# EUR-Lex - 52012PC0010 - EN

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# 52012PC0010

**Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data /* COM/2012/010 final - 2012/0010 (COD) */**

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EXPLANATORY MEMORANDUM

1.
CONTEXT OF THE PROPOSAL

This explanatory memorandum further details
the approach for the new legal framework for the protection of personal data in
the EU as presented in Communication COM (2012) 9 final. The legal framework
consists of two legislative proposals:

–
a 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), and

–
a proposal for a Directive of the European
Parliament and of the Council on the protection of individuals with regard to
the processing of personal data by competent authorities for the purposes of
prevention, investigation, detection or prosecution of criminal offences or the
execution of criminal penalties, and the free movement of such data.

This explanatory memorandum concerns the
latter legislative proposal.

The centrepiece of existing EU legislation
on personal data protection, Directive 95/46/EC[1], was
adopted in 1995 with two objectives in mind: to protect the fundamental right
to data protection and to guarantee the free flow of personal data between
Member States. It was complemented by several instruments providing specific
data protection rules in the area of police and judicial co-operation in
criminal matters[2] (ex-third pillar), including Framework Decision 2008/977/JHA[3].

The European Council invited the Commission to evaluate the
functioning of EU instruments on data protection and to present, where
necessary, further legislative and non-legislative initiatives[4]. In its resolution on the Stockholm Programme, the European
Parliament[5] welcomed a comprehensive data protection scheme in the EU and among
others called for the revision of the Framework Decision. The Commission
stressed in its Action Plan implementing the Stockholm Programme[6] the need to ensure that the fundamental right to personal data
protection is consistently applied in the context of all EU policies. The
Action Plan underlined that “in a global
society characterised by rapid technological change where information exchange
knows no borders, it is particularly important that privacy must be preserved.
The Union must ensure that the fundamental right to data protection is
consistently applied. We need to strengthen the EU’s stance in protecting the
personal data of the individual in the context of all EU policies, including
law enforcement and crime prevention as well as in our international relations.”

In its Communication on “A comprehensive approach on personal data protection in the European
Union”[7], the Commission concluded that the
EU needs a more comprehensive and coherent policy on the fundamental right to
personal data protection.

Framework Decision 2008/977/JHA has a
limited scope of application, since it only applies to cross-border data
processing and not to processing activities by the police and judiciary
authorities at purely national level. This is liable to create difficulties for
police and other competent authorities in the areas of judicial co-operation in
criminal matters and police co-operation. They are not always able to easily
distinguish between purely domestic and cross-border processing or to foresee
whether certain personal data may become the object of a cross-border exchange
at a later stage(see Section 2 below). Moreover, because of its nature and
content, the Framework Decision leaves a large room for manoeuvre to Member
States' national laws in implementing its provisions. Additionally, it does not
contain any mechanism or advisory group similar to the Article 29 Working Party
supporting common interpretation of its provisions, nor foresees any
implementing powers for the Commission to ensure a common approach in its
implementation.

Article 16 (1) of the Treaty on the
Functioning of the European Union (TFEU) establishes the principle that
everyone has the right to the protection of personal data. Moreover, with
Article 16 (2) TFEU, the Lisbon Treaty introduces a specific legal basis for
the adoption of rules on the protection of personal data that also applies to judicial
co-operation in criminal matters and police co-operation. Article 8 of the
Charter of Fundamental Rights
of the EU enshrines protection of personal data as a
fundamental right. Article 16 TFEU requires the legislator to lay down rules
relating to the protection of individuals with regard to the processing of
personal data also in the areas of judicial co-operation in criminal matters
and police co-operation, covering both cross-border and domestic processing of
personal data. This will allow protecting the fundamental rights and freedoms
of natural persons and in particular their right to the protection of personal
data, ensuring at the same time the exchange of personal data for the purposes
of prevention, investigation, detection or prosecution of criminal offences or
the execution of criminal penalties. This will contribute to facilitating the co-operation
in the fight against crime in Europe.

Due to the specific nature of the field of
police and judicial co-operation in criminal matters it was acknowledged in
Declaration 21[8] that specific rules on the protection of personal data and the free
movement of such data in the fields of judicial co-operation in criminal
matters and police co-operation based on Article 16 TFEU may prove necessary.

2.
RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES
AND IMPACT ASSESSMENTS

This initiative is the result of extensive
consultations with all major stakeholders on a review of the existing legal
framework for the protection of personal data, which included two phases of
public consultation:

–
From 9 July to 31 December 2009, the Consultation
on the legal framework for the fundamental right to the protection of personal
data. The Commission received 168 responses, 127 from individuals, business
organisations and associations and 12 from public authorities. The
non-confidential contributions can be consulted on the Commission’s website[9].

–
From 4 November 2010 to 15 January 2011, the Consultation
on the Commission's comprehensive approach on personal data protection in the
European Union. The Commission received 305 responses, of which 54 from
citizens, 31 from public authorities and 220 from private organisations, in
particular business associations and non-governmental organisations. The
non-confidential contributions can be consulted on the Commission’s website[10].

Whereas those consultations focused largely
on the review of Directive 95/46/EC, targeted consultations were conducted with
law enforcement stakeholders; in particular, a workshop was organised on 29
June 2010 with Member States' authorities on the application of data protection
rules to public authorities, including in the area of police co-operation and
judicial co-operation in criminal matters. Furthermore, on 2 February 2011, the
Commission convened a workshop with Member States' authorities to discuss the
implementation of Framework Decision 2008/977/JHA and, more generally, data
protection issues in the area of police co-operation and judicial co-operation
in criminal matters.

EU citizens were consulted through a
Eurobarometer survey held in November-December 2010[11]. A
number of studies were also launched.[12] The
“Article 29 Working Party”[13] provided several opinions and useful input to the Commission[14]. The European Data Protection Supervisor also issued a
comprehensive opinion on the issues raised in the Commission's November 2010
Communication.[15]

The European Parliament approved by its
resolution of 6 July 2011 a report that supported the Commission’s approach to
reforming the data protection framework.[16] The
Council of the European Union adopted conclusions on 24 February 2011 in which
it broadly supports the Commission's intention to reform the data protection
framework and agrees with many elements of the Commission's approach. The
European Economic and Social Committee likewise supported the Commission's
general thrust to ensure a more consistent application of EU data protection
rules across all Member States and an appropriate revision of the Directive
95/46/EC.[17]

In line with its “Better Regulation”
policy, the Commission conducted an impact assessment of policy alternatives[18]. The impact assessment was based on the three policy objectives of
improving the internal market dimension of data protection, making the exercise
of data protection rights by individuals more effective and creating a
comprehensive and coherent framework covering all areas of Union competence,
including police co-operation and judicial co-operation in criminal matters. As
regards this latter objective in particular, two policy options were assessed:
a first one basically extending the scope of data protection rules in this area
and addressing the gaps and other issues raised by the Framework Decision, and
a second more far-reaching one with very prescriptive and stringent rules,
which would also entail the immediate amendment of all other "former third
pillar" instruments. A third "minimalistic" option based largely
on interpretative Communications and policy support measures, such as funding
programmes and technical tools, with minimum legislative intervention, was not
considered appropriate to address the issues identified in this area in
relation to data protection.

According to the Commission's established
methodology, each policy option was assessed, with the help of an inter-service
steering group, against its effectiveness to achieve the policy objectives, its
economic impact on stakeholders (including on the budget of the EU
institutions), its social impact and effect on fundamental rights.
Environmental impacts were not observed.

The analysis of the overall impact led to
the development of the preferred policy option which is incorporated in the
present proposal. According to the assessment, its implementation will lead to
further strengthening data protection in this policy area in particular by
including domestic data processing, thereby also enhancing legal certainty for competent
authorities in the areas of judicial co-operation in criminal matters and police
co-operation.

The Impact Assessment Board (IAB) delivered
an opinion on the draft impact assessment on 9 September 2011. Following the
IAB’s opinion, in particular the following changes were made to the impact
assessment:

–
The objectives of the current legal framework
(to what extent they were achieved and to what extent they were not), as well
as the objectives of the envisaged reform, were clarified;

–
More evidence and additional
explanations/clarifications were added to the problems' definition section.

The Commission also prepared an
Implementation Report related to Framework Decision 2008/977/JHA, based on its
Article 29(2), which is to be adopted as part of the present data protection
package[19]. The findings of the report, based on input from Member States,
also fed into the preparation of the Impact Assessment.

3.
LEGAL ELEMENTS OF THE PROPOSAL
3.1.
Legal Basis

The proposal is based on Article 16(2)
TFEU, which is a new, specific legal basis introduced by the Lisbon Treaty for
the adoption of rules relating to the protection of individuals with regard to
the processing of personal data by Union institutions, bodies, offices and
agencies, and by the Member States when carrying out activities which fall
within the scope of Union law, and the rules relating to the free movement of
such data.

The proposal aims to ensure a consistent
and high level of data protection in this field, thereby enhancing mutual trust
between police and judicial authorities of different Member States and
facilitating the free flow of data and co-operation between police and judicial
authorities.

3.2.
Subsidiarity and proportionality

According to the principle of subsidiarity
(Article 5(3) TEU), action at Union level shall be taken only if and in so far
as the objectives envisaged cannot be achieved sufficiently by Member States,
but can rather, by reason of the scale or effects of the proposed action, be
better achieved by the Union. In the light of the problems outlined above, the
analysis of subsidiarity indicates the necessity of EU-level action in the
areas of police and criminal justice on the following grounds:

–
The right to the protection of personal data,
enshrined in Article 8 of the Charter of Fundamental Rights and in Article 16(1)
TFEU, requires the same level of data protection throughout the Union. It
requires the same level of protection for data exchanged and data processed at
domestic level.

–
There is a growing need for law enforcement
authorities in Member States to process and exchange at rapidly increasing
rates for the purposes of preventing and combating transnational crime and
terrorism. In this context, clear and consistent rules on data protection at EU
level will help fostering co-operation between such authorities.

–
In addition, there are practical challenges to
enforcing data protection legislation and a need for co-operation between
Member States and their authorities, which need to be organised at EU level to
ensure unity of application of Union law. In certain situations, the EU is best
placed to ensure effectively and consistently the same level of protection for
individuals when their personal data are transferred to third countries.

–
Member States cannot alone reduce the problems
in the current situation, particularly those due to the fragmentation in
national legislations. Thus, there is a specific need to establish a harmonised
and coherent framework allowing for a smooth transfer of personal data across
borders within the EU while ensuring effective protection for all individuals
across the EU.

–
The proposed EU legislative action is likely to
be more effective than similar actions at the level of Member States because of
the nature and scale of the problems, which are not confined to the level of
one or several Member States.

The principle of proportionality requires
that any intervention is targeted and does not go beyond what is necessary to
achieve the objectives. This principle has guided the preparation of this
proposal, from the identification and evaluation of alternative policy options
to the drafting of the legislative proposal.

A Directive is therefore the best
instrument to ensure harmonisation at EU level in this area while at the same
time leaving the necessary flexibility to Member States when implementing the
principles, the rules and their exemptions at national level. Given the
complexity of the current national rules for the protection of personal data
processed in the area of police co-operation and judicial co-operation in
criminal matters, and the objective of comprehensive harmonisation of these
rules by way of this Directive, the Commission will need to request Member
States to provide explanatory documents explaining the relationship between the
components of the Directive and the corresponding parts of national
transposition instruments in order to be able to carry out its task of
overseeing the transposition of this Directive.

3.3.
Summary of fundamental rights issues

The right to protection of personal data is
established by Article 8 of the Charter on Fundamental Rights of the EU and
Article 16 TFEU as well in Article 8 of the ECHR. As underlined by the Court of
Justice of the EU[20], the right to the protection of personal data is not an absolute
right, but must be considered in relation to its function in society[21]. Data protection is closely linked to respect for private and
family life protected by Article 7 of the Charter. This is reflected in Article
1(1) of Directive 95/46/EC, which provides that Member States shall protect
fundamental rights and freedoms of natural persons and in particular their
right to privacy with respect of the processing of personal data.

Other potentially affected fundamental
rights enshrined in the Charter are the prohibition of any discrimination
amongst others on grounds such as race, ethnic origin, genetic features,
religion or belief, political opinion or any other opinion, disability or
sexual orientation (Article 21); the rights of the child (Article 24) and the right
to an effective remedy before a tribunal and a fair trial (Article
47).

3.4.
Detailed explanation of the proposal
3.4.1.
CHAPTER I – GENERAL PROVISIONS

Article 1 defines the subject matter of the
Directive, i.e. rules relating to processing of personal data for the purposes
of prevention, investigation, detection or prosecution of criminal offences or
the execution of criminal offences, and sets out the Directive's two-fold
objective, i.e. to protect the fundamental rights and freedoms of natural
persons and in particular their right to the protection of personal data while
guaranteeing a high level of public safety, and to ensure the exchange of
personal data between competent authorities within the Union.

