taking into account the interest of the data subject.
(75) Where the processing is carried out in the public sector or where, in the private sector, processing is carried out by a large enterprisean enterprise which has at least 50 staff or which processes the data of at least 250 data subjects, or where its core activities, regardless of the size of the enterprise, involve processing operations which require regular and systematic monitoring, a person should assist the controller or processor to monitor internal compliance with this Regulation. Such data protection officers, whether or not an employee of the controller, should be in a position to perform their duties and tasks independently. In order to ensure the independence of data protection officers, they should enjoy special protection against dismissal and discrimination in the performance of their duties, which should be comparable with national provisions on the protection of employees’ representatives. They should be appointed only with the consent of the representatives of the business's employees. In addition, data protection officers should have opportunities for further training and in-service training at the expense of the controller or of the contracted processor.
(76) Associations or other bodies representing categories of controllers should be encouraged , with the consent of the representatives of the business's employees, to draw up codes of conduct, within the limits of this Regulation, so as to facilitate the effective application of this Regulation, taking account of the specific characteristics of the processing carried out in certain sectors.
(112) Any body, organisation or association which aims to protects the rights and interests of data subjects in relation to the protection of their data and is constituted according to the law of a Member State should have the right to lodge a complaint with a supervisory authority or exercise the right to a judicial remedy on behalf (...) or to lodge, independently of a data subject’s complaint, an own complaint where it considers that a violation of this regulation has occurred. The Commission should promote collective enforcement of the rights of data subjects, or to lodge, independently of a data subject’s complaint, an own complaint where it considers that a personal data breach has occurred. and as far as feasible within its budget provide funding for such bodies, organisations or associations.
(121) The processing of personal data solely for journalistic purposes, or for the purposes of artistic or literary expression should qualify for exemption from the requirements of certain provisions of this Regulation(121) Whenever necessary, exemptions or derogations from the requirements of certain provisions of this Regulation for the processing of personal data should be possible in order to reconcile the right to the protection of personal data with the right to freedom of expression, and notably the right to receive and impart information, as guaranteed in particular by Article 11 of the Charter of Fundamental Rights of the European Union. This should apply in particular to processing of personal data in the audiovisual field and in news archives and press libraries. In accordance with the Protocol on the system of public broadcasting in the Member States annexed Treaty on European Union, the Treaties establishing the European Communities and certain related acts, the competence of Member States to define and organize Public Service Broadcasting shall also be respected in the field of data protection. Therefore, Member States should adopt legislative measures, which should lay down exemptions and derogations which are necessary for the purpose of balancing these fundamental rights. Such exemptions and derogations should be adopted by the Member States on general principles, on the rights of the data subject, on controller and processor, on the transfer of data to third countries or international organisations, on the independent supervisory authorities and on co-operation and consistency. This should not, however, lead Member States to lay down exemptions from the other provisions of this Regulation. In order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary to interpret notions relating to that freedom, such as journalism, broadly. Therefore, Member States should classify activities as ‘journalistic’ for the purpose of the exemptions and derogations to be laid down under this Regulation if the object of these activities is the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them. They should not be limited to media undertakings and may be undertaken for profit-making or for non- profit making purposes.
(124) The general principles on the protection of individuals with regard to the processing of personal data should also be applicable to the employment context. Therefore, in order Member States should be able to regulate the processing of employees’ personal data in the employment context, Member States should be able, within the limits of in accordance with the rules and minimum standards set out in this Regulation, to adopt by law specific rules . Where a statutory basis is provided in the Member State in question for the regulation of employment matters by agreement between employee representatives and the management of the undertaking or the controlling undertaking of a group of undertakings (collective agreement) or under Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community- scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees, the processing of personal data in the employment sector.an employment context should also be regulated by such an agreement, if the rules and minimum standards set out in this Regulation are not undercut.
(128) This Regulation respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States, as recognised in Article 17 of the Treaty on the Functioning of the European Union. As a consequence, where a church in a Member State applies, at the time of entry into force of this Regulation, comprehensive rules relating to the protection of individuals with regard to the processing of personal data, these existing rules should continue to apply if they are brought in line with this Regulation. Such churches and religious associations should be required to provide for the establishment of a completely independent supervisory authority.
