EUROPEAN PARLIAMENT

2009 - 2014

<Commission>{ITRE}Committee on Industry, Research and Energy</Commission><RefProc>2012/0011</RefProc><RefTypeProc>(COD)</RefTypeProc><Date>{26/02/2013}26.2.2013</Date><TitreType>OPINION</TitreType><CommissionResp>of the Committee on Industry, Research and Energy</CommissionResp><CommissionInt>for the Committee on Civil Liberties, Justice and Home Affairs</CommissionInt><Titre>on the proposal for a regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)</Titre><DocRef>(COM(2012)0011 – C7‑0025/2012 – 2012/0011(COD))</DocRef>Rapporteur: <Depute>Seán Kelly</Depute>PA_LegamSHORT JUSTIFICATIONOn 25 January 2012 the European Commission presented a comprehensive reform of the EU's data protection rules. The proposed regulation aims to harmonise online privacy rights and guarantee the free movement of such data within the European Union.The proposed regulation also aims to:

adapt data protection to the changed demand of the digital world, knowing that the current provisions have been adopted 17 years ago when less than 1% of the Europeans used the internet;

prevent the current divergences in enforcement of the 1995 rules by the different member States and ensure that the fundamental rights to personal data protection is applied in a uniform way in all areas of the Union's activities;

reinforce consumer confidence in online services with a better information about the rights and data protection with the introduction of the right to rectification, to be forgotten and to erasure, to data portability and the right to object;

boost the Digital Single Market reducing the current fragmentation and the administrative burdens and, more generally, play an important role in the Europe 2020 Strategy.

Compared to the existing Directive 95/46/EC, the proposed regulation introduces a mandatory data protection officer for the public sector, and, in the private sector, for large enterprises with more than 250 persons and for those enterprises whose core activity concerns the processing of personal data.Improvements have also been made concerning the transfer of personal data to third countries or international organisations.The current proposal establishes the European data Protection Board and provides sanctions, penalties and rights to compensation in case of infringement of the Regulation. Your rapporteur substantially supports the main aims of the Commission proposal.The proposed changes should help avoid excessive administrative burdens for enterprises, especially for those enterprises that have embedded privacy accountability, and guarantee a certain level of flexibility concerning some provisions of the Regulation, in particular those regarding the accountability mechanism and the notification to the supervisory authority. Some definitions and aspects of the original text need also to be clarified, contextualised and simplified. Your rapporteur has prioritised a qualitative rather than a quantitative approach to data protection which focuses on corporate governance, based on the aforementioned accountability principle, as opposed to the over-reliance on consent or bureaucratic documentation procedures, which nevertheless also play a role in data protection. It is important to also place emphasis on the role of technical solutions such as privacy by design, pseudonymisation and anonymisation of data, prioritising the protection of sensitive data and targeted compliance measures.Your rapporteur wishes to highlight the importance of avoiding unintended consequences which may have negative consequences in the areas of freedom of the press, health research, the fight against financial crime, the fight against fraud in sport and innovation in the delivery of energy smart grids and intelligent transport systems.Another aspect of the proposal concerns the important number of delegated acts. Your rapporteur considers that the use of the delegated acts is too extensive and proposes to delete the majority of them.AMENDMENTS

The Committee on Industry, Research and Energy calls on the Committee on Civil Liberties, Justice and Home Affairs, as the committee responsible, to incorporate the following amendments in its report:

<RepeatBlock-Amend><Amend>Amendment<NumAm>1</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Citation 1 a (new)</Article>

Text proposed by the Commission

Amendment

Having regard to the Charter of Fundamental rights of the European Union, and in particular Articles 7 and 8 thereof,

</Amend><Amend>Amendment<NumAm>2</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Citation 1 b (new)</Article>

Text proposed by the Commission

Amendment

Having regard to the European Convention of Human Rights and in particular Article 8 thereof,

</Amend><Amend>Amendment<NumAm>3</NumAm>

<DocAmend>Proposal for a regulation</DocAmend>

<Article>Recital 1 a (new)</Article>

Text proposed by the Commission

Amendment

(1a) Freedom of expression and information is a fundamental right in accordance with Article 11 of the Charter of Fundamental Rights of the European Union. This right includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The freedom and pluralism of the media should be respected.

<TitreJust>Justification</TitreJust>Explicit reference should be made to the freedom of information and the right to free expression which are fundamental rights in the European Union, pursuant to Article 11 of the European Charter of Fundamental Rights.</Amend><Amend>Amendment<NumAm>4</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 2 a (new)</Article>

Text proposed by the Commission

Amendment

(2a) The protection of individual privacy should be the point of departure for how to deal with personal data in public registers.

</Amend><Amend>Amendment<NumAm>5</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 3 a (new)</Article>

Text proposed by the Commission

Amendment

(3a) The principles of free access to information that characterise the Member States through their constitutional traditions should not be undermined, while freedom of expression and freedom of the press as expressed in Member State constitutions should be safeguarded.

</Amend>

<Amend>Amendment<NumAm>6</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Recital 5</Article>

Text proposed by the Commission

Amendment

(5) Rapid technological developments and globalisation have brought new challenges for the protection of personal data. The scale of data sharing and collecting has increased spectacularly. Technology allows both private companies and public authorities to make use of personal data on an unprecedented scale in order to pursue their activities. Individuals increasingly make personal information available publicly and globally. Technology has transformed both the economy and social life, and requires to further facilitate the free flow of data within the Union and the transfer to third countries and international organisations, while ensuring an high level of the protection of personal data.

(5) Rapid technological developments and globalisation have brought new challenges for the protection of personal data. The scale of data sharing and collection has increased spectacularly. Technology allows both private companies and public authorities to make use of personal data on an unprecedented scale in order to pursue their activities. Individuals increasingly make personal information available publicly and globally. Technology has transformed both the economy and social life, and requires improved legal safeguards which will facilitate the free flow of data within the Union and the transfer to third countries and international organisations, ensuring a high level of protection of personal data.

<TitreJust>Justification</TitreJust>While the Regulation has two aims – protecting personal data and allowing their free flow within the Union -, the first objective should be stressed more as it is a fundamental right</Amend><Amend>Amendment<NumAm>7</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 5 a (new)</Article>

Text proposed by the Commission

Amendment

(5a) Amongst other technologies, cloud computing has the potential to transform the European economy, provided, that appropriate data safety and data protection measures are put in place. In order to ensure the highest level of safety of personal data, it is essential to understand rights and obligations of data controllers and data processors within this Regulation.

</Amend>

<Amend>Amendment<NumAm>8</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Recital 8</Article>

Text proposed by the Commission

Amendment

(8) In order to ensure consistent and high level of protection of individuals and to remove the obstacles to flows of personal data, the level of protection of the rights and freedoms of individuals with regard to the processing of such data should be equivalent in all Member States. Consistent and homogenous application of the rules for the protection of the fundamental rights and freedoms of natural persons with regard to the processing of personal data should be ensured throughout the Union.

(8) In order to ensure consistent and high level of protection of individuals and to remove the obstacles to flows of personal data, the level of protection of the rights and freedoms of individuals with regard to the processing of such data should be equivalent in all Member States and identical where possible. Consistent and homogenous application of the rules for the protection of the fundamental rights and freedoms of natural persons with regard to the processing of personal data should be ensured throughout the Union.

<TitreJust>Justification</TitreJust>Rules for processing of data are already theoretically “equivalent” in all Member States. The failure of this approach is the logic behind this proposal being a Regulation. This recital should adequately reflect this thinking.</Amend><Amend>Amendment<NumAm>9</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 10</Article>

Text proposed by the Commission

Amendment

(10) Article 16(2) of the Treaty mandates the European Parliament and the Council to lay down the rules relating to the protection of individuals with regard to the processing of personal data by the Union institutions, bodies, offices and agencies, and by Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of personal data.

</Amend><Amend>Amendment<NumAm>10</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 11</Article>

Text proposed by the Commission

Amendment

(11) In order to ensure a consistent level of protection for individuals throughout the Union and to prevent divergences hampering the free movement of data within the internal market, a Regulation is necessary to provide legal certainty and transparency for economic operators, including micro, small and medium-sized enterprises, and to provide individuals in all Member States with the same level of legally enforceable rights and obligations and responsibilities for controllers and processors, to ensure consistent monitoring of the processing of personal data, and equivalent sanctions in all Member States as well as effective co-operation by the supervisory authorities of different Member States. To take account of the specific situation of micro, small and medium-sized enterprises, this Regulation includes a number of derogations. In addition, the Union institutions and bodies, Member States and their supervisory authorities are encouraged to take account of the specific needs of micro, small and medium-sized enterprises in the application of this Regulation. The notion of micro, small and medium-sized enterprises should draw upon Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises.

(11) In order to ensure a consistent level of protection for individuals throughout the Union and to prevent divergences hampering the free movement of data within the internal market, a Regulation is necessary to provide legal certainty and transparency for economic operators, including micro, small and medium-sized enterprises, and to provide individuals in all Member States with the same level of legally enforceable rights and obligations and responsibilities for controllers and processors, to ensure consistent monitoring of the processing of personal data, and equivalent sanctions in all Member States as well as effective co-operation by the supervisory authorities of different Member States. Where demonstrably necessary and without undermining either protection of personal data or internal market principles in order to take account of the specific situation of micro, small and medium-sized enterprises, this Regulation includes a number of derogations. In addition, the Union institutions and bodies, Member States and their supervisory authorities are encouraged to take account of the specific needs of micro, small and medium-sized enterprises in the application of this Regulation in consultation with the parties concerned, and also take into account the 'Think Small First' principle, so that the interests of micro, small and medium-sized enterprises are taken into account at the very early stages of policy making. The notion of micro, small and medium-sized enterprises should draw upon Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises.

</Amend><Amend>Amendment<NumAm>11</NumAm>

<DocAmend>Proposal for a regulation</DocAmend>

<Article>Recital 12</Article>

Text proposed by the Commission

Amendment

(12) The protection afforded by this Regulation concerns natural persons, whatever their nationality or place of residence, in relation to the processing of personal data. With regard to the processing of data which concern legal persons and in particular undertakings established as legal persons, including the name and the form of the legal person and the contact details of the legal person, the protection of this Regulation should not be claimed by any person. This should also apply where the name of the legal person contains the names of one or more natural persons.

</Amend><Amend>Amendment<NumAm>12</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 16 a (new)</Article>

Text proposed by the Commission

Amendment

(16a) This Regulation does not sit in isolation from other legal acts of the Union. The liability limitations of the e-commerce directive have a horizontal structure and therefore apply to all information. This Regulation determines what constitutes a data protection infringement while the e-commerce directive sets the conditions by which the information service provider is liable for third party infringements of the law.

<TitreJust>Justification</TitreJust>It is necessary to further explain in a recital the reasons for a reference to the liability limitations of the e-commerce directive.</Amend><Amend>Amendment<NumAm>13</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 23</Article>

Text proposed by the Commission

Amendment

(23) The principles of protection should apply to any information concerning an identified or identifiable person. To determine whether a person is identifiable, account should be taken of all the means likely reasonably to be used either by the controller or by any other person to identify the individual. The principles of data protection should not apply to data rendered anonymous in such a way that the data subject is no longer identifiable.

(23) The principles of protection should apply only to specific information concerning an identified or identifiable person. To determine whether a person is identifiable, account should be taken: (i) only of those means likely to be used by the controller or by any other natural or legal person to identify the individual, and (ii) of the likeliness of a person being identified. The principles of data protection should not apply to data rendered anonymous in such a way that the data subject is no longer identifiable from the data, taking full account of the technological "state of the art" and technological trends.

</Amend><Amend>Amendment<NumAm>14</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 23 a (new)</Article>

Text proposed by the Commission

Amendment

(23a) This regulation recognises that pseudonymisation is in the benefit of all data subjects as, by definition, personal data is altered so that it of itself cannot be attributed to a data subject without the use additional data. By this, controllers shall be encouraged to the practice of pseudonymising data.

</Amend><Amend>Amendment<NumAm>15</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 24</Article>

Text proposed by the Commission

Amendment

(24) When using online services, individuals 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.

(24) When using online services, individuals 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 need not necessarily be considered as personal data in all circumstances.

</Amend><Amend>Amendment<NumAm>16</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 25</Article>

Text proposed by the Commission

Amendment

(25) Consent should be given explicitly by any appropriate method enabling a freely given specific and informed indication of the data subject's wishes, either by a statement or by a clear affirmative action by the data subject, ensuring that individuals are aware that they give their consent to the processing of personal data, including by ticking a box when visiting an Internet website or by any other statement or conduct which clearly indicates in this context the data subject's acceptance of the proposed processing of their personal data. Silence or inactivity should therefore not constitute consent. Consent should cover all processing activities carried out for the same purpose or purposes. If the data subject's consent is to be given following an electronic request, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided.

(25) Consent should be given unambiguously by any appropriate method within the context of the product or service being offered enabling a freely given specific and informed indication of the data subject's wishes, either by a statement or by a clear affirmative action by the data subject, ensuring that individuals are aware that they give their consent to the processing of personal data, including by ticking a box when visiting an Internet website or by any other statement or conduct which clearly indicates in this context the data subject's acceptance of the proposed processing of their personal data. Silence or inactivity should therefore not constitute consent. Consent should cover all processing activities carried out for the same purpose or purposes. If the data subject's consent is to be given following an electronic request, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided.

</Amend><Amend>Amendment<NumAm>17</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 25 a (new)</Article>

Text proposed by the Commission

Amendment

(25a) This regulation recognises that the pseudonymisation of data can help minimise the risks to privacy of data subjects. To the extent that a controller pseudonymises data such processing shall be considered justified as a legitimate interest of the controller according to point (f) of Article 6(1).

</Amend><Amend>Amendment<NumAm>18</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 26</Article>

Text proposed by the Commission

Amendment

(26) Personal data relating to health should include in particular all data pertaining to the health status of a data subject; information about the registration of the individual for the provision of health services; information about payments or eligibility for healthcare with respect to the individual; a number, symbol or particular assigned to an individual to uniquely identify the individual for health purposes; any information about the individual collected in the course of the provision of health services to the individual; information derived from the testing or examination of a body part or bodily substance, including biological samples; identification of a person as provider of healthcare to the individual; or any information on e.g. a disease, disability, disease risk, medical history, clinical treatment, or the actual physiological or biomedical state of the data subject independent of its source, such as e.g. from a physician or other health professional, a hospital, a medical device, or an in vitro diagnostic test.

(26) Personal data relating to health should include in particular all personal data pertaining to the health status of a data subject including genetic information; information about the registration of the individual for the provision of health services; information about payments or eligibility for healthcare with respect to the individual; a number, symbol or particular assigned to an individual to uniquely identify the individual for health purposes; any information about the individual collected in the course of the provision of health services to the individual; personal data derived from the testing or examination of a body part, bodily substance or biological sample; identification of a person as provider of healthcare to the individual; or any information on e.g. a disease, disability, disease risk, medical history, clinical treatment, or the actual physiological or biomedical state of the data subject independent of its source, such as e.g. from a physician or other health professional, a hospital, a medical device, or an in vitro diagnostic test.