Article 2 defines the scope of application
of the Directive. The scope of the Directive is not limited to cross-border
data processing but applies to all processing activities carried out by
'competent authorities' (as defined in Article 3(14)) for the purposes of the
Directive. The Directive applies neither to processing in the course of an
activity which falls outside the scope of Union law, nor to processing by Union
institutions, bodies, offices and agencies, which is subject to Regulation (EC)
No 45/2001 and other specific legislation.

Article 3 contains definitions of terms
used in the Directive. While some definitions are taken over from Directive
95/46/EC and Framework Decision 2008/977/JHA, others are modified, complemented
with additional or newly introduced elements. New definitions are those of
‘personal data breach’, ‘genetic data’ and ‘biometric data’, ‘competent
authorities’ (based on Article 87 TFEU and Article 2(h) of Framework Decision
2008/977/JHA) and, of a 'child’, based on the UN Convention on the Rights of
the Child[22].

3.4.2.
CHAPTER II – PRINCIPLES

Article 4 sets out the principles relating
to processing of personal data reflecting Article 6 of Directive 95/46/EC and
Article 3 of Framework Decision 2008/977/JHA, while adjusting them to the
particular context of this Directive.

Article 5 requires the distinction, as far
as possible; between personal data of different categories of data subjects. This
is a new provision, included neither in Directive 95/46/EC nor in Framework
Decision 2008/977/JHA, but which had been proposed by the Commission in its original
proposal for the Framework Decision[23]. It is
inspired by the Council of Europe's Recommendation No R (87)15. Similar rules
already exist for Europol[24] and Eurojust[25].

Article 6 on different degrees of accuracy
and reliability reflects principle 3.2 of Council of Europe Recommendation No R
(87)15. Similar rules, as also included in the Commission's proposal for the
Framework Decision, exist for Europol[26].

Article 7 sets out the grounds for lawful
processing, when necessary for the performance of a task carried out by a
competent authority based on national law, to comply with a legal obligation to
which the data controller is subject, in order to protect the vital interests
of the data subject or another person or to prevent an immediate and serious
threat to public security. The other grounds for lawful processing in Article 7
of Directive 95/46/EC are not appropriate for the processing in the area of
police and criminal justice.

Article 8 sets out a general prohibition of
processing special categories of personal data and the exceptions from this
general rule, building on Article 8 of Directive 95/46/EC and adding genetic
data, following ECtHR case law[27].

Article 9 establishes a prohibition of
measures based solely on automated processing of personal data if not
authorised by law providing appropriate safeguards, in line with Article 7 of
Framework Decision 2008/977/JHA.

3.4.3.
CHAPTER III - RIGHTS OF THE DATA SUBJECT

Article 10 introduces the obligation for
Member States to ensure easily accessible and understandable information,
inspired in particular by principle 10 of the Madrid Resolution on international
standards on the protection of personal data and privacy[28], and to
oblige controllers to provide procedures and mechanisms for facilitating the
exercise of the data subject's rights. This includes the requirement that the
exercise of the rights shall be in principle free of charge.

Article 11 specifies the obligation for
Member States to ensure the information towards the data subject. These
obligations are building on Articles 10 and 11 of Directive 95/46/EC, without
separate articles differentiating whether the information is collected from the
data subject or not, and enlarging the information to be provided. It lays down
exemptions from the obligation to inform, when such exemptions are
proportionate and necessary in a democratic society for the exercise of the
tasks of competent authorities (inspired by Article 13 of Directive 95/46/EC
and Article 17 Framework Decision 2008/977/JHA).

Article 12 provides the obligation for
Member States to ensure the data subject's right of access to their personal
data. It follows Article 12(a) of Directive 95/46/EC, adding new elements for
the information of the data subjects (on the storage period, their rights to
rectification, erasure, or restriction and to lodge a complaint).

Article 13 provides that Member States may
adopt legislative measures restricting the right of access if required by the specific
nature of data processing in the areas of police and criminal justice, and on
the information of the data subject on a restriction of access, following
Article 17(2) and (3) of Framework Decision 2008/977/JHA.

Article 14 introduces the rule that in
cases where direct access is restricted, the data subject must be informed on the
possibility of indirect access via the supervisory authority, which should
exercise the right on their behalf and must inform the data subject on the
outcome of its verifications.

Article 15 on the right to rectification
follows Article 12(b) of Directive 95/46/EC, and, as regards the obligations in
case of a refusal, Article 18(1) of Framework Decision 2008/977/JHA.

Article 16 on the right to erasure follows
Article 12(b) of Directive 95/46, and, as regards the obligations in case of a
refusal, Article 18(1) of Framework Decision 2008/977/JHA. It integrates also
the right to have the processing marked in certain cases, replacing the
ambiguous terminology "blocking", used by Article 12(b) of Directive
95/46/EC and Article 18(1) of Framework Decision 2008/977/JHA.

Article 17 on the rectification, erasure
and restriction of processing in judicial proceedings provides clarification
based on Article 4(4) of Framework Decision 2008/977/JHA.

3.4.4.
CHAPTER IV - CONTROLLER AND PROCESSOR
3.4.4.1.
SECTION 1 GENERAL OBLIGATIONS

Article 18 describes the responsibility of
the controller to comply with this Directive and to ensure compliance,
including the adoption of policies and mechanisms for ensuring compliance.

Article 19 sets out that the Member States
must ensure the compliance of the controller with the obligations arising from
the principles of data protection by design and by default.

Article 20 on joint controllers clarifies
the status of joint controllers as regards their internal relationship.

Article 21 clarifies the position and
obligation of processors, following partly Article 17(2) of Directive 95/46/EC,
and adding new elements, including that a processor that processes data beyond
the controller's instructions is to be considered a co-controller.

Article 22 on processing under the
authority of the controller and processor follows Article 16 of Directive 95/46/EC.

Article 23 introduces the obligation for
controllers and processors to maintain documentation of all processing systems
and procedures under their responsibility.

Article 24 concerns the keeping of records,
in line with Article 10(1) of Framework Decision 2008/977, whilst providing further
clarifications.

Article 25 clarifies the obligations of the
controller and the processor regarding co-operation with the supervisory
authority.

Article 26 concerns the cases where
consultation with the supervisory authority is mandatory prior to the
processing, based on Article 23 of Framework Decision 2008/977/JHA.

3.4.4.2.
SECTION 2 DATA SECURITY

Article 27 on the security of processing is
based on the current Article 17(1) of Directive 95/46 on the security of
processing, and Article 22 of Framework Decision 2008/977/JHA, extending the
related obligations to processors, irrespective of their contract with the
controller.

Articles 28 and 29 introduce an obligation
to notify personal data breaches, inspired by the personal data breach
notification in Article 4(3) of the e-Privacy Directive 2002/58/EC, clarifying
and separating the obligations to notify the supervisory authority (Article 28)
and to communicate, in qualified circumstances, to the data subject (Article 29).
Article 29 also provides for exemptions by referring to Article 11(4).

3.4.4.3.
SECTION 3 DATA PROTECTION OFFICER

Article 30 introduces an obligation for the
controller to appoint a mandatory data protection officer who should fulfil the
tasks listed in Article 32. Where several competent authorities are acting
under the supervision of a central authority, functioning as controller, at
least this central authority should designate such a data protection officer. Article
18(2) of Directive 95/46/EC provided the possibility for Member States to
introduce such requirement as a surrogate to the general notification
requirement of that Directive.

Article 31 sets out the standing of the
data protection officer.

Article 32 provides the tasks of the data
protection officer.

3.4.5.
CHAPTER V - TRANSFER OF PERSONAL DATA TO THIRD
COUNTRIES OR INTERNATIONAL ORGANISATIONS

Article 33 sets out the general principles
for data transfers to third countries or international organisations in the
area of police co-operation and judicial co-operation in criminal matters, including
onward transfers. It clarifies that transfers to third countries may take place
only if the transfer is necessary for the prevention, investigation, detection
or prosecution of criminal offences or the execution of criminal penalties..

Article 34 lays down that transfers to a
third country may take place in relation to which the Commission has adopted an
adequacy decision under Regulation ..../../201X or specifically in the area of
police co-operation and judicial co-operation in criminal matters, or, in the
absence of such decisions, where appropriate safeguards are in place. As long
as adequacy decisions do not exist, the Directive ensures that transfers can
continue to take place on the basis of appropriate safeguards and derogations. It
furthermore sets out the criteria for the Commission’s assessment of an
adequate or not adequate level of protection, and expressly includes the rule
of law, judicial redress and independent supervision. The article also provides
for the possibility for the Commission to assess the level of protection
afforded by a territory or a processing sector within a third country. It
introduces that a general adequacy decision adopted, following the procedures
under Article 38 of the General Data Protection Regulation, shall be applicable
within the scope of this Directive. Alternatively an adequacy decision can be adopted
by the Commission exclusively for the purposes of this Directive.

Article 35 defines the appropriate
safeguards needed prior to international transfers, in the absence of a
Commission adequacy decision. These safeguards may be adduced by a legally
binding instrument such as an international agreement. Alternatively, the data
controller may on the basis of an assessment of the circumstances surrounding
the transfer conclude that they exist.

Article 36 spells out the derogations for
data transfer based on Article 26 of Directive 95/46/EC and Article 13 of
Framework Decision 2008/977/JHA.

Article 37 obliges Member States to provide
that the controller informs the recipient of any processing restrictions and
takes all reasonable steps to ensure that these restrictions are met by
recipients of the personal data in the third country or international
organisation.

Article 38 explicitly provides for
international co-operation mechanisms for the protection of personal data
between the Commission and the supervisory authorities of third countries, in
particular those considered offering an adequate level of protection, taking
into account the OECD’s Recommendation on Cross-border Co-operation in the
Enforcement of Laws Protecting Privacy of 12 June 2007.

CHAPTER VI - NATIONAL SUPERVISORY
AUTHORITIES

3.4.5.1.
SECTION 1 INDEPENDENT STATUS

Article 39 obliges Member States to
establish supervisory authorities, following Article 28(1) of Directive
95/46/EC and Article 25 Framework Decision 2008/977/JHA, enlarging the mission
of these authorities to contribute to the consistent application of the Directive
throughout the Union, which may be the supervisory authority established under the
General Data Protection Regulation.

Article 40 clarifies the conditions for the
independence of supervisory authorities, implementing case law of the Court of
Justice of the EU[29], inspired also by Article 44 of Regulation (EC) No 45/2001[30].

Article 41 provides general conditions for
the members of the supervisory authority, implementing the relevant case law[31], inspired also by Article 42(2)-(6) of Regulation (EC) 45/2001.

Article 42 sets out rules on the
establishment of the supervisory authority, including on conditions for its
members, to be provided by the Member States by law.

Article 43 on professional secrecy of the
members and staff of the supervisory authority follows Article 28(7) of
Directive 95/46/EC and Article 25(4) Framework Decision 2008/977/JHA.

3.4.5.2.
SECTION 2 DUTIES AND POWERS

Article 44 sets out the competence of the
supervisory authorities, based on Article 28(6) of Directive 95/46/EC and
Article 25(1) Framework Decision 2008/977/JHA. Courts, when acting in their judicial
authority, are exempted from the monitoring by the supervisory authority, but
not from the application of the substantive rules on data protection.

Article 45 provides the obligation of
Member States to provide for the duties of the supervisory authority, including
hearing and investigating complaints and promoting the awareness of the public
on risk, rules, safeguards and rights. A particular duty of the supervisory
authorities in the context of this Directive is, where direct access is refused
or restricted, to exercise the right of access on behalf of data subjects and
to check the lawfulness of the data processing.

Article 46 provides the powers of the
supervisory authority, based on Article 28(3) of Directive 95/46/EC, Article
25(2) and (3) of Framework Decision 2008/977/JHA.Article 47 obliges the
supervisory authorities to draw up annual activity reports, based on Article
28(5) of Directive 95/46/EC.

3.4.6.
CHAPTER VII – CO-OPERATION

Article 48 introduces rules on mandatory
mutual assistance whereas Article 28 (6)2 of Directive 95/46/EC provided simply
a general obligation to co-operate, without specifying further.

Article 49 provides that the European Data
Protection Advisory Board, established by the General Data Protection
Regulation, exercises its tasks also in relation to processing activities within
the scope of this Directive. In order to provide complementary support, the
Commission will seek the advice of representatives of authorities competent for
the prevention, investigation, detection and prosecution of criminal penalties
of the Member States, as well as representatives of Europol and Eurojust, by
means of an expert group on the law-enforcement related aspects of data
protection.

3.4.7.
CHAPTER VIII - REMEDIES, LIABILITY AND SANCTIONS

Article 50 provides the right of any data
subject to lodge a complaint with a supervisory authority, based on Article
28(4) of Directive 95/46/EC, and relates to any infringement of the Directive
in relation to the complainant. It also specifies the bodies, organisations or
associations which may lodge a complaint on behalf of the data subject and also
in case of a personal data breach independently of a data subject's complaint.

Article 51 concerns the right to a judicial
remedy against a supervisory authority. It builds on the general provision of
Article 28(3) of Directive 95/46/EC and provides specifically that the data
subject may launch a court action for obliging the supervisory authority to act
on a complaint.

