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Protection of personal data

Directive 95/46/EC is the reference text, at European level, on the protection of personal data. It sets up a regulatory framework which seeks to strike a balance between a high level of protection for the privacy of individuals and the free movement of personal data within the European Union (EU). To do so, the Directive sets strict limits on the collection and use of personal data and demands that each Member State set up an independent national body responsible for the protection of these data.

ACT

European Parliament and Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [Official Journal L 281 of 23.11.1995] [See amending acts].

SUMMARY

This Directive applies to data processed by automated means (e.g. a computer database of customers) and data contained in or intended to be part of non automated filing systems (traditional paper files).

It does not apply to the processing of data:

  • by a natural person in the course of purely personal or household activities;
  • in the course of an activity which falls outside the scope of Community law, such as operations concerning public security, defence or State security.

The Directive aims to protect the rights and freedoms of persons with respect to the processing of personal data by laying down guidelines determining when this processing is lawful. The guidelines relate to:

  • the quality of the data: personal data must be processed fairly and lawfully, and collected for specified, explicit and legitimate purposes. They must also be accurate and, where necessary, kept up to date;
  • the legitimacy of data processing: personal data may be processed only if the data subject has unambiguously given his/her consent or processing is necessary:
    1. for the performance of a contract to which the data subject is party or;
    2. for compliance with a legal obligation to which the controller is subject or;
    3. in order to protect the vital interests of the data subject or;
    4. for the performance of a task carried out in the public interest or;
    5. for the purposes of the legitimate interests pursued by the controller;
  • special categories of processing: it is forbidden to process personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life. This provision comes with certain qualifications concerning, for example, cases where processing is necessary to protect the vital interests of the data subject or for the purposes of preventive medicine and medical diagnosis;
  • information to be given to the data subject: the controller must provide the data subject from whom data are collected with certain information relating to himself/herself (the identity of the controller, the purposes of the processing, recipients of the data etc.);
  • the data subject's right of access to data: every data subject should have the right to obtain from the controller:
    1. confirmation as to whether or not data relating to him/her are being processed and communication of the data undergoing processing;
    2. the rectification, erasure or blocking of data the processing of which does not comply with the provisions of this Directive in particular, either because of the incomplete or inaccurate nature of the data, and the notification of these changes to third parties to whom the data have been disclosed.
  • exemptions and restrictions: the scope of the principles relating to the quality of the data, information to be given to the data subject, right of access and the publicising of processing may be restricted in order to safeguard aspects such as national security, defence, public security, the prosecution of criminal offences, an important economic or financial interest of a Member State or of the European Union or the protection of the data subject;
  • the right to object to the processing of data: the data subject should have the right to object, on legitimate grounds, to the processing of data relating to him/her. He/she should also have the right to object, on request and free of charge, to the processing of personal data that the controller anticipates being processed for the purposes of direct marketing. He/she should finally be informed before personal data are disclosed to third parties for the purposes of direct marketing, and be expressly offered the right to object to such disclosures;
  • the confidentiality and security of processing: any person acting under the authority of the controller or of the processor, including the processor himself, who has access to personal data must not process them except on instructions from the controller. In addition, the controller must implement appropriate measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access;
  • the notification of processing to a supervisory authority: the controller must notify the national supervisory authority before carrying out any processing operation. Prior checks to determine specific risks to the rights and freedoms of data subjects are to be carried out by the supervisory authority following receipt of the notification. Measures are to be taken to ensure that processing operations are publicised and the supervisory authorities must keep a register of the processing operations notified.

Every person shall have the right to a judicial remedy for any breach of the rights guaranteed him by the national law applicable to the processing in question. In addition, any person who has suffered damage as a result of the unlawful processing of their personal data is entitled to receive compensation for the damage suffered.

Transfers of personal data from a Member State to a third country with an adequate level of protection are authorised. However, they may not be made to a third country which does not ensure this level of protection, except in the cases of the derogations listed.

The Directive aims to encourage the drawing up of national and Community codes of conduct intended to contribute to the proper implementation of the national and Community provisions.

Each Member State is to provide one or more independent public authorities responsible for monitoring the application within its territory of the provisions adopted by the Member States pursuant to the Directive.

A Working Party on the Protection of Individuals with regard to the Processing of Personal Data is set up, composed of representatives of the national supervisory authorities, representatives of the supervisory authorities of the Community institutions and bodies, and a representative of the Commission.

REFERENCES

ActEntry into forceDeadline for transposition in the Member StatesOfficial Journal
Directive 95/46/EC

13.12.1995

24.10.1998

OJ L 281 of 23.11.1995

Amending act(s)Entry into forceDeadline for transposition in the Member StatesOfficial Journal
Regulation (EC) No 1882/2003

20.11.2003

-

OJ L 284 of 31.10.2003

Successive amendments and corrections to Directive 95/46/EC have been incorporated in the basic text. This consolidated version is for reference purpose only.