</Amend>

<Amend>Amendment<NumAm>19</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Recital 27</Article>

Text proposed by the Commission

Amendment

(27) The main establishment of a controller in the Union should be determined according to objective criteria and should imply the effective and real exercise of management activities determining the main decisions as to the purposes, conditions and means of processing through stable arrangements. This criterion should not depend whether the processing of personal data is actually carried out at that location; the presence and use of technical means and technologies for processing personal data or processing activities do not, in themselves, constitute such main establishment and are therefore no determining criteria for a main establishment. The main establishment of the processor should be the place of its central administration in the Union.

(27) Where a controller or a processor has multiple establishments in the Union, including but not limited to cases where the controller or the processor is a group of undertakings, the main establishment of a controller in the Union for the purposes of this Regulation should be determined according to objective criteria and should imply the effective and real exercise of management activities determining the main decisions as to the purposes, conditions and means of processing through stable arrangements. This criterion should not depend whether the processing of personal data is actually carried out at that location; the presence and use of technical means and technologies for processing personal data or processing activities do not, in themselves, constitute such main establishment and are therefore not determining criteria for a main establishment.

</Amend><Amend>Amendment<NumAm>20</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 28</Article>

Text proposed by the Commission

Amendment

(28) A group of undertakings should cover a controlling undertaking and its controlled undertakings, whereby the controlling undertaking should be the undertaking which can exercise a dominant influence over the other undertakings by virtue, for example, of ownership, financial participation or the rules which govern it or the power to have personal data protection rules implemented.

</Amend>

<Amend>Amendment<NumAm>21</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Recital 29</Article>

Text proposed by the Commission

Amendment

(29) Children deserve specific protection of their personal data, as they may be less aware of risks, consequences, safeguards and their rights in relation to the processing of personal data. To determine when an individual is a child, this Regulation should take over the definition laid down by the UN Convention on the Rights of the Child.

(29) Children deserve specific protection of their personal data, as they may be less aware of risks, consequences, safeguards and their rights in relation to the processing of personal data. Such protection is particularly important in the context of social networks, where children should be aware of the identities of those with whom they are communicating. To determine when an individual is a child, this Regulation should take over the definition laid down by the UN Convention on the Rights of the Child. No reference to child protection in this Regulation should be understood as an implicit instruction that protection of personal data of adults should be treated with less care than would have been the case if the reference was not included.

</Amend><Amend>Amendment<NumAm>22</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 30</Article>

Text proposed by the Commission

Amendment

(30) Any processing of personal data should be lawful, fair and transparent in relation to the individuals concerned. In particular, the specific purposes for which the data are processed should be explicit and legitimate and determined at the time of the collection of the data. The data should be adequate, relevant and limited to the minimum necessary for the purposes for which the data are processed; this requires in particular ensuring that the data collected are not excessive and that the period for which the data are stored is limited to a strict minimum. Personal data should only be processed if the purpose of the processing could not be fulfilled by other means. Every reasonable step should be taken to ensure that personal data which are inaccurate are rectified or deleted. In order to ensure that the data are not kept longer than necessary, time limits should be established by the controller for erasure or for a periodic review.

(30) Any processing of personal data should be lawful, fair and transparent in relation to the individuals concerned. In particular, the specific purposes for which the data are processed should be explicit and legitimate and determined at the time of the collection of the data. The data should be adequate, relevant and not excessive in relation to the purposes for which the data are processed; this requires in particular ensuring that the data collected are not excessive and that the period for which the data are stored is limited to a strict minimum. Personal data should only be processed if the purpose of the processing could not be fulfilled by other means. Every reasonable step should be taken to ensure that personal data which are inaccurate are rectified or deleted. In order to ensure that the data are not kept longer than necessary, time limits should be established by the controller for erasure or for a periodic review.

</Amend><Amend>Amendment<NumAm>23</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 31</Article>

Text proposed by the Commission

Amendment

(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.

(31) In order for processing to be lawful, personal data should be processed on one of the legitimate bases laid down by law, either in this Regulation or in other Union or Member State law as referred to in this Regulation.

<TitreJust>Justification</TitreJust>This amendment encourages an appropriate use of consent, as equal among the other grounds for lawful processing set out in Article 6.</Amend><Amend>Amendment<NumAm>24</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 32</Article>

Text proposed by the Commission

Amendment

(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. To comply with the principle of data minimisation, this burden of proof should not be understood neither as requiring positive identification of data subjects unless necessary nor as causing more data to be processed than otherwise have been the case.

</Amend>

<Amend>Amendment<NumAm>25</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Recital 33 a (new)</Article>

Text proposed by the Commission

Amendment

(33a) Consent may not be the primary or the most desirable means of legitimising the processing of personal data. The use of consent in the right context is crucial, but it should be relied on as the legitimate basis for processing only when data subjects can meaningfully and easily provide and revoke their consent. When used in inappropriate contexts, consent loses its value and places an unnecessary burden on the data subject. For example, consent is not an appropriate justification when the processing is necessary for a service the user has requested or when subjects cannot refuse consent without impacting the underlying service. In these and other contexts, data controllers should aim to ensure the lawfulness of the processing on another legitimate ground.

<TitreJust>Justification</TitreJust>This amendment aligns the text with the Article 29 Working Party Opinion 15/2011 on the definition of consent (p. 10) by reinforcing the point that consent may be unhelpful or outright harmful to privacy protection when overused, particularly in information services.</Amend><Amend>Amendment<NumAm>26</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 34</Article>

Text proposed by the Commission

Amendment

the employment context. Where the controller is a public authority, there would be 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.

(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. Where the controller is a public authority, there would be 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.

<TitreJust>Justification</TitreJust>Consent to data processing in an employment context should not be called into question across the board, as it is often given when it comes to matters in which it is in the interest of the employees concerned themselves to allow the processing of their personal data.</Amend><Amend>Amendment<NumAm>27</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 36 a (new)</Article>

Text proposed by the Commission

Amendment

(36a) Tasks carried out in the public interest or in the exercise of official authority include the processing of personal data necessary for the management and functioning of those authorities.

<TitreJust>Justification</TitreJust>A further indication is needed of what exactly can be covered by the legal obligation or the tasks carried out in the public interest or in the exercise of public authority.</Amend><Amend>Amendment<NumAm>28</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 38</Article>

Text proposed by the Commission

Amendment

(38) The legitimate interests of a controller may provide a legal basis for processing, provided that the interests or the fundamental rights and freedoms of the data subject are not overriding. This would need careful assessment in particular where the data subject is a child, given that children deserve specific protection. The data subject should have the right to object the processing, on grounds relating to their particular situation and free of charge. To ensure transparency, the controller should be obliged to explicitly inform the data subject on the legitimate interests pursued and on the right to object, and also be obliged to document these legitimate interests. Given that it is for the legislator to provide by law the legal basis for public authorities to process data, this legal ground should not apply for the processing by public authorities in the performance of their tasks.

(38) The legitimate interests of a controller, or of the third party or parties in whose interest the data is processed, may provide a legal basis for processing, provided that the interests or the fundamental rights and freedoms of the data subject are not overriding. To ensure clarity, the European Data Protection

Board should set out comprehensive guidelines on what can be defined as "legitimate interest". Processing would need careful assessment in particular where the data subject is a child, given that children deserve specific protection. The data subject should have the right to object the processing, free of charge. To ensure transparency, the controller should be obliged to explicitly inform the data subject on the legitimate interests pursued and on the right to object, and also be obliged to document these legitimate interests. Given that it is for the legislator to provide by law the legal basis for public authorities to process data, this legal ground should not apply for the processing by public authorities in the performance of their tasks.

</Amend><Amend>Amendment<NumAm>29</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 40</Article>

Text proposed by the Commission

Amendment

(40) The processing of personal data for other purposes should be only allowed where the processing is compatible with those purposes for which the data have been initially collected, in particular where the processing is necessary for historical, statistical or scientific research purposes. Where the other purpose is not compatible with the initial one for which the data are collected, the controller should obtain the consent of the data subject for this other purpose or should base the processing on another legitimate ground for lawful processing, in particular where provided by Union law or the law of the Member State to which the controller is subject. In any case, the application of the principles set out by this Regulation and in particular the information of the data subject on those other purposes should be ensured.

(40) The processing of personal data for other purposes should be only allowed where the processing is compatible with those purposes for which the data have been initially collected, such as where the processing is necessary for historical, statistical or scientific purposes. Where the other purpose is not compatible with the initial one for which the data are collected, the controller should obtain the consent of the data subject for this other purpose. In any case, the application of the principles set out by this Regulation and in particular the information of the data subject on those other purposes should be ensured.

</Amend>

<Amend>Amendment<NumAm>30</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Recital 40 a (new)</Article>

Text proposed by the Commission

Amendment

(40a) The processing of data to the extent strictly necessary for the purposes of ensuring that electricity or gas undertakings or distribution system operators as defined in Directive 2009/72/EC and Directive 2009/73/EC can meet system, grid or operational needs, or the implementation of demand response, energy management, or energy efficiency programmes should be allowed provided that the electricity or gas undertaking or the distribution system operator has required by contract that the processor fulfils the requirements outlined in this Regulation.

</Amend><Amend>Amendment<NumAm>31</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 41</Article>

Text proposed by the Commission

Amendment

(41) Personal data which are, by their nature, particularly sensitive and vulnerable in relation to fundamental rights or privacy, deserve specific protection. Such data should not be processed, unless the data subject gives his explicit consent. However, derogations from this prohibition should be explicitly provided for in respect of specific needs, in particular where the processing is carried out in the course of legitimate activities by certain associations or foundations the purpose of which is to permit the exercise of fundamental freedoms.

(41) Personal data which are, by their nature, particularly sensitive and vulnerable in relation to fundamental rights or privacy, deserve specific protection. Such data should not be processed, unless the data subject gives his informed consent. However, derogations from this prohibition should be explicitly provided for in respect of specific needs, in particular where the processing is carried out in the course of legitimate activities by certain associations or foundations the purpose of which is to permit the exercise of fundamental freedoms of the data subjects in question.

</Amend><Amend>Amendment<NumAm>32</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 45</Article>

Text proposed by the Commission

Amendment

(45) If the data processed by a controller do not permit the controller to identify a natural person, the data controller should not be obliged to acquire additional information in order to identify the data subject for the sole purpose of complying with any provision of this Regulation. In case of a request for access, the controller should be entitled to ask the data subject for further information to enable the data controller to locate the personal data which that person seeks.

</Amend><Amend>Amendment<NumAm>33</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 48</Article>

Text proposed by the Commission

Amendment

(48) The principles of fair and transparent processing require that the data subject should be informed in particular of the existence of the processing operation and its purposes, how long the data will be stored, on the existence of the right of access, rectification or erasure and on the right to lodge a complaint. Where the data are collected from the data subject, the data subject should also be informed whether they are obliged to provide the data and of the consequences, in cases they do not provide such data.

(48) The principles of fair and transparent processing require that the data subject should be informed in particular of the existence of the processing operation and its purposes, how long the data will be stored and the criteria which may be used as the basis for determining how long the data will be stored, on the existence of the right of access, rectification or erasure and on the right to lodge a complaint. Where the data are collected from the data subject, the data subject should also be informed whether they are obliged to provide the data and of the consequences, in cases they do not provide such data.

</Amend><Amend>Amendment<NumAm>34</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 49</Article>

Text proposed by the Commission

Amendment

(49) The information in relation to the processing of personal data relating to the data subject should be given to them at the time of collection, or, where the data are not collected from the data subject, within a reasonable period, depending on the circumstances of the case. Where data can be legitimately disclosed to another recipient, the data subject should be informed when the data are first disclosed to the recipient.

(49) The information in relation to the processing of personal data relating to the data subject should be given to them at the time of collection, or, where the data are not collected from the data subject, within a reasonable period, depending on the circumstances of the case. Where data can be legitimately disclosed to another recipient without the data subject's consent or renewed consent, the data subject should be informed when the data are first disclosed to the recipient, should the data subject request this information.

<TitreJust>Justification</TitreJust>If data are legitimately disclosed to another recipient, there should be no need for a constant, iterative process of informing the data subject. This may lead to unintended consequences such as the data subject removing their consent to legitimate processing, or even worse, the data subject becoming desensitised to information pertaining to the status of their personal data.</Amend><Amend>Amendment<NumAm>35</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 51</Article>

Text proposed by the Commission

Amendment

(51) Any person should have the right of access to data which has been collected concerning them, and to exercise this right easily, in order to be aware and verify the lawfulness of the processing. Every data subject should therefore have the right to know and obtain communication in particular for what purposes the data are processed, for what period, which recipients receive the data, what is the logic of the data that are undergoing the processing and what might be, at least when based on profiling, the consequences of such processing. This right should not adversely affect the rights and freedoms of others, including trade secrets or intellectual property and in particular the copyright protecting the software. However, the result of these considerations should not be that all information is refused to the data subject.

(51) Any person should have the right of access to personal data which has been collected concerning them, and to exercise this right easily, in order to be aware and verify the lawfulness of the processing. Every data subject should therefore have the right to know and obtain communication in particular for what purposes the personal data are processed, for what period, which recipients receive the personal data, what is the logic of the personal data that are undergoing the processing and what might be, the consequences of such processing. This right should not adversely affect the rights and freedoms of others, including trade secrets or intellectual property, such as in relation to copyright protecting the software. However, the result of these considerations should not be that all information is refused to the data subject.

</Amend><Amend>Amendment<NumAm>36</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 52</Article>

Text proposed by the Commission

Amendment

(52) The controller should use all reasonable measures to verify the identity of a data subject that requests access, in particular in the context of online services and online identifiers. A controller should not retain personal data for the unique purpose of being able to react to potential requests.

(52) The controller should use all reasonable measures within the context of the product or service being provided, or otherwise within the context of the relationship between the controller and the data subject, and the sensitivity of the personal data being processed to verify the authenticity of a subject access request, in particular in the context of online services and online identifiers. A controller should not retain nor be forced to gather personal data for the unique purpose of being able to react to potential requests.

</Amend><Amend>Amendment<NumAm>37</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 53 a (new)</Article>

Text proposed by the Commission

Amendment

(53a) A data subject should always have the option to give broad consent for his or her data to be used for historical, statistical or scientific research purposes, and to withdraw consent at any time.