(b) by the Union institutions, bodies, offices and agencies;
(d) by a natural person without any gainful interest in the course of its own exclusively personalprivate or household activity;activities unless personal data is published. Further processing of such personal data for other purposes must be based on the data subjects’ consent. The exemption should not apply where the processing of personal data is done in pursuit of a professional or commercial objective. The rights of third parties have especially to be taken into account with usage of sensible data;
  Comment: Some restrictions, some allowances. Overall leaning more towards a stricter law. Discuss this Rating
(1) ‘data subject’ means an identified natural person or a natural person individual or household or an individual who can be identified or singled out, directly or indirectly, by means reasonably likelypossible to be used by the controller or by any other natural or legal person, in particular by reference to an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person; or household;
(8) ‘the data subject’s consent’ means any freely given specific, informed and explicit indication of his or her wishes - prior declaration of will (‘voluntatis declaratio’) - by which the data subject, either by a statement or by a clear affirmative action, signifies signifies his or her specific, informed and unambiguous agreement to personal data relating to them being processed;the processing of personal data;
  Comment: Intention unclear. Discuss this Rating
(18) ‘childminors’ means any person below the age of 18 years;
(a) the data subject has given consent to the processing of their personal data for one or more specific purposes;specific purpose;
(f) (f) points (a) to (e) do not apply, but processing is necessary for the purposes of thepredominant legitimate interests pursued by a controller, except where such and these interests are overridden by overriding the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. This shall not apply to processing carried out by public authorities in the performance of their tasks.
1a. The predominant legitimate interests which are overriding the interests of data subjects as referred to in point (f) of paragraph 1 are generally: (a) the protection of fundamental rights of the controller; (b) the protection of fundamental rights of third parties, if the controller has a legal obligation to protect their rights; (c) establishment, exercise or defence of legal rights; (d) exercise of the freedom of expression within the limits of Article 80; (e) historical, statistical or scientific research within the limits of Article 83.
  Comment: Tending to be stronger than most other definitions if read together with AM910. Discuss this Rating
1b. Predominant legitimate interests which are overriding the interests of data subjects as referred to in point (f) of paragraph 1 are generally not: (a) the assessment of creditworthiness; (b) direct marketing; (c) processing for the sole purpose of additional financial gain within a contractual relationship; (d) processing that cannot be reasonably expected by the data subject or is significantly disadvantageous.
  Comment: Tending to be stronger than most other definitions if read together with AM906. Discuss this Rating
2. Processing of personal data which is necessary for the purposes of historical, statistical or scientific research shall be lawful subject to the conditions and safeguards referred to in Article 83.
3. The basis of the processing referred to in points (c) and (e) of paragraph 1 and point (g) of Article 9(2), must be provided for in:
(b) the law of the Member State , including collective employment agreements, to which the controller is subject.
The law of the Member State Such laws shall provide for suitable measures to safeguard the data subject's legitimate interests, must meet an objective of public interest or must be necessary to protect the rights and freedoms of others, respect the essence of the right be proportionate to the protection of personal data and be proportionate to the legitimate aim pursued.legitimate aim pursued and necessary in a democratic society.
4. Where the purpose of further processing is not compatible with the one for which the personal data have been collected, the processing must have a legal basis at least in one of the grounds referred to in points (a) to (e) of paragraph 1. This shall in particular apply to any change of terms and general conditions of a contract.
5. The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the conditions referred to in point (f) of paragraph 1 for various sectors and data processing situations, including as regards the processing of personal data related to a child.
2. If the data subject's consent is to be given in the context of a written declaration which also concerns another matter, the requirement to give consent must be presented distinguishable in its appearance from this other matter.given through consent to a written declaration by the controller such declarations must: (a) use as plain, short and transparent language as reasonably possible and be well-structured; (b) not contain clauses that cannot be reasonably expected or are significantly disadvantageous; and (c) be interpreted in favour of the data subject if unclear or contradictory. Clauses which are partly in violation of this regulation are fully void.
2a. The consent shall be reaffirmed after two years, failing which it shall expire.
Article 7a Service providers shall not make their offer dependent to the consent for data processing that is not necessary for the service provided.
1. For the purposes of this Regulation, in relation to the offering of information society services directly to a child, the processing of personal data of a child below the age of 1316 years shall only be lawful if and to the extent that consent is given or authorised by the child's parent or custodianlegal representative. The controller shall make reasonable efforts to obtain verifiable consent, taking into consideration available technology. The methods to obtain verifiable consent shall not lead to the further processing of personal data which would otherwise not be necessary.
2a. Paragraph 1 shall not apply where the information society services offered directly to a child are solely preventive or counselling services for young people in difficult situations.
3. The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and requirements for the methods to obtain verifiable consent referred to in paragraph 1. In doing so, the Commission shall consider specific measures for micro, small and medium- sized enterprises.
1. The processing of personal data, revealing race or ethnic origin, political opinions, religion or beliefs, trade-union membershipmembership of or activity in a trade union, and the processing of genetic data or data concerning health or sex life or criminal convictions or related security measures shall be prohibited.
(b) processing is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller in the field of employment law , including collective wage agreements, in so far as it is authorised by Union law or Member State law providing for adequate safeguards;
1. The controller shall have transparent plain, short, transparent, well-structured and easily accessible policies with regard to the processing of personal data and for the exercise of data subjects‘ rights.' rights.