RELATED ACTS

IMPLEMENTATION REPORT

Communication from the Commission to the European Parliament and the Council on the follow-up of the Work Programme for better implementation of the Data Protection Directive [COMM(2007) 87 final - Not published in the Official Journal].
This Communication examines the work done under the Work Programme for improved implementation of the Directive on data protection contained in the First report on the implementation of Directive 95/46/EC. The Commission highlights the fact that this has improved, has all Member States have now transposed the Directive. It emphasises that the Directive should not undergo any amendments at present.

It also notes that:

  • it will continue in its cooperation with the Member States and, if necessary, will launch official infringement proceedings;
  • it will prepare an interpretative communication regarding certain provisions in the Directive;
  • it will continue its implementation of the Work Programme
  • it will present EU-level sectoral legislation if there are major technological developments in a specific area;
  • it will continue cooperating with its external partners, in particular the US.

Report from the Commission of 15 May 2003 [COM(2003) 265 final - Not published in the Official Journal]
First report on the implementation of the Data Protection Directive (95/46/EC)

The report takes stock of the consultations carried out by the Commission to evaluate Directive 95/46/EC with governments, institutions, business and consumer associations, and individual citizens. The results of the consultations show that few contributors advocated a revision of the Directive. Furthermore, after consulting the Member States, the Commission noted the fact that a majority of them and, also, of the national supervisory authorities, did not consider it necessary to amend the Directive at present.

Despite the delays and gaps in implementation, the Directive has fulfilled its principal objective of removing barriers to the free movement of personal data between the Member States. The Commission also believes that the objective of ensuring a high level of protection in the Community has been achieved since the Directive has set out some of the highest standards of data protection in the world.

Other Internal Market policy objectives have, however, been less well served. The divergences in data protection legislation are still too great between Member States, and these disparities prevent multinational organisations from developing pan-European policies on data protection. The Commission will therefore do what is required to remedy this situation whilst hoping, wherever possible, that it will not be necessary to proceed by way of formal action.

With regard to the general level of compliance with data protection law in the EU, there are three main problems:

  • an under-resourced enforcement effort;
  • very patchy compliance by data controllers;
  • an apparently low level of knowledge of their rights among data subjects, which may be at the root of the previous phenomenon.

In order to ensure the better implementation of the Data Protection Directive, the Commission has adopted a work programme comprising a number of actions which need to be taken between the adoption of this report and the end of 2004. These actions are made up of the following initiatives:

  • discussions with Member States and data protection authorities on the changes needed to bring national legislation fully in line with the requirements of the Directive;
  • association of the candidate countries with efforts to achieve a better and more uniform implementation of the Directive;
  • improving the notification of all legal acts transposing the Directive;
  • simplification of the conditions for international transfers of data;
  • promotion of privacy enhancing technologies;
  • promotion of self-regulation and European Codes of Conducts.

PRIVACY AND ELECTRONIC COMMUNICATIONS DIRECTIVE

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) [Official Journal L 201 of 31.07.2002]
This Directive was adopted in 2002 at the same time as a new legislative framework designed to regulate the electronic communications sector. It contains provisions on a number of more or less sensitive topics, such as the Member States keeping connection data for the purposes of police surveillance (the retention of data), the sending of unsolicited e-mail, the use of cookies and the inclusion of personal data in public directories.

STANDARD CONTRACTUAL CLAUSES FOR THE TRANSFER OF PERSONAL DATA TO THIRD COUNTRIES

Commission Decision 2004/915/EC of 27 December 2004 amending Decision 2001/497/EC as regards the introduction of an alternative set of standard contractual clauses for the transfer of personal data to third countries [Official Journal L 385 of 29.12.2004]
The European Commission has approved new standard contractual clauses which businesses can use to ensure adequate safeguards when personal data are transferred from the EU to third countries. These new clauses will be added to those which already exist under the Commission Decision of June 2001 (see below).

Commission Decision 2001/497/EC of 15 June 2001 on standard contractual clauses for the transfer of personal data to third countries under Directive 95/46/EC [Official Journal L 181 of 04.07.2001]
This Decision sets out standard contractual clauses to ensure an adequate level of protection of personal data transferred from the EU to third countries. The Decision requires Member States to recognise that companies or bodies which use these standard clauses in contracts relating to the transfer of personal data to third countries ensure an "adequate level of protection" of the data.

PROTECTION OF DATA BY THE COMMUNITY INSTITUTIONS AND BODIES

Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data [Official Journal L8 of 12.01.2001].
This Regulation aims at ensuring the protection of personal data within the institutions and bodies of the European Union. To this end:

  • it includes provisions which guarantee a high level of protection of personal data processed by the Community institutions and bodies; and
  • it provides for the establishment of an independent supervisory body to monitor the application of these provisions.
Last updated: 01.02.2011
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