<TitreJust>Justification</TitreJust>Broad consent is a necessity for conducting research in fields of medicine that rely on biobanks and tissue banks among other forms. Biobanks are collections of biological samples and data, accumulated over a period of time, used for medical research and diagnostic purposes. These repositories store data from millions of data subjects, which is used by scientists to perform research. The option of broad consent given to a data subject at their first encounter with a doctor allows the researchers to use this data without having to go back to the data subject for every minor research they are conducting and is thus a necessary and practical solution for protecting and fostering public health research.</Amend>

<Amend>Amendment<NumAm>38</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Recital 58</Article>

Text proposed by the Commission

Amendment

(58) Every natural person should have the right not to be subject to a measure which is based on profiling by means of automated processing. However, such measure should be allowed when expressly authorised by law, carried out in the course of entering or performance of a contract, or when the data subject has given his consent. In any case, such processing should be subject to suitable safeguards, including specific information of the data subject and the right to obtain human intervention and that such measure should not concern a child.

(58) Every natural person should have the right not to be subject to a measure which is based on profiling by means of automated processing and which produces legal effects concerning that natural person or significantly affects that natural person. Actual effects should be comparable in their intensity to legal effects to fall under the scope of this Regulation. This is not the case for measures relating to commercial communication, like for example in the field of customer relationship management or customer acquisition. However, a measure based on profiling by automated data processing and which produces legal effects concerning a natural person or significantly affects a natural person should be allowed when expressly authorised by law, carried out in the course of entering or performance of a contract, or when the data subject has given his consent. In any case, such processing should be subject to suitable safeguards, including specific information of the data subject and the right to obtain human intervention and that such measure should not concern a child.

<TitreJust>Justification</TitreJust>The amendment clarifies that commercial communication, like for example in the field of customer relationship management or customer acquisition does not significantly affect a natural person in the sense of Article 20 paragraph 1. Actual effects must be comparable in their intensity to legal effects to fall under this provision.</Amend><Amend>Amendment<NumAm>39</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 60</Article>

Text proposed by the Commission

Amendment

(60) Comprehensive responsibility and liability of the controller for any processing of personal data carried out by the controller or on the controller's behalf should be established. In particular, the controller should ensure and be obliged to demonstrate the compliance of each processing operation with this Regulation.

(60) Overall responsibility and liability of the controller for any processing of personal data carried out by the controller or on the controller's behalf should be established in order to ensure accountability. In particular, the controller should ensure and be obliged to demonstrate the compliance of each processing operation with this Regulation. Otherwise unnecessary data processing may not be justified on the basis of the need to respect this obligation.

</Amend><Amend>Amendment<NumAm>40</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 61</Article>

Text proposed by the Commission

Amendment

(61) The protection of the rights and freedoms of data subjects with regard to the processing of personal data require that appropriate technical and organisational measures are taken, both at the time of the design of the processing and at the time of the processing itself, to ensure that the requirements of this Regulation are met. In order to ensure and demonstrate compliance with this Regulation, the controller should adopt internal policies and implement appropriate measures, which meet in particular the principles of data protection by design and data protection by default.

(61) To meet consumer and business expectations around the protection of the rights and freedoms of data subjects with regard to the processing of personal data, appropriate organisational measures should be taken, both at the time of the design of the processing and its underlying technologies as well as at the time of the processing itself, to ensure that the requirements of this Regulation are met. Measures having as an objective to increase consumer information and ease of choice should be encouraged, based on industry cooperation and favouring innovative solutions, products and services. Data protection by design is the process by which data protection and privacy are integrated in the development of products and services through both technical and organisational measures. Data protection by default means that products and services are by default configured in a way that limits the processing and especially the disclosure of personal data. In particular, personal data should not be disclosed to an unlimited number of persons by default.

</Amend>

<Amend>Amendment<NumAm>41</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Recital 61 a (new)</Article>

Text proposed by the Commission

Amendment

(61a) This Regulation should encourage enterprises to develop internal programmes that will identify the processing operations likely to present specific risks to the rights and freedoms of data subjects by virtue of their nature, their scope or their purposes, and to put in place appropriate data protection safeguards and develop innovative data protection-by-design solutions and data protection enhancing techniques. Enterprises would then demonstrate publicly and pro-actively their compliance with the provisions and spirit of this Regulation and thus increase the trust of the European citizens. Corporate accountability on personal data protection cannot however exempt an enterprise from any obligation laid down in this Regulation.

</Amend><Amend>Amendment<NumAm>42</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 62</Article>

Text proposed by the Commission

Amendment

(62) The protection of the rights and freedoms of data subjects as well as the responsibility and liability of controllers and processor, also in relation to the monitoring by and measures of supervisory authorities, requires a clear attribution of the responsibilities under this Regulation, including where a controller determines the purposes, conditions and means of the processing jointly with other controllers or where a processing operation is carried out on behalf of a controller.

(62) The protection of the rights and freedoms of data subjects as well as the responsibility and liability of controllers and processor, also in relation to the monitoring by and measures of supervisory authorities, requires a clear attribution of the responsibilities under this Regulation, including where a controller determines the purposes of the processing jointly with other controllers or where a processing operation is carried out on behalf of a controller.

</Amend>

<Amend>Amendment<NumAm>43</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Recital 65</Article>

Text proposed by the Commission

Amendment

(65) In order to demonstrate compliance with this Regulation, the controller or processor should document each processing operation. Each controller and processor should be obliged to co-operate with the supervisory authority and make this documentation, on request, available to it, so that it might serve for monitoring those processing operations.

(65) In order to demonstrate compliance with this Regulation, the controller should document each processing operation under its responsibility. Each controller should be obliged to co-operate with the supervisory authority and make this documentation, on request, available to it, so that it might serve for monitoring those processing operations.

</Amend><Amend>Amendment<NumAm>44</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 66</Article>

Text proposed by the Commission

Amendment

(66) In order to maintain security and to prevent processing in breach of this Regulation, the controller or processor should evaluate the risks inherent to the processing and implement measures to mitigate those risks. These measures should ensure an appropriate level of security, taking into account the state of the art and the costs of their implementation in relation to the risks and the nature of the personal data to be protected. When establishing technical standards and organisational measures to ensure security of processing, the Commission should promote technological neutrality, interoperability and innovation, and, where appropriate, cooperate with third countries.

(66) In order to maintain security and to prevent processing in breach of this Regulation, the controller or processor should evaluate the risks inherent to the processing and implement measures to mitigate those risks. In particular, the controller or processor should duly take into account the greater risks arising from the processing of personal data of the data subject, due to the sensitive nature of the data. These measures should ensure an appropriate level of security, taking into account the state of the art and the costs of their implementation in relation to the risks and the nature of the personal data to be protected. When establishing technical standards and organisational measures to ensure security of processing, technological neutrality, interoperability and innovation should be promoted, and, where appropriate, cooperate with third countries should be encouraged.

</Amend>

<Amend>Amendment<NumAm>45</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Recital 67</Article>

Text proposed by the Commission

Amendment

(67) A personal data breach may, if not addressed in an adequate and timely manner, result in substantial economic loss and social harm, including identity fraud, to the individual concerned. Therefore, as soon as the controller becomes aware that such a breach has occurred, the controller should notify the breach to the supervisory authority without undue delay and, where feasible, within 24 hours. Where this cannot achieved within 24 hours, an explanation of the reasons for the delay should accompany the notification. The individuals whose personal data could be adversely affected by the breach should be notified without undue delay in order to allow them to take the necessary precautions. A breach should be considered as adversely affecting the personal data or privacy of a data subject where it could result in, for example, identity theft or fraud, physical harm, significant humiliation or damage to reputation. The notification should describe the nature of the personal data breach as well as recommendations as well as recommendations for the individual concerned to mitigate potential adverse effects. Notifications to data subjects should be made as soon as reasonably feasible, and in close cooperation with the supervisory authority and respecting guidance provided by it or other relevant authorities (e.g. law enforcement authorities). For example, the chance for data subjects to mitigate an immediate risk of harm would call for a prompt notification of data subjects whereas the need to implement appropriate measures against continuing or similar data breaches may justify a longer delay.

(67) A personal data breach may, if not addressed in an adequate and timely manner, result in substantial economic loss and social harm, including identity fraud, to the individual concerned. Therefore, as soon as the controller becomes aware that such a breach has occurred, the controller should notify the breach to the supervisory authority without undue delay. Where this cannot be achieved within a reasonable time period, an explanation of the reasons for the delay should accompany the notification. The individuals whose personal data could be adversely affected by the breach should be notified without undue delay in order to allow them to take the necessary precautions. A breach should be considered as adversely affecting the personal data or privacy of a data subject where it could result in, for example, identity theft or fraud, physical harm, significant humiliation or damage to reputation. The notification should describe the nature of the personal data breach as well as recommendations as well as recommendations for the individual concerned to mitigate potential adverse effects. Notifications to data subjects should be made as soon as reasonably feasible, and in close cooperation with the supervisory authority and respecting guidance provided by it or other relevant authorities (e.g. law enforcement authorities). For example, the chance for data subjects to mitigate an immediate risk of harm would call for a prompt notification of data subjects whereas the need to implement appropriate measures against continuing or similar data breaches may justify a longer delay.

</Amend><Amend>Amendment<NumAm>46</NumAm>

<DocAmend>Proposal for a regulation</DocAmend>

<Article>Recital 70</Article>

Text proposed by the Commission

Amendment

(70) Directive 95/46/EC provided for a general obligation to notify processing of personal data to the supervisory authorities. While this obligation produces administrative and financial burdens, it did not in all cases contribute to improving the protection of personal data. Therefore such indiscriminate general notification obligation should be abolished, and replaced by effective procedures and mechanism which focus instead on those processing operations which are likely to present specific risks to the rights and freedoms of data subjects by virtue of their nature, their scope or their purposes. In such cases, a data protection impact assessment should be carried out by the controller or processor prior to the processing, which should include in particular the envisaged measures, safeguards and mechanisms for ensuring the protection of personal data and for demonstrating the compliance with this Regulation.

(70) Directive 95/46/EC provided for a general obligation to notify processing of personal data to the supervisory authorities. While this obligation produces administrative and financial burdens, it did not in all cases contribute to improving the protection of personal data. Therefore such indiscriminate general notification obligation should be abolished, and replaced by effective procedures and mechanism which focus instead on those processing operations which are likely to present specific risks to the rights and freedoms of data subjects by virtue of their nature, their scope or their purposes. In such cases, a data protection impact assessment should be carried out by the controller prior to the processing, which should include in particular the envisaged measures, safeguards and mechanisms for ensuring the protection of personal data and for demonstrating the compliance with this Regulation.

<TitreJust>Justification</TitreJust>It should be up to the data controllers to assess the impact to privacy as they will determine the purposes of the processing.</Amend><Amend>Amendment<NumAm>47</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 70 a (new)</Article>

Text proposed by the Commission

Amendment

(70a) Directive 2002/58/EC sets out personal data breach notification obligations for the processing of personal data in connection with the provision of publicly available electronic communications services in public communications networks in the Union. Where providers of publicly available electronic communications services also provide other services, they continue to be subject to the breach notification obligations of Directive 2002/58/EC, not this Regulation. Such providers should be subject to a single personal data breach notification regime for both personal data processed in connection with the provision of a publicly available electronic communications service and for any other personal data for which they are a controller.

<TitreJust>Justification</TitreJust>Electronic communications service providers should be subject to a single notification regime for any breaches relating to the data they process, not multiple regimes depending on the service offered. This ensures a level playing field among industry players.</Amend><Amend>Amendment<NumAm>48</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 76</Article>

Text proposed by the Commission

Amendment

(76) Associations or other bodies representing categories of controllers should be encouraged 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.

<TitreJust>Justification</TitreJust>It should be made clear that such codes of conduct are beneficial for industry and not a gesture which needs to be reciprocated with less oversight by DPAs.</Amend><Amend>Amendment<NumAm>49</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 77</Article>

Text proposed by the Commission

Amendment

(77) In order to enhance transparency and compliance with this Regulation, the establishment of certification mechanisms, data protection seals and marks should be encouraged, allowing data subjects to quickly assess the level of data protection of relevant products and services.

(77) In order to enhance transparency and compliance with this Regulation, the establishment of certification mechanisms, data protection seals and marks should be encouraged, allowing data subjects to quickly, reliably and verifiably assess the level of data protection of relevant products and services.

<TitreJust>Justification</TitreJust>Such tools must be rigorously tested, learning from successes and failures experienced with this approach.</Amend><Amend>Amendment<NumAm>50</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 80</Article>

Text proposed by the Commission

Amendment

(80) The Commission may decide with effect for the entire Union that certain third countries, or a territory or a processing sector within a third country, or an international organisation, offer an adequate level of data protection, thus providing legal certainty and uniformity throughout the Union as regards the third countries or international organisations which are considered to provide such level of protection. In these cases, transfers of personal data to these countries may take place without needing to obtain any further authorisation.

<TitreJust>Justification</TitreJust>It would be illogical to imagine that the data protection situation in such a third country could not subsequently deteriorate.</Amend><Amend>Amendment<NumAm>51</NumAm>

<DocAmend>Proposal for a regulation</DocAmend>

<Article>Recital 84</Article>

Text proposed by the Commission

Amendment

(84) The possibility for the controller or processor to use standard data protection clauses adopted by the Commission or by a supervisory authority should neither prevent the possibility for controllers or processors to include the standard data protection clauses in a wider contract nor to add other clauses as long as they do not contradict, directly or indirectly, the standard contractual clauses adopted by the Commission or by a supervisory authority or prejudice the fundamental rights or freedoms of the data subjects.

<TitreJust>Justification</TitreJust>This amendment would provide an incentive for organisations to go beyond the baseline regulatory requirements comply with regimes such as a "data seal" or "trust mark".</Amend><Amend>Amendment<NumAm>52</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 85 a (new)</Article>

Text proposed by the Commission

Amendment

(85a) A group of companies planning to submit for approval binding corporate rules may propose a supervisory authority as the lead authority. This should be the supervisory authority of the Member State in which the main establishment of the controller or processor is situated.

<TitreJust>Justification</TitreJust>The Article 29 Working Party established a system for mutual recognition of binding corporate rules (WP 107, 14 April 2005). This system should be incorporated into this Regulation. The criterion for designating the competent authority should be the place of the main establishment, as set out in Article 51(2) of the Regulation.</Amend><Amend>Amendment<NumAm>53</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 87</Article>

Text proposed by the Commission

Amendment

(87) These derogations should in particular apply to data transfers required and necessary for the protection of important grounds of public interest, for example in cases of international data transfers between competition authorities, tax or customs administrations, financial supervisory authorities, between services competent for social security matters, between bodies responsible for fighting fraud in sports, or to competent authorities for the prevention, investigation, detection and prosecution of criminal offences. Transferring personal data for such important grounds of public interest should only be used for occasional transfers. In each and every case, a careful assessment of all circumstances of the transfer needs to be carried out.

</Amend><Amend>Amendment<NumAm>54</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 94</Article>

Text proposed by the Commission

Amendment

(94) Each supervisory authority should be provided with the adequate financial and human resources, premises and infrastructure, which is necessary for the effective performance of their tasks, including for the tasks related to mutual assistance and co-operation with other supervisory authorities throughout the Union.