2. The controller shall inform the data subject without delay and, at the latest within one month of receipt of the request, whether or not any action has been taken pursuant to Article 13 and Articles 15 to 19 and shall provide the requested information. This period may be prolonged for a further month, if several data subjects exercise their rights and their cooperation is necessary to a reasonable extent to prevent an unnecessary and disproportionate effort on the part of the controller. The information shall be givenprovided in writing. Where the data subject makes the request or in electronic form, the information shall be provided in electronic form, unless otherwise however requested by the data subject.
3. If the controller refuses to take action on the request of the data subject, the controller shall inform the data subject of the reasons for the refusal , all facts which lead to the refusal and on the possibilities of lodging a complaint to the supervisory authority and seeking a judicial remedy.
4. The information and the actions taken on requests referred to in paragraph 1 shall be free of charge. Where requests are manifestly excessive, in particular because of their repetitive character, the controller may charge a fee for providing the information or taking the action requested, or the controller may not take the action requested. In that case, the controller shall bear the burden of proving the manifestly excessive character of the request.
6. The Commission may lay down standard forms and specifying standard procedures for the communication referred to in paragraph 2, including the electronic format. In doing so, the Commission shall take the appropriate measures for micro, small and medium-sized enterprises. Those implementing acts shall be adopted after adopting an opinion of the European Data Protection Board, in accordance with the examination procedure referred to in Article 87(2). If the Commission invokes its prerogatives under Article 10 of Regulation 2012/1025 it shall ensure adequate representation of micro, small and medium sized enterprises, consumer groups and agreement of the European Data Protection Board with the use of these industry standards for the purposes of this Regulation.
(b) the purposes of the processing for which the each category of personal data are intended, including the contract terms and general conditions where the processing is based on point (b) of Article 6(1) and the legitimate interestspredominant legitimate interest pursued by the controller where the processing is based on point (f) of Article 6(1);)
(c) the period for which the each category of personal data will be stored;
(f) the recipients or categories of recipients of the each category of personal data;
3. Where the personal data are not collected from the data subject, the controller shall inform the data subject, in addition to the information referred to in paragraph 1, from which source the each category of personal data originate.
4. The controller shall provide the information referred to in paragraphs 1, 2 and 3: in tangible form:
(aa) After a request by a data subject or a body, organization or association referred to in Article 73(2);
(b) the data are not collected from the data subject and the provision of such information proves impossible or would involve a disproportionate effort and the controller has published the information for anyone to retrieve; or
(d) the data are not collected from the data subject and the provision of such information will impair the rights and freedoms of others, as defined in Union law or Member State law in accordance with Article 21..
(da) the data are collected by a natural person bound by professional or other equivalent secrecy obligations in the pursuit of their professional activities; or
(db) the right to media freedom requires the protection of information sources.
7. The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria for categories of recipients referred to in point (f) of paragraph 1, the requirements for the notice of potential access referred to in point (g) of paragraph 1, the criteria for the further information necessary referred to in point (h) of paragraph 1 for specific sectors and situations, and the conditions and appropriate safeguards for the exceptions laid down in point (b) of paragraph 5. In doing so, the Commission shall take the appropriate measures for micro, small and medium-sized- enterprises.
1a. There shall be no right to obtain information when the data was collected by a natural person bound by professional or other equivalent secrecy obligations in the pursuit of their professional activities.
(a) the purposes of the processing; for each category of personal data and the legal basis for the processing operation;
(b) the(b) each categories of personal data concerned;
(c) the recipients or (c) if known the individual recipients otherwise the categories of recipients to whom the personal data are to be or have been disclosed, in particular to recipients in third countries;;
(d) the period for which the each category of personal data will be stored;
2. The data subject shall have the right to obtain from the controller communication of thea full copy of all personal data undergoing processing. Where the data subject makes the request in electronic form, the information and all relating data (e.g. meta data) as it is kept by the controller. The information and all data shall be provided in writing or in electronic form, unless otherwise requested by the data subject.
3. The Commission first access request in each year shall be empowered to adopt delegated acts in accordance with Article 86 free of charge; a controller may charge a fee of 20 EUR for the purpose of further specifying the criteria and requirements for the communication to response to additional access request, unless it was later found that the data subject of the content of the personal data referred to in point (g) of paragraph 1.was used illegally. The controller may charge its own cost for repetitive requests which are manifestly abusive.
  Comment: Better compared to Art 12/4. Discuss this Rating
4. The Commission may specify standard forms and procedures for requesting and granting access to the information referred to in paragraph 1, including procedures for verification of the identity of the data subject and communicating the personal data to the data subject, taking into account the specific features and necessities of various sectors and data processing situations. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2).
2. Where the controller referred to in paragraph 1 has made the personal data public or transferred such data to known recipients, it shall take all reasonable steps, including technical measures, in relation to data for the publication of which the controller is responsible, to inform third parties which are processing such data, that a data subject requests them to erase any links to, or copy or replication of that personal data. Where the controller has authorised a third party publication of personal data, the controller shall be considered responsible for that publication.
