DECISION OF THE STEERING BOARD OF THE EUROPEAN DEFENCE AGENCY

of 24 February 2020

on the adoption of internal rules concerning restrictions of certain rights of data subjects in relation to processing of personal data in the framework of the functioning of the EDA

THE STEERING BOARD,

Having regard to the Treaty on the European Union, and in particular Articles 42 and 45 thereof,

Having regard to 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 (1), and in particular Article 25 thereof,

Having regard to Council Decision (CFSP) 2015/1835 of 12 October 2015 defining the statute, seat and operational rules of the European Defence Agency (2) (hereinafter ‘EDA’), and in particular Article 31 thereof,

Having regard to Steering Board Decision 2017/25 adopting the revised rules of procedure for the Steering Board of EDA, and in particular Article 8 thereof,

Having regard to the opinion of the EDPS of 15 January 2020 and to the EDPS Guidance on Article 25 of Regulation (EU) 2018/1725 and internal rules, and

After consulting the Staff Committee,

Whereas:

(1) EDA carries out its activities in accordance with Decision (CFSP) 2015/1835.

(2) In accordance with Article 25(1) of Regulation (EU) 2018/1725 restrictions of the application of Article 14 to 22, 35 and 36, as well as Article 4 of that Regulation, in so far as its provisions correspond to the rights and obligations provided for in Articles 14 to 22, should be based on internal rules to be adopted by EDA, where these are not based on legal acts adopted on the basis of the Treaties.

(3) These internal rules, including its provisions on the assessment of the necessity and proportionality of a restriction, should not apply where a legal act adopted on the basis of the Treaties provides for a restriction of data subjects rights.

(4) Where EDA performs its duties with respect to data subject’s rights under Regulation (EU) 2018/1725, it shall consider whether any of the exemptions laid down in that Regulation apply.

(5) Within the framework of its administrative functioning, EDA may conduct administrative inquiries and disciplinary proceedings; carry out preliminary activities related to cases of potential irregularities reported to OLAF; impose restrictions as regards to classified elements of ad hoc activities in the context of Decision 2015/1835; process whistleblowing cases; handle procedures of harassment; process internal and external complaints; carry out investigations by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725; internal (IT) security investigations; and carrying out activities to protect other important objectives of general public interest of the Union or of a Member State, in particular the objectives of the common foreign and security policy of the Union.

(6) EDA processes several categories of personal data, including hard data (‘objective’ data such as identification data, contact data, professional data, administrative details, data received from specific sources, electronic communications and traffic data) and/or soft data (‘subjective’ data related to the case such as reasoning, behavioural data, appraisals, performance and conduct data and data related to or brought forward in connection with the subject matter of the procedure or activity).

(7) EDA, represented by its Chief Executive, acts as the data controller irrespective of further delegations of the controller role within EDA to reflect operational responsibilities for specific personal data processing operation.

(8) The personal data are stored securely in an electronic environment or on paper preventing unlawful access or transfer of data to persons who do not have a need to know. The personal data processed are retained for no longer than necessary and appropriate for the purposes for which the data are processed for the period specified in the data protection notices or records of EDA.

(9) The internal rules should apply to processing operations carried out prior to the opening of the procedures referred to above, during these procedures and during the monitoring of the follow-up to the outcome of these procedures. It should also include assistance and cooperation provided by EDA to national authorities and international organisations outside of its administrative investigations.

(10) In the cases where these internal rules apply, EDA shall give justifications explaining why the restrictions are strictly necessary and proportionate in a democratic society and respect the essence of the fundamental rights and freedoms.

(11) Within this framework EDA shall be bound to respect, to the maximum extent possible, the fundamental rights of the data subjects during the above procedures, in particular, those relating to the right of provision of information, access and rectification, right to erasure, restriction of processing, right of communication of a personal data breach to the data subject or confidentiality of communication as enshrined in Regulation (EU) 2018/1725.

(12) However, EDA may be obliged to restrict the information to data subject and other data subject’s rights to protect, in particular, its own investigations, the investigations and proceedings of other public authorities, as well as the rights of other persons related to its investigations or other procedures.

(13) EDA may thus restrict the information for the purpose of protecting the investigation and the fundamental rights and freedoms of other data subjects.

(14) EDA should periodically monitor that the conditions that justify the restriction apply and lift the restriction as far as they do no longer apply.