(94) Each supervisory authority should be provided with the adequate financial and human resources, paying particular attention to ensuring adequate technical skills of staff, premises and infrastructure, which is are necessary for the effective performance of their tasks, including for the tasks related to mutual assistance and co-operation with other supervisory authorities throughout the Union.

<TitreJust>Justification</TitreJust>Strong, independent supervisory authorities are one of the necessary conditions for effective data protection. They should be free from external influence, as confirmed by the ECJ (C-518/07 and C-614/10), and should have the necessary resources – financial and human – to ensure enforcement of data protection legislation. These changes aim to provide supervisory authorities with the independence and resources they need to effectively protect the fundamental right to data protection. Supervisory authorities are needed to ensure enforcement of data protection legislation. As Article 16(2) TFEU states, they shall be independent in the exercise of their duties. Experience with the current framework has shown that this level of independence is not always provided in practice. It should be noted that this should not only be seen as referring to interference by Member States, but also by the Commission. Independence on paper alone is not enough, supervisory authorities also need the means to put their powers into action. This implies a need for appropriate resources and skilled staff, including staff with technical expertise. The increasing technical challenges facing supervisory authority staff must be recognised and addressed.</Amend><Amend>Amendment<NumAm>55</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 95</Article>

Text proposed by the Commission

Amendment

(95) The general conditions for the members of the supervisory authority should be laid down by law in each Member State and should in particular provide that those members should be either appointed by the parliament or the government of the Member State, and include rules on the personal qualification of the members and the position of those members.

(95) The general conditions for the members of the supervisory authority should be laid down by law in each Member State and should in particular provide that those members should be either appointed by the parliament or the government of the Member State taking due care to minimise the possibility of political interference, and include rules on the personal qualification of the members, the avoidance of conflicts of interest and the position of those members.

<Amend>Amendment<NumAm>56</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Recital 97</Article>

Text proposed by the Commission

Amendment

(97) Where the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union takes place in more than one Member State, one single supervisory authority should be competent for monitoring the activities of the controller or processor throughout the Union and taking the related decisions, in order to increase the consistent application, provide legal certainty and reduce administrative burden for such controllers and processors.

(97) Where the processing of personal data takes place in more than one Member State, one single supervisory authority should be competent for monitoring the activities of the controller or processor throughout the Union and taking the related decisions, in order to increase the consistent application, provide legal certainty and reduce administrative burden for such controllers and processors.

<TitreJust>Justification</TitreJust>The one-stop shop principle should apply consistently to both EU and non-EU based controllers subject to the law.</Amend><Amend>Amendment<NumAm>57</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 98 a (new)</Article>

Text proposed by the Commission

Amendment

(98a) Where the processing of personal data is the subject of a complaint lodged by a data subject, the competent authority, providing the one-stop shop, should be the supervisory authority of the Member State in which the data subject has its main residence. Where data subjects lodge similar complaints against such processing with supervisory authorities in different Member States, the competent authority should be the first seized.

<TitreJust>Justification</TitreJust>It is appropriate to enable the data subject to exercise its administrative action towards the supervisory authority closest to its main residence, and in the same Member State where he/she can take legal action if needed, in order to enhance the accessibility and coherence of the recourse of the data subject and also to avoid administrative burden.</Amend><Amend>Amendment<NumAm>58</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 105</Article>

Text proposed by the Commission

Amendment

(105) In order to ensure the consistent application of this Regulation throughout the Union, a consistency mechanism for co-operation between the supervisory authorities themselves and the Commission should be established. This mechanism should in particular apply where a supervisory authority intends to take a measure as regards processing operations that are related to the offering of goods or services to data subjects in several Member States, , or to the monitoring such data subjects, or that might substantially affect the free flow of personal data. It should also apply where any supervisory authority or the Commission requests that the matter should be dealt with in the consistency mechanism. This mechanism should be without prejudice to any measures that the Commission may take in the exercise of its powers under the Treaties.

(105) In order to ensure the consistent application of this Regulation throughout the Union, a consistency mechanism for co-operation between the supervisory authorities themselves and the Commission should be established. This mechanism should in particular apply where the competent supervisory authority intends to take a measure as regards processing operations that are related to the offering of goods or services to data subjects in several Member States, or to the monitoring such data subjects, or that might substantially affect the free flow of personal data. It should also apply where any supervisory authority or the Commission requests that the matter should be dealt with in the consistency mechanism. This mechanism should be without prejudice to any measures that the Commission may take in the exercise of its powers under the Treaties.

</Amend><Amend>Amendment<NumAm>59</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 121</Article>

Text proposed by the Commission

Amendment

(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 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. 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.

(121) The processing of personal data 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 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 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 and irrespective of the medium which is used to transmit them.

</Amend><Amend>Amendment<NumAm>60</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 121 a (new)</Article>

Text proposed by the Commission

Amendment

(121a) This Regulation allows the principle of public access to official documents to be taken into account when applying the provisions set out in this Regulation. Personal data in documents held by a public authority or a public body may be disclosed by this authority or body in accordance with Member State legislation to which the public authority or public body is subject. Such legislation should reconcile the right to the protection of personal data with the principle of public access to official documents.

<TitreJust>Justification</TitreJust>It is essential to ensure that public oversight of public affairs is not unduly hampered by data protection rules. As expressed in opinions by the EDPS, the Article 29 Working Party and the FRA, the principle of public access to official documents should therefore be guaranteed.</Amend><Amend>Amendment<NumAm>61</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 123 a (new)</Article>

Text proposed by the Commission

Amendment

(123a) The processing of personal data concerning health, as a special category of data, may be necessary for reasons of historical, statistical or scientific research. Therefore this Regulation should ensure that the harmonisation of conditions provided for the processing of personal data concerning health, subject to specific and suitable safeguards so as to protect the fundamental rights and the personal data of individuals, do not act as a barrier to translational, clinical and public health research.

<TitreJust>Justification</TitreJust>Ensuring seamless access to medical data is crucial for public health research. This Regulation makes it essential to find a balance between protecting individual data and respecting public health researchers enough to provide them with the means to conduct medical research. One of the aims of this Regulation is to harmonize data protection across different sectors. It is thus important to note that any harmonization of data protection across countries or sectors must protect public health research sector and not constitute a barrier to crucial research addressing the great societal challenges.</Amend><Amend>Amendment<NumAm>62</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 129</Article>

Text proposed by the Commission

Amendment

(129) In order to fulfil the objectives of this Regulation, namely to protect the fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data and to ensure the free movement of personal data within the Union, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission. In particular, delegated acts should be adopted in respect of lawfulness of processing; specifying the criteria and conditions in relation to the consent of a child; processing of special categories of data; specifying the criteria and conditions for manifestly excessive requests and fees for exercising the rights of the data subject; criteria and requirements for the information to the data subject and in relation to the right of access; the right to be forgotten and to erasure; measures based on profiling; criteria and requirements in relation to the responsibility of the controller and to data protection by design and by default; a processor; criteria and requirements for the documentation and the security of processing; criteria and requirements for establishing a personal data breach and for its notification to the supervisory authority, and on the circumstances where a personal data breach is likely to adversely affect the data subject; the criteria and conditions for processing operations requiring a data protection impact assessment; the criteria and requirements for determining a high degree of specific risks which require prior consultation; designation and tasks of the data protection officer; codes of conduct; criteria and requirements for certification mechanisms; criteria and requirements for transfers by way of binding corporate rules; transfer derogations; administrative sanctions;

processing for health purposes; processing in the employment context and processing for historical, statistical and scientific research purposes. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing-up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and Council.

</Amend><Amend>Amendment<NumAm>63</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 130</Article>

Text proposed by the Commission

Amendment

(130) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission for: specifying standard forms in relation to the processing of personal data of a child; standard procedures and forms for exercising the rights of data subjects; standard forms for the information to the data subject; standard forms and procedures in relation to the right of access; the right to data portability; standard forms in relation to the responsibility of the controller to data protection by design and by default and to the documentation; specific requirements for the security of processing; the standard format and the procedures for the notification of a personal data breach to the supervisory authority and the communication of a personal data breach to the data subject; standards and procedures for a data protection impact assessment; forms and procedures for prior authorisation and prior consultation; technical standards and mechanisms for certification; the adequate level of protection afforded by a third country or a territory or a

processing sector within that third country or an international organisation; disclosures not authorized by Union law; mutual assistance; joint operations; decisions under the consistency mechanism. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers. In this context, the Commission should consider specific measures for micro, small and medium-sized enterprises.

(130) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. In implementing the provisions of this Regulation, it should be ensured that no mandatory requirements for specific technical features are imposed on products and services, including terminal or other electronic communications equipment, which could impede the placing of equipment on the market and the free circulation of such equipment in and between Member States. In this context, the Commission should consider specific measures for micro, small and medium-sized enterprises in consultation with the parties concerned, as these measures should not overly burden those enterprises.

</Amend><Amend>Amendment<NumAm>64</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Recital 139</Article>

Text proposed by the Commission

Amendment

(139) In view of the fact that, as underlined by the Court of Justice of the European Union, the right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society and be balanced with other fundamental rights, in accordance with the principle of proportionality, this Regulation respects all fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union as enshrined in the Treaties, notably the right to respect for private and family life, home and communications, the right to the protection of personal data, the freedom of thought, conscience and religion, the freedom of expression and information, the freedom to conduct a business, the right to an effective remedy and to a fair trial as well as cultural, religious and linguistic diversity.

(139) In view of the fact that, as underlined by the Court of Justice of the European Union, the right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society and the actual and potential advances in science, health and technology and be balanced with other fundamental rights, in accordance with the principle of proportionality, this Regulation respects all fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union as enshrined in the Treaties, notably the right to respect for private and family life, home and communications, the right to the protection of personal data, the freedom of thought, conscience and religion, the freedom of expression and information, the freedom to conduct a business, the right to property and in particular the protection of intellectual property the right to an effective remedy and to a fair trial as well as cultural, religious and linguistic diversity.

<TitreJust>Justification</TitreJust>The processing of IP addresses if often a critical component of investigations into IPR abuses under Directive 2004/48/EC and should not be prevented by the Regulation.</Amend><Amend>Amendment<NumAm>65</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 1 – paragraph 1</Article>

Text proposed by the Commission

Amendment

1. This Regulation lays down rules relating to the protection of individuals with regard to the processing of personal data and rules relating to the free movement of personal data.

1. This Regulation lays down rules relating to the protection of natural and legal persons with regard to the processing of personal data and rules relating to the free movement of personal data.

</Amend><Amend>Amendment<NumAm>66</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 1 – paragraph 2</Article>

Text proposed by the Commission

Amendment

2. This Regulation protects the fundamental rights and freedoms of natural persons, and in particular their right to the protection of personal data.

2. This Regulation protects the fundamental rights and freedoms of natural and legal persons, and in particular their right to the protection of personal data.

</Amend><Amend>Amendment<NumAm>67</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 1 – paragraph 3</Article>

Text proposed by the Commission

Amendment

3. The free movement of personal data within the Union shall neither be restricted nor prohibited for reasons connected with the protection of individuals with regard to the processing of personal data.

3. The free movement of personal data within the Union shall neither be restricted nor prohibited for reasons connected with the protection of natural and legal persons with regard to the processing of personal data.

</Amend><Amend>Amendment<NumAm>68</NumAm>

<DocAmend>Proposal for a regulation</DocAmend>

<Article>Article 1 – paragraph 3 a (new)</Article>

Text proposed by the Commission

Amendment

3a. This Regulation shall not influence or restrict the freedom of the press and the freedom of expression that are enshrined in the constitutions of the Member States and are derived from the tradition of freedom of the press and freedom of expression that characterises free and open societies. Nor shall citizens' rights and access to information from the public authorities be affected or impaired. The Member States' right and responsibility to protect individual privacy with respect to dealing with public registers through special legislation shall also not be affected by this Regulation.

</Amend><Amend>Amendment<NumAm>69</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 2 – paragraph 1</Article>

Text proposed by the Commission

Amendment

1. This Regulation applies to the processing of personal data wholly or partly by automated means, and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.

1. This Regulation applies to the processing of personal data wholly or partly by automated means, without discrimination between such processing means and the technology used, and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.

</Amend><Amend>Amendment<NumAm>70</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 2 – paragraph 2 – point b</Article>

Text proposed by the Commission

Amendment

(b) by the Union institutions, bodies, offices and agencies;

deleted

</Amend><Amend>Amendment<NumAm>71</NumAm>

<DocAmend>Proposal for a regulation</DocAmend>

<Article>Article 2 – paragraph 2 – point e a (new)</Article>

Text proposed by the Commission

Amendment

(ea) for historical, statistical and scientific research purposes

</Amend><Amend>Amendment<NumAm>72</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 2 – paragraph 2 – point e b (new)</Article>

Text proposed by the Commission

Amendment

(eb) in the course of an activity which can be attributed to the professional or a commercial activity of a data subject

</Amend><Amend>Amendment<NumAm>73</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 2 – paragraph 2 – point e c (new)</Article>

Text proposed by the Commission

Amendment

(ec) carried out by an employer as part of the treatment of employee personal data in an employment context

<TitreJust>Justification</TitreJust>It is important that an employer can continue to process data about the employee – for example with regards to wage, vacation, benefits, anniversary, education, health, criminal convictions, etc. Currently the employee can consent that the employer processes these data. However, the wording in the regulation could be interpreted as if in the future an imbalance between employer and employee is introduced.</Amend><Amend>Amendment<NumAm>74</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 2 – paragraph 2 – point e d (new)</Article>

Text proposed by the Commission

Amendment

(ed) anonymous data within the meaning of Article 4(2b)

</Amend><Amend>Amendment<NumAm>75</NumAm>

<DocAmend>Proposal for a regulation</DocAmend>

<Article>Article 3 – paragraph 2 – introductory part</Article>

Text proposed by the Commission

Amendment

2. This Regulation applies to the processing of personal data of data subjects residing in the Union by a controller not established in the Union, where the processing activities are related to:

2. This Regulation applies to the processing of personal data of data subjects domiciled in the Union by a controller not established in the Union, where the processing activities are related to:

<TitreJust>Justification</TitreJust>Clarification of the concept of ‘residence’.</Amend><Amend>Amendment<NumAm>76</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 4 –point 1</Article>

Text proposed by the Commission

Amendment

(1) 'data subject' means an identified natural person or a natural person who can be identified, directly or indirectly, by means reasonably likely 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;

(1) ‘data subject’ means an identified natural person or a natural person who can be identified, directly or indirectly, by means reasonably likely to be used by the controller or by any other natural or legal person, working together with the controller, in particular by reference to an identification number or other unique identifier, location data, online identifier or to one or more factors specific to the gender, physical, physiological, genetic, mental, economic, cultural or social identity or sexual orientation of that person and who is not acting in his/her professional capacity;

</Amend><Amend>Amendment<NumAm>77</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 4 – point 2 a (new)</Article>