Article 52 concerns the right to a judicial
remedy against a controller or processor, based on Article 22 of Directive
95/46/EC and Article 20 of Framework Decision 2008/977/JHA.

Article 53 introduces common rules for
court proceedings, including the rights of bodies, organisations or
associations to represent data subjects before the courts, and the right of
supervisory authorities to engage in legal proceedings. The obligation of
Member States to ensure rapid court actions is inspired by Article 18(1) of the
e-Commerce Directive 2000/31/EC[32].

Article 54 obliges Member States to provide
for the right to compensation. It builds on Article 23 of Directive 95/46/EC
and Article 19(1) of Framework Decision 2008/977/JHA, extends this right on
damages caused by processors and clarifies the liability of co-controllers and
co-processors.

Article 55 obliges Member States to lay
down rules on penalties, to sanction infringements of the Directive, and to
ensure their implementation.

3.4.8.
CHAPTER IX – DELEGATED ACTS AND IMPLEMENTING
ACTS

Article 56 contains standard provisions for
the exercise of delegations in line with Article 290 TFEU. This allows the
legislator to delegate to the Commission the power to adopt non-legislative
acts of general application to supplement or amend certain non-essential
elements of a legislative act (quasi-legislative acts).

Article 57 contains the provision for the
Committee procedure needed for conferring implementing powers on the Commission
in cases where, in accordance with Article 291 TFEU, uniform conditions for
implementing legally binding acts of the Union are needed. The examination
procedure applies.

3.4.9.
CHAPTER X – FINAL PROVISIONS

Article 58 repeals Framework Decision
2008/977/JHA.

Article 59 sets out that specific
provisions with regard to the processing of personal data by competent authorities
for the purposes of prevention, investigation,
detection or prosecution of criminal offences or the execution of criminal
penalties in Union acts, regulating the processing of
personal data or the access to information systems within the scope of the
Directive, and adopted prior to the adoption of this Directive, remain
unaffected.

Article 60 clarifies the relationship of
this Directive with previously concluded international agreements by Member
States in the field of judicial co-operation in criminal matters and police
co-operation.

Article 61 provides for the obligation of
the Commission to evaluate and report on the implementation of the Directive,
in order to assess the need to align the previously adopted specific provisions
referred to in Article 59 with this Directive.

Article 62 sets out the obligation of the
Member States to transpose the Directive in their national law and notify to
the Commission the provisions adopted pursuant to the Directive.

Article 63 determines the date of the entry
into force of the Directive.

Article 64 lays down the addressees of this
Directive.

4.         BUDGETARY IMPLICATIONS

The legislative financial statement
accompanying the proposal for the General Data Protection Regulation covers the
budgetary impacts for the Regulation and this Directive.

2012/0010 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

on the protection of individuals with
regard to the processing of personal data by competent authorities for the
purposes of prevention, investigation, detection or prosecution of criminal
offences or the execution of criminal penalties, and the free movement of such
data

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 16(2) thereof,

Having regard to the proposal from the
European Commission,

After transmission of the draft legislative
act to the national Parliaments,

After consulting the European Data
Protection Supervisor[33],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)
The protection of natural persons in relation to
the processing of personal data is fundamental right. Article 8(1) of the
Charter of Fundamental Rights of the European Union and Article 16(1) of the
Treaty of the Functioning of the European Union lay down that everyone has the
right to the protection of personal data concerning him or her.

(2)
The processing of personal data is designed to
serve man; the principles and rules on the protection of individuals with
regard to the processing of their personal data should, whatever the
nationality or residence of natural persons, respect their fundamental rights
and freedoms, notably their right to the protection of personal data. It should
contribute to the accomplishment of an area of freedom, security and justice.

(3)
Rapid technological developments and
globalisation have brought new challenges for the protection of personal data.
The scale of data collection and sharing has increased spectacularly.
Technology allows competent authorities to make use of personal data on an
unprecedented scale in order to pursue their activities.

(4)
This requires facilitating the free flow of data
between competent authorities within the Union and the transfer to third
countries and international organisations, while ensuring a high level of
protection of personal data. These developments require building a strong and
more coherent data protection framework in the Union, backed by strong
enforcement.

(5)
Directive 95/46/EC of the European Parliament
and of the Council of 24 October 1995 on the protection of individuals with
regard to the processing of personal data and on the free movement of such data[34] applies to all personal data
processing activities in Member States in both the public and the private
sectors. However, it does not apply to the processing of personal data 'in the
course of an activity which falls outside the scope of Community law', such as
activities in the areas of judicial co-operation in criminal matters and police
co-operation.

(6)
Council Framework Decision 2008/977/JHA of 27
November 2008 on the protection of personal data processed in the framework of
police and judicial co-operation in criminal matters[35] applies in the areas of
judicial co-operation in criminal matters and police co-operation. The scope of
application of this Framework Decision is limited to the processing of personal
data transmitted or made available between Member States.

(7)
Ensuring a consistent and high level of
protection of the personal data of individuals and facilitating the exchange of
personal data between competent authorities of Members States is crucial in
order to ensure effective judicial co-operation in criminal matters and police
cooperation. To that aim, the level of protection of the rights and freedoms of
individuals with regard to the processing of personal data by competent
authorities for the purposes of prevention, investigation, detection or
prosecution of criminal offences or the execution of criminal penalties must be
equivalent in all Member States. Effective protection of personal data
throughout the Union requires strengthening the rights of data subjects and the
obligations of those who process personal data, but also equivalent powers for
monitoring and ensuring compliance with the rules for the protection of
personal data in the Member States.

(8)
Article 16(2) of the Treaty on the Functioning
of the European Union provides that the European Parliament and the Council should
lay down the rules relating to the protection of individuals with regard to the
processing of personal data and the rules relating to the free movement of
personal data.

(9)
On that basis, Regulation EU ...../2012 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) lays down general rules to protect of
individuals in relation to the processing of personal data and to ensure the
free movement of personal data within the Union.

(10)
In Declaration 21 on the protection of personal
data in the fields of judicial co-operation in criminal matters and police co-operation,
annexed to the final act of the intergovernmental conference which adopted the
Treaty of Lisbon, the Conference acknowledged that specific rules on the
protection of personal data and the free movement of such data in the fields of
judicial co-operation in criminal matters and police co-operation based on
Article 16 of the Treaty on the Functioning of the European Union may prove
necessary because of the specific nature of these fields.

(11)
Therefore a distinct Directive should meet the
specific nature of these fields and lay down the rules relating to the
protection of individuals with regard to the processing of personal data by
competent authorities for the purposes of prevention, investigation, detection
or prosecution of criminal offences or the execution of criminal penalties.

(12)
In order to ensure the same level of protection
for individuals through legally enforceable rights throughout the Union and to
prevent divergences hampering the exchange of personal data between competent
authorities, the Directive should provide harmonised rules for the protection
and the free movement of personal data in the areas of judicial co-operation in
criminal matters and police co-operation.

(13)
This Directive allows the principle of public
access to official documents to be taken into account when applying the
provisions set out in this Directive.

(14)
The protection afforded by this Directive should
concern natural persons, whatever their nationality or place of residence, in
relation to the processing of personal data.

(15)
The protection of individuals should be
technological neutral and not depend on the techniques used; otherwise this
would create a serious risk of circumvention. The protection of individuals
should apply to processing of personal data by automated means, as well as to
manual processing if the data are contained or are intended to be contained in
a filing system. Files or sets of files as well as their cover pages, which are
not structured according to specific criteria, should not fall within the scope
of this Directive. This Directive should not apply to the processing of
personal data in the course of an activity which falls outside the scope of
Union law, in particular concerning national security, or to data processed by
the Union institutions, bodies, offices and agencies, such as Europol or
Eurojust.

(16)
The principles of protection should apply to any
information concerning an identified or identifiable natural person. To
determine whether a natural 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.

(17)
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, for example; a disease, disability, disease risk, medical
history, clinical treatment, or the actual physiological or biomedical state of
the data subject independent of its source, e.g. from a physician or other
health professional, a hospital, a medical device, or an in vitro diagnostic
test.

(18)
Any processing of personal data must be fair and
lawful in relation to the individuals concerned. In particular, the specific
purposes for which the data are processed should be explicit.

(19)
For the prevention, investigation and
prosecution of criminal offences, it is necessary for competent authorities to
retain and process personal data, collected in the context of the prevention,
investigation, detection or prosecution of specific criminal offences beyond
that context to develop an understanding of criminal phenomena and trends, to
gather intelligence about organised criminal networks, and to make links
between different offences detected.

(20)
Personal data should not be processed for
purposes incompatible with the purpose for which it was collected. Personal
data should be adequate, relevant and not excessive for the purposes for which
the personal data are processed. Every reasonable step should be taken to
ensure that personal data which are inaccurate should be rectified or erased.

(21)
The principle of accuracy of data should be
applied taking account of the nature and purpose of the processing concerned.
In particular in judicial proceedings, statements containing personal data are
based on the subjective perception of individuals and are in some cases not
always verifiable. Consequently, the requirement of accuracy should not
appertain to the accuracy of a statement but merely to the fact that a specific
statement has been made.

(22)
In the interpretation and application of the
general principles relating to personal data processing by competent
authorities for the purposes of prevention,
investigation, detection or prosecution of criminal offences or the execution
of criminal penalties, account should be taken of the
specificities of the sector, including the specific objectives pursued.

(23)
It is inherent to the processing of personal data
in the areas of judicial co-operation in criminal matters and police
co-operation that personal data relating to different categories of data
subjects are processed. Therefore a clear distinction should as far as possible
be made between personal data of different categories of data subjects such as suspects,
persons convicted of a criminal offence, victims and third parties, such as
witnesses, persons possessing relevant information or contacts and associates
of suspects and convicted criminals.

(24)
As far as possible personal data should be
distinguished according to the degree of their accuracy and reliability. Facts
should be distinguished from personal assessments, in order to ensure both the
protection of individuals and the quality and reliability of the information
processed by the competent authorities.

(25)
In order to be lawful, the processing of
personal data should be necessary for compliance with a legal obligation to
which the controller is subject, for the performance of a task carried out in
the public interest by a competent authority based on law or in order to
protect the vital interests of the data subject or of another person, or for
the prevention of an immediate and serious threat to public security.

(26)
Personal data which are, by their nature,
particularly sensitive in relation to fundamental rights or privacy, including
genetic data, deserve specific protection. Such data should not be processed,
unless processing is specifically authorised by a law which provides for
suitable measures to safeguard the data subject's legitimate interests; or
processing is necessary to protect the vital interests of the data subject or
of another person; or the processing
relates to data which are manifestly made public by the data subject.

(27)
Every natural person should have the right not
to be subject to a measure which is based solely on automated processing if it produces
an adverse legal effect for that person, unless authorised by law and subject
to suitable measures to safeguard the data subject’s legitimate interests.

(28)
In order to exercise their rights, any
information to the data subject should be easily accessible and easy to
understand, including the use of clear and plain language.

(29)
Modalities should be provided for facilitating
the data subject’s exercise of their rights under this Directive, including
mechanisms to request, free of charge, in particular access to data,
rectification and erasure. The controller should be obliged to respond to
requests of the data subject without undue delay.

(30)
The principle of fair processing requires that
the data subjects 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.

(31)
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 obtained 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 processed.

(32)
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 of and verify the lawfulness of the processing.
Every data subject should therefore have the right to know about and obtain
communication in particular of the purposes for which the data are processed,
for what period, which recipients receive the data, including in third
countries Data subjects should be allowed to receive a copy of their personal data
which are being processed.

(33)
Member States should be allowed to adopt
legislative measures delaying, restricting or omitting the information of data
subjects or the access to their personal data to the extent that and as long as
such partial or complete restriction constitutes a necessary and proportionate
measure in a democratic society with due regard for the legitimate interests of
the person concerned, to avoid obstructing official or legal inquiries,
investigations or procedures, to avoid prejudicing the prevention, detection,
investigation and prosecution of criminal offences or for the execution of
criminal penalties, to protect public security or national security, or, to
protect the data subject or the rights and freedoms of others.

(34)
Any refusal or restriction of access should be
set out in writing to the data subject including the factual or legal reasons
on which the decision is based.

(35)
Where Member States have adopted legislative
measures restricting wholly or partly the right to access, the data subject should
have the right to request that the competent national supervisory authority
checks the lawfulness of the processing. The data subject should be informed of
this right. When access is exercised by the supervisory authority on behalf of
the data subject, the data subject should be informed by the supervisory
authority at least that all necessary verifications by the supervisory
authority have taken place and of the result as regards to the lawfulness of
the processing in question.

(36)
Any person should have the right to have inaccurate
personal data concerning them rectified and the right of erasure where the
processing of such data is not in compliance with the main principles laid down
in this Directive. Where the personal data are processed in the course of a criminal
investigation and proceedings,, rectification, the rights of information,
access, erasure and restriction of processing may be carried out in accordance
with national rules on judicial proceedings.

