Brussels, 20 January - The European Data Protection Board (EDPB) has adopted a report on the implementation of the right of access by controllers. The report summarises the outcome of a series of coordinated national actions carried out in 2024 under the Coordinated Enforcement Framework (CEF). It lists the issues that were observed for some controllers, along with a series of recommendations to help them implement the right of access. A central element is controllers’ awareness of the EDPB Guidelines 01/2022 on data subjects rights – Right of access and whether these guidelines were followed in practice.

EDPB Deputy Chair Zdravko Vukíc said: “The CEF is a valuable initiative that helps strengthen the cooperation among Data Protection Authorities (DPAs): by tackling selected topics in a coordinated fashion, they achieve greater efficiency and more consistency. How controllers implement the right of access lies at the heart of data protection and it is one of the most frequently exercised data subject rights.”

Throughout 2024, 30 DPAs across Europe launched coordinated investigations into the compliance of controllers with the right of access, by opening formal investigations, assessing whether a formal investigation was warranted and/or carrying out fact-finding exercises.  A total of 1,185 controllers, consisting of small and medium-sized enterprises (SMEs) and big companies active in different industries and fields, as well as various types of public entities, responded to the action.

Areas of improvement and main challenges

The results suggest that more awareness raising about Guidelines 01/2022 is necessary, both at national and EU level, as the guidelines help controllers implement the right of access, explain how exercising this right can be made easier, and list the exceptions and limitations of the right to access.

As a result of the 2024 CEF action, seven challenges were identified. One of them is the lack of documented internal procedures to handle access requests. In addition, inconsistent and excessive interpretations of the limits to the right of access were also observed, such as overly relying on certain exceptions to automatically refuse access requests. Another example is the barriers that individuals could encounter when exercising their right of access, such as  formal requirements or being requested to provide excessive identification documents. For each challenge identified, the report provides a list of non-binding recommendations to be taken into account by controllers and DPAs.

Positive findings

Despite the existing challenges, two thirds of participating DPAs evaluated the level of compliance of responding controllers with respect to the right of access from ‘average’ to ‘high’. One important factor identified as having an impact on the level of compliance was the volume of access requests received by controllers, as well as the size of the organisation. More specifically, large-sized controllers or controllers receiving more requests were more likely to reach a higher level of compliance than small organisations with less resources.

Positive findings were observed across Europe. These include the implementation of best practices by controllers, such as user-friendly online forms enabling individuals to submit an access request easily as well as self-service systems to allow individuals to autonomously download their personal data in a few clicks and at any time.

Background and next steps

The CEF is a key action of the EDPB under its 2024-2027 Strategy, aimed at streamlining enforcement and cooperation among DPAs. 
In the past three years, two previous CEF actions were carried out.

The results of these national actions are aggregated and analysed together to generate deeper insight into the topic and allowing for targeted follow-up on both national and EU level.

In 2023, the EDPB published the report on its first coordinated action on the use of cloud-based services by the public sector.
In 2024, the EDPB also published the report on the outcome of the second coordinated action on the designation and position of Data Protection Officers.

The CEF 2025 action will be on the implementation of the right to erasure.
 

For further information:

• AT DPA: Schwerpunktprüfung 2024: Datenschutzbehörde zieht positive Bilanz für den Telekomsektor
• CS DPA: EDPB přijal závěrečnou zprávu ke společné kontrolní akci CEF 2024
• DA DPA:DPB vedtager rapport om dataansvarliges overholdelse af indsigtsretten
• EDPS: Coordinated Enforcement Action: EDPS findings highlight challenges on right of access to personal data
• ES DPA: Resultados de la acción europea que ha analizado la atención del ejercicio del derecho de acceso por parte de los responsables 
• FI DPA: Raportti omien henkilötietojen tarkastusoikeutta koskevasta selvityksestä on julkaistu – täydensimme ohjeistusta verkkosivuillamme 

Brussels, 17 January - During its January 2025 plenary meeting, the European Data Protection Board (EDPB) has adopted guidelines on pseudonymisation, as well as a statement on the interplay of competition law and data protection.