Text proposed by the Commission

Amendment

(2a) 'pseudonymous data' means any personal data that has been collected, altered or otherwise processed so that it of itself cannot be attributed to a data subject without the use of additional data which is subject to separate and distinct

technical and organisational controls to ensure such non attribution;

</Amend><Amend>Amendment<NumAm>78</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 4 – point 2 b (new)</Article>

Text proposed by the Commission

Amendment

(2b) 'identification number' means any numeric, alphanumeric or similar code typically used in the online space, excluding codes assigned by a public or state controlled authority to identify a natural person as an individual;

</Amend><Amend>Amendment<NumAm>79</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 4 – point 2 c (new)</Article>

Text proposed by the Commission

Amendment

(2c) 'anonymous data' means any personal data that has been collected, altered or otherwise processed in such a way that it can no longer be attributed to a data subject; anonymous data shall not be considered personal data;

</Amend><Amend>Amendment<NumAm>80</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 4 – point 5</Article>

Text proposed by the Commission

Amendment

(5) ‘controller’ means the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes, conditions and means of the processing of personal data; where the purposes, conditions and means of processing are determined by Union law or Member State law, the controller or the specific criteria for his nomination may be designated by Union law or by Member State law;

(5) 'controller' means the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes of the processing of personal data; where the purposes of processing are determined by Union law or Member State law, the controller or the specific criteria for his nomination may be designated by Union law or by Member State law;

</Amend>

<Amend>Amendment<NumAm>81</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Article 4 – point 6</Article>

Text proposed by the Commission

Amendment

(6) ‘processor’ means a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller;

(6) ‘processor’ means a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller; is able to access personal data in a technically feasible way, without disproportionate effort, and is reasonably likely to gain knowledge of its content;

<TitreJust>Justification</TitreJust>This amendment is consistent with the amendment to Recital 24a (new).</Amend><Amend>Amendment<NumAm>82</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 4 – point 8</Article>

Text proposed by the Commission

Amendment

(8) 'the data subject's consent' means any freely given specific, informed and explicit indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative action, signifies agreement to personal data relating to them being processed;

(8) ‘the data subject's consent’ means any freely given specific, informed and unambiguous indication of his or her wishes by which the data subject signifies agreement to personal data relating to them being processed. Silence or inactivity does not in itself indicate consent;

</Amend><Amend>Amendment<NumAm>83</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 4 – point 9 a (new)</Article>

Text proposed by the Commission

Amendment

(9a) 'Special categories of personal data' means information which shows the racial or ethnic origin, political beliefs, religion or belief or membership of a trade union as well as genetic data, data concerning health or sex life and data relating to criminal convictions or related security measures;

<TitreJust>Justification</TitreJust>

The processing of "special categories of personal data" is already subject to specific requirements (see Article 9). This group of sensitive data should, for reasons of proportionality, also be taken into account when determining other obligations of the controller (see amendment to Article 31). The addition of this definition creates more legal certainty.</Amend><Amend>Amendment<NumAm>84</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 4 – point 10</Article>

Text proposed by the Commission

Amendment

(10) ‘genetic data’ means all data, of whatever type, concerning the characteristics of an individual which are inherited or acquired during early prenatal development;

(10) ‘genetic data’ means information on the hereditary characteristics, or alteration thereof, of an identified or identifiable person, obtained through nucleic acid analysis;

<TitreJust>Justification</TitreJust>The proposed definition should be in line with definitions used elsewhere, such as the definition of “human genetic data” used in the United Nations International Declaration on Human Genetic Data.</Amend><Amend>Amendment<NumAm>85</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 4 – point 12</Article>

Text proposed by the Commission

Amendment

(12) ‘data concerning health’ means any information which relates to the physical or mental health of an individual, or to the provision of health services to the individual;

(12) ‘data concerning health’ means personal data which relates to the physical or mental health of an individual, or to the provision of health services to the individual;

</Amend><Amend>Amendment<NumAm>86</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 4 – point 13</Article>

Text proposed by the Commission

Amendment

(13) ‘main establishment’ means as regards the controller, the place of its establishment in the Union where the

main decisions as to the purposes, conditions and means of the processing of personal data are taken; if no decisions as to the purposes, conditions and means of the processing of personal data are taken in the Union, the main establishment is the place where the main processing activities in the context of the activities of an establishment of a controller in the Union take place. As regards the processor, ‘main establishment’ means the place of its central administration in the Union;

(13) 'main establishment' means the location as determined by the data controller or data processor on the basis

of the following transparent and objective criteria: the location of the group's European headquarters, or, the location of the company within the group with delegated data protection responsibilities, or, the location of the company which is best placed (in terms of management function, administrative capability etc) to address and enforce the rules as set out in this Regulation, or, the place where the main decisions as to the purposes of processing are taken for the regional group;

<TitreJust>Justification</TitreJust>This amendment seeks to provide clarity reflecting the real situation of companies acting across a number of different jurisdictions. This should not be interpreted as a charter for "forum shopping", as the company must provide transparent, objective criteria to justify the location of its main establishment for the purposes of the regulation.</Amend><Amend>Amendment<NumAm>87</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 4 – point 13 a (new)</Article>

Text proposed by the Commission

Amendment

(13a) 'competent supervisory authority' means the supervisory authority which shall be solely competent for the supervision of a controller in accordance with Articles 51(2),(3) and (4);

</Amend><Amend>Amendment<NumAm>88</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 4 – point 14</Article>

Text proposed by the Commission

Amendment

(14) ‘representative’ means any natural or legal person established in the Union who, explicitly designated by the controller, acts and may be addressed by any supervisory authority and other bodies in the Union instead of the controller, with regard to the obligations of the controller under this Regulation;

(14) ‘representative’ means any natural or legal person established in the Union who, explicitly designated by the controller, acts and shall be addressed by the competent supervisory authority, with regard to the obligations of the controller under this Regulation;

</Amend>

<Amend>Amendment<NumAm>89</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Article 4 – point 19 a (new)</Article>

Text proposed by the Commission

Amendment

(19a) 'financial crime' means criminal offences in connection with organised crime, racketeering, terrorism, terrorist financing, trafficking in human beings, migrant smuggling, sexual exploitation, trafficking in narcotic drugs and psychotropic substances, illegal arms trafficking, trafficking in stolen goods, corruption, bribery, fraud, counterfeiting currency, counterfeiting and piracy of products, environmental offences, kidnapping, illegal restraint and hostage-taking, robbery, theft, smuggling, offences related to taxation, extortion, forgery, piracy, insider trading and market manipulation.

<TitreJust>Justification</TitreJust>It is necessary to add a definition of ‘financial crime’, derived from the recommendations of the Financial Action Task Force, as the processing of personal data will be allowed in order to prevent, investigate or detect financial crime.</Amend><Amend>Amendment<NumAm>90</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 5 – point b</Article>

Text proposed by the Commission

Amendment

(b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes;

(b) collected for specified, explicit and legitimate purposes and not further processed in a way irreconcilable with those purposes;

</Amend><Amend>Amendment<NumAm>91</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 5 – point c</Article>

Text proposed by the Commission

Amendment

(c) adequate, relevant, and limited to the minimum necessary in relation to the purposes for which they are processed; they shall only be processed if, and as long as, the purposes could not be fulfilled by processing information that does not involve personal data;

(c) adequate, relevant, and proportionate and not excessive in relation to the purposes for which they are processed; they shall only be processed if, and as long as, the purposes could not be fulfilled by processing information that does not involve personal data;

</Amend><Amend>Amendment<NumAm>92</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 5 – point d</Article>

Text proposed by the Commission

Amendment

(d) accurate and kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay;

(d) accurate and where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without undue delay;

</Amend><Amend>Amendment<NumAm>93</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 5 – point e</Article>

Text proposed by the Commission

Amendment

(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the data will be processed solely for historical, statistical or scientific research purposes in accordance with the rules and conditions of Article 83 and if a periodic review is carried out to assess the necessity to continue the storage;

(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the data will be processed solely for historical, statistical or scientific purposes in accordance with the rules and conditions of Article 83 and if a periodic review is carried out to assess the necessity to continue the storage;

</Amend><Amend>Amendment<NumAm>94</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 5 – point f</Article>

Text proposed by the Commission

Amendment

(f) processed under the responsibility and liability of the controller, who shall ensure and demonstrate for each processing

operation the compliance with the provisions of this Regulation.

(f) processed under the responsibility and liability of the controller, who shall ensure and, if required to do so, demonstrate

compliance of the controller's processing with the provisions of this Regulation to the supervisory authority having competence under Article 51(2).

</Amend><Amend>Amendment<NumAm>95</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 1 – point a</Article>

Text proposed by the Commission

Amendment

(a) the data subject has given consent to the processing of their personal data for one or more specific purposes;

(a) the data subject has given consent to the processing of their personal data;

</Amend><Amend>Amendment<NumAm>96</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 1 – point b</Article>

Text proposed by the Commission

Amendment

(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;

(b) processing is necessary for the performance of a contract or of collective agreements and company-level agreements, to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract.

<TitreJust>Justification</TitreJust>Collective agreements in Germany are equivalent to state law contracts and can thus also be the basis for legitimate data processing.</Amend><Amend>Amendment<NumAm>97</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 1 – point c</Article>

Text proposed by the Commission

Amendment

(c) processing is necessary for compliance with a legal obligation, regulatory rule, guidance, industry code of practice, either domestically or internationally to which the controller is subject including the requirements of supervisory authorities;

<TitreJust>Justification</TitreJust>

The provision should ensure that domestic financial regulation or codes of conduct are included.</Amend><Amend>Amendment<NumAm>98</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 1 – point d a (new)</Article>

Text proposed by the Commission

Amendment

(da) processing is necessary to ensure network and information security;

<TitreJust>Justification</TitreJust>This amendment incorporates into the text the safeguards established in Recital 39 by clarifying in a legally binding article that processing of data for network and information security purposes is considered lawful processing.</Amend><Amend>Amendment<NumAm>99</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 1 – point e</Article>

Text proposed by the Commission

Amendment

(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;

(e) processing is necessary for the performance of a task carried out in the exercise of official authority vested in the controller; or in the public interest,

</Amend><Amend>Amendment<NumAm>100</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 1 – point f</Article>

Text proposed by the Commission

Amendment

(f) processing is necessary for the purposes of the legitimate interests pursued by a controller, except where such interests are overridden by 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.

(f) processing is necessary for the purposes of the legitimate interests pursued by, or on behalf of a controller or a processor, or by a third party or parties in whose interest the data is processed, including for the security of processing, except where such interests are overridden by 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. The interest or fundamental rights and freedoms of the data subject shall not over-ride processing carried out by public authorities in the performance of their tasks or enterprises in the exercise of their legal obligations, and in order to safeguard against fraudulent behaviour.

</Amend><Amend>Amendment<NumAm>101</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 1 – point f a (new)</Article>

Text proposed by the Commission

Amendment

(fa) processing is limited to pseudonymised data, where the data subject is adequately protected and the recipient of the service is given a right to object pursuant to Article 19 (3a).

</Amend><Amend>Amendment<NumAm>102</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 1 – point f b (new)</Article>

Text proposed by the Commission

Amendment

(fb) the data are collected from public registers, lists or documents accessible by everyone;

</Amend><Amend>Amendment<NumAm>103</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 1 – point f c (new)</Article>

Text proposed by the Commission

Amendment

(fc) where the controller has entrusted personal data to a third party, the third party is jointly responsible for compliance with this Regulation;

</Amend><Amend>Amendment<NumAm>104</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 1 – point f d (new)</Article>

Text proposed by the Commission

Amendment

(fd) processing is strictly necessary for the proper response to detected network and/ or information security incidents, breaches or attacks;

</Amend><Amend>Amendment<NumAm>105</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 1 – point f e (new)</Article>

Text proposed by the Commission

Amendment

(fe) processing is necessary for the purpose of anonymisation or pseudonymisation of personal data;

</Amend><Amend>Amendment<NumAm>106</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 2</Article>

Text proposed by the Commission

Amendment

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.

2. Subsequent 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.

<TitreJust>Justification</TitreJust>It is important to specify and allow for subsequent processing (e.g. linkage, correction and addition of data concerning a data subject) since modern and innovative public health research will be build on multiple data sets and historical series.</Amend><Amend>Amendment<NumAm>107</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 2 a (new)</Article>

Text proposed by the Commission

Amendment

2a. Processing of pseudonymised data to safeguard the legitimate interests pursued by a controller shall be lawful, except where such interests are overridden by 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.

<TitreJust>Justification</TitreJust>The regulation does not yet currently recognise different categories of data and their different treatment.</Amend><Amend>Amendment<NumAm>108</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 3 – subparagraph 1 – point b a (new)</Article>

Text proposed by the Commission

Amendment

(ba) international conventions to which the Union or a Member State is a party.

<TitreJust>Justification</TitreJust>A public interest can also be expressed in international conventions, even in the absence of specific national or EU laws. Such conventions would still need to respect the essence of the right to the protection of personal data and be proportionate to the legitimate aim pursued. Moreover, any processing of personal data on this basis would obviously have to comply with all other aspects of the Regulation as well.</Amend><Amend>Amendment<NumAm>109</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 3 – subparagraph 2</Article>

Text proposed by the Commission

Amendment

The law of the Member State 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 to the protection of personal data and be proportionate to the legitimate aim pursued.

The law of the Member State must meet an objective of public interest or must be necessary to protect the rights and freedoms of others. The law of the Member State must also respect the essence of the right to the protection of personal data in this Regulation and in international treaties to which the Member State is party. Finally the Member State shall evaluate and decide if national legislation is proportionate to the legitimate aim pursued or if a legitimate aim could be achieved using less privacy

invasive solutions.

<TitreJust>Justification</TitreJust>Article 6, paragraph 1, indent e states that processing is lawful if the following applies: “processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller”. Seen in connection with the above mentioned paragraph 3 this leaves Member States a very wide room for eroding citizens’ protection of data mentioned in this regulation using national legislation. The harmonisation among Member States will come under pressure because national interests will result in many different examples of legislation. Citizens’ data will be processed differently in the different countries. This is not satisfying. Similar arguments can be found in relation to article 21.</Amend><Amend>Amendment<NumAm>110</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 4</Article>

Text proposed by the Commission

Amendment

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.

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 (f) of paragraph 1. This shall in particular apply to any change of terms and general conditions of a contract.

<TitreJust>Justification</TitreJust>It is important to also include legitimate interests, such as the sector-specific example of providing a more efficient energy supply chain through the provision of smart grids. Whereas a data subject's energy consumption may not have explicitly been collected for the purpose of providing a more efficient overall supply, if it is in the legitimate interest of the service provider to use this information to achieve this goal, flexibility should be provided to ensure this is possible.</Amend><Amend>Amendment<NumAm>111</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 6 – paragraph 5</Article>

Text proposed by the Commission

Amendment

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.

deleted

</Amend><Amend>Amendment<NumAm>112</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 7 – paragraph 1</Article>

Text proposed by the Commission

Amendment

1. The controller shall bear the burden of proof for the data subject's consent to the processing of their personal data for specified purposes.

deleted

<TitreJust>Justification</TitreJust>Superfluous as the burden of proof under normal procedural law applies currently.</Amend><Amend>Amendment<NumAm>113</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 7 – paragraph 1 a (new)</Article>

Text proposed by the Commission

Amendment

1a. The form of consent captured for the processing of a data subject's personal data shall be proportionate to the type of data processed and the purpose of the processing, as determined through a properly conducted data protection impact assessment as described in Article 33.