(37)
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 the compliance of processing operations with the
rules adopted pursuant to this Directive.

(38)
The protection of the rights and freedoms of
data subjects with regard to the processing of personal data requires that
appropriate technical and organisational measures be taken to ensure that the
requirements of the Directive are met. In order to ensure compliance with the
provisions adopted pursuant to this Directive, the controller should adopt
policies and implement appropriate measures, which meet in particular the
principles of data protection by design and data protection by default.

(39)
The protection of the rights and freedoms of
data subjects as well as the responsibility and liability of controllers and
processors requires a clear attribution of the responsibilities under this
Directive, 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.

(40)
Processing activities should be documented by
the controller or processor, in order to monitor compliance with this
Directive. Each controller and processor should be obliged to co-operate with
the supervisory authority and make this documentation available upon request,
so that it might serve for monitoring processing operations. .

(41)
In order to ensure effective protection of the
rights and freedoms of data subjects by way of preventive actions, the
controller or processor should consult with the supervisory authority in
certain cases prior to the processing.

(42)
A personal data breach may, if not addressed in
an adequate and timely manner, result in harm, including reputational damage to
the individual concerned. Therefore, as soon as the controller becomes aware
that such a breach has occurred, it should notify the breach to the competent
national authority. The individuals whose personal data or privacy 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 an individual
where it could result in, for example, identity theft or fraud, physical harm,
significant humiliation or damage to reputation in connection with the
processing of personal data.

(43)
In setting detailed rules concerning the format
and procedures applicable to the notification of personal data breaches, due
consideration should be given to the circumstances of the breach, including
whether or not personal data had been protected by appropriate technical
protection measures, effectively limiting the likelihood of misuse. Moreover,
such rules and procedures should take into account the legitimate interests of
competent authorities in cases where early disclosure could unnecessarily
hamper the investigation of the circumstances of a breach.

(44)
The controller or the processor should designate
a person who would assist the controller or processor to monitor compliance
with the provisions adopted pursuant to this Directive. A data protection
officer may be appointed jointly by several entities of the competent authority.
The data protection officers must be in a position to perform their duties and
tasks independently and effectively.

(45)
Member States should ensure that a transfer to a
third country only takes place if it is necessary for the prevention,
investigation, detection or prosecution of criminal offences or the execution
of criminal penalties, and the controller in the third country or international
organisation is an authority competent within the meaning of this Directive. A
transfer may take place in cases where the Commission has decided that the
third country or international organisation in question ensures an adequate
level or protection, or when appropriate safeguards have been adduced.

(46)
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.

(47)
In line with the fundamental values on which the
Union is founded, in particular the protection of human rights, the Commission
should take into account how the rule of law, access to justice, as well as international
human rights norms and standards, in that third country are respected.

(48)
The Commission should equally be able to
recognise that a third country, or a territory or a processing sector within a
third country, or an international organisation, does not offer an adequate
level of data protection. Consequently the transfer of personal data to that
third country should be prohibited except when they are based on an
international agreement, appropriate safeguards or a derogation. Provision
should be made for procedures for consultations between the Commission and such
third countries or international organisations. However, such a Commission
decision shall be without prejudice to the possibility to undertake transfers
on the basis of appropriate safeguards or on the basis of a derogation laid
down in the Directive.

(49)
Transfers not based on such an adequacy decision
should only be allowed where appropriate safeguards have been adduced in a
legally binding instrument, which ensure the protection of the personal data or
where the controller or processor has assessed all the circumstances
surrounding the data transfer operation or the set of data transfer operations
and, based on this assessment, considers that appropriate safeguards with
respect to the protection of personal data exist. In cases where no grounds for
allowing a transfer exist, derogations should be allowed if necessary in order
to protect the vital interests of the data subject or another person, or to
safeguard legitimate interests of the data subject where the law of the Member
State transferring the personal data so provides, or where it is essential for
the prevention of an immediate and serious threat to the public security of a
Member State or a third country, or in individual cases for the purposes of
prevention, investigation, detection or prosecution of criminal offences or the
execution of criminal penalties, or in individual cases for the establishment,
exercise or defence of legal claims.

(50)
When personal data moves across borders it may put
at increased risk the ability of individuals to exercise data protection rights
to protect themselves from the unlawful use or disclosure of that data. At the
same time, supervisory authorities may find that they are unable to pursue
complaints or conduct investigations relating to the activities outside their
borders. Their efforts to work together in the cross-border context may also be
hampered by insufficient preventative or remedial powers, inconsistent legal
regimes. Therefore, there is a need to promote closer co-operation among data
protection supervisory authorities to help them exchange information with their
foreign counterparts.

(51)
The establishment of supervisory authorities in
Member States, exercising their functions with complete independence, is an
essential component of the protection of individuals with regard to the
processing of their personal data. The supervisory authorities should monitor
the application of the provisions pursuant to this Directive and contribute to
its consistent application throughout the Union, in order to protect natural
persons in relation to the processing of their personal data. For that purpose,
the supervisory authorities should co-operate with each other and the
Commission.

(52)
Member States may entrust a supervisory
authority already established in Member States under Regulation (EU)..../2012 with
the responsibility for the tasks to be performed by the national supervisory
authorities to be established under this Directive.

(53)
Member States should be allowed to establish
more than one supervisory authority to reflect their constitutional,
organisational and administrative structure. Each supervisory authority should
be provided with adequate financial and human resources, premises and
infrastructure, which 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.

(54)
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.

(55)
While this Directive applies also to the
activities of national courts, the competence of the supervisory authorities
should not cover the processing of personal data when they are acting in their
judicial capacity, in order to safeguard the independence of judges in the
performance of their judicial tasks. However, this exemption should be limited
to genuine judicial activities in court cases and not apply to other activities
where judges might be involved in accordance with national law.

(56)
In order to ensure consistent monitoring and
enforcement of this Directive throughout the Union, the supervisory authorities
should have the same duties and effective powers in each Member State,
including powers of investigation, legally binding intervention, decisions and
sanctions, particularly in cases of complaints from individuals, and to engage
in legal proceedings.

(57)
Each supervisory authority should hear
complaints lodged by any data subject and should investigate the matter. The
investigation following a complaint should be carried out, subject to judicial
review, to the extent that is appropriate in the specific case. The supervisory
authority should inform the data subject of the progress and the outcome of the
complaint within a reasonable period. If the case requires further
investigation or coordination with another supervisory authority, intermediate
information should be given to the data subject.

(58)
The supervisory authorities should assist one
another in performing their duties and provide mutual assistance, so as to
ensure the consistent application and enforcement of the provisions adopted
pursuant to this Directive.

(59)
The European Data Protection Board established
by Regulation (EU)..../2012 should contribute to the consistent application of
this Directive throughout the Union, including advising the Commission and
promoting the co-operation of the supervisory authorities throughout the Union.

(60)
Every data subject should have the right to
lodge a complaint with a supervisory authority in any Member State and have the
right to a judicial remedy if they consider that their rights under this
Directive are infringed or where the supervisory authority does not act on a
complaint or does not act where such action is necessary to protect the rights
of the data subject.

(61)
Any body, organisation or association which aims
to protects the rights and interests of data subjects in relation to the
protection of their data and is constituted according to the law of a Member
State should have the right to lodge a complaint or exercise the right to a
judicial remedy on behalf of data subjects if duly mandated by them, or to
lodge, independently of a data subject's complaint, its own complaint where it
considers that a personal data breach has occurred.

(62)
Each natural or legal person should have the
right to a judicial remedy against decisions of a supervisory authority
concerning them. Proceedings against a supervisory authority should be brought
before the courts of the Member State where the supervisory authority is
established.

(63)
Member States should ensure that court actions,
in order to be effective, allow the rapid adoption of measures to remedy or
prevent an infringement of this Directive.

(64)
Any damage which a person may suffer as a result
of unlawful processing should be compensated by the controller or processor,
who may be exempted from liability if they prove that they are not responsible
for the damage, in particular where they establish fault on the part of the
data subject or in case of force majeure.

(65)
Penalties should be imposed on any natural or
legal person, whether governed by private or public law, that fails to comply
with this Directive. Member States should ensure that the penalties are
effective, proportionate and dissuasive and must take all measures to implement
the penalties.

(66)
In order to fulfil the objectives of this
Directive, 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 exchange of personal data by competent authorities 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 notifications of a
personal data breach to the supervisory authority. 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.

(67)
In order to ensure uniform conditions for the
implementation of this Directive as regards documentation by controllers and
processors, security of processing, notably in relation to encryption
standards, notification of a personal data breach to the supervisory authority,
and 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, implementing powers should be conferred on the Commission. 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[36].

(68)
The examination procedure should be used for the
adoption of measures as regards documentation by controllers and processors,
security of processing, notification of a personal data breach to the
supervisory authority, and 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, given that those acts are of general scope.

(69)
The Commission should adopt immediately
applicable implementing acts where, in duly justified cases relating to a third
country or a territory or a processing sector within that third country or an
international organisation which does not ensure an adequate level of
protection, imperative grounds of urgency so require.

(70)
Since the objectives of this Directive, 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 exchange of personal data by competent authorities within the Union,
cannot be sufficiently achieved by the Member States and can therefore, by
reason of the scale or effects of the action, be better achieved at Union
level, the Union may adopt measures, in accordance with the principle of
subsidiarity as set out in Article 5 of the Treaty on European Union. In
accordance with the principle of proportionality as set out in that Article,
this Directive does not go beyond what is necessary in order to achieve that
objective

(71)
Framework Decision 2008/977/JHA should be
repealed by this Directive.

(72)
Specific provisions with regard to the
processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal
offences or the execution of criminal penalties in acts
of the Union which were adopted prior to the date of the adoption of this
Directive, regulating the processing of personal data between Member States or
the access of designated authorities of Member States to information systems
established pursuant to the Treaties, should remain unaffected. The Commission should
evaluate the situation with regard to the relation between this Directive and
the acts adopted prior to the date of adoption of this Directive regulating the
processing of personal data between Member States or the access of designated
authorities of Member States to information systems established pursuant to the
Treaties, in order to assess the need for alignment of these specific
provisions with this Directive.

(73)
In order to ensure a comprehensive and coherent protection
of personal data in the Union, international agreements concluded by Member
States prior to the entry force of this Directive should be amended in line
with this Directive.

(74)
This Directive is without prejudice to the rules
on combating the sexual abuse and sexual exploitation of children and child
pornography as laid down in Directive 2011/92/EU of the European Parliament and
of the Council of 13 December 2011.[37]

(75)
In accordance with Article 6a of the Protocol on
the position of the United Kingdom and Ireland in respect of the area of
freedom, security and justice, as annexed to the Treaty on European Union and
to the Treaty on the Functioning of the European Union, the United Kingdom and
Ireland shall not be bound by the rules laid down in this Directive where the
United Kingdom and Ireland are not bound by the rules governing the forms of
judicial co-operation in criminal matters or police co-operation which require
compliance with the provisions laid down on the basis of Article 16 of the
Treaty on the Functioning of the European Union.

(76)
In accordance with Articles 2 and 2a of the
Protocol on the position of Denmark, as annexed to the Treaty on European Union
and to the Treaty on the Functioning of the European Union, Denmark is not
bound by this Directive or subject to its application. Given that this
Directive builds upon the Schengen acquis, under Title V of Part Three of the
Treaty on the Functioning of the European Union, Denmark shall, in accordance
with Article 4 of that Protocol, decide within six months after adoption of
this Directive whether it will implement it in its national law.

(77)
As regards Iceland and Norway, this Directive
constitutes a development of provisions of the Schengen acquis, as provided for
by the Agreement concluded by the Council of the European Union and the
Republic of Iceland and the Kingdom of Norway concerning the association of
those two States with the implementation, application and development of the
Schengen acquis[38].

(78)
As regards Switzerland, this Directive
constitutes a development of provisions of the Schengen acquis, as provided for
by the Agreement between the European Union, the European Community and the
Swiss Confederation concerning the association of the Swiss Confederation with
the implementation, application and development of the Schengen acquis[39].

(79)
As regards Liechtenstein, this Directive
constitutes a development of provisions of the Schengen acquis, as provided for
by the Protocol between the European Union, the European Community, the Swiss
Confederation and the Principality of Liechtenstein on the accession of the
Principality of Liechtenstein to the Agreement between the European Union, the
European Community and the Swiss Confederation on the Swiss Confederation’s
association with the implementation, application and development of the
Schengen acquis[40].

(80)
This Directive respects the fundamental rights
and observes the principles recognised in the Charter of Fundamental Rights of
the European Union as enshrined in the Treaty, notably the right to respect for
private and family life, the right to the protection of personal data, the right
to an effective remedy and to a fair trial. Limitations placed on these rights
are in accordance with Article 52(1) of the Charter as they are necessary to meet
objectives of general interest recognised by the Union or the need to protect
the rights and freedoms of others.