EDPB clarifies the use of pseudonymisation for GDPR compliance

The GDPR introduces the term ‘pseudonymisation’* and refers to it as a safeguard that may be appropriate and effective to meet data protection obligations. In its guidelines, the EDPB clarifies the definition and applicability of pseudonymisation and pseudonymised data, and the advantages of pseudonymisation.

The guidelines provide two important legal clarifications:

1. Pseudonymised data, which could be attributed to an individual by the use of additional information, remains information related to an identifiable natural person and is therefore still personal data. Indeed, if the data can be linked back to an individual by the data controller or someone else, it remains personal data.
    
2. Pseudonymisation can reduce risks and make it easier to use legitimate interests as a legal basis (Art. 6(1)(f)  GDPR), as long as all other GDPR requirements are met. Likewise, pseudonymisation can aid in securing compatibility with the original purpose (Art. 6(4) GDPR).

The guidelines also explain how pseudonymisation can help organisations meet their obligations relating to the implementation of data protection principles (Art. 5 GDPR), data protection by design and default (Art. 25 GDPR) and security (Art. 32 GDPR).

Finally, the guidelines analyse technical measures and safeguards, when using pseudonymisation, to ensure confidentiality and prevent unauthorised identification of individuals.

The guidelines will be subject to public consultation until 28 February 2025, providing stakeholders with the opportunity to comment and allowing for the incorporation of future developments in case law.

Interplay between data protection law and competition law: the EDPB’s take on how to improve cooperation between regulators

During the plenary meeting, the EDPB also adopted a position paper on the interplay between data protection law and competition law.

The CJEU Meta vs. Bundeskartellamt ruling of 4 July 2023 clearly indicated that data protection and competition authorities are required to work together, in some cases, to achieve effective and coordinated enforcement of data protection and competition law. While these are separate areas of law pursuing different goals in different frameworks, they may in some cases apply to the same entities. It is therefore important to assess situations where the laws may intersect.

In this position paper, the EDPB explains how data protection and competition law interact. It suggests steps for incorporating market and competition factors into data protection practices and for data protection rules to be considered in competition assessments. It also provides recommendations for improving cooperation between regulators. For example: authorities should consider creating a single point of contact to manage coordination with other regulators.

EDPB Deputy Chair Zdravko Vukíc said: “As business models evolve, the need to protect personal data is becoming increasingly central. The EDPB promotes coherence among separate but interacting areas of regulation, to ensure the best possible protection of individuals. To this end, we will continue to work together with Competition Authorities to strengthen the ability of Data Protection Authorities (DPAs) to take into account the economic context, and the ability of Competition Authorities to incorporate data protection considerations in their assessments and decisions.”

Note to editors:

*’ Pseudonymisation’ is defined in Art. 4 (5) GDPR as “the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person.”

Brussels, 18 December - The European Data Protection Board (EDPB) has adopted an opinion* on the use of personal data for the development and deployment of AI models. This opinion looks at 1) when and how AI models can be considered anonymous, 2) whether and how legitimate interest can be used as a legal basis for developing or using AI models, and 3) what happens if an AI model is developed using personal data that was processed unlawfully. It also considers the use of first and third party data.

The opinion was requested by the Irish Data Protection Authority (DPA) with a view to seeking Europe-wide regulatory harmonisation. To gather input for this opinion, which deals with fast-moving technologies that have an important impact on society, the EDPB organised a stakeholders’ event and had an exchange with the EU AI Office.

EDPB Chair Talus said: “AI technologies may bring many opportunities and benefits to different industries and areas of life. We need to ensure these innovations are done ethically, safely, and in a way that benefits everyone. The EDPB wants to support responsible AI innovation by ensuring personal data are protected and in full respect of the General Data Protection Regulation (GDPR).”

Regarding anonymity, the opinion says that whether an AI model is anonymous should be assessed  on a case by case basis by the DPAs. For a model to be anonymous, it should be very unlikely (1) to directly or indirectly identify individuals whose data was used to create the model, and (2) to extract such personal data from the model through queries. The opinion provides a non-prescriptive and non-exhaustive list of methods to demonstrate anonymity.

With respect to legitimate interest, the opinion provides general considerations that DPAs should take into account when they assess if legitimate interest is an appropriate legal basis for processing personal data for the development and the deployment of AI models.