(a) the criteria and requirements for the application of paragraph 1 for specific sectors and in specific data processing situations;conditions for deleting links, copies or applications of personal data from publicly available communication services as referred to in paragraph 2;
(b) the criteria and conditions for deleting links, copies or replications restricting the processing of personal data from publicly available communication services as referred to in paragraph 2;4;
(c) the criteria and conditions for restricting the processing of personal data referred to in paragraph 4.
1. The data subject shall have the right, where personal data are processed by electronic means and in a structured and commonly used format, to obtain from the controller a copy of data undergoing processing in an electronic and structured format which is commonly used and allows for further use by the data subject.
1. The data subject shall have the right to object, on grounds relating to their particular situation, at any time to the processing of personal data which is based on points (d), (e) and (f) of Article 6(1), unless the controller demonstrates compelling legitimate grounds for the processing which override the interests or fundamental rights and freedoms of the data subject.
2. Where 2. Processing of personal data are processed for direct marketing purposes, the shall require the explicit consent of the data subject shall have the right to object free of charge to the processing of their personal data for such marketing. The data shall not be given to third parties. A withdrawal of consent shall be possible at all times and free of charge. This right shall be explicitly offered to the data subject in an intelligible manner and shall be clearly distinguishable from other information.
1. Every natural person shall have the right not to be subject to a measure which produces legal effects concerning this natural person or significantlyrelevantly affects this natural person, and which is based solely primarily based on automated processing intended to evaluate certain personal aspects relating to this natural person or to analyse or predict in particular the natural person's performance at work, economic situation, location, health, personal preferences, reliability or behaviour.
(c) is based on the data subject's consent, subject to the conditions laid down in Article 7 and to suitable safeguards. The controller has to implement effective protection against possible discrimination resulting from measures described in paragraph 1. Such measures must be based on scientifically recognized mathematic-statistical procedures.
3. Automated processing of personal data intended to evaluate certain personal aspects relating to a natural person shall not be based solelyprimarily on the special categories of personal data referred to in Article 9.
4. In the cases referred to in paragraph 2, the information to be provided by the controller under Article 14 shall include information as to the existence of processing for a measure of the kind referred to in paragraph 1 , meaningful information about the logic used and the envisaged effects of such processing on the data subject.
5a. In case of a child, profiling shall never be allowed, regardless of a possible consent given by the child's parent or legal representative.
1. Union or Member State law may restrict by way of a legislative measure the scope of the obligations and rights provided for in points (a) to (e) of Article 5 and Articles 11 to 20 and Article 32, when such a restriction constitutes a necessary and proportionate measure in a democratic society to safeguard:
(d) the prevention, investigation, detection and prosecution of breaches of ethics for regulated professions;
(e) a monitoring, inspection or regulatory function connected, even occasionally, with the exercise of official authority in cases referred to in (a), (b), (c) and (d);
(f) the protection of the data subject or the rights and freedoms of others.
2a. Products and services which are distributed in the EEA and inherently used to also process personal data shall be designed to enable controllers and processors, including controllers and processors which fall under Article 2(2)(d), to use them in compliance with this regulation. Products and services which are especially customized for distribution in the EEA shall additionally be set to default settings in compliance with paragraph 2, if reasonable possible. This duty applies to manufacturers of finished products and providers of services. Any person who, by putting his name, trade mark or other distinguishing feature on the product or service presents himself as its manufacturer, shall be deemed to be the manufacturer. If the manufacture cannot be determined or held accountable, this duty also applies to the person who imported products into the EEA for distribution in the course of his business or distributes such services in the EEA.
(b) an enterprise employing fewer than 250 persons50 persons or processing the data of fewer than 250 data subjects; or
(b) an enterprise or an organisation employing fewer than 25050 persons that is processing personal data relating to fewer than 250 data subjects only as an activity ancillary to its main activities.
3. The communication of a personal data breach to the data subject shall not be requiredcan only be delayed if the information could lead to further circulation of the data concerned, and is to be performed after the controller demonstrates to the satisfaction of the supervisory authority that it has implemented appropriate technological protection measures, and that those measures were applied to the data concerned by the personal data breach. Such technological protection measures shall render the data unintelligible to any person who is not authorised to access it.
1. The controller and the processor shall designate a at least one data protection officer after obtaining the approval of the representatives of the business's employees in any case where:
(b) the processing is carried out by an enterprise employing 25050 persons or more;
(ba) the collection and processing of data relate to at least 250 data subjects per year;
2. In the case referred to in point (b) of paragraph 1, a group of undertakings may appoint a singlechief data protection officer. provided it is ensured that a data protection officer is easily accessible from each works location, and that there is at least one data protection officer per Member State.