(81)
In accordance with the Joint Political
Declaration of Member States and the Commission on explanatory documents of 28
September 2011, Member States have undertaken to accompany, in justified cases,
the notification of their transposition measures with one or more documents
explaining the relationship between the components of a directive and the
corresponding parts of national transposition instruments. With regard to this
Directive, the legislator considers the transmission of such documents to be
justified.

(82)
This Directive should not preclude Member States
from implementing the exercise of the rights of data subjects on information, access,
rectification, erasure and restriction of their personal data processed in the
course of criminal proceedings, and their possible restrictions thereto, in
national rules on criminal procedure.

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1
Subject matter and objectives

1.           This Directive lays down
the rules relating to the protection of individuals with regard to the
processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal
offences or the execution of criminal penalties.

2.           In accordance with this Directive,
Member States shall:

(a)     protect the fundamental rights and
freedoms of natural persons and in particular their right to the protection of
personal data; and

(b)     ensure that the exchange of personal
data by competent authorities within the Union is neither restricted nor
prohibited for reasons connected with the protection of individuals with regard
to the processing of personal data.

Article 2
Scope

1.           This Directive applies to the
processing of personal data by competent authorities for the purposes referred
to in Article 1(1).

2.           This Directive 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.

3.           This Directive shall not
apply to the processing of personal data:

(a)     in the course of an activity which
falls outside the scope of Union law, in particular concerning national
security;

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

Article 3
Definitions

For the purposes of this Directive:

(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 identifiers or to one or more factors specific to the physical,
physiological, genetic, mental, economic, cultural or social identity of that
person;

(2)
'personal data' means any information relating
to a data subject;

(3)
'processing' means any operation or set of
operations which is performed upon personal data or sets of personal data,
whether or not by automated means, such as collection, recording, organization,
structuring, storage, adaptation or alteration, retrieval, consultation, use,
disclosure by transmission, dissemination or otherwise making available,
alignment or combination, restriction, erasure or destruction;

(4)
'restriction of processing' means the marking of
stored personal data with the aim of limiting their processing in the future;

(5)
'filing system' means any structured set of
personal data which are accessible according to specific criteria, whether
centralized, decentralized or dispersed on a functional or geographical basis;

(6)
'controller' means the competent public authority 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;

(7)
'processor' means a natural or legal person, public authority, agency or any
other body which processes personal data on behalf of the controller;

(8)
'recipient' means a natural or legal person,
public authority, agency or any other body to which the personal data are
disclosed;

(9)
'personal data breach' means a breach of security leading to the accidental or unlawful
destruction, loss, alteration, unauthorised disclosure of, or access to,
personal data transmitted, stored or otherwise processed;

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

(11)
'biometric data' means any data relating to the
physical, physiological or behavioural characteristics of an individual which
allow their unique identification, such as facial images, or dactyloscopic
data;

(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;

(13)
'child' means any person below the age of 18
years;

(14)
'competent authorities’ means any public authority
competent for the prevention, investigation, detection
or prosecution of criminal offences or the execution of criminal penalties;

(15)
'supervisory authority' means a public authority
which is established by a Member State in accordance with Article 39.

CHAPTER II

PRINCIPLES

Article 4
Principles relating to personal data processing

Member States shall provide that personal
data must be:

(a)     processed fairly and lawfully;

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

(c)     adequate, relevant, and not excessive in relation to the purposes for
which they are processed;

(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 delay;

(e)     kept in a form which permits
identification of data subjects for no longer than it is necessary for the
purposes for which the personal data are processed;

(f)      processed under the responsibility and liability of the controller,
who shall ensure compliance with the provisions adopted pursuant to this
Directive.

.

Article 5
Distinction between different categories of data subjects

1.           Member States shall provide
that, as far as possible, the controller makes a clear distinction between
personal data of different categories of data subjects, such as:

(a)     persons with regard to whom there are
serious grounds for believing that they have committed or are about to commit a
criminal offence;

(b)     persons convicted of a criminal
offence;

(c)     victims of a criminal offence, or
persons with regard to whom certain facts give reasons for believing that he or
she could be the victim of a criminal offence;

(d)     third parties to the criminal offence,
such as persons who might be called on to testify in investigations in
connection with criminal offences or subsequent criminal proceedings, or a
person who can provide information on criminal offences, or a contact or
associate to one of the persons mentioned in (a) and (b); and

(e)     persons who do not fall within any of
the categories referred to above.

Article 6
Different degrees of accuracy and reliability of personal data

1.           Member States shall ensure that,
as far as possible, the different categories of personal data undergoing
processing are distinguished in accordance with their degree of accuracy and
reliability.

2.           Member States shall ensure that, as
far as possible, personal data based on facts are distinguished from personal
data based on personal assessments.

Article 7
Lawfulness of processing

Member States shall provide that the
processing of personal data is lawful only if and to the extent that processing
is necessary:

(a)
for the performance of a task carried out by a
competent authority, based on law for the purposes set out in Article 1(1); or

(b)
for compliance with a legal obligation to which
the controller is subject; or

(c)
in order to protect the vital interests of the
data subject or of another person; or

(d)
for the prevention of an immediate and serious
threat to public security.

Article 8
Processing of special categories of personal data

1.           Member States shall
prohibit the processing of personal data revealing race or ethnic origin,
political opinions, religion or beliefs, trade-union membership, of genetic
data or of data concerning health or sex life.

2.           Paragraph 1 shall not
apply where:

(a)     the processing is authorised by a law providing
appropriate safeguards; or

(b)     the processing is necessary to protect
the vital interests of the data subject or of another
person; or

(c)     the processing relates to data which
are manifestly made public by the data subject.

Article 9
Measures based on profiling and automated processing

1.           Member States shall
provide that measures which produce an adverse legal effect for the data
subject or significantly affect them and which are based solely on automated
processing of personal data intended to evaluate certain personal aspects
relating to the data subject shall be prohibited unless authorised by a law
which also lays down measures to safeguard the data subject’s legitimate
interests.

2.           Automated processing of
personal data intended to evaluate certain personal aspects relating to the
data subject shall not be based solely on special categories of personal data
referred to in Article 8.

CHAPTER III

RIGHTS OF THE
DATA SUBJECT

Article 10
Modalities for exercising the rights of the data
subject

1.           Member States shall provide
that the controller takes all reasonable steps to have transparent and easily
accessible policies with regard to the processing of personal data and for the
exercise of the data subjects' rights.

2.           Member States shall provide
that any information and any communication relating to the processing of
personal data are to be provided by the controller to the data subject in an
intelligible form, using clear and plain language.

3.           Member States shall
provide that the controller takes all reasonable steps to establish procedures
for providing the information referred to in Article 11 and for the exercise of
the rights of data subjects referred to in Articles 12 to 17.

4.           Member States shall
provide that the controller informs the data subject about the follow-up given
to their request without undue delay.

5.           Member States shall
provide that the information and any action taken by the controller following a
request referred to in paragraphs 3 and 4 are free of charge. Where requests
are vexatious, in particular because of their repetitive character, or the size
or volume of the request, 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 vexatious character of the request.

Article 11
Information to the data subject

1.           Where personal data
relating to a data subject are collected, Member States shall ensure that the
controller takes all appropriate measures to provide the data subject with at
least the following information:

(a)     the identity and the contact details
of the controller and of the data protection officer;

(b)     the purposes of the processing for
which the personal data are intended;

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

(d)     the existence of the right to request
from the controller access to and rectification, erasure or restriction of
processing of the personal data concerning the data subject;

(e)     the right to lodge a complaint to the
supervisory authority referred to in Article 39 and its contact details;

(f)      the recipients or categories of
recipients of the personal data, including in third countries or international
organisations;

(g)     any further information in so far as
such further information is necessary to guarantee fair processing in respect
of the data subject, having regard to the specific circumstances in which the
personal data are processed.

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.

3.           The controller shall
provide the information referred to in paragraph 1:

(a)     at the
time when the personal data are obtained from the data subject, or

(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 processed.

4.           Member States may adopt
legislative measures delaying, restricting or omitting the provision of the
information to the data subject to the extent that, and as long as, such
partial or complete restriction constitutes a necessary and proportionate
measure in a democratic society with due regard for the legitimate interests of
the person concerned:

(a)
to avoid obstructing official or legal
inquiries, investigations or procedures ;

(b)
to avoid prejudicing the prevention, detection,
investigation and prosecution of criminal offences or for the execution of
criminal penalties;

(c)
to protect public security;

(d)
to protect national security;

(e)
to protect the rights and freedoms of others.

5.           Member States may
determine categories of data processing which may wholly or partly fall under
the exemptions of paragraph 4.

Article 12
Right of access for the data subject

1.           Member States shall provide
for the right of the data subject to obtain from the controller confirmation as
to whether or not personal data relating to them are being processed. Where
such personal data are being processed, the controller shall provide the
following information:

(a)     the purposes of the processing;

(b)     the categories of personal data
concerned;

(c)     the recipients or categories of
recipients to whom the personal data have been disclosed, in particular the recipients
in third countries;

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

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

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

(g)     communication of the personal data
undergoing processing and of any available information as to their source.

2.           Member States shall
provide for the right of the data subject to obtain from the controller a copy
of the personal data undergoing processing.

Article 13
Limitations to the right of access

1.
Member States may adopt legislative measures
restricting, wholly or partly, the data subject's right of access to the extent
that such partial or complete restriction constitutes a necessary and
proportionate measure in a democratic society with due regard for the
legitimate interests of the person concerned:

(a)
to avoid obstructing official or legal
inquiries, investigations or procedures;

(b)
to avoid prejudicing the prevention, detection,
investigation and prosecution of criminal offences or the execution of criminal
penalties;

(c)
 to protect public security;

(d)
 to protect national security;

(e)
 to protect the rights and freedoms of others.

2.
Member States may determine by law categories of
data processing which may wholly or partly fall under the exemptions of paragraph
1.

3.
In cases referred to in paragraphs 1 and 2, Member
States shall provide that the controller informs the data subject in writing on
any refusal or restriction of access, on the reasons for the refusal and on the
possibilities of lodging a complaint to the supervisory authority and seeking a
judicial remedy. The information on factual or legal reasons on which the
decision is based may be omitted where the provision of such information would
undermine a purpose under paragraph 1.

4.
Member States shall ensure that the controller
documents the grounds for omitting the communication of the factual or legal
reasons on which the decision is based.

Article 14
Modalities for exercising the right of access

1.           Member States shall
provide for the right of the data subject to request, in particular in cases referred
to in Article 13, that the supervisory authority checks the lawfulness of the
processing.

2.           Member State shall provide
that the controller informs the data subject of the right to request the intervention
of the supervisory authority pursuant to paragraph 1.

3.           When the right referred to
in paragraph 1 is exercised, the supervisory authority shall inform the data
subject at least that all necessary verifications by the supervisory authority
have taken place, and of the result as regards the lawfulness of the processing
in question.

Article 15
Right to rectification

1.           Member States shall provide
for the right of the data subject 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,
in particular by way of a corrective statement.

2.           Member States shall
provide that the controller informs the data subject in writing on any refusal
of rectification, on the reasons for the refusal and on the possibilities of
lodging a complaint to the supervisory authority and seeking a judicial remedy.

Article 16
Right to erasure

1.
Member States shall provide for the right of the
data subject to obtain from the controller the erasure of personal data
relating to them where the processing does not comply with the provisions
adopted pursuant to Articles 4 (a) to (e), 7 and 8 of this Directive.

2.
The controller shall carry out the erasure
without delay.

3.
Instead of erasure, the controller shall mark
the personal data where:

(a)
their accuracy is contested by the data subject,
for a period enabling the controller to verify the accuracy of the data;

(b)
the personal data have to be maintained for
purposes of proof;

(c)
the data subject opposes their erasure and requests
the restriction of their use instead.

4.
Member States shall provide that the controller
informs the data subject in writing of any refusal of erasure or marking of the
processing, the reasons for the refusal and the possibilities of lodging a
complaint to the supervisory authority and seeking a judicial remedy.

Article 17
Rights of the data subject in criminal investigations and proceedings

Member States may provide that the rights
of information, access, rectification, erasure and restriction of processing
referred to in Articles 11 to 16 are carried out in accordance with national
rules on judicial proceedings where the personal data are contained in a
judicial decision or record processed in the course of criminal investigations
and proceedings.

CHAPTER IV
CONTROLLER AND PROCESSOR

SECTION
1
GENERAL OBLIGATIONS

Article 18
Responsibility of the controller

1.           Member States shall
provide that the controller adopts policies and implements appropriate measures
to ensure that the processing of personal data is performed in compliance with the
provisions adopted pursuant to this Directive.

2.           The measures referred to
in paragraph 1 shall in particular include:

(a)     keeping the documentation referred to
in Article 23;

(b)     complying with the requirements for
prior consultation pursuant to Article 26;

(c)     implementing the data security
requirements laid down in Article 27;

(d)     designating a data protection officer
pursuant to Article 30.

3.           The controller shall implement mechanisms to ensure the verification
of the effectiveness of the measures referred to in paragraph 1 of this Article. If proportionate, this verification shall be carried
out by independent internal or external auditors.