A three-step test helps assess the use of legitimate interest as a legal basis. The EDPB gives the examples of a conversational agent to assist users, and the use of AI to improve cybersecurity. These services can be beneficial for individuals and can rely on legitimate interest as a legal basis, but only if the processing is shown to be strictly necessary and the balancing of rights is respected.

The opinion also includes a number of criteria to help DPAs assess if individuals may reasonably expect certain uses of their personal data. These criteria include: whether or not the personal data was publicly available, the nature of the relationship between the individual and the controller, the nature of the service, the context in which the personal data was collected, the source from which the data was collected, the potential further uses of the model, and whether individuals are actually aware that their personal data is online.

If the balancing test shows that the processing should not take place because of the negative impact on individuals, mitigating measures may limit this negative impact. The opinion includes a non-exhaustive list of examples of such mitigating measures, which can be technical in nature, or make it easier for individuals to exercise their rights or increase transparency.

Finally, when an AI model was developed with unlawfully processed personal data, this could have an impact on the lawfulness of its deployment, unless the model has been duly anonymised.

Considering the scope of the request from the Irish DPA, the vast diversity of AI models and their rapid evolution, the opinion aims to give guidance on various elements that can be used for conducting a case by case analysis.

In addition, the EDPB is currently developing guidelines covering more specific questions, such as web scraping.

Note to editors:
*An Article 64(2) opinion addresses a matter of general application or produces effects in more than one Member State.

Brussels, 04 December - During its December 2024 plenary, the European Data Protection Board (EDPB) adopted a statement on the second report of the European Commission on the application of the General Data Protection Regulation (GDPR).*

In its statement, the EDPB welcomes the reports from the European Commission and the Fundamental Rights Agency**. Importantly, the EDPB underlines the importance of legal certainty and coherence of digital legislation with the GDPR, and recalls some of its ongoing initiatives to clarify the enforcement interplay of the GDPR with the AI Act, the EU Data Strategy and the Digital Services Package.

In addition, the EDPB announces it will step up the production of content for non-experts, small and medium-sized enterprises (SMEs) and other groups.

Finally, the Board highlights the genuine need for additional financial and human resources to help  DPAs and the EDPB deal with increasingly complex challenges and additional competences.

Note to editors

* In July 2024, the European Commission published its second report on the application of the GDPR, adopted under Art. 97 GDPR.

** In June 2024, the Fundamental Rights Agency (FRA) published a report on the experiences of DPAs when implementing the GDPR. The findings  of this report complement the European Commission's evaluation of the GDPR.
 

Brussels, 03 December - During its latest plenary, the European Data Protection Board (EDPB) published guidelines on Art.48 GDPR about data transfers to third country authorities and  approved a new European Data Protection Seal.

EDPB helps organisations assess data transfer requests by third country authorities

In a highly interconnected world, organisations receive requests from public authorities in other countries to share personal data. The sharing of data can, for instance, be of help to collect evidence in the case of crime, to check financial transactions or approve new medications.

When a European organisation receives a request for a transfer of data from a ‘third country’ (i.e. non-European countries) authority, it must comply with the General Data Protection Regulation (GDPR). In its guidelines, the EDPB zooms in on Art. 48 GDPR and clarifies how organisations can best assess under which conditions they can lawfully respond to such requests. In this way, the guidelines help organisations to make a decision on whether they can lawfully transfer personal data to third country authorities when asked to do so.

Judgements or decisions from third countries authorities cannot automatically be recognised or enforced in Europe. If an organisation replies to a request for personal data from a third country authority, this data flow constitutes a transfer and the GDPR applies. An international agreement may provide for both a legal basis and a ground for transfer. In case there is no international agreement, or if the agreement does not provide for an appropriate legal basis or safeguards, other legal bases or other grounds for transfer could be considered, in exceptional circumstances and on a case by case basis.*

The guidelines are subject to public consultation until 27 January 2025.

Approval of EU Data Protection Seal

During the plenary meeting, the Board also adopted an opinion approving the Brand Compliance certification criteria concerning processing activities by controllers or processors. In September 2023, the Board already adopted an opinion on the approval of the Brand Compliance national certification criteria, making them officially recognised certification criteria in the Netherlands for data processing by organisations. The approval of the new opinion means that these criteria will now be applicable across Europe and as a European Data Protection Seal.