5. The controller or processor shall , after obtaining the approval of the representatives of the business's employees, designate the data protection officer on the basis of professional qualities and, in particular, expert knowledge of data protection law and practices and ability to fulfil the tasks referred to in Article 37. The necessary level of expert knowledge shall be determined in particular according to the data processing carried out and the protection required for the personal data processed by the controller or the processor. The controller or processor shall ensure that the data protection officer has the opportunity for further training and in-service training at their expense.
7. The controller or the processor shall , after obtaining the approval of the representatives of the business's employees, designate a data protection officer for a period of at least two years. The data protection officer may be reappointed for further terms. During their term of office, the data protection officer may only be dismissed, if the data protection officer no longer fulfils the conditions required for the performance of their duties. Notwithstanding the above, the data protection officer shall enjoy special protection against discrimination and dismissal, similar to the protection afforded to employees’ representatives under national law, and may not be disadvantaged for carrying out his duties.
8. The data protection officer may be employed by the controller or processor, or fulfil his or her tasks on the basis of a service contract..
2. The controller or processor shall ensure that the data protection officer performs the duties and tasks independently and does not receive any instructions as regards the exercise of the function. The data protection officer shall directly report to the management of the controller or the processor. and to the representatives of the business's employees.
3. The controller or the processor shall support the data protection officer in performing the tasks and shall provide staff, premises, equipment , training and any other resources necessary to carry out the duties and tasks referred to in Article 37.
(ha) to inform and consult the representatives of the business's employees about employee data.
1. The Member States controller and the Commission shall encourage, in particular at European level, the establishment of data protection certification mechanisms and of data protection seals and marks, allowingprocessor shall enrol in a certification system of an accredited control body in any case where: (a) an enterprise processing personal data relating to fewer than 500 data subjects to quickly assess the level of data protection provided by per year, or processing special categories of personal data as referred to in Article 9 (1); or (b) the core activities of the controller or the processor consist of processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and systematic monitoring of data subjects. Other controllers and processors. The data protection certifications mechanisms shall contribute to the proper application of this Regulation, taking account of the specific features as well as products and services can equally undergo certification. 2. The controller and the processor must undergo certification before the first processing of personal data, or when it first falls under paragraph 1 and must be subsequently recertified at least every year. They must inform data subjects about the certification. 3. Certificates must be acquired by an accredited control body at the main establishment of the various sectors and different processing operations. 2controller, processor, producer or supplier, or in the member state in which the representative is situated. 3a. The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and requirements control body shall have the investigative power to obtain from the enrolled controller or the processor: (a) access to all personal data and to all information necessary for the data protection certification mechanisms referred to in paragraph 1performance of its duties; (b) full access to any of its premises, including conditions for granting and withdrawal, and requirements for recognition within the Union and in third countries. 3. The Commission may lay down technical standards for certification mechanisms and data protection seals and marks and mechanisms to promote and recognize certification mechanisms and data protection seals and marks. Those implementing acts to any data processing equipment and means. 3b. Certificates must reasonably assure that the controller, processor, service or product is in compliance with all aspects of this regulation. A product, service or processor used by the controller or processor must not be taken into account in the certification process if it is itself holding a valid certificate. 3c. Certificates may be found invalid by the competent authority or the control body if the controller, processor, product or service is found to be incompliant with this regulation. 3d. The control body must inform the competent supervisory authority about acquired and revoked certificates in an electronic form. It must also inform the supervisory authority about any potential violation of this regulation is has found during the certification procedure. 3e. The Commission shall be adopted empowered to adopt delegated acts after Consulting the European Data Protection Board and in accordance with the examination procedure set out in Article 87(2).Article 86, which define the exact frequency, control procedures and content of controls taking into account the different risks of processing operations, controllers, processors, products and services as well as the details of certificates.
Article 39a Accredited Control Body 1. Supervisory authorities shall accredit a control body only if there is proof that the control body: (a) has a sufficiently qualified and experienced staff; (b) has sufficient expertise, equipment, infrastructure and financial strength; (c) is impartial and free from any conflict of interests regarding its duties; and (d) has its main establishment in the Member State. 2. Supervisory authorities shall revoke accreditation if there are reasons to believe that the control body does not fulfil the criteria referred to in paragraph 1, especially if it has repeatedly violated obligations under this regulation. 3. Supervisory authorities shall permanently monitor accredited control bodies. Section 2 of Chapter IV shall apply correspondingly to control bodies. 4. The Commission shall be empowered to adopt delegated acts after Consulting the European Data Protection Board and in accordance with Article 86, which define the details of the accreditation process and minimal standards for control bodies.
Article 39b Register 1. Each supervisory authority shall establish a public electronic register in which all valid and invalid certificates which have been issued in the Member State can be viewed by the public. 2. Control bodies must be enabled to submit the necessary information electronic format. 3. The supervisory authority is responsible for rectifying and monitoring the register. 4. The Commission shall be empowered to adopt delegated acts after consulting the European Data Protection Board and in accordance with Article 86, which define the details of the operation of such registers and electronic formats which shall be used by control bodies.