Article 19
Data protection by design and by default

1.           Member States shall
provide that, having regard to the state of the
art and the cost of implementation, the controller shall implement
appropriate technical and organisational measures and procedures in such a way
that the processing will meet the requirements of provisions adopted pursuant
to this Directive and ensure the protection of the rights of the data subject.

2.           The controller shall
implement mechanisms for ensuring that, by default, only those personal data
which are necessary for the purposes of the processing are processed.

Article 20
Joint controllers

Member States shall provide that where a
controller determines the purposes, conditions and means of the processing of
personal data jointly with others, the joint controllers must determine the
respective responsibilities for compliance with the provisions adopted pursuant
to this Directive, in particular as regards the procedures and mechanisms for
exercising the rights of the data subject, by means of an arrangement between
them.

Article 21
Processor

1.
Member States shall provide that where a
processing operation is carried out on behalf of a controller, the controller
must choose a processor providing sufficient guarantees to implement
appropriate technical and organisational measures and procedures in such a way
that the processing will meet the requirements of the provisions adopted
pursuant to this Directive and ensure the protection of the rights of the data
subject.

2.
Member States shall provide that the carrying
out of processing by a processor must be governed by a legal act binding the
processor to the controller and stipulating in particular that the processor
shall act only on instructions from the controller, in particular, where the
transfer of the personal data used is prohibited.

3.
If a processor processes personal data other
than as instructed by the controller, the processor shall be considered to be a
controller in respect of that processing and shall be subject to the rules on
joint controllers laid down in Article 20.

Article 22
Processing under the authority of the controller and processor

Member States shall provide that the
processor and any person acting under the authority of the controller or of the
processor, who has access to personal data, may only process them on
instructions from the controller or where required by Union or Member State
law.

Article 23
Documentation

1.           Member States shall
provide that each controller and processor maintains documentation of all
processing systems and procedures under their responsibility.

2.           The documentation shall
contain at least the following information:

(a)     the name and contact details of the
controller, or any joint controller or processor;

(b)     the purposes of the processing;

(c)     the recipients or categories of
recipients of the personal data;

(d)     transfers of data to a third country
or an international organisation, including the identification of that third
country or international organisation.

3.           The controller and the
processor shall make the documentation available, on request, to the
supervisory authority.

Article 24
Keeping of records

1.           Member States shall ensure
that records are kept of at least the following processing operations:
collection, alteration, consultation, disclosure, combination or erasure. The
records of consultation and disclosure shall show in particular the purpose,
date and time of such operations and as far as possible the identification of the
person who consulted or disclosed personal data.

2.           The records shall be used solely
for the purposes of verification of the lawfulness of the data processing, self-monitoring
and for ensuring data integrity and data security.

Article 25
Cooperation with the supervisory authority

1.           Member
States shall provide that the controller
and the processor shall co-operate, on request, with the supervisory authority in
the performance of its duties, in particular by providing all information necessary
for the supervisory authority to perform its duties.

2.           In
response to the supervisory authority's exercise of its powers under points (a)and
(b) of Article 46, the controller and the
processor shall reply to the supervisory authority within a reasonable period.
The reply shall include a description of the measures taken and the results
achieved, in response to the remarks of the supervisory authority.

Article 26
Prior consultation of the supervisory authority

1.
Member States shall ensure that the controller
or the processor consults the supervisory authority prior to the processing of
personal data which will form part of a new filing system to be created where:

(a)     special categories of data referred to
in Article 8 are to be processed;

(b)     the type of processing, in particular
using new technologies, mechanisms or procedures, holds otherwise specific
risks for the fundamental rights and freedoms, and in particular the protection
of personal data, of data subjects.

2.
Member States may provide that the supervisory
authority establishes a list of the processing operations which are subject to
prior consultation pursuant to paragraph 1.

SECTION
2
data SECURITY

Article 27
Security of processing

1.           Member
States shall provide that the controller and the processor implements appropriate
technical and organisational measures to ensure a level of security appropriate
to the risks represented by the processing and the nature of the data to be
protected, having regard to the state of the art and the cost of their
implementation.

2.           In
respect of automated data processing, each Member State shall provide that the
controller or processor, following an evaluation of the risks, implements
measures designed to:

(a)
deny unauthorised persons access to
data-processing equipment used for processing personal data (equipment access
control);

(b)
prevent the unauthorised reading, copying,
modification or removal of data media (data media control);

(c)
prevent the unauthorised input of data and the
unauthorised inspection, modification or deletion of stored personal data
(storage control);

(d)
prevent the use of automated data-processing
systems by unauthorised persons using data communication equipment (user
control);

(e)
ensure that persons authorised to use an
automated data-processing system only have access to the data covered by their
access authorisation (data access control);

(f)
ensure that it is possible to verify and
establish to which bodies personal data have been or may be transmitted or made
available using data communication equipment (communication control);

(g)
ensure that it is subsequently possible to
verify and establish which personal data have been input into automated
data-processing systems and when and by whom the data were input (input
control);

(h)
prevent the unauthorised reading, copying,
modification or deletion of personal data during transfers of personal data or
during transportation of data media (transport control);

(i)
ensure that installed systems may, in case of
interruption, be restored (recovery);

(j)
ensure that the functions of the system perform,
that the appearance of faults in the functions is reported (reliability) and
that stored personal data cannot be corrupted by means of a malfunctioning of
the system (integrity).

3.           The
Commission may adopt, where necessary, implementing acts for specifying the
requirements laid down in paragraphs 1 and 2 to various situations, notably
encryption standards. Those implementing acts shall be adopted in accordance
with the examination procedure referred to in Article 57(2).

Article 28
Notification of a personal data breach to the
supervisory authority

1.           Member States shall
provide that in the case of a personal data breach, the controller notifies,
without undue delay and, where feasible, not later than 24 hours after having
become aware of it, the personal data breach to the supervisory authority. The controller
shall provide, on request, to the supervisory authority a reasoned
justification in cases where the notification is not made within 24 hours.

2.           The processor shall alert
and inform the controller immediately after having become aware of a personal
data breach.

3.           The notification referred
to in paragraph 1 shall at least:

(a)     describe the nature of the personal
data breach including the categories and number of data subjects concerned and
the categories and number of data records concerned;

(b)     communicate the identity and contact
details of the data protection officer referred to in Article 30 or other
contact point where more information can be obtained;

(c)     recommend measures to mitigate the
possible adverse effects of the personal data breach;

(d)     describe the possible consequences of
the personal data breach;

(e)     describe the measures proposed or
taken by the controller to address the personal data breach.

4.           Member States shall
provide that the controller documents any personal data breaches, comprising
the facts surrounding the breach, its effects and the remedial action taken.
This documentation must enable the supervisory authority to verify compliance
with this Article. The documentation shall only include the information
necessary for that purpose.

5.           The Commission shall be
empowered to adopt delegated acts in accordance with Article 56 for the purpose
of specifying further the criteria and requirements for establishing the data
breach referred to in paragraphs 1 and 2 and for the particular circumstances
in which a controller and a processor is required to notify the personal data
breach.

6.           The Commission may lay
down the standard format of such notification to the supervisory authority, the
procedures applicable to the notification requirement and the form and the
modalities for the documentation referred to in paragraph 4, including the time
limits for erasure of the information contained therein. Those implementing
acts shall be adopted in accordance with the examination procedure referred to
in Article 57(2).

Article 29
Communication of a personal data breach to
the data subject

1.           Member States shall
provide that when the personal data breach is likely to adversely affect the
protection of the personal data or privacy of the data subject, the controller
shall, after the notification referred to in Article 28, communicate the
personal data breach to the data subject without undue delay.

2.           The communication to the
data subject referred to in paragraph 1 shall describe the nature of the
personal data breach and contain at least the information and the
recommendations provided for in points (b) and (c) of Article 28(3).

3.           The communication of a
personal data breach to the data subject shall not be required if the
controller demonstrates to the satisfaction of the supervisory authority that
it has implemented appropriate technological protection measures, and that
those measures were applied to the personal data concerned by the personal data
breach. Such technological protection measures shall render the data
unintelligible to any person who is not authorised to access it.

4.           The communication to the
data subject may be delayed, restricted or omitted on the grounds referred to
in Article 11(4).

SECTION 3
DATA PROTECTION OFFICER

Article 30
Designation of the data protection officer

1.
Member States shall provide that the controller or
the processor designates a data protection officer.

2.
The data protection officer shall be designated on
the basis of professional qualities and, in particular, expert knowledge of
data protection law and practices and ability to fulfil the tasks referred to
in Article 32.

3.
The data protection officer may be designated for several entities, taking account of the organisational
structure of the competent authority.

Article 31
Position of the data protection officer

1.
Member States shall provide that the controller
or the processor ensures that the data protection officer is properly and in a
timely manner involved in all issues which relate to the protection of personal
data.

2.
The controller or processor shall ensure that
the data protection officer is provided with the means to perform duties and
tasks referred to under Article 32 effectively and independently, and does not
receive any instructions as regards the exercise of the function.

Article 32
Tasks of the data protection officer

Member States shall provide that the
controller or the processor entrusts the data protection officer at least with the
following tasks:

(a)
to inform and advise the controller or the processor
of their obligations in accordance with the provisions adopted pursuant to this
Directive and to document this activity and the responses received;

(b)
to monitor the implementation and application of
the policies in relation to the protection of personal data, including the
assignment of responsibilities, the training of staff involved in the
processing operations and the related audits;

(c)
to monitor the implementation and application of
the provisions adopted pursuant to this Directive, in particular as to the
requirements related to data protection by design, data protection by default
and data security and to the information of data subjects and their requests in
exercising their rights under the provisions adopted pursuant to this
Directive;

(d)
to ensure that the documentation referred to in
Article 23 is maintained;

(e)
to monitor the documentation, notification and
communication of personal data breaches pursuant to Articles 28 and 29;

(f)
to monitor the application for prior consultation
to the supervisory authority, if required pursuant to Article 26 ;

(g)
to monitor the response to requests from the
supervisory authority, and, within the sphere of the data protection officer's competence,
co-operating with the supervisory authority at the latter's request or on his
own initiative;

(h)     to act as the contact point for the
supervisory authority on issues related to the processing and consult with the
supervisory authority, if appropriate, on the data protection officer's own
initiative.

CHAPTER V
TRANSFER OF PERSONAL DATA
TO THIRD COUNTRIES OR INTERNATIONAL ORGANISATIONS

Article 33
General principles for transfers of
personal data

Member States shall provide that any transfer of personal
data by competent authorities that is undergoing processing or is intended for
processing after transfer to a third country, or to an international
organisation, including further onward transfer to another third country or
international organisation, may take place only if:

(a)     the transfer is necessary for the
prevention, investigation, detection or prosecution of criminal offences or the
execution of criminal penalties; and

(b)     the conditions laid down in this
Chapter are complied with by the controller and processor.

Article 34
Transfers with an adequacy decision

1.           Member States shall provide
that a transfer of personal data to a third country or an international
organisation may take place where the Commission has decided in accordance with
Article 41 of Regulation (EU) ..../2012 or in accordance with paragraph 3 of this
Article that the third country or a territory or a processing sector within
that third country, or the international organisation in question ensures an
adequate level of protection. Such transfer shall not require any further authorisation.

2.           Where no decision adopted
in accordance with Article 41 of Regulation (EU) ..../2012 exists, the Commission
shall assess the adequacy of the level of protection, giving consideration to
the following elements:

(a)     the rule of law, relevant legislation
in force, both general and sectoral, including concerning public security,
defence, national security and criminal law as well as the security measures
which are complied with in that country or by that international organisation; as
well as effective and enforceable rights including effective administrative and
judicial redress for data subjects, in particular for those data subjects
residing in the Union whose personal data are being transferred;

(b)     the existence and effective functioning
of one or more independent supervisory authorities in the third country or
international organisation in question responsible for ensuring compliance with
the data protection rules, for assisting and advising the data subject in
exercising their rights and for co-operation with the supervisory authorities
of the Union and of Member States; and

(c)     the international commitments the
third country or international organisation in question has entered into.

3.           The Commission may decide,
within the scope of this Directive, that a third country or a territory or a
processing sector within that third country or an international organisation
ensures an adequate level of protection within the meaning of paragraph 2. Those
implementing acts shall be adopted in accordance with the examination procedure
referred to in Article 57(2).

4.           The implementing act shall
specify its geographical and sectoral application, and, where applicable, identify
the supervisory authority mentioned in point (b) of paragraph 2.

5.           The Commission may decide within
the scope of this Directive that a third country or a territory or a processing
sector within that third country or an international organisation does not
ensure an adequate level of protection within the meaning of paragraph 2, in
particular in cases where the relevant legislation, both general and sectoral,
in force in the third country or international organisation, does not guarantee
effective and enforceable rights including effective administrative and
judicial redress for data subjects, in particular for those data subjects whose
personal data are being transferred. Those implementing acts shall be adopted
in accordance with the examination procedure referred to in Article 57(2), or,
in cases of extreme urgency for individuals with respect to their right to
personal data protection, in accordance with the procedure referred to in
Article 57(3).

