DECISION OF THE BUREAU OF THE EUROPEAN PARLIAMENT

of 3 April 2019

on the implementing rules on the restriction of certain data subject rights in relation to the transfer of personal data by the European Parliament to national authorities in the context of criminal or financial investigations

(2019/C 163/01)

THE BUREAU OF THE EUROPEAN PARLIAMENT,

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

Having regard to Regulation (EU) 2018/1725 of the European Parliament and of the Council (1) and, in particular, Article 25 thereof,

Having regard to Rule 25(2) of the European Parliament’s Rules of Procedure,

Having regard to the Opinion of the European Data Protection Supervisor of 28 February 2019, which was consulted pursuant to Article 41(2) of Regulation (EU) 2018/1725,

Whereas,

(1) The European Parliament receives requests for the transmission of information and of copies of administrative files and documents from national authorities conducting criminal or financial investigations.

(2) The European Parliament is required to provide national authorities with the information and documents they request, following the principle of sincere cooperation enshrined in Article 4(3) of the Treaty on European Union.

(3) The transfer of the requested information and documents to national authorities may include personal data.

(4) The President, the Secretary-General or the services designated by them may transfer the requested information and documents, and they act as controller for the purpose of such transfers.

(5) Within this framework, the European Parliament is bound to respect the fundamental rights of the data subjects concerned, as enshrined in Article 8(1) of the Charter of Fundamental Rights of the European Union, in Article 16(1) of the Treaty on the Functioning of the European Union and in Regulation (EU) 2018/1725, in particular, the right to be informed about the processing.

(6) However, the European Parliament may be obliged to restrict the application of Articles 4, 14 to 21, 35 and 36 of Regulation (EU) 2018/1725 with regard to the transfer operation in order to protect, in particular, the purpose and confidentiality of national criminal and financial investigations.

(7) The European Parliament has to carry out, on a case-by-case basis, an assessment of the necessity and proportionality of the restriction, taking into account the risks to the rights and freedoms of data subjects, before any particular restriction is applied; the European Parliament has to provide justification as to why the restrictions are strictly necessary and proportionate in a democratic society and respect the essence of the fundamental rights and freedoms concerned,

HAS ADOPTED THIS DECISION,

Article 1 Subject matter and scope of restrictions 1. This Decision lays down the conditions under which the European Parliament may restrict the application of Articles 4, 14 to 21, 35 and 36 of Regulation (EU) 2018/1725, in accordance with points (b), (e) and (f) of Article 25(1) of that Regulation when providing national authorities with information and documents that they request in the framework of criminal or financial investigations. 2. This Decision applies to the processing of personal data, particularly the transfer of personal data, by the European Parliament for the purpose of providing national authorities with information and documents that they request in the framework of criminal or financial investigations. 3. The President, the Secretary-General or the services designated by them may transfer the information and documents requested, and they act as controller for the purpose of such transfer. 4. This Decision applies to the following categories of personal data: (a) identification data; (b) contact data; (c) professional data; (d) financial data; (e) electronic communications; (f) traffic data; (g) video surveillance data; (h) audio recordings; (i) data on the presence of persons; (j) all other data related to the subject matter of the relevant investigation conducted by national authorities.

Article 2 Safeguards 1. Personal data shall be stored in a secured physical and electronic environment which prevents unlawful access or transfer of data to persons who do not have a need to know. 2. After the end of the processing, the personal data shall be retained in accordance with the applicable European Parliament rules (2). 3. An assessment of the necessity and proportionality of the restriction shall be carried out in accordance with Article 9 before any particular restriction is applied.

Article 3 Applicable restrictions 1. Subject to Articles 4 to 10 of this Decision, the controller may restrict the application of Articles 14 to 21, 35 and 36 of Regulation (EU) 2018/1725, as well as its Article 4 in so far as its provisions correspond to the rights and obligations provided for Articles 14 to 21 of that Regulation, where the exercise of those rights would jeopardise the purpose and confidentiality of national criminal and financial investigations. 2. The controller shall record and register the reasons for the restriction in accordance with Article 9 of this Decision.

Article 4 Provision of information to data subjects 1. The European Parliament shall publish on its website a data protection notice informing all data subjects of the possibility of a transfer of their personal data in the context of the European Parliament’s cooperation with national authorities with regard to pending criminal or financial investigations and of a potential restriction of their rights in this context. The information shall cover which rights may be restricted, the reasons for such restrictions, their potential duration and possible legal remedies. 2. If possible, the controller shall directly inform each data subject of their rights in respect of such restrictions without undue delay and in the most appropriate format. The information shall cover which rights may be restricted, the reasons for such restrictions, their potential duration and possible legal remedies.