Article 39c Standard Filing Systems 1. The controller should be deemed in compliance with this regulation, or certain articles of this regulation, if all processing operations are in line with the definition of a standard filing system. 2. A specific form of processing may be declared a standard filing system, if: (a) similar systems are used by a large number of controllers or processors within the Union; (b) such filing systems involve a low risk of infringement on a data subjects' rights given the purpose of the processing and the kind of personal data processed; and (c) the definition ensures that controllers which adhere to the definition are in full compliance with this regulation or certain articles of this regulation. 3. A declaration in a delegated act shall at least define: (a) the categories of data subjects; (b) the categories of personal data processed; (c) the purpose or purposes for processing each data category; (d) the basis for making processing lawful; (e) the categories of recipients; (f) the necessary information to the data subject; (g) the necessary additional documentation; (h) the necessary security measures; and (i) the maximum retention periods; (j) the articles of this regulation which a controller should be deemed in compliance with when processing data within the limits of the definition of a standard filing system. 4. The Commission shall be empowered to adopt delegated acts after Consulting the European Data Protection Board and in accordance with Article 86, which define standard filing systems in accordance with this article. The Commission may lay down standard forms which may be used by controllers and processors of standard filing systems to ensure full compliance with this regulation.
1. Where the Commission has taken no decision pursuant to Article 41, a controller or processor may transfer personal data to a third country or an international organisation only if the controller or processor has adduced appropriate safeguards with respect to the protection of personal data in a legally binding instrument. These appropriate safeguards shall: (a) guarantee the observance of the principles of personal data processing as established in Article 5; (b) guarantee data subject rights as established in Chapter III. A consultation of the responsible data protection authority in such cases is mandatory.
3. A transfer based on standard data protection clauses or binding corporate rules as referred to in points (a), (b) or (c) of paragraph 2 shall not require any further authorisation.
5. Where the appropriate safeguards with respect to the protection of personal data are not provided for in a legally binding instrument, the controller or processor shall obtain prior authorisation for the transfer, or a set of transfers, or for provisions to be inserted into administrative arrangements providing the basis for such transfer. Such authorisation by the supervisory authority shall be in accordance with point (a) of Article 34(1). If the transfer is related to processing activities which concern data subjects in another Member State or other Member States, or substantially affect the free movement of personal data within the Union, the supervisory authority shall apply the consistency mechanism referred to in Article 57. 5. Authorisations by a supervisory authority on the basis of Article 26(2) of Directive 95/46/EC shall remain valid, until amended, replaced or repealed by that supervisory authority.
(ba) have been drawn up after consent has been given by the representatives of the firm’s employees and the data protection officer at the place where the branch of the firm is located;
Article 44a Disclosures not authorized by Union law 1. No judgment of a court or tribunal and no decision of an administrative authority of a third country requiring a controller or processor to disclose personal data shall be recognized or be enforceable in any manner, without prejudice to a mutual assistance treaty or an international agreement in force between the requesting third country and the Union or a Member State. 2. Where a judgment of a court or tribunal or a decision of an administrative authority of a third country requests a controller or processor to disclose personal data, the controller or processor and, if any, the controller's representative, shall notify the supervisory authority of the request without undue delay and must obtain prior authorisation for the transfer by the supervisory authority. 3. The supervisory authority shall assess the compliance of the requested disclosure with the Regulation and in particular whether the disclosure is necessary and legally required in accordance with Article 44(1)(d) and (e) and (5). 4. The supervisory authority shall inform the competent national authority of the request. The controller or processor shall also inform the data subject of the request and of the authorisation by the supervisory authority. 5. The Commission may lay down the standard format of the notifications to the supervisory authority referred to in paragraph 2 and the information of the data subject referred to in paragraph 4 as well as the procedures applicable to the notification and information. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2).
5. Each Member State shall ensure that the supervisory authority is provided with the adequate human, technical and financial resources, premises and infrastructure necessary for the effective performance of its duties and powers, including those to be carried out in the context of mutual assistance, co-operation and participation in the European Data Protection Board. Member States shall ensure that the supervisory authorities are provided with at least one member for each 200 000 citizens or 100 members, whichever is less. At least one in five members must have a legal degree.
Article 49a The rules and procedures under which supervisory authorities are exercising their duties and powers in relation to data subjects, controllers and processors shall be in line with Article 6 ECHR.
(b) access to any of its premises, including to any data processing equipment and means, where there are reasonable grounds for presuming that an activity in violation of this Regulation is being carried out there..
2. Any body, organisation or association which aims to protect data subjects’ rights and interests concerning the protection of their personal data and has been properly constituted according to the law of a Member State , in particular employees’ representatives, shall have the right to lodge a complaint with a supervisory authority in any Member State on behalf of one or more data subjects if it considers that a data subject’s rights under this Regulation have been infringed as a result of the processing of personal data.