GDPR certification helps organisations demonstrate their compliance with data protection law. This transparency helps people trust the product, service, process or system for which organisations process their personal data.

Note to editors:

* The transfer must comply with Art.6 GDPR and the provisions of Chapter V.

An international agreement may provide for both a legal basis under Art. 6(1) (c) or 6(1) (e) GDPR and a ground for transfer under Art. 46(2) (a) GDPR.

Brussels, 05 November - During its latest plenary, the European Data Protection Board (EDPB) adopted a report on the first review1 of EU-U.S. Data Privacy Framework (DPF), as well as a statement on the recommendations of the high-level group (HLG)2 on access to data for effective law enforcement.

The EDPB welcomes the efforts by the U.S. authorities and the European Commission to implement the DPF, and takes note of several developments that took place since the adoption of the adequacy decision in July 2023.

Regarding commercial aspects, i.e. the application and enforcement of requirements applying to companies self-certified under this framework, the EDPB notes that the U.S Department of Commerce took all relevant steps to implement the certification process. This includes developing a new website, updating procedures, engaging with companies, and conducting awareness-raising activities.

In addition, the redress mechanism for EU individuals has been implemented and there is comprehensive complaint-handling guidance published on both sides of the Atlantic. However, the low number of complaints received so far under the DPF highlights the importance of having U.S. authorities initiate monitoring activities concerning compliance of DPF-certified companies with the substantive DPF Principles.

The EDPB encourages the development of guidance by U.S. authorities, clarifying the requirements that DPF-certified companies would need to comply with when they transfer personal data that they have received from EU exporters. Guidance by U.S. authorities on human resources data would also be welcome. The EDPB expresses its availability to provide feedback on these guidance documents.

Concerning the access by U.S. public  authorities  to  personal  data transferred from the EU to certified organisations, the EDPB focused; on the  effective  implementation  of  the  safeguards introduced by the Executive Order 14086 in the U.S. legal framework, such as the necessity and proportionality principles  and  the  new  redress  mechanism. The Board considers that the elements of the redress mechanism are in place; at the same time, it renews the call to the European Commission to monitor the practical functioning of the different safeguards, e.g. the implementation of the principles of necessity and proportionality. The EDPB also recommends that the Commission monitors future developments related to the U.S. Foreign Intelligence Surveillance Act, in particular given the extended reach of Section 702 after its re-authorisation by the U.S. Congress earlier this year.

EDPB Deputy Chair Zdravko Vukić said: “We are pleased that progress has been made since the adoption of the adequacy decision thanks to the fruitful cooperation between U.S. authorities, the EU Commission and the EDPB. At the same time, there is still space for improvement and we should continue working together to maintain a high level of data protection and safeguard the rights and freedoms of EU individuals.”

Finally, the Board recommends that the next review of the EU-U.S. adequacy decision should take place within three years or less.

 The statement on the recommendations of the HLG on access to data for effective law enforcement underlines that fundamental rights must be safeguarded when law enforcement agencies access the personal data of individuals. While the EDPB supports the aim of effective law enforcement, it points out that some of the HLG’s recommendations could cause serious intrusiveness vis-à-vis fundamental rights, in particular the respect for privacy and family life.

 While the EDPB positively notes the recommendation may lead to the establishment of a level-playing field on data retention, it considers that a broad and general obligation to retain data in electronic form by all service providers would create a significant interference with the rights of individuals. Therefore, the EDPB questions whether this would meet the requirements of necessity and proportionality of the Charter of Fundamental Rights of the EU and the CJEU jurisprudence. 

In its statement, the EDPB also emphasizes that the recommendations concerning encryption should not prevent its use or weaken the effectivity of the protection it provides. For example, the introduction of a client-side process allowing remote access to data before it is encrypted and sent on a communication channel, or after it is decrypted at the recipient, would in practice weaken encryption. Preserving the protection and effectivity of encryption is important to avoid that the respect for private life and confidentiality is negatively impacted and to ensure that the freedom of expression and economic growth, which depend on trustworthy technologies, are safeguarded. 

Note to editors

1 In line with art. 3 of EU-U.S. adequacy decision, the EU Commission is required to review the adequacy decision one year after its adoption. The review meeting was held in Washington D.C. on 18-19 July 2024 and the EU Commission was accompanied by five representatives of the EDPB.