<TitreJust>Justification</TitreJust>This amendment ties the identification of proportionate consent to the results of impact assessments, which will encourage their use. Where no data protection impact assessment has been conducted, a default requirement of explicit consent would continue to apply.</Amend><Amend>Amendment<NumAm>114</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 7 – paragraph 1 b (new)</Article>

Text proposed by the Commission

Amendment

1b. Unless another form of consent is determined to be proportionate by such an impact assessment, consent shall be captured in a specific, informed and explicit statement or other clear affirmative action.

<TitreJust>Justification</TitreJust>This amendment ties the identification of proportionate consent to the results of impact assessments, which will encourage their use. Where no data protection impact assessment has been conducted, a default requirement of explicit consent would continue to apply.</Amend><Amend>Amendment<NumAm>115</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 7 – paragraph 2</Article>

Text proposed by the Commission

Amendment

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.

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 conspicuously in its appearance.

<TitreJust>Justification</TitreJust>Data subjects should be given clear and unambiguous conditions for offering their consent. If the intention is to ensure that consent language does not get lost amidst other technical jargon, perhaps the term “distinguishable” should not be used but the term “conspicuous” should be used instead. It should be highlighted, not distinguished.</Amend><Amend>Amendment<NumAm>116</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 7 – paragraph 3</Article>

Text proposed by the Commission

Amendment

3. The data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal.

3. The data subject shall have the right to withdraw his or her consent at any time. If the consent is part of a contractual or statutory relationship the withdrawal shall depend on the contractual or legal conditions. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal.

</Amend><Amend>Amendment<NumAm>117</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 7 – paragraph 4</Article>

Text proposed by the Commission

Amendment

4. Consent shall not provide a legal basis for the processing, where there is a significant imbalance between the position of the data subject and the controller.

4. Consent of an employee shall not provide a legal basis for the processing of data by the employer when the consent has not been given freely. The lawfulness of the processing shall be assessed in accordance with points (a) to (f) of Article 6(1) and with Article 6 (2) to (5). The individual consent according to point (a) of Article 6(1) can be replaced by collective agreements as legal basis, in particular by collective bargaining agreements or works council agreements.

</Amend><Amend>Amendment<NumAm>118</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 8 – paragraph 1 a (new)</Article>

Text proposed by the Commission

Amendment

1a. Where an information society service makes social networking facilities available to children it shall take explicit measures to protect their welfare, including by ensuring, in so far as possible, that they are aware of the identities of those with whom they are communicating.

</Amend><Amend>Amendment<NumAm>119</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 8 – paragraph 3</Article>

Text proposed by the Commission

Amendment

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.

deleted

</Amend>

<Amend>Amendment<NumAm>120</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Article 9 – paragraph 1</Article>

Text proposed by the Commission

Amendment

1. The processing of personal data, revealing race or ethnic origin, political opinions, religion or beliefs, trade-union membership, and the processing of genetic data or data concerning health or sex life or criminal convictions or related security measures shall be prohibited.

</Amend><Amend>Amendment<NumAm>121</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 9 – paragraph 2 – point b</Article>

Text proposed by the Commission

Amendment

(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 in so far as it is authorised by Union law or Member State law providing for adequate safeguards; or

(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 or collective agreements on the labour market in so far as it is authorised by Union law or Member State law providing for adequate safeguards for the fundamental rights and the interests of the data subject; or

</Amend><Amend>Amendment<NumAm>122</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 9 – paragraph 2 – point d</Article>

Text proposed by the Commission

Amendment

(d) processing is carried out in the course of its legitimate activities with appropriate safeguards by a foundation, association or any other non-profit-seeking body with a political, philosophical, religious or trade-union aim and on condition that the processing relates solely to the members or to former members of the body or to persons who have regular contact with it in connection with its purposes and that the data are not disclosed outside that body without the consent of the data subjects; or

(d) processing is carried out in the course of its legitimate activities with appropriate safeguards by a foundation, association, organizations on the labour market or any other non-profit-seeking body with a political, philosophical, religious or trade-union aim and on condition that the processing relates solely to the members or to former members of the body or to persons who have regular contact with it in connection with its purposes and that the data are not disclosed outside that body without the consent of the data subjects; or

<TitreJust>Justification</TitreJust>It is important that organisations on the labour market can continue to process and exchange personal information about their members.</Amend><Amend>Amendment<NumAm>123</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 9 – paragraph 2 – point g</Article>

Text proposed by the Commission

Amendment

(g) processing is necessary for the performance of a task carried out in the public interest, on the basis of Union law, or Member State law which shall provide for suitable measures to safeguard the data subject's legitimate interests; or

(g) processing and sharing is necessary for the performance of a task carried out in the public interest, on the basis of Union law, Member State law, international conventions to which the Union or a Member State is a party, which shall provide for suitable measures to safeguard the data subject's fundamental rights and legitimate interests; or

</Amend><Amend>Amendment<NumAm>124</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 9 – paragraph 2 – point h</Article>

Text proposed by the Commission

Amendment

(h) processing of data concerning health is necessary for health purposes and subject to the conditions and safeguards referred to in Article 81; or

(h) processing and sharing of data concerning health is necessary for health purposes, including for historical, statistical or scientific research and subject to the conditions and safeguards referred to in Article 81; or

<TitreJust>Justification</TitreJust>This clarification is necessary in order to safeguard the processing of medical data used for historical, statistical or scientific research purposes. Scientists heavily rely on patient registries and biobanks to conduct epidemiological, clinical and translational research, thus making it necessary to ensure the processing of personal data for health purposes.</Amend><Amend>Amendment<NumAm>125</NumAm>

<DocAmend>Proposal for a regulation</DocAmend>

<Article>Article 9 – paragraph 2 – point i</Article>

Text proposed by the Commission

Amendment

(i) processing is necessary for historical, statistical or scientific research purposes subject to the conditions and safeguards referred to in Article 83; or

(i) processing and sharing is necessary for historical, statistical or scientific research purposes subject to the conditions and safeguards referred to in Article 83; or

</Amend><Amend>Amendment<NumAm>126</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 9 – paragraph 2 – point j</Article>

Text proposed by the Commission

Amendment

(j) processing of data relating to criminal convictions or related security measures is carried out either under the control of official authority or when the processing is necessary for compliance with a legal or regulatory obligation to which a controller is subject, or for the performance of a task carried out for important public interest reasons, and in so far as authorised by Union law or Member State law providing for adequate safeguards. A complete register of criminal convictions shall be kept only under the control of official authority.

(j) processing of data relating to criminal convictions or related security measures is carried out either subject to the conditions and safeguards referred to in Article 83a or under the supervision of a supervisory authority or when the processing is necessary for compliance with or to avoid a breach of a legal or regulatory obligation or collective agreements on the labour market to which a controller is subject, or for the performance of a task carried out for important public interest reasons, and in so far as authorised by Union law or Member State law providing for adequate safeguards for the fundamental rights of the data subject. A complete register of criminal convictions shall be kept only under the control of official authority.

</Amend><Amend>Amendment<NumAm>127</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 9 – paragraph 2 – point j a (new)</Article>

Text proposed by the Commission

Amendment

(ja) processing of data concerning health is necessary for private social protection, especially by providing income security or tools to manage risks that are in the interests of the data subject and his or her dependants and assets, or by enhancing inter-generational equity by means of distribution.

</Amend><Amend>Amendment<NumAm>128</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 9 – paragraph 3</Article>

Text proposed by the Commission

Amendment

3. The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria, conditions and appropriate safeguards for the processing of the special categories of personal data referred to in paragraph 1 and the exemptions laid down in paragraph 2.

3. The European Data Protection Board shall be entrusted with the task of issuing the recommendations regarding criteria, conditions and appropriate safeguards for the protection of special categories of personal data in accordance with paragraph 2.

</Amend><Amend>Amendment<NumAm>129</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 10</Article>

Text proposed by the Commission

Amendment

If the data processed by a controller do not permit the controller to identify a natural person, the controller shall not be obliged to acquire additional information in order to identify the data subject for the sole purpose of complying with any provision of this Regulation.

If the data processed by a controller do not permit the controller, through means used by the controller to identify a data subject, in particular when rendered anonymous or pseudonymous, the controller shall not acquire additional information in order to identify the data subject for the sole purpose of complying with any provision of this Regulation.

The controller of research databases shall provide general information on the original data sources of the research database.

</Amend><Amend>Amendment<NumAm>130</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 11 – paragraph 1</Article>

Text proposed by the Commission

Amendment

1. The controller shall have transparent and easily accessible policies with regard to the processing of personal data and for the exercise of data subjects’ rights.

1. The controller shall have transparent policies with regard to the processing of personal data and for the exercise of data subjects’ rights and on request for this purpose shall provide to everybody the information set out in points (a) through (g) of Article 28(2) in an appropriate manner.

</Amend><Amend>Amendment<NumAm>131</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 11 a (new)</Article>

Text proposed by the Commission

Amendment

Article 11a

Article 12 of Directive 2002/58/EC and Articles 20 and 21(3)(e) of 2002/22/EC are an application of the data subjects' right to transparent information and communication which requires that the controller informs data subjects of their rights with respect to the use of their personal information and draws attention to the presence of systems which have been developed in accordance with the principles of privacy by design.

<TitreJust>Justification</TitreJust>Article 12 of the e-Privacy Directive and Articles 20 and 21 of the Universal Service Directive cover directory services, as part of the scope of universal services. The databases of directory service providers are required to be "comprehensive" and the inclusion of subscriber data is therefore important, as is the need for subscriber to be clearly informed of all their options, regardless of the model adopted by a Member State (opt-in, opt-out or hybrid).</Amend><Amend>Amendment<NumAm>132</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 12 – paragraph 1</Article>

Text proposed by the Commission

Amendment

1. The controller shall establish procedures for providing the information referred to in Article 14 and for the exercise of the rights of data subjects referred to in Article 13 and Articles 15 to 19. The controller shall provide in particular mechanisms for facilitating the request for the actions referred to in Article 13 and Articles 15 to 19. Where personal data are processed by automated means, the controller shall also provide means for requests to be made electronically.

1. The controller shall establish procedures for providing the information referred to in Article 14 and for the exercise of the rights of data subjects referred to in Article 13 and Articles 15 to 19. The controller shall provide in particular mechanisms for facilitating the request for the actions referred to in Article 13 and Articles 15 to 19. Where personal data are processed by automated means, the controller may also provide means for requests to be made electronically.

</Amend><Amend>Amendment<NumAm>133</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 12 – paragraph 2</Article>

Text proposed by the Commission

Amendment

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 given in writing. Where the data subject makes the request in electronic form, the information shall be provided in electronic form, unless otherwise requested by the data subject.

<TitreJust>Justification</TitreJust>An enormous amount of red tape could be involved, particularly for SMEs, if electronic arrangements had to be made to ensure that the procedure was conducted electronically.</Amend><Amend>Amendment<NumAm>134</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 12 – paragraph 4</Article>

Text proposed by the Commission

Amendment

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.

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 owing

to their high volume, complexity or their repetitive character, the controller may charge an appropriate, not for profit, fee for providing the information or taking the action requested, or the controller may decline to take the action requested. In that case, the controller shall bear the burden of proving the manifestly excessive character of the request.

<TitreJust>Justification</TitreJust>The provision of data held within a database has a cost. Requesting an appropriate, not for profit, contribution from data subjects for data access would help to limit frivolous requests and is critical in deterring fraudsters from obtaining high volumes of consumers’ credit data which could be used for fraudulent purposes.</Amend><Amend>Amendment<NumAm>135</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 12 – paragraph 5</Article>

Text proposed by the Commission

Amendment

5. The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and conditions for the manifestly excessive requests and the fees referred to in paragraph 4.

deleted

</Amend><Amend>Amendment<NumAm>136</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 12 – paragraph 6</Article>

Text proposed by the Commission

Amendment

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 in accordance with the examination procedure set out in Article 87(2).

6. The Commission shall lay down standard forms and specify 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 in accordance with the examination procedure set out in Article 87(2).

<TitreJust>Justification</TitreJust>

Standard forms and procedures need to be laid down in order to guarantee that this measure is properly implemented, in particular by micro, small and medium-sized enterprises.</Amend><Amend>Amendment<NumAm>137</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 14 – paragraph 1 – point b</Article>

Text proposed by the Commission

Amendment

(b) the purposes of the processing for which the 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 interests pursued by the controller where the processing is based on point (f) of Article 6(1);

(b) the purposes of the processing for which the personal data are intended, and the legitimate interests pursued by the controller where the processing is based on point (f) of Article 6(1);

<TitreJust>Justification</TitreJust>The requirement to communicate contract terms and general conditions is an issue adequately regulated under civil law. From a data protection perspective there is therefore only the need to provide information regarding the purposes or the legitimate interests of processing.</Amend><Amend>Amendment<NumAm>138</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 14 – paragraph 1 – point c</Article>

Text proposed by the Commission

Amendment

c) the expected period for which the personal data will be stored;

</Amend><Amend>Amendment<NumAm>139</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 14 – paragraph 1 – point e</Article>

Text proposed by the Commission

Amendment

(e) the right to lodge a complaint to the supervisory authority and the contact details of the supervisory authority;

(e) the right to lodge a complaint to the supervisory authority;

<TitreJust>Justification</TitreJust>A duty to specify the contact details of the supervisory authority associated with liability in respect of any misinformation would necessitate a continuous review of the relevant information, which would be disproportionate for small and medium-sized enterprises in particular.</Amend><Amend>Amendment<NumAm>140</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 14 – paragraph 1 – point g a (new)</Article>

Text proposed by the Commission

Amendment

(ga) information regarding specific security measures taken to protect personal data;

</Amend><Amend>Amendment<NumAm>141</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 14 – paragraph 1 – point h</Article>

Text proposed by the Commission

Amendment

(h) any further information necessary to guarantee fair processing in respect of the data subject, having regard to the specific circumstances in which the personal data are collected.

deleted

<TitreJust>Justification</TitreJust>The blanket clause-like extension of the already substantial information obligations is likely to result in considerable legal uncertainty. Neither the company concerned, nor the consumer can from this formulation assess with legal certainty what information in each individual case must be made available.</Amend><Amend>Amendment<NumAm>142</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 14 – paragraph 2</Article>

Text proposed by the Commission

Amendment

2. Where the personal data are collected from the data subject, the controller shall inform the data subject, in addition to the information referred to in paragraph 1, whether the provision of personal data is obligatory or voluntary, as well as the possible consequences of failure to provide such data.