6.           Member States shall ensure
that where the Commission decides pursuant to paragraph 5, that any transfer of
personal data to the third country or a territory or a processing sector within
that third country, or the international organisation in question shall be
prohibited, this decision shall be without prejudice to transfers under Article
35(1) or in accordance with Article 36. At the appropriate time, the Commission
shall enter into consultations with the third country or international
organisation with a view to remedying the situation resulting from the Decision
made pursuant to paragraph 5 of this Article.

7.           The Commission shall
publish in the Official Journal of the European Union a list of those
third countries, territories and processing sectors within a third country or
an international organisation where it has decided that an adequate level of
protection is or is not ensured.

8.           The Commission shall
monitor the application of the implementing acts referred to in paragraphs 3
and 5.

Article 35
Transfers by way of appropriate safeguards

1.           Where the Commission has
taken no decision pursuant to Article 34, Member States shall provide that a
transfer of personal data to a recipient in a third country or an international
organisation may take place where:

(a)     appropriate safeguards with respect to
the protection of personal data have been adduced in a legally binding instrument;
or

(b)     the controller or processor has
assessed all the circumstances surrounding the transfer of personal data and
concludes that appropriate safeguards exist with respect to the protection of
personal data.

1.           The decision for transfers
under paragraph 1 (b) must be made by duly authorised staff. These transfers must
be documented and the documentation must be made available to the supervisory
authority on request.

Article 36
Derogations

By way of derogation
from Articles 34 and 35, Member States shall provide that a transfer of
personal data to a third country or an international organisation may take
place only on condition that:

(a)      the transfer is necessary in order to
protect the vital interests of the data subject or another person; or

(b)     the transfer is necessary to safeguard
legitimate interests of the data subject where the law of the Member State
transferring the personal data so provides; or

(c)      the transfer of the data is essential
for the prevention of an immediate and serious threat to public security of a
Member State or a third country; or

(d)     the transfer is necessary in individual cases for the
purposes of prevention, investigation, detection or prosecution of criminal
offences or the execution of criminal penalties; or

(e)      the transfer is necessary in
individual cases for the establishment, exercise or defence of legal claims
relating to the prevention, investigation, detection or prosecution of a
specific criminal offence or the execution of a specific criminal penalty.

Article 37
Specific conditions for the transfer of personal data

Member States shall provide that the controller
informs the recipient of the personal data of any processing restrictions and
takes all reasonable steps to ensure that these restrictions are met.

Article 38
International co-operation for the protection of personal data

1.           In relation to third
countries and international organisations, the Commission and Member States
shall take appropriate steps to:

(a)
develop effective international co-operation mechanisms
to facilitate the enforcement of legislation for the protection of personal
data;

(b)
provide international mutual assistance in the
enforcement of legislation for the protection of personal data, including
through notification, complaint referral, investigative assistance and
information exchange, subject to appropriate safeguards for the protection of
personal data and other fundamental rights and freedoms;

(c)
engage relevant stakeholders in discussion and
activities aimed at furthering international co-operation in the enforcement of
legislation for the protection of personal data;

(d)
promote the exchange and documentation of
personal data protection legislation and practice.

2.           For the purposes of
paragraph 1, the Commission shall take appropriate steps to advance the
relationship with third countries or with international organisations, and in
particular their supervisory authorities, where the Commission has decided that
they ensure an adequate level of protection within the meaning of Article 34(3).

CHAPTER VI
INDEPENDENT SUPERVISORY
AUTHORITIES

SECTION
1
INDEPENDENT STATUS

Article 39
Supervisory authority

1.
Each Member State shall provide that one or more
public authorities are responsible for monitoring the application of the
provisions adopted pursuant to this Directive and for contributing to its
consistent application throughout the Union, in order to protect the
fundamental rights and freedoms of natural persons in relation to the
processing of their personal data and to facilitate the free flow of personal
data within the Union. For this purpose, the supervisory authorities shall co-operate
with each other and the Commission.

2.
Member States may provide that the supervisory
authority established in Member States pursuant to Regulation (EU)..../2012 assumes
responsibility for the tasks of the supervisory authority to be established pursuant
to paragraph 1 of this Article.

3.
Where more than one supervisory authority is
established in a Member State, that Member State shall designate the
supervisory authority which functions as a single contact point for the
effective participation of those authorities in the European Data Protection
Board.

Article 40
Independence

1.           Member States shall ensure
that the supervisory authority acts with complete independence in exercising
the duties and powers entrusted to it.

2.           Each Member State shall
provide that the members of the supervisory authority, in the performance of their
duties, neither seek nor take instructions from anybody.

3.           Members of the supervisory
authority shall refrain from any action incompatible with their duties and
shall not, during their term of office, engage in any incompatible occupation,
whether gainful or not.

4.           Members of the supervisory
authority shall behave, after their term of office, with integrity and
discretion as regards the acceptance of appointments and benefits.

5.           Each Member State shall
ensure that the supervisory authority is provided with the adequate human,
technical and financial resources, premises and infrastructure necessary for
the effective performance of its duties and powers including those to be
carried out in the context of mutual assistance, co-operation and active
participation in the European Data Protection Board.

6            Each Member State shall
ensure that the supervisory authority must have its own staff which shall be
appointed by and subject to the direction of the head of the supervisory
authority.

7.           Member States shall ensure
that the supervisory authority is subject to financial control which shall not affect
its independence. Member States shall ensure that the supervisory authority has
separate annual budgets. The budgets shall be made public.

Article 41
General conditions for the members of the supervisory authority

1.           Member States shall
provide that the members of the supervisory authority must be appointed either
by the parliament or the government of the Member State concerned.

2.           The members shall be
chosen from persons whose independence is beyond doubt and whose experience and
skills required to perform their duties are demonstrated.

3.           The duties of a member
shall end in the event of the expiry of the term of office, resignation or
compulsory retirement in accordance with paragraph 5.

4.           A member may be dismissed
or deprived of the right to a pension or other benefits in its stead by the
competent national court, if the member no longer fulfils the conditions
required for the performance of the duties or is guilty of serious misconduct.

5.           Where the term of office
expires or the member resigns, the member shall continue to exercise their
duties until a new member is appointed.

Article 42
Rules on the establishment of the supervisory authority

Each Member
State shall provide by law:

(a)          the establishment and status of
the supervisory authority in accordance with Articles 39 and 40;

(b)          the qualifications, experience
and skills required to perform the duties of the members of the supervisory
authority;

(c)          the rules and procedures for the
appointment of the members of the supervisory authority, as well as the rules
on actions or occupations incompatible with the duties of the office;

(d)          the duration of the term of the
members of the supervisory authority, which shall be no less than four years,
except for the first appointment after entry into force of this Directive, part
of which may take place for a shorter period;

(e)          whether the members of the
supervisory authority shall be eligible for reappointment;

(f)           the regulations and common
conditions governing the duties of the members and staff of the supervisory
authority;

(g)          the rules and procedures on the
termination of the duties of the members of the supervisory authority,
including where they no longer fulfil the conditions required for the
performance of their duties or if they are guilty of serious misconduct.

Article 43
Professional secrecy

Member States shall provide that the
members and the staff of the supervisory authority are subject, both during and
after their term of office, to a duty of professional secrecy with regard to
any confidential information which has come to their knowledge in the course of
the performance of their official duties.

SECTION
2
DUTIES AND POWERS

Article 44
Competence

1.           Member States shall
provide that each supervisory authority exercises, on the territory of its own
Member State, the powers conferred on it in accordance with this Directive.

2.           Member
States shall provide that the supervisory authority is not competent to
supervise processing operations of courts when acting in their judicial
capacity.

Article 45
Duties

1.           Member States shall
provide that the supervisory authority:

(a)
monitors and ensures the application of the
provisions adopted pursuant to this Directive and its implementing measures;

(b)
hears complaints lodged by any data subject, or
by an association representing and duly mandated by that data subject in
accordance with Article 50, investigates, to the extent appropriate, the matter
and informs the data subject the association of the progress and the outcome of
the complaint within a reasonable period, in particular where further
investigation or coordination with another supervisory authority is necessary;

(c)
checks the lawfulness of data processing
pursuant to Article 14, and informs the data subject within a reasonable period
on the outcome of the check or on the reasons why the check has not been
carried out;

(d)
provides mutual assistance to other supervisory
authorities and ensures the consistency of application and enforcement of the provisions
adopted pursuant to this Directive;

(e)
conducts investigations either on its own
initiative or on the basis of a complaint, or on request of another supervisory
authority, and informs the data subject concerned, if the data subject has
addressed a complaint, of the outcome of the investigations within a reasonable
period;

(f)
monitors relevant developments, insofar as they
have an impact on the protection of personal data, in particular the
development of information and communication technologies;

(g)
is consulted by Member State institutions and
bodies on legislative and administrative measures relating to the protection of
individuals' rights and freedoms with regard to the processing of personal
data;

(h)
is consulted on processing operations pursuant
to Article 26;

(i)
participates in the activities of the European
Data Protection Board.

2.           Each supervisory authority
shall promote the awareness of the public on risks, rules, safeguards and
rights in relation to the processing of personal data. Activities addressed
specifically to children shall receive specific attention.

3.           The supervisory authority
shall, upon request, advise any data subject in exercising the rights laid down
in provisions adopted pursuant to this Directive, and, if appropriate, co-operate
with the supervisory authorities in other Member States to this end.

4.           For complaints referred to
in point (b) of paragraph 1, the supervisory authority shall provide a
complaint submission form, which can be completed electronically, without
excluding other means of communication.

5.           Member States shall
provide that the performance of the duties of the supervisory authority shall
be free of charge for the data subject.

6.           Where requests are vexatious,
in particular due to their repetitive character, the supervisory authority may
charge a fee or not take the action required by the data subject. The
supervisory authority shall bear the burden of proving of the vexatious
character of the request.

Article 46
Powers

Member States shall provide that each
supervisory authority must in particular be endowed with:

(a)     investigative powers, such as powers
of access to data forming the subject matter of processing operations and
powers to collect all the information necessary for the performance of its
supervisory duties;

(b)     effective powers of intervention, such
as the delivering of opinions before processing is carried out, and ensuring
appropriate publication of such opinions, ordering the restriction, erasure or
destruction of data, imposing a temporary or definitive ban on processing,
warning or admonishing the controller, or referring the matter to national
parliaments or other political institutions ;

(c)     the power to engage in legal
proceedings where the provisions adopted pursuant to this Directive have been
infringed or to bring this infringement to the attention of the judicial
authorities.

Article 47
Activities report

Member States shall provide that each
supervisory authority draws up an annual report on its activities. The report
shall be made available to the Commission and the European Data Protection
Board.

CHAPTER VII
CO-OPERATION

Article 48
Mutual assistance

1.           Member States shall
provide that supervisory authorities provide each other with mutual assistance
in order to implement and apply the provisions pursuant to this Directive in a
consistent manner, and shall put in place measures for effective co-operation
with one another. Mutual assistance shall cover, in particular, information
requests and supervisory measures, such as requests to carry out prior
consultations, inspections and investigations.

2.           Member States shall
provide that a supervisory authority takes all appropriate measures required to
reply to the request of another supervisory authority.

3.           The requested supervisory
authority shall inform the requesting supervisory authority of the results or,
as the case may be, of the progress or the measures taken in order to meet the
request by the requesting supervisory
authority.

Article 49
Tasks of the European Data Protection Board

1.           The European Data
Protection Board established by Regulation (EU)..../2012 shall exercise the
following tasks in relation to processing within the scope of this Directive:

(a)
advise the Commission on any issue related to
the protection of personal data in the Union, including on any proposed
amendment of this Directive;

(b)
examine, on request of the Commission or on its own
initiative or of one of its members, any question covering the application of the
provisions adopted pursuant to this Directive and issue guidelines,
recommendations and best practices addressed to the supervisory authorities in
order to encourage consistent application of those provisions;

(c)
review the practical application of guidelines,
recommendations and best practices referred to in point (b) and report
regularly to the Commission on these;

(d)
give the Commission an opinion on the level of
protection in third countries or international organisations;

(e)
promote the co-operation and the effective
bilateral and multilateral exchange of information and practices between the
supervisory authorities;

(f)
promote common training programmes and
facilitate personnel exchanges between the supervisory authorities, as well as,
where appropriate, with the supervisory authorities of third countries or of
international organisations;

(g)
promote the exchange of knowledge and
documentation with data protection supervisory authorities worldwide, including
data protection legislation and practice.

2.       Where the Commission requests advice
from the European Data Protection Board, it may lay out a time limit within
which the European Data Protection Board shall provide such advice, taking into
account the urgency of the matter.

3.           The European Data
Protection Board shall forward its opinions, guidelines, recommendations, and
best practices to the Commission and to the committee referred to in Article 57(1)
and make them public.