2 The HLG was launched by the European Commission in June 2023 and it is co-chaired by the EU Commission and the rotating Presidency of the Council. It was launched with the aim to explore challenges for law enforcement practitioners in connection to access to data and propose solutions and recommendations.

In June 2024, the  HLG  published  42  recommendations  for  the further development of EU policies and legislation, structured as “capacity  building  measures”,  “cooperation  with  industry  and standardisation” and “legislative measures”. The  recommendations  cover  in  particular  encryption, cooperation  with  the  industry  as  well  as  between  law  enforcement agencies, and the need for harmonised rules on data retention.
 

The EDPB is holding a stakeholder event on “AI models” with participants representing European sector associations, organisations, NGOs, individual companies, law firms and academics. 

During today’s event, the EDPB will collect input for of the preparation of a consistency opinion on AI models, requested by the Irish Data Protection Authority under Art. 64 (2) GDPR.

EDPB Chair Anu Talus said: “During the stakeholder event we will tackle a number of targeted questions, which will feed our reflection in the context of the preparation of our Opinion on AI models. Stakeholder input is especially valuable for these fast-moving technologies with an exceptional societal impact.”

The EDPB's opinion on “AI models” is due by the end of 2024.

Update on 15/10/24: The call is now closed.
Thank you to all those who expressed an interest in taking part in the EDPB stakeholder event on ‘AI models’. We will carefully review all applications and communicate the results of the process to those who applied in the coming weeks.

Brussels, 15 October - The European Data Protection Board (EDPB) organises a remote stakeholder event, taking place on 5 November 2024 (time to be confirmed), aimed at collecting input from stakeholders in the context of a request for an Art. 64(2) GDPR opinion relating to artificial intelligence models (‘AI models’) submitted to the EDPB by the Irish Data Protection Authority (DPA).

How to take part?

The EDPB launches a call for expression of interest in order to select participants for the EDPB’s stakeholder event on AI models. You can find further information on this event and instructions on how to register here. If you have technical problems submitting the application, we invite you to refresh the page or open the form in a different browser.

The call will be closed as soon as a sufficiently high number of applicants is reached with a view to ensuring the participation of a maximum number of stakeholders.

On 8 October 2024, the European Data Protection Board met with Commissioners and representatives of Data Protection Authorities (DPAs) from the fifteen countries having been subject to an EU adequacy decision. The meeting took place in the margins of the EDPB October’s plenary and reflects the EDPB’s commitment to international engagement.

The European Commission has so far recognised the following adequate countries:  Andorra, Argentina, Canada, Faroe Islands, Guernsey, Israel, Isle of Man, Japan, Jersey, New Zealand, Republic of Korea, Switzerland, United Kingdom, Uruguay and United States.

Adequacy decisions are the result of a high degree of  convergence of data protection laws and enable safer data flows. 

During the meeting, the EDPB and the DPAs from the adequate countries discussed multilateral engagement on advisory work and guidelines, and on enforcement cooperation.  

Note to editors
Adequacy decisions are the result of a key mechanism in the EU's data protection framework that allows the free-based flow of personal data from the EU to adequate countries, provided that the European Commission has decided that these countries ensure an adequate level of data protection. In this case, the transfer does not require any specific authorisation. Adequacy decisions promote international data transfers by not requiring companies in these countries to have Standard Contractual Clauses or Binding Corporate Rules.
 

Brussels, 11 October -The EDPB will organise a stakeholder event on ‘AI models’ on 5 November 2024 (exact time to be confirmed). 

During its latest plenary, the European Data Protection Board (EDPB) exceptionally agreed to organise a remote public event aimed at collecting input from stakeholders on issues relating to the request for an Art. 64(2) GDPR opinion on artificial intelligence ("AI") submitted to the EDPB by the Irish Data Protection Authority (DPA). 

Individuals representing European sector associations, organisations or NGOs and individual companies, law firms or academics are invited to take part in this event (one participant per organisation). The EDPB encourages all organisations interested in this matter to delegate a representative with technical knowledge of this topic.