<TitreJust>Justification</TitreJust>

The information needs of data subjects are adequately taken into account, if they are informed whether the data provision is obligatory. Where this is not indicated, the provision of the data is consequently optional. The consumer is already accustomed to this practice. There is no reason to change this effective and functioning system. Information about whether the provision of information is mandatory or optional and the possible consequences of the refusal of the data would unnecessarily expand the information requirements. It is also unnecessary in many cases because it is already obvious from the context. In the course of ordering a product it is for example necessary to specify a shipping address, so that the product can actually be delivered.</Amend><Amend>Amendment<NumAm>143</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 14 – paragraph 3</Article>

Text proposed by the Commission

Amendment

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 personal data originate.

3. Where the personal data are not collected from the data subject, the controller shall inform the data subject, as far as possible, in addition to the information referred to in paragraph 1, from which source the personal data originate, except where the data originate from a publicly available source or where the transfer is provided by law or the processing is used for purposes relating to the professional activities of the person concerned.

</Amend><Amend>Amendment<NumAm>144</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 14 – paragraph 4 – point b</Article>

Text proposed by the Commission

Amendment

(b) where the personal data are not collected from the data subject, at the time of the recording or within a reasonable period after the collection, having regard to the specific circumstances in which the data are collected or otherwise processed, or, if a disclosure to another recipient is envisaged, and at the latest when the data are first disclosed.

first communication to that person.

<TitreJust>Justification</TitreJust>The data subject’s right to informational self-determination is adequately taken into account if the relevant information is provided at this time.</Amend><Amend>Amendment<NumAm>145</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 14 – paragraph 5 – point b</Article>

Text proposed by the Commission

Amendment

(b) the data are not collected from the data subject and the provision of such information proves impossible or would involve a disproportionate effort; or

(b) the data are not collected from the data subject or the data processes do not allow the verification of identity and the provision of such information proves impossible or would involve a disproportionate effort such as by generating excessive administrative burden, especially when the processing is carried out by a SME; or

</Amend><Amend>Amendment<NumAm>146</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 14 – paragraph 5 – point d a (new)</Article>

Text proposed by the Commission

Amendment

(da) the data originates from publicly available sources

</Amend><Amend>Amendment<NumAm>147</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 14 – paragraph 7</Article>

Text proposed by the Commission

Amendment

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.

<TitreJust>Justification</TitreJust>The potential lack of transparency associated with delegated acts should be avoided by ensuring that they are drafted in close cooperation with the stakeholders affected.</Amend><Amend>Amendment<NumAm>148</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 15 – paragraph 1 – introductory part</Article>

Text proposed by the Commission

Amendment

1. The data subject shall have the right to obtain from the controller at any time, on request, confirmation as to whether or not personal data relating to the data subject are being processed. Where such personal data are being processed, the controller shall provide the following information:

1. The data subject shall have the right to obtain from the controller at any time, on request, in clear and plain language, confirmation as to whether or not personal data relating to the data subject are being processed. With the exception of data being used for historical, statistical or scientific research purposes, the controller shall provide the following information when personal data are being processed:

</Amend><Amend>Amendment<NumAm>149</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 15 – paragraph 1 – point d</Article>

Text proposed by the Commission

Amendment

(d) the period for which the personal data will be stored;

(d) the maximum period for which the personal data will be stored.

<TitreJust>Justification</TitreJust>The storage period varies considerably for all sorts of data and can often not be determined precisely from the outset. The maximum storage period for personal data should, however, be stated.</Amend>

<Amend>Amendment<NumAm>150</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Article 15 – paragraph 1 – point e</Article>

Text proposed by the Commission

Amendment

(e) the existence of the right to request from the controller rectification or erasure of personal data concerning the data subject or to object to the processing of such personal data;

(e) the existence of the right to request from the controller rectification in accordance with Article 16 or erasure of personal data concerning the data subject or to object to the processing of such personal data;

</Amend><Amend>Amendment<NumAm>151</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 15 – paragraph 1 – point f</Article>

Text proposed by the Commission

Amendment

(f) the right to lodge a complaint to the supervisory authority and the contact details of the supervisory authority;

(f) the right to lodge a complaint to the supervisory authority;

<TitreJust>Justification</TitreJust>A duty to specify the contact details of the supervisory authority associated with liability in respect of any misinformation would make a continuous review of the relevant information necessary, thus leading to disproportionate efforts especially for small and medium-sized enterprises.</Amend><Amend>Amendment<NumAm>152</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 15 – paragraph 1 – point h</Article>

Text proposed by the Commission

Amendment

(h) the significance and envisaged consequences of such processing, at least in the case of measures referred to in Article 20.

(h) the significance and envisaged consequences of such processing.

</Amend><Amend>Amendment<NumAm>153</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 15 – paragraph 2 a (new)</Article>

Text proposed by the Commission

Amendment

2a. The data subject shall have the right to obtain from the controller of the data source at any time, on request, confirmation as to whether or not personal data relating to the data subject are being processed to a research data base, in accordance with the Article 10.

<TitreJust>Justification</TitreJust>Data in research databases will most often be considered personal data according to a high threshold of the definition of data considered personal. For linked research databases it would involve a disproportionate effort for the controller of the linked data to back track data on individual data subjects, since information on the single data subject may be build on data from different data sources, and data may not directly identifiable when the Key ID is kept with the controller of the original data source. Article 10 solves the paradox that in order to notify data subjects on data about him or her in the database, the controller should do what he is not allowed to, namely to identify that data subject.</Amend><Amend>Amendment<NumAm>154</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 15 – paragraph 3</Article>

Text proposed by the Commission

Amendment

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 communication to the data subject of the content of the personal data referred to in point (g) of paragraph 1.

deleted

</Amend><Amend>Amendment<NumAm>155</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 16</Article>

Text proposed by the Commission

Amendment

The data subject shall have the right to obtain from the controller the rectification of personal data relating to them which are inaccurate. The data subject shall have the right to obtain completion of incomplete personal data, including by way of supplementing a corrective statement.

The data subject has the right to obtain from the controller the rectification of personal data relating to them which are inaccurate. The data subject has the right to obtain completion of incomplete personal data, including by way of supplementing a corrective statement.

</Amend><Amend>Amendment<NumAm>156</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 17 – title</Article>

Text proposed by the Commission

Amendment

Right to be forgotten and to erasure

Right to erasure

</Amend><Amend>Amendment<NumAm>157</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 17 – paragraph 1 – introductory part</Article>

Text proposed by the Commission

Amendment

1. The data subject shall have the right to obtain from the controller the erasure of personal data relating to them and the abstention from further dissemination of such data, especially in relation to personal data which are made available by the data subject while he or she was a child, where one of the following grounds applies:

1. The data subject has the right to obtain from the controller the erasure of personal data relating to them and the abstention from further processing of such data, unless the data controller is a public authority or an entity commissioned by a public authority or otherwise acting on the behalf of the public authority, including in relation to personal data which are made available by the data subject while he or she was a child, where one of the following grounds applies:

</Amend><Amend>Amendment<NumAm>158</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 17 – paragraph 1 – point a</Article>

Text proposed by the Commission

Amendment

(a) the data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;

(a) the data are no longer necessary in relation to the purposes for which they were collected or further processed and the legally mandatory minimum retention period has expired;

</Amend><Amend>Amendment<NumAm>159</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 17 – paragraph 1 – point b</Article>

Text proposed by the Commission

Amendment

(b) the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or when the storage period consented to has expired, and where there is no other legal ground for the processing of the data;

(b) the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or when the retention period consented to has expired, and where there is no other legal ground for the processing or storage of the data;

</Amend><Amend>Amendment<NumAm>160</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 17 – paragraph 1 a (new)</Article>

Text proposed by the Commission

Amendment

1a. The controller shall take all reasonable steps to communicate any erasure to each legal entity to whom the data have been disclosed.

</Amend><Amend>Amendment<NumAm>161</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 17 – paragraph 1 b (new)</Article>

Text proposed by the Commission

Amendment

1b. Paragraph 1 shall only apply where the data controller is able to confirm the identity of the data subject making the erasure request.

</Amend><Amend>Amendment<NumAm>162</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 17 – paragraph 2</Article>

Text proposed by the Commission

Amendment

2. Where the controller referred to in paragraph 1 has made the personal data public, 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.

deleted

<TitreJust>Justification</TitreJust>Given the nature of the internet and the possibilities to post information on various sites globally this provision is unworkable.</Amend><Amend>Amendment<NumAm>163</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 17 – paragraph 3 – introductory part</Article>

Text proposed by the Commission

Amendment

3. The controller shall carry out the erasure without delay, except to the extent that the retention of the personal data is necessary:

3. The controller shall carry out the erasure without undue delay, except to the extent that the retention and dissemination of the personal data is necessary:

</Amend><Amend>Amendment<NumAm>164</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 17 – paragraph 3 – point b</Article>

Text proposed by the Commission

Amendment

(b) for reasons of public interest in the area of public health in accordance with Article 81;

(b) for reasons of public interest in the area of public health and health purposes in accordance with Article 81;

</Amend><Amend>Amendment<NumAm>165</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 17 – paragraph 3 – point d</Article>

Text proposed by the Commission

Amendment

(d) for compliance with a legal obligation to retain the personal data by Union or Member State law to which the controller is subject; Member State laws shall meet an objective of public interest, respect the essence of the right to the protection of personal data and be proportionate to the legitimate aim pursued;

(d) for compliance with a legal obligation to retain the personal data by Union or Member State law to which the controller is subject;

<TitreJust>Justification</TitreJust>

There may be laws of other member states that require a controller to refuse the right to be forgotten. Data may need to be held for accounting reasons under financial reporting rules for example.</Amend><Amend>Amendment<NumAm>166</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 17 – paragraph 3 – point e a (new)</Article>

Text proposed by the Commission

Amendment

(ea) for prevention or detection of fraud, confirming identity, and/or determining creditworthiness, or ability to pay.

</Amend><Amend>Amendment<NumAm>167</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 17 – paragraph 4 – point d a (new)</Article>

Text proposed by the Commission

Amendment

(da) the controller has to store the personal data in order to ensure that based on an objection pursuant to Article 19, further processing of the respective data is excluded.

<TitreJust>Justification</TitreJust>An objection to the processing of personal data pursuant to Article 19 regularly excludes the processing of the respective data for the future. To ensure that the respective data is not actually used for future data processing measures, it must not be deleted but blocked or otherwise marked.</Amend><Amend>Amendment<NumAm>168</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 17 – paragraph 6 a (new)</Article>

Text proposed by the Commission

Amendment

6a. Requests for the rectification, erasure or blocking of personal data shall not prejudice processing that is necessary to secure, protect and maintain the resiliency of one or more information systems. In addition, the right of rectification and/or erasure of personal data shall not apply to any personal data that is required to be maintained by legal obligation or to protect the rights of the controller, processor or third parties.

<TitreJust>Justification</TitreJust>There are circumstances where the right of the data subject to rectify or erase personal data should not apply – for example, in compliance with EU Member States laws and other jurisdictions requiring maintenance of certain types of personal data for national security reasons or for investigations of potential wrongdoing.</Amend><Amend>Amendment<NumAm>169</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 17 – paragraph 9</Article>

Text proposed by the Commission

Amendment

9. The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying:

deleted

(a) the criteria and requirements for the application of paragraph 1 for specific sectors and in specific data processing situations;

(b) the conditions for deleting links, copies or replications of personal data from publicly available communication services as referred to in paragraph 2;

</Amend><Amend>Amendment<NumAm>170</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 18 – paragraph 1</Article>

Text proposed by the Commission

Amendment

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, where personal data are processed by electronic means and in a structured and commonly used format, to obtain, on request, from the controller, where technically feasible a copy of data undergoing processing in an electronic, interoperable and structured format which is commonly used and allows for further use by the data subject.

</Amend><Amend>Amendment<NumAm>171</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 18 – paragraph 2</Article>

Text proposed by the Commission

Amendment

2. Where the data subject has provided the personal data and the processing is based on consent or on a contract, the data subject shall have the right to transmit those personal data and any other information provided by the data subject and retained by an automated processing system, into another one, in an electronic format which is commonly used, without hindrance from the controller from whom the personal data are withdrawn.

2. Where the data subject has provided the personal data and the processing is based on consent or on a contract, the data subject shall have the right to transmit those personal data and any other information provided by the data subject, where technically feasible and retained by an automated processing system.

</Amend><Amend>Amendment<NumAm>172</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 18 – paragraph 2 a (new)</Article>

Text proposed by the Commission

Amendment

2a. The rights referred to in paragraphs 1 and 2 shall not adversely affect the rights and freedoms of others, including trade secrets or intellectual property rights. The result of such considerations shall not be that all information is refused to the data subject.

<TitreJust>Justification</TitreJust>Use of language from Recital 51 in relation to access to data. Due regard must be given to the limits to data portability, especially in relation to the legitimate interests of businesses to protect trade secrets and intellectual property rights, within reason.</Amend><Amend>Amendment<NumAm>173</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 18 – paragraph 2 b (new)</Article>

Text proposed by the Commission

Amendment

2b. The rights referred to in paragraphs 1 and 2 shall be without prejudice to the obligation to delete data when they are no longer necessary under Article 5(e).

</Amend><Amend>Amendment<NumAm>174</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 18 – paragraph 2 c (new)</Article>

Text proposed by the Commission

Amendment

2c. Paragraphs 1 and 2 shall not apply to the processing of anonymised and pseudonymised data, insofar as the data subject is not sufficiently identifiable on the basis of such data, or identification would require the controller to undo the process of pseudonymisation.

</Amend><Amend>Amendment<NumAm>175</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 18 – paragraph 2 d (new)</Article>

Text proposed by the Commission

Amendment

2d. Paragraphs 1 and 2 shall not apply where a controller can reasonably demonstrate that it is not possible to separate the data subject's data from data of other data subjects.

</Amend><Amend>Amendment<NumAm>176</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 18 – paragraph 3</Article>

Text proposed by the Commission

Amendment

3. The Commission may specify the electronic format referred to in paragraph 1 and the technical standards, modalities and procedures for the transmission of personal data pursuant to paragraph 2. Those implementing acts shall be adopted in accordance with the examination

procedure referred to in Article 87(2).

3. The electronic format, related functionalities and procedures for the transmission of personal data pursuant to paragraph 2, shall be determined by the controller by reference to the most appropriate industry standards available or as defined by industry stakeholders or

standardisation bodies. The Commission shall promote and assist industry, stakeholders and standardisation bodies in the mapping and adoption of technical standards, modalities and procedures for the transmission of personal data pursuant to paragraph 2.

</Amend><Amend>Amendment<NumAm>177</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 18 a (new)</Article>

Text proposed by the Commission

Amendment

Article 18a

Controllers shall ensure that sufficient documentation for a data subject's identity has been received, when the data subject enforces the rights referred to in Articles 14 to 19 of this Regulation.