4.           The Commission shall
inform the European Data Protection Board of the action it has taken following
opinions, guidelines, recommendations and best practices issued by the European
Data Protection Board.

CHAPTER VIII
REMEDIES, LIABILITY AND
SANCTIONS

Article 50
Right to lodge a complaint with a supervisory authority

1.           Without prejudice to any
other administrative or judicial remedy, Member States shall provide for the
right of every data subject to lodge a complaint with a supervisory authority
in any Member State, if they consider that the processing of personal data
relating to them does not comply with provisions adopted pursuant to this
Directive.

2.           Member States shall
provide for the right of any body, organisation or association which aims to
protect data subjects’ rights and interests concerning the protection of their
personal data and is being properly constituted according to the law of a
Member State to lodge a complaint with a supervisory authority in any Member
State on behalf of one or more data subjects, if it considers that a data
subject’s rights under this Directive have been infringed as a result of the
processing of personal data. The organisation or association must be duly
mandated by the data subject(s).

3.           Member States shall
provide for the right of any body, organisation or association referred to in
paragraph 2, independently of a data subject's complaint, to lodge a complaint
with a supervisory authority in any Member State, if it considers that a
personal data breach has occurred.

Article 51
Right to a judicial remedy against a
supervisory authority

1.
Member States shall provide for the right to a
judicial remedy against decisions of a supervisory authority.

2.
Each data subject shall have the right to a
judicial remedy for obliging the supervisory authority to act on a complaint,
in the absence of a decision which is necessary to protect their rights, or
where the supervisory authority does not inform the data subject within three
months on the progress or outcome of the complaint pursuant to point (b) of Article
45(1).

3.
Member States shall provide that proceedings
against a supervisory authority shall be brought before the courts of the
Member State where the supervisory authority is established.

Article 52
Right to a judicial remedy against a controller or processor

Without prejudice to any available
administrative remedy, including the right to lodge a complaint with a
supervisory authority, Member States shall provide for the right of every
natural person to a judicial remedy if they consider that that their rights laid
down in provisions adopted pursuant to this Directive have been infringed as a
result of the processing of their personal data in non-compliance with these
provisions.

Article 53
Common rules for court proceedings

1.           Member States shall
provide for the right of any body, organisation or association referred to in
Article 50(2) to exercise the rights referred to in Articles 51 and 52 on
behalf of one or more data subjects.

2.           Each supervisory authority
shall have the right to engage in legal proceedings and bring an action to
court, in order to enforce the provisions adopted pursuant to this Directive or
to ensure consistency of the protection of personal data within the Union.

3.           Member States shall ensure
that court actions available under national law allow for the rapid adoption of
measures including interim measures, designed to terminate any alleged
infringement and to prevent any further impairment of the interests involved.

Article 54
Liability and the right to compensation

1.           Member States shall
provide that any person who has suffered damage as a result of an unlawful
processing operation or of an action incompatible with the provisions adopted
pursuant to this Directive shall have the right to receive compensation from
the controller or the processor for the damage suffered.

2.           Where more than one
controller or processor is involved in the processing, each controller or
processor shall be jointly and severally liable for the entire amount of the
damage.

3.           The controller or the
processor may be exempted from this liability, in whole or in part, if the
controller or processor proves that they are not responsible for the event
giving rise to the damage.

Article 55
Penalties

Member States shall lay down the rules on
penalties, applicable to infringements of the provisions adopted pursuant to
this Directive and shall take all measures necessary to ensure that they are
implemented. The penalties provided for must be effective, proportionate and
dissuasive.

CHAPTER IX
DELEGATED ACTS AND IMPLEMENTING ACTS

Article 56
Exercise of the delegation

1.           The power to adopt
delegated acts is conferred on the Commission subject to the conditions laid
down in this Article.

2.           The delegation of power
referred to in Article 28(5) shall be conferred on the Commission for an
indeterminate period of time from the date of entry into force of this Directive.

3.           The delegation of power
referred to in Article 28(5) may be revoked at any time by the European
Parliament or by the Council. A decision of revocation shall put an end to the
delegation of the power specified in that decision. It shall take effect the
day following the publication of the decision in the Official Journal of the
European Union or at a later date specified therein. It shall not affect
the validity of any delegated acts already in force.

4.           As soon as it adopts a
delegated act, the Commission shall notify it simultaneously to the European
Parliament and to the Council.

5.           A delegated act adopted
pursuant to Article 28(5) shall enter into force only if no objection has been
expressed either by the European Parliament or the Council within a period of 2
months of notification of that act to the European Parliament and the Council
or if, before the expiry of that period, the European Parliament and the
Council have both informed the Commission that they will not object. That
period shall be extended by 2 months at the initiative of the European
Parliament or the Council.

Article 57
Committee procedure

1.
The Commission shall be assisted by a committee.
That committee shall be a committee within the meaning of Regulation (EU) No
182/2011.

2.
Where reference is made to this paragraph,
Article 5 of Regulation (EU) No 182/2011 shall apply.

3.
Where reference is made to this paragraph,
Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5
thereof, shall apply.

CHAPTER X
FINAL PROVISIONS

Article 58
Repeals

1.           Council Framework Decision
2008/977/JHA is repealed.

2.           References to the repealed Framework Decision referred to in
paragraph 1 shall be construed as references to this Directive.

Article 59
Relation with previously adopted acts of the Union for judicial co-operation
in criminal matters and police co-operation

The specific provisions for the protection of
personal data with regard to the processing of personal data by competent
authorities for the purposes of prevention,
investigation, detection or prosecution of criminal offences or the execution
of criminal penalties in acts of the Union adopted
prior to the date of adoption of this Directive regulating the processing of
personal data between Member States and the access of designated authorities of
Member States to information systems established pursuant to the Treaties within
the scope of this Directive remain unaffected.

Article 60
Relationship with previously concluded international agreements in the field of
judicial co-operation in criminal matters and police co-operation

International agreements concluded by Member
States prior to the entry force of this Directive shall be amended, where
necessary, within five years after the entry into force of this Directive.

Article 61
Evaluation

1.           The Commission shall
evaluate the application of this Directive.

2.           The
Commission shall review within three years after the entry into force of this
Directive other acts adopted by the European Union which regulate the processing
of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal
offences or the execution of criminal penalties, in
particular those acts adopted by the Union referred to in Article 59, in order
to assess the need to align them with this Directive and make, where
appropriate, the necessary proposals to amend these acts to ensure a consistent
approach on the protection of personal data within the scope of this Directive.

3.           The Commission shall
submit reports on the evaluation and review of this Directive pursuant to
paragraph 1 to the European Parliament and the Council at regular intervals.
The first reports shall be submitted no later than four years after the entry
into force of this Directive. Subsequent reports shall be submitted every four
years thereafter. The Commission shall submit, if necessary, appropriate
proposals with a view of amending this Directive and aligning other legal
instruments. The report shall be made public.

Article 62
Implementation

1.           Member States shall adopt
and publish, by [date/ two years after entry into force] at the latest, the
laws, regulations and administrative provisions necessary to comply with this
Directive. They shall forthwith notify to the Commission the text of those
provisions.

They shall apply those provisions from xx.xx.201x
[date/ two years after entry into force].

When Member States adopt those provisions, they
shall contain a reference to this Directive or be accompanied by such a
reference on the occasion of their official publication. Member States shall
determine how such reference is to be made.

2.           Member States shall
communicate to the Commission the text of the main provisions of national law
which they adopt in the field covered by this Directive.

Article 63
Entry into force and application

This Directive shall enter into force on
the first day following that of its publication in the Official Journal of
the European Union.

Article 64
Addressees

This
Directive is addressed to the Member States.

Done at Brussels, 25.1.2012

For the European Parliament                       For
the Council

The President                                                 The
President

[1]               Directive 95/46/EC of the European Parliament and of
the Council of 24 October 1995 on the protection of individuals with regard to
the processing of personal data and on the free movement of such data, OJ L
281/95, p.31.

[2]               See the full list in Annex 3 to the Impact Assessment
(SEC(2012)72).

[3]               Council Framework Decision 2008/977/JHA of 27
November 2008 on the protection of personal data processed in the framework of
police and judicial cooperation in criminal matters, OJ L 350, 30.12.2008, p.
60.

[4]               In the Stockholm Programme, OJ C 115, 4.5.2010, p. 1.

[5]               See the Resolution of the European Parliament on the
Stockholm Programme adopted on 25 November 2009.

[6]               COM(2010)171final.

[7]               European Commission, Communication on “A
comprehensive approach on personal data protection in the European Union”,
COM(2010)609 final, 4 November 2010.

[8]               Declaration 21 on the protection of personal data in
the fields of judicial cooperation in criminal matters and police cooperation
(annexed to the Final Act of the Intergovernmental Conference which adopted the
Treaty of Lisbon, 13.12.2007).

[9]               http://ec.europa.eu/justice/newsroom/data-protection/opinion/090709_en.htm.

[10]             http://ec.europa.eu/justice/newsroom/data-protection/opinion/101104_en.htm.

[11]             Special Eurobarometer (EB) 359, Data Protection and
Electronic Identity in the EU (2011): http://ec.europa.eu/public_opinion/archives/ebs/ebs_359_en.pdf.

[12]             See the Study on the economic benefits of privacy
enhancing technologies or the Comparative study on different approaches
to new privacy challenges, in particular in the light of technological
developments, January 2010.    
(http://ec.europa.eu/justice/policies/privacy/docs/studies/new_privacy_challenges/final_report_en.pdf).

[13]             The Working Party was set up in 1996 (by Article 29 of
the Directive) with advisory status and composed of representatives of national
Data Protection Supervisory Authorities (DPAs), the European Data Protection
Supervisor (EDPS) and the Commission. For more information on its activities
see http://ec.europa.eu/justice/policies/privacy/workinggroup/index_en.htm.

[14]             See in particular the following opinions: on the
"Future of Privacy" (2009, WP 168); on the concepts of
"controller” and “processor" (1/2010, WP 169); on online behavioural advertising (2/2010, WP 171); on
the principle of accountability (3/2010, WP 173); on applicable law (8/2010, WP
179); and on consent (15/2011, WP 187). Upon the Commission's request, it
adopted also the three following Advice Papers: on notifications, on sensitive
data and on the practical implementation of Article 28(6) of the Directive 95/46/EC.
They can all be accessed at: http://ec.europa.eu/justice/data-protection/article-29/documentation/index_en.htm.

[15]             Available on the EDPS website: http://www.edps.europa.eu/EDPSWEB/.

[16]             EP resolution of 6 July 2011 on a comprehensive
approach on personal data protection in the European Union (2011/2025(INI), http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2011-0323&language=EN&ring=A7-2011-0244
(rapporteur: MEP Axel Voss (EPP/DE).

[17]             CESE 999/2011.

[18]             SEC(2012)72.

[19]             COM(2012)12.

[20]             Court of Justice of the EU, judgment of 9.11.2010, Joined
Cases C-92/09 and C-93/09 Volker und Markus Schecke and Eifert [2010] ECR I-0000.

[21]             In line with Article 52(1) of the Charter, limitations
may be imposed on the exercise of the right to data protection as long as the
limitations are provided for by law, respect the essence of the right and
freedoms and, subject to the principle of proportionality, are necessary and
genuinely meet objectives of general interest recognised by the European Union
or the need to protect the rights and freedoms of others.

[22]             Referred to also in Article 2 (a) of Directive
2011/92/EU of the European Parliament and of the Council of 13 December
2011 on combating the sexual abuse and sexual exploitation of children and
child pornography, and replacing Council Framework Decision 2004/68/JHA, OJ L
335, 17.12.2011, p. 1.

[23]             COM(2005) 475 final.

[24]             Article 14 Europol Decision 2009/371/JHA.

[25]             Article 15 Eurojust Decision 2009/426/JHA.

[26]             Article 14 Europol Decision 2009/371/JHA.

[27]             ECtHR, judgment of 4.12.2008, S. and Marper v. UK
(Application nos. 30562/04 and 30566/04).

[28]             Adopted by the International Conference of Data
Protection and Privacy Commissioners on 5.11.2009.

[29]             Court of Justice of the EU, judgment of 9.3.2010,
Commission / Germany (C-518/07, ECR 2010 p. I-1885)

[30]             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; OJ L 008 , 12/.01/.2001, p.1.

[31]             Op. cit., footnote 27.

[32]             Directive 2000/31/EC of the European Parliament and of
the Council of 8 June 2000 on certain legal aspects of information society
services, in particular electronic commerce, in the Internal Market ('Directive
on electronic commerce'); OJ L 178, 17.7.2000, p. 1.

[33]             OJ C... , p. .

[34]             OJ L 281, 23.11.1995, p. 31.

[35]             OJ L 350, 30.12.2008, p. 60.

[36]             OJ L 55, 28.2.2011, p. 13.

[37]             OJ L335,
17.12.2011, p. 1.

[38]             OJ L 176, 10.7.1999, p. 36.

[39]             OJ L 53, 27.2.2008, p. 52.

[40]             OJ L 160 of 18.6.2011, p. 19.