As a general rule, participants will be registered on a first-come first-serve basis. Nonetheless, the EDPB reserves the right to give precedence to specific stakeholders among those who expressed their interest, in light of their relevance for the subject matter of this event with the aim to ensure relevant expertise among participants, as well as the diversity of the views expressed at the event.  

Do you wish to participate? 

The EDPB will launch a call for expression of interest to participate in the EDPB’s stakeholder event on ‘AI models’ on 15 October at 10.00 am (Brussels time).

The call will be closed as soon as a sufficiently high number of applicants is reached with a view to ensuring the participation of a maximum number of stakeholders.

The call will be launched on the EDPB website. More details will follow on the day of the launch of the call.

Brussels, 10 October - During its October 2024 plenary, the European Data Protection Board (EDPB) selected the topic for its fourth Coordinated Enforcement Action (CEF), which will concern the implementation of the right to erasure (‘right to be forgotten’) by controllers. Data Protection Authorities (DPAs) will join this action on a voluntary basis in the coming weeks and the action itself will be launched during the first semester of 2025.

The right to erasure (Art.17 GDPR) is one of the most frequently exercised data protection rights and one about which DPAs frequently receive complaints. The aim of this coordinated action will be, among other objectives, to evaluate the implementation of this right in practice. For example, this will be done by analysing and comparing the processes put in place by different controllers to identify the most important issues in complying with this right, but also to get an overview of best practices.

In a coordinated enforcement action, the EDPB prioritises a specific topic for DPAs to work on at national level. In the past three years, DPAs have already coordinated their national actions on different topics, namely: the use of cloud in the public sector, the designation and position of Data Protection Officers and the implementation of the right of access by data controllers.

The results of these national actions are then aggregated and analysed together to generate deeper insight into the topic and allowing for targeted follow-up on both national and EU level.

In 2023, the EDPB published the report on its first coordinated action on the use of cloud-based services by the public sector.
Earlier this year, the EDPB also published the report on the outcome of the second coordinated action on the designation and position of Data Protection Officers.

The report on the outcome of the 2024 coordinated action on the right of access will be adopted at the beginning of 2025.
Coordinated actions follow the EDPB’s decision to set up a Coordinated Enforcement Framework (CEF) in October 2020. The CEF is a key action of the EDPB under its 2024-2027 Strategy, together with the Support Pool of Experts (SPE). The two initiatives aim to streamline enforcement and cooperation among DPAs.
 

Brussels, 09 October - During its latest plenary, the European Data Protection Board (EDPB) adopted an Opinion on certain obligations following from the reliance on processor(s) and sub-processor(s), Guidelines on legitimate interest, a Statement on laying down additional procedural rules for GDPR enforcement and the EDPB work programme 2024-2025.

First, the EDPB adopted an Opinion on certain obligations following from the reliance on processor(s) and sub-processor(s) following an Art. 64(2) GDPR request to the Board by the Danish Data Protection Authority (DPA). Art. 64(2) GDPR provides that any DPA can ask the Board to issue an opinion on matters of general application or producing effects in more than one Member State.

The Opinion is about situations where controllers rely on one or more processors and sub-processors. In particular, it addresses eight questions on the interpretation of certain duties of controllers relying on processors and sub-processors, as well as the wording of controller-processor contracts, arising in particular from Art. 28 GDPR. 

The Opinion explains that controllers should have the information on the identity (i.e. name, address, contact person) of all processors, sub-processors etc. readily available at all times so that they can best fulfil their obligations under Art. 28 GDPR. Besides, the controller’s obligation to verify whether the (sub-)processors present ‘sufficient guarantees’ should apply regardless of the risk to the rights and freedoms of data subjects, although the extent of such verification may vary, notably on the basis of the risks associated with the processing. 

The Opinion also states that while the initial processor should ensure that it proposes sub-processors with sufficient guarantees, the ultimate decision and responsibility on engaging a specific sub-processor remains with the controller. 
The EDPB considers that under the GDPR the controller does not have a duty to systematically ask for the sub-processing contracts to check if data protection obligations have been passed down the processing chain. The controller should assess whether requesting a copy of such contracts or reviewing them is necessary for it to be able to demonstrate compliance with the GDPR.