Article 5 Right to be informed 1. Where the controller restricts the right of information as referred to in Articles 15 and 16 of Regulation (EU) 2018/1725, data subjects shall be informed, in accordance with Article 25(6) of that Regulation, of the principal reasons on which the application of the restriction is based and of their right to lodge a complaint with the European Data Protection Supervisor. 2. However, such provision of information on the transfer of personal data to national authorities and on the application of a restriction may be deferred, omitted or denied, in accordance with Article 25(8) of Regulation (EU) 2018/1725, for as long as it would cancel the effect of the restriction. 3. Where the controller defers, omits or denies, wholly or partly, the provision of information to data subjects within the meaning of paragraph 2, it shall record and register the reasons for doing so in accordance with Article 9.

Article 6 Right of access by data subjects, right to rectification, right to erasure, right to restriction of processing, notification obligation 1. Where the controller restricts, wholly or partly, the right of access to personal data by data subjects, the right of rectification, the right to erasure or the right to restriction of processing as referred to in Articles 17, 18, 19 and 20 respectively of Regulation (EU) 2018/1725, as well as the notification obligation pursuant to Article 21 of that Regulation, it shall record and register the reasons for the restriction in accordance with Article 9 of this Decision. The controller shall inform the data subject concerned, in its reply to the request for access, rectification, erasure and restriction of processing, of the restriction that has been applied and of the principal reasons for the restriction, and of the possibility of lodging a complaint with the European Data Protection Supervisor or of seeking a judicial remedy before the Court of Justice of the European Union. 2. The provision of information concerning the reasons for the restriction referred to in paragraph 1 may be deferred, omitted or denied for as long as it would cancel the effect of the restriction. 3. The controller shall record the reasons for the deferral, omission or denial in accordance with Article 9. 4. Where the right of access is wholly or partly restricted, the data subject shall exercise his or her right of access through the intermediary of the European Data Protection Supervisor in accordance with Article 25(6), (7) and (8) of Regulation (EU) 2018/1725.

Article 7 Communication of personal data breaches to data subjects Where the controller restricts the right of the data subject to receive communication of a personal data breach pursuant to Article 35 of Regulation (EU) 2018/1725, it shall record and register the reasons for doing so in accordance with Article 9 of this Decision.

Article 8 Confidentiality of electronic communications Where the controller restricts the right to the confidentiality of electronic communications referred to in Article 36 of Regulation (EU) 2018/1725, it shall record and register the reasons for doing so in accordance with Article 9 of this Decision.

Article 9 Assessment of necessity and proportionality, recording and registering of restrictions 1. Before applying any particular restrictions, the controller shall assess the necessity and proportionality of the restrictions, taking into account the relevant elements in Article 25(2) of Regulation (EU) 2018/1725. That assessment shall also include an assessment of the risks to the rights and freedoms of the data subjects concerned, notably the risk that their personal data might be transferred without their knowledge and consent and that they might be prevented from exercising their rights in accordance with that Regulation. It shall be documented through an internal assessment note and shall be carried out on a case-by-case basis. 2. The controller shall record the reasons for any restriction applied pursuant to this Decision, including the assessment conducted under paragraph 1. To that end, the record shall state how the exercise of the data subject’s rights would jeopardise the purpose and confidentiality of national criminal and financial investigations. 3. Where, pursuant to Article 25(8) of Regulation (EU) 2018/1725, the controller defers, omits or denies the provision of information to a data subject on the application of a restriction, the controller shall also record, where applicable, the reasons for doing so. 4. The record and, where applicable, the documents containing underlying factual and legal elements shall be stored in a central register. They shall be made available to the European Data Protection Supervisor on request.

Article 10 Duration of restrictions 1. Restrictions referred to in Articles 3, 5, 6, 7 and 8 shall continue to apply as long as the reasons justifying them remain applicable. 2. Where the reasons for a restriction referred to in Articles 3, 5, 6, 7 and 8 no longer apply, the controller shall lift the restriction and provide the principal reasons for the restriction to the data subject. At the same time, the controller shall inform the data subject of the possibility of lodging a complaint with the European Data Protection Supervisor at any time or of seeking a judicial remedy before the Court of Justice of the European Union. 3. The controller shall review the application of a restriction referred to in Articles 3, 5, 6, 7 and 8 every six months from its adoption and at the closure of the relevant procedure.

Article 11 Review by the Data Protection Officer 1. The Data Protection Officer shall be informed without undue delay whenever data subjects’ rights are restricted in accordance with this Decision. Upon request, the Data Protection Officer shall be provided with access to the record and any documents containing underlying factual and legal elements. 2. The Data Protection Officer may request from the controller a review of the restrictions. The Data Protection Officer shall be informed in writing of the outcome of the requested review. 3. All information exchanges with the Data Protection Officer throughout the procedure in accordance with paragraphs 1 and 2 shall be recorded in the appropriate form.

Article 12 Entry into force This Decision shall come into force on the day following its publication in the Official Journal of the European Union.

(1) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).

(2) Bureau Decision of 2 July 2012 regarding rules on document management in the European Parliament.