<TitreJust>Justification</TitreJust>Citizens have to document their identities to enforce the rights in order to make sure that no form of identity theft can occur.</Amend><Amend>Amendment<NumAm>178</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 19 – paragraph 1</Article>

Text proposed by the Commission

Amendment

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.

1. The data subject shall have the right to object in the cases of points (d), (e) and (f) of Article 6(1) on predominant, and protection-worthy grounds relating to their particular situation, at any time to the processing of their personal data. In the case of a justified objection the processing by the controller may no longer refer to this data

<TitreJust>Justification</TitreJust>The changes reflect the effective and proven provision on objection of Article 14a) of Directive 95/46/EC. There is no reason to change the current system. There are no known practical problems in this area, which would justify a legislative change. This applies even more so as the Regulation will now apply directly and thus without the flexibility of the Directive.</Amend><Amend>Amendment<NumAm>179</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 19 – paragraph 2</Article>

Text proposed by the Commission

Amendment

2. Where personal data are processed for direct marketing purposes, the data subject shall have the right to object free of charge to the processing of their personal data for such marketing. This right shall be explicitly offered to the data subject in an intelligible manner and shall be clearly distinguishable from other information.

2. Where personal data are processed for direct marketing purposes or where processing is based on point (f) of Article 6(1), the data subject shall have the right to object free of charge to the processing of their personal data for such marketing. This right shall be explicitly offered to the data subject in an intelligible manner, using clear and plain language, adapted to the data subject, in particular for any information addressed specifically to a child, and shall be clearly distinguishable from other information.

</Amend><Amend>Amendment<NumAm>180</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 19 – paragraph 3 a (new)</Article>

Text proposed by the Commission

Amendment

3a. Where pseudonymous data are processed based on point (g) of Article 6(1), the data subject shall have the right to object free of charge to the processing. This right shall be explicitly offered to the data subject in an intelligible manner and shall be clearly distinguishable from other information.

</Amend><Amend>Amendment<NumAm>181</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 20 – paragraph 1</Article>

Text proposed by the Commission

Amendment

1. Every natural person shall have the right not to be subject to a measure which produces legal effects concerning this natural person or significantly affects this natural person, and which is based solely 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.

1. A data subject shall have the right not to be subject to a measure which adversely

affects this data subject, both offline and online which is based solely on automated processing of data intended to evaluate certain personal aspects relating to a data subject or to analyse or predict in particular the data subject's performance at work, economic situation, location, health, personal preferences, reliability or behaviour.

</Amend><Amend>Amendment<NumAm>182</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 20 – paragraph 1 a (new)</Article>

Text proposed by the Commission

Amendment

1a. For the purposes of advertising, market research or tailoring telemedia, user profiles may be created using pseudonymised data, provided that the person concerned does not object. The person concerned must be informed of his/her right to object. User profiles may not be combined with data about the bearer of the pseudonym.

<TitreJust>Justification</TitreJust>The original wording of Article 20 could lead to companies having to obtain consent for any form of processing personal data. In order, however, not to destroy the business models of countless small and medium-sized European companies in particular, and thus give priority to large US firms, certain forms of data processing should be allowed with due respect to the protection of personal data.</Amend><Amend>Amendment<NumAm>183</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 20 – paragraph 1 b (new)</Article>

Text proposed by the Commission

Amendment

1b. Data controllers shall notify the data subject where processing as referred to in paragraph 1 takes place and give the individual the right to have any such decision reviewed.

<TitreJust>Justification</TitreJust>

Profiling for the purposes of credit scoring should be clearly distinguished from other purposes, not least in that this profiling is clearly notified to the individual in advance.</Amend><Amend>Amendment<NumAm>184</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 20 – paragraph 2 – point a a (new)</Article>

Text proposed by the Commission

Amendment

(aa) is based on pseudonymous data;

</Amend><Amend>Amendment<NumAm>185</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 20 – paragraph 2 – point a b (new)</Article>

Text proposed by the Commission

Amendment

(ab) is based on the legitimate interests pursued by the data controller;

</Amend><Amend>Amendment<NumAm>186</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 20 – paragraph 2 – point a</Article>

Text proposed by the Commission

Amendment

(a) is carried out in the course of the entering into, or performance of, a contract, where the request for the entering into or the performance of the contract, lodged by the data subject, has been satisfied or where suitable measures to safeguard the data subject's legitimate interests have been adduced, such as the right to obtain human intervention; or

deleted

</Amend><Amend>Amendment<NumAm>187</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 20 – paragraph 2 – point b</Article>

Text proposed by the Commission

Amendment

(b) is expressly authorized by a Union or Member State law which also lays down suitable measures to safeguard the data subject's legitimate interests; or

deleted

</Amend><Amend>Amendment<NumAm>188</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 20 – paragraph 2 – point c</Article>

Text proposed by the Commission

Amendment

deleted

</Amend><Amend>Amendment<NumAm>189</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 20 – paragraph 2 – point c a (new)</Article>

Text proposed by the Commission

Amendment

(ca) is necessary to protect the vital interests of the data subject or in the public interest as provided by points (d) and (e) of Article 5;

</Amend><Amend>Amendment<NumAm>190</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 20 – paragraph 2 – point c b (new)</Article>

Text proposed by the Commission

Amendment

(cb) is limited to pseudonymised data. Such pseudonymised data must not be collated with data on the bearer of the pseudonym. Article 19 (3a) shall apply correspondingly;

<TitreJust>Justification</TitreJust>In line with Article 15, paragraph 3 of the German Telemedia Act which encourages the pseudonymisation of data and provides a clear legislative framework for profiling in the areas of, inter alia, advertising and market research.</Amend><Amend>Amendment<NumAm>191</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 20 – paragraph 2 – point c c (new)</Article>

Text proposed by the Commission

Amendment

(cc) is necessary to protect the rights available to other data subjects, for example for the purposes of detecting fraud, or for the purposes of detecting irregularities or other illegal activity according to Union law or Member State law;

</Amend><Amend>Amendment<NumAm>192</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 20 – paragraph 2 – point c d (new)</Article>

Text proposed by the Commission

Amendment

(cd) concerns data which have been made anonymous.

<TitreJust>Justification</TitreJust>Data that are rendered permanently anonymous as per the definition in Article 4, paragraph 1, point 2 b (new).</Amend><Amend>Amendment<NumAm>193</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 20 – paragraph 3</Article>

Text proposed by the Commission

Amendment

3. Automated processing of personal data intended to evaluate certain personal aspects relating to a natural person shall not be based solely on the special categories of personal data referred to in Article 9.

deleted

</Amend><Amend>Amendment<NumAm>194</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 20 – paragraph 3 a (new)</Article>

Text proposed by the Commission

Amendment

3a. Automated processing of personal data intended to evaluate certain personal aspects relating to a natural person shall not be used to identify or individualise children.

</Amend><Amend>Amendment<NumAm>195</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 20 – paragraph 4</Article>

Text proposed by the Commission

Amendment

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 and the envisaged effects of such processing on the data subject.

deleted

</Amend><Amend>Amendment<NumAm>196</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 20 – paragraph 5</Article>

Text proposed by the Commission

Amendment

5. The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and conditions for suitable measures to safeguard the data subject's legitimate interests referred to in paragraph 2.

deleted

</Amend><Amend>Amendment<NumAm>197</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 21 – paragraph 1 a (new)</Article>

Text proposed by the Commission

Amendment

1a. Parties on the labour market 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 have been agreed by national collective agreements to constitute a necessary and proportionate measure.

<TitreJust>Justification</TitreJust>The labour market is regulated very differently in the different Member States. Some Member States have a tradition with legislation and other Member States have a high degree of regulation that stems from collective agreements on the labour market.</Amend><Amend>Amendment<NumAm>198</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 22 – paragraph 1</Article>

Text proposed by the Commission

Amendment

1. The controller shall adopt policies and implement appropriate measures to ensure and be able to demonstrate that the processing of personal data is performed in compliance with this Regulation.

1. Having regard to the state of the art, the nature of personal data processing and the type of the organisation, both at the time of the determination of the means for processing and at the time of the processing itself, appropriate and demonstrable technical and organisational measures shall be implemented in such a way that the processing will meet the requirements of this Regulation and ensures the protection of the rights of the data subject by design.

<TitreJust>Justification</TitreJust>The Regulation should provide enough flexibility to allow different organizations to implement the most effective technical and organizational measures, fit for the nature and structure of each respective organization.</Amend><Amend>Amendment<NumAm>199</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 22 – paragraph 1 a (new)</Article>

Text proposed by the Commission

Amendment

1a. Upon request by the competent data protection authority, the controller or processor shall demonstrate the existence of technical and organisational measures.

</Amend><Amend>Amendment<NumAm>200</NumAm>

<DocAmend>Proposal for a regulation</DocAmend>

<Article>Article 22 – paragraph 1 b (new)</Article>

Text proposed by the Commission

Amendment

1b. A group of undertakings may apply joint technical and organisational measures to meet its obligations arising from this Regulation.

</Amend><Amend>Amendment<NumAm>201</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 22 – paragraph 1 c (new)</Article>

Text proposed by the Commission

Amendment

1c. This article shall not apply to a natural person processing personal data without commercial interest.

</Amend><Amend>Amendment<NumAm>202</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 22 – paragraph 2 – introductory part</Article>

Text proposed by the Commission

Amendment

2. The measures provided for in paragraph 1 shall in particular include:

2. Such measures include, without limitation:

</Amend><Amend>Amendment<NumAm>203</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 22 – paragraph 2 – point a</Article>

Text proposed by the Commission

Amendment

(a) keeping the documentation pursuant to Article 28;

(a) independent management oversight of processing of personal data to ensure the existence and effectiveness of the technical and organisational measures;

</Amend><Amend>Amendment<NumAm>204</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 22 – paragraph 2 – point a a (new)</Article>

Text proposed by the Commission

Amendment

(aa) implementing a control management system, including the assignment of responsibilities, training of staff and adequate instructions;

</Amend><Amend>Amendment<NumAm>205</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 22 – paragraph 2 – point b</Article>

Text proposed by the Commission

Amendment

(b) implementing the data security requirements laid down in Article 30;

(b) existence of proper policies, instructions or other guidelines to guide data processing needed to comply with the Regulation as well as procedures and enforcement to make such guidelines effective;

</Amend><Amend>Amendment<NumAm>206</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 22 – paragraph 2 – point c</Article>

Text proposed by the Commission

Amendment

(c) existence of proper planning procedures to ensure compliance and to address potentially risky processing of personal data prior to the commencement of the processing;

</Amend><Amend>Amendment<NumAm>207</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 22 – paragraph 2 – point d</Article>

Text proposed by the Commission

Amendment

(d) complying with the requirements for prior authorisation or prior consultation of the supervisory authority pursuant to Article 34(1) and (2);

(d) existence of appropriate documentation of data processing to enable compliance with the obligations arising from this Regulation;

</Amend>

<Amend>Amendment<NumAm>208</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Article 22 – paragraph 2 – point e a (new)</Article>

Text proposed by the Commission

Amendment

(ea) clear and accessible data governance policies that are proportionate to the amount and type of personal data processed by the controller and the risk of harm to data protection involved in the processing of the data;

<TitreJust>Justification</TitreJust>The additional sections are intended to provide the basis for a true, enforceable accountability mechanism that can be flexible enough to accommodate both large enterprises and smaller organizations. Such a concept is in line with best practices already in place in other compliance regimes, such as anti-bribery provisions.</Amend><Amend>Amendment<NumAm>209</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 22 – paragraph 2 – point e b (new)</Article>

Text proposed by the Commission

Amendment

(eb) existence of proper awareness and training of the staff participating in data processing and decisions thereto of the obligations arising from this Regulation;

</Amend><Amend>Amendment<NumAm>210</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 22 – paragraph 2 – point e c (new)</Article>

Text proposed by the Commission

Amendment

(ec) establishing and documenting the measures referred to in Article 11;

</Amend><Amend>Amendment<NumAm>211</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 22 – paragraph 2 – point e d (new)</Article>

Text proposed by the Commission

Amendment

(ed) evidence of top-level management commitment to implementing the data governance policies throughout the enterprise so as to ensure compliance with this Regulation.

<TitreJust>Justification</TitreJust>The additional sections are intended to provide the basis for a true, enforceable accountability mechanism that can be flexible enough to accommodate both large enterprises and smaller organizations. Such a concept is in line with best practices already in place in other compliance regimes, such as anti-bribery provisions.</Amend><Amend>Amendment<NumAm>212</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 22 – paragraph 3 a (new)</Article>

Text proposed by the Commission

Amendment

3a. Any regular report of the activities of the controller shall contain a description of the policies and measures referred to in paragraph 1.

</Amend><Amend>Amendment<NumAm>213</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 22 – paragraph 4</Article>

Text proposed by the Commission

Amendment

4. The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of specifying any further criteria and requirements for appropriate measures referred to in paragraph 1 other than those already referred to in paragraph 2, the conditions for the verification and auditing mechanisms referred to in paragraph 3 and as regards the criteria for proportionality under paragraph 3, and considering specific measures for micro, small and medium-sized-enterprises.

deleted

</Amend>

<Amend>Amendment<NumAm>214</NumAm>

<DocAmend>Proposal for a regulation</DocAmend><Article>Article 23 – title</Article>

Text proposed by the Commission

Amendment

Data protection by design and by default

Data protection by design

</Amend><Amend>Amendment<NumAm>215</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 23 – paragraph 1</Article>

Text proposed by the Commission

Amendment

1. Having regard to the state of the art and the cost of implementation, the controller shall, both at the time of the determination of the means for processing and at the time of the processing itself, implement appropriate technical and organisational measures and procedures in such a way that the processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject.

1. Having regard to the state of the art, the cost of implementation and international best practice, the controller shall, both at the time of the determination of the means for processing and at the time of the processing itself, implement appropriate measures and procedures in such a way that the processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject.

Notwithstanding the first subparagraph, the controller shall only be burdened with measures that are proportionate to the risk of data processing reflected by the nature of the personal data to be processed.

</Amend><Amend>Amendment<NumAm>216</NumAm><DocAmend>Proposal for a regulation</DocAmend><Article>Article 23 – paragraph 2</Article>

Text proposed by the Commission

Amendment

2. The controller shall implement mechanisms for ensuring that, by default, only those personal data are processed which are necessary for each specific purpose of the processing and are especially not collected or retained beyond the minimum necessary for those purposes, both in terms of the amount of the data and the time of their storage. In

particular, those mechanisms shall ensure that by default personal data are not made accessible to an indefinite number of individuals.

2. The measures and procedures referred to in paragraph 1 shall:

(a) take due account of existing technical standards and regulations in the area of public safety and security;

(b) follow the principle of technology, service and business model neutrality;

(d) take due account of international developments.

</Amend><Amend>Amendment