5a. Member States shall provide that no party of proceedings against the supervisory authority referred to in this Article is legally entitled to have its accrued costs compensated by any of the other parties, unless the claim is obviously frivolous.
1. Any person who has suffered damage as a result of an unlawful processing operation or of an action incompatible with this Regulation shall have the right to receive compensation from the controller or the processor for the damage suffered. It is in the responsibility of the processor to prove that the damage was not caused by him.
6a. The supervisory authority shall seize all profits from a controller or processor which directly result from an intentional or grossly negligent breach of this regulation.
4. The supervisory authority shall impose a fine up to 250 000 EUR, or in case of an enterprise up to 0,51 % of its annual worldwide turnover, whatever is higher to anyone who, intentionally or negligently: (a) does not provide the mechanisms for requests by data subjects or does not respond promptly or not in the required format to data subjects pursuant to Articles infringes Article 12(1) and (2); (b) charges a fee for the information or for responses to the requests of data subjects in violation of Article 12(4).).
5. The supervisory authority shall impose a fine up to 500 000 EUR, or in case of an enterprise up to 12 % of its annual worldwide turnover, whatever is higher,, to anyone who, intentionally or negligently: (a) does not provide the information, or does provide incomplete information, or does not provide the information in a sufficiently transparent manner, to the data subject pursuant to Article 11, Article , infringes Articles 11, 12(3) and Article 14; (b) does not provide access for the data subject or does not rectify personal data pursuant to Articles 15 and 16 or does not communicate the relevant information to a recipient pursuant to Article 13; (c) does not comply with the right to be forgotten or to erasure, or fails to put mechanisms in place to ensure that the time limits are observed or does not take all necessary steps to inform third parties that a data subjects requests to erase any links to, or copy or replication of the personal data pursuant Article 17; (d) does not provide a copy of the personal data in electronic format or hinders the data subject to transmit the personal data to another application in violation of Article 18; (e) does not or not sufficiently determine the respective responsibilities with co- controllers pursuant to Article 24; (f) does not or not sufficiently maintain the documentation pursuant to Article 28, Article 31(4), and Article 44(3); (g) does not comply, in cases where special categories of data are not involved, pursuant to Articles (4), 13, 14, 15, 16,17, 18, 24, 28, 31(4), 44(3), 80, 82 and 83 with rules in relation to freedom of expression or with rules on the processing in the employment context or with the conditions for processing for historical, statistical and scientific research purposes., 83.
6. The supervisory authority shall impose a fine up to that shall not exceed 1 000 000 EUR or, in case of an enterprise up to 2 5 % of its annual worldwide turnover whatever is higher, to anyone who, intentionally or negligently: (a) processes personal data without any or sufficient legal basis for the processing or does not comply with the conditions for consent pursuant to Articles 6, 7 and 8; (b) processes special categories of data in violation of Articles 9 and 81; (c) does not comply with an objection or the requirement pursuant to Article 19; (d) does not comply with the conditions in relation to measures based on profiling pursuant to Article 20; (e) does not adopt internal policies or does not implement appropriate measures for ensuring and demonstrating compliance pursuant to Articles 22, 23 and 30; (f) does not designate a representative pursuant to Article 25; (g) processes or instructs the processing of personal data in violation of the obligations in relation to processing on behalf of a controller pursuant to Articles 26 and 27; (h) does not alert on or notify a personal data breach or does not timely or completely notify the data breach to the supervisory authority or to the data subject pursuant to Articles 31 and 32; (i) does not carry out a data protection impact assessment pursuant or processes personal data without prior authorisation or prior consultation of the supervisory authority pursuant to Articles 33 and 34; (j) does not designate a data protection officer or does not ensure the conditions for fulfilling the tasks pursuant to Articles 35, 36 and 37; (k) misuses a data protection seal or mark in the meaning of Article 39; (l) carries out or instructs a data transfer to a third country or an international organisation that is not allowed by an adequacy decision or by appropriate safeguards or by a derogation pursuant to Articles 40 to 44; (m) does not comply with an order or a temporary or definite ban on processing or the suspension of data flows by the supervisory authority pursuant to Article 53(1); (n) does not comply with the obligations to assist or respond or provide relevant information to, or access to premises by, the supervisory authority pursuant to Article 28(3), Article 29, Article 34(6) and Article 53(2); (o) does not comply with the rules for safeguarding professional secrecy pursuant to Article 84. infringes the provisions of this Regulation other than those referred to in paragraphs 4 and 5.
7. The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of updating the amounts of the administrative fines referred to in paragraphs 4, 5 and 6, taking into account the criteria referred to in paragraph 2.
1. Member States shall provide for exemptions or derogations from the provisions on the general principles in entireties of chapters Chapter II, the rights of the data subject in Chapter III, on controller and processor in Chapter IV, on the transfer of personal data to third countries and international organisations in Chapter V, the independent supervisory authorities in Chapter VI and on co-operation and consistency in Chapter VII for the processingChapter VII in order to reconcile the right to the protection of personal data carried out solely for journalistic purposes or the purpose of artistic or literary with the rules governing freedom of expression in order to reconcile the right to the protection of personal data with the rules governing freedom of expression.accordance with the Charter of Fundamental Rights of the European Union and its referral to the ECHR.