In addition, where transfers of personal data outside of the European Economic Area take place between two (sub-)processors, the processor as data exporter should prepare the relevant documentation, such as relating to the ground of transfer used, the transfer impact assessment and the possible supplementary measures. However, as the controller is still subject to the duties stemming from Art. 28(1) GDPR on ‘sufficient guarantees’, besides the ones under Art. 44 to ensure that the level of protection is not undermined by transfers of personal data, it should assess this documentation and be able to show it to the competent Data Protection Authority.

Next, the Board adopted Guidelines on the processing of personal data based on legitimate interest.

Data controllers need a legal basis to process personal data lawfully. Legitimate interest is one of the six possible legal bases.

These Guidelines analyse the criteria set down in Art. 6(1) (f) GDPR that controllers must meet to lawfully process personal data on the basis of legitimate interest. It also takes into consideration the recent ECJ ruling on this matter (C-621/22, 4 October 2024).

In order to rely on legitimate interest, the controller needs to fulfil three cumulative conditions:

1. The pursuit of a legitimate interest by the controller or by a third party;
2. The necessity to process personal data for the purposes of  pursuing the legitimate interest;
3. The interests or fundamental freedoms and rights of individuals do not take precedence over the legitimate interest(s) of the controller or of a third party (balancing exercise).

First of all, only the interests that are lawful, clearly and precisely articulated, real and present may be considered legitimate. For example, such legitimate interests could exist in a situation where the individual is a client or in the service of the controller.

Second, if there are reasonable, just as effective, but less intrusive alternatives for achieving the interests pursued, the processing may not be considered to be necessary. The necessity of a processing should also be examined with the principle of data minimisation. 

Third, the controller must ensure that its legitimate interest is not overridden by the individual's interests, fundamental rights or freedoms. In this balancing exercise, the controller needs to take into account the interests of the individuals, the impact of the processing and their reasonable expectations, as well as the existence of additional safeguards which could limit the impact on the individual. 

In addition, these Guidelines explain how this assessment should be carried out in practice, including in a number of specific contexts such as fraud prevention, direct marketing and information security. The document also explains the relationship between this legal basis and a number of data subject rights under the GDPR.

The Guidelines will be subject to public consultation until 20 November 2024.

Next, the Board adopted a Statement following the amendments made by the European Parliament and the Council to the European Commission’s proposal for a Regulation laying down additional procedural rules relating to the enforcement of the GDPR.

The Statement generally welcomes the modifications introduced by the European Parliament and the Council, and recommends further addressing specific elements in order for the new regulation to achieve the objectives of streamlining cooperation between authorities and improving the enforcement of the GDPR. 

The Statement makes practical recommendations that may be used in the context of the upcoming trilogues. In particular, the EDPB reiterates the need for a legal basis and harmonised procedure for amicable settlements and it makes recommendations in view of ensuring that consensus on the summary of key issues is reached in the most efficient manner. The Board also welcomes the inclusion of additional deadlines while recalling that they need to be realistic and urges the co-legislators to remove the provisions related to the relevant and reasoned objections and the ‘statement of reasons’ in the dispute resolution procedure.  

While the Statement welcomes the objective of achieving increased transparency, the introduction of a joint case file, as proposed by the European Parliament, would require complex changes to the document management and communication systems used at European and national levels. The technical solutions for its implementation should be carefully assessed, and the modalities for granting access to it should be further clarified. 

The EDPB welcomes the Council’s amendment allowing the lead DPA to opt-out from the so-called enhanced cooperation in simple and straightforward cases, but it highlights the need to clarify further the scope of this opt-out. 

EDPB Chair Anu Talus said: “The draft regulation has the potential to greatly streamline GDPR enforcement by increasing the efficiency of case handling. More harmonisation is needed at EU level, in order to maximise the full effectiveness of the GDPR’s cooperation and consistency mechanisms.”

During its latest plenary, the Board adopted its work programme for 2024-2025. This is the first one of two work programmes which will implement the EDPB strategy for 2024-2027 adopted in April 2024. It is based on the priorities set in the EDPB strategy and it also takes into account the needs identified as most important for stakeholders.

Finally, the EDPB members agreed to grant the status of observer to the EDPB’s activities to the Kosovan Information and Privacy Agency (Kosovan DPA), in line with Art. 8 EDPB Rules of Procedure.