Towards a New EU Legal Framework
for Personal Data Processing?
The European Commission’s Draft
Data Protection Regulation
If you process personal data
- Only for explicit and
- Remain proportional to this
- Declare the purpose to the
- Implement state-of-the-art
- Follow strict rules for export
of personal data
- Inform the data subject and
give him/her right of access
EC Directive 95/46
1990 - 2000 : the Internet
do we have to apply
all these rules to
On 25 January 2012 the European Commission has
officially released a proposal for a comprehensive reform of the
1995 data protection rules on personal data processing.
1. One single European law
If adopted, the proposed Regulation will be valid across the EU.
As a consequence, companies established in more than one EU country
will no longer experience difficulties to cope with the divergent rules of
the EU Member States.
2. Every company supervised by one
data protection commissioner
Personal data processing by companies established in more than
one EU country will be monitored by one single supervisory
In principle this will be the data protection commission of the
country where the company has its main establishment.
3. Also applicable to companies
outside the EU
Theoretically the proposed Regulation claims to be applicable on
the processing of personal data of data subjects residing in the EU
by a controller not established in the EU,
… where the processing activities are related to the offering of
goods or services to such data subjects, or to the monitoring of
the behaviour of such data subjects.
4. Basic rules remain but would be
The supervisory authorities will be empowered to fine
companies that violate EU data protection rules.
This can lead to penalties of up to €1 million or up to 2% of the
global annual turnover of a company.
Moreover responsibility and liability of the controller for any
processing of personal data is more clearly established.
5. Abolition of the general obligation
The general notification obligation would be abolished, and
replaced by procedures and mechanisms which focus instead on
those processing operations which are likely to present specific
6. Data protection officers
The controller and the processor would in the future be requested
to designate a data protection officer in any case where:
(a) the processing is carried out by a public authority or body; or
b) the processing is carried out by an enterprise employing 250
persons or more; or
(c) the core activities of the controller or the processor consist of
processing operations which, by virtue of their nature, their scope
and/or their purposes, require regular and systematic monitoring of
7. Consent: always explicit
Tacit consent will no longer be sufficient as a legal ground for
personal data processing.
Moreover consent can no longer be integrated into terms and
conditions but must be presented distinguishable in its appearance
from this other matter.
8. Right to be forgotten?
The right to erasure would be extended in such a way that a
controller who has made the personal data public would be
obliged to inform third parties which are processing such data
that a data subject requests them to erase any links to, or
copies or replications of that personal data.
9. “Data portability”
The data subject would be allowed to transmit those data, which
they have provided, from one automated application, such as a
social network, into another one.
This should apply where the data subject provided the data to the
automated processing system, based on their consent or in the
performance of a contract.
10. Security breach notification
As soon as a controller becomes aware that a personal data breach
has occurred, he would be obliged to notify this breach to the
supervisory authority without undue delay and, where
feasible, within 24 hours.
The individuals whose personal data could be adversely affected
by the breach would also have to be notified without undue delay
in order to allow them to take the necessary precautions.