1. Within the limits of 1. In accordance with this Regulation, Member States may adopt by law – by enacting legal provisions – specific rules regulating the processing of employees' personal data in the employment context, in particular , but not exclusively, for the purposes of the recruitmentrecruitment and applications for posts within a group of undertakings, the performance of the contract of employment, including discharge of obligations laid down by law orand by collective agreements, company agreements and wage agreements, management, planning and organisation of work, 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. It shall not be permissible to provide a level of protection lower than that afforded by this regulation The right of the Member States to lay down protective provisions on the processing of personal data in the context of employment which are more favourable to employees shall be unaffected. Without prejudice to the other provisions of this regulation, the legal provisions of the Member States referred to in paragraph 1 shall at the minimum include the following minimum standards:
1a. Profiling in connection with employment shall not be permitted.
1b. Workers' personal data, especially sensitive data such as political orientation and membership of and activities in trade unions, may under no circumstances be used to put workers on so-called 'blacklists', and to vet or bar them from future employment. The processing, the use in the employment context, the drawing-up and passing-on of blacklists of employees shall be prohibited. Member States shall conduct checks and adopt adequate sanctions in accordance with Article 79(6) to ensure effective implementation of this paragraph.
1c. Surveillance to monitor the performance of employees shall be prohibited.
1d. Processing of data on employees without the employees’ knowledge shall not be permitted. The private and intimate life of employees shall always be respected.
1e. Open optical electronic surveillance and/or open acoustic electronic surveillance of parts of the business premises which are not accessible to the public and are predominantly used for purposes of an employee’s private life, particularly in sanitary facilities, changing rooms, rooms where breaks are spent and bedrooms, shall not be permitted. Open optical electronic surveillance and/or open acoustic electronic surveillance of publicly accessible parts of the business premises or parts which are not accessible to the public and are not predominantly used for purposes of an employee’s private life, such as entry halls, foyers, offices, workshops or the like, shall be permitted only to the extent that it is absolutely necessary for the safety/security of the employee and of the business. Surveillance of public parts of the business should not include surveillance of the employee in his place of work, except insofar as this is unavoidable. Before surveillance is performed, the employee shall be informed when and for how long the surveillance devices will be operated. Recordings of the surveillance shall be deleted after a short time, at the latest one month after the surveillance has taken place. Secret surveillance shall always be prohibited.
1f. If undertakings collect or process personal data in connection with statutory medical examinations and/or aptitude tests, they must, in advance, inform the applicant or employee of the purpose for which the data are to be used, and subsequently communicate the data to them together with the findings, and explain them. Collection of data for the purpose of genetic testing and analyses shall be prohibited. Collection and processing of personal data as part of medical examinations and/or aptitude tests must be necessary for the protection of health at work and preventive health care with reference to the employment relationship. The employer may not have direct access to the data. Data concerning applicants shall be treated in the same way as data concerning employees. Collection of health data in preparation for dismissal on health grounds shall be prohibited.
1g. Legal provisions may be laid down, particularly by means of collective agreements, stipulating whether and to what extent the telephone, e-mail, Internet and other telecommunications services may also be used for private purposes. Private use may also be permitted by an employment contract. If private use is permitted, processing of traffic data collected with reference to it shall only be permitted for the preservation of data security, to ensure the proper functioning of telecommunications networks and telecommunications services, and to levy charges, after the employee has been informed. Furthermore, the content of private e-mails shall not be analysed.
1h. Collection and processing of information/data concerning employees or applicants via social networks which are not specifically job application portals shall be prohibited.
1i. Data on employees which are inaccurate, whose accuracy is contested by employees or which have been collected by unauthorised means may not be used.
1j. Employees who have refused unauthorised examinations or requests for information or have given false answers to them, or who have objected to unauthorised collection/use of data on employees may not be disadvantaged.
1k. Without prejudice to rights to information and codetermination pursuant to domestic labour law, the workplace representation and European Works Council shall have the following rights: (a) the right to be consulted on the appointment of the business’s data protection officer (Article 35(7)); (b) the right to be consulted and informed regularly by the business’s data protection officer; (c) the right to representation of employees concerned before a regular national court (Article 73) and the right to bring a class action (Article 75); (d) the right to be consulted on the formulation of binding corporate rules (Article 43).
Article 85 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 individuals with regard to the processing of personal data, such rules may continue to apply, provided that they are brought in line with the provisions of this Regulation. 2. Churches and religious associations which apply comprehensive rules in accordance with paragraph 1 shall provide for the establishment of an independent supervisory authority in accordance with Chapter VI of this Regulation.