(15) The controller should inform the Data Protection Officer at the moment of deferral and during the revisions,

HAS ADOPTED THIS DECISION:

Article 1 Subject-matter and scope 1. This decision lays down rules relating to the conditions under which EDA in the framework of its procedures set out in paragraph 2 may restrict the application of the rights enshrined in Articles 14 to 21, 35 and 36, as well as Article 4 thereof, following Article 25 of the Regulation (EU) 2018/1725. 2. Within the framework of the administrative functioning of EDA, this decision applies to the processing operations on personal data by EDA for the purposes of : conducting administrative inquiries, disciplinary proceedings, preliminary activities related to cases of potential irregularities reported to OLAF, processing whistleblowing cases, procedures of harassment, processing internal and external complaints, investigations carried out by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725 and security investigations handled internally or with external involvement. 3. The categories of data concerned are hard data (‘objective’ data such as identification data, contact data, professional data, administrative details, data received from specific sources, electronic communications and traffic data) and/or soft data (‘subjective’ data related to the case such as reasoning, behavioural data, appraisals, performance and conduct data and data related to or brought forward in connection with the subject matter of the procedure or activity). 4. Where EDA performs its duties with respect to data subject’s rights under Regulation (EU) 2018/1725, it shall consider whether any of the exemptions laid down in that Regulation apply. 5. Subject to the conditions set out in this decision, the restrictions may apply to the following rights : provision of information to data subjects, right of access, rectification, erasure, restriction of processing, communication of a personal data breach to the data subject or confidentiality of communication.

Article 2 Safeguards 1. The safeguards in place preventing abuse or unlawful access or transfer are the following: (a) Paper documents shall be kept in secured cupboards and only accessible to authorised staff; (b) All electronic data shall be stored in secure IT application according to EDA’s security standards, as well as in specific electronic folders accessible only to authorised staff. Appropriate levels of access shall be granted individually; (c) Databases (3) shall be password-protected under an individual sign-on system and connected automatically to the user’s ID and password. E-records shall be held securely to safeguard the confidentiality and privacy of the data therein; (d) All persons having access to the data are bound by the obligation of confidentiality. 2. The retention period of the personal data referred to in Article 1(3) shall be no longer than necessary and appropriate for the purposes for which the data are processed. It shall in any event not be longer than the retention period specified in the data protection notices or records referred to in Article 5(1). 3. Where EDA considers to apply a restriction, the risk to the rights and freedoms of the data subject shall be weighed, in particular, against the risk to the rights and freedoms of other data subjects and the risks of cancelling the effect of EDA’s investigations or procedures for example by destroying evidence. The risks to the rights and freedoms of the data subject concern primarily, but are not limited to, reputational risks and risks to the right of defence and the right to be heard.

Article 3 Specification of the Controller 1. The controller of the processing operations is EDA, represented by its Chief Executive, who may delegate the function of the controller. 2. Data subjects shall be informed of the delegated controller by way of the data protection records published on the website of EDA.

Article 4 Restrictions 1. EDA shall include in the data protection records, informing data subject of their rights in the framework of a given procedure in the sense of Article 31 of Regulation (EU) 2018/1725 and published on its website, information relating to the potential restriction of these rights. The information shall cover which rights may be restricted, the reasons and the potential duration. 2. Any restriction shall only be applied by EDA to safeguard: (a) the national security, public security and/or defence of the Member States; (b) the prevention, investigation, detection and prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security; (c) other important objectives of general public interest of the Union or of a Member State, in particular the objectives of the common foreign and security policy of the Union or an important economic or financial interest of the Union; (d) the internal security of Union institutions and bodies, including of their electronic communications networks; (e) the protection of judicial independence and judicial proceedings; (f) a monitoring, inspection or regulatory function connected, even occasionally, to the exercise of official authority in the cases referred to in points (a) to (c); (g) the protection of the data subject rights or the rights and freedoms of others; (h) the enforcement of civil law claims. 3. As a specific application of the purposes described in paragraph 1 above, EDA may apply restrictions in relation to personal data exchanged with Commission services or other Union institutions, bodies, agencies and offices, competent authorities of Member States or third countries or international organisations, in the following circumstances: (a) Where the exercise of those rights and obligations could be restricted by Commission services or other Union institutions, bodies and agencies and offices on the basis of other acts provided for in Article 25 of Regulation (EU) 2018/1725 or in accordance with Chapter IX of that Regulation or with the founding acts of other Union institutions, bodies, agencies and offices; (b) Where the exercise of those rights and obligations could be restricted by competent authorities of Member States on the basis of acts referred to in Article 23 of Regulation (EU) 2016/679 of the European Parliament and of the Council (4), or under national measures transposing Articles 13(3), 15(3) or 16(3) of Directive (EU) 2016/680 of the European Parliament and of the Council (5); (c) Where the exercise of those rights and obligations could jeopardise EDA’s cooperation with third countries or international organisations in the conduct of its tasks. Before applying restrictions in the circumstances referred to in points (a) and (b), EDA shall consult the relevant Commission services, Union institutions, bodies, agencies, offices or the competent authorities of Member States unless it is clear to EDA that the application of a restriction is provided for by one of the acts referred to in those points. 4. Any restriction shall be necessary and proportionate taking into account the risks to the rights and freedoms of data subjects and respect the essence of the fundamental rights and freedoms in a democratic society. 5. If the application of restriction is considered, a necessity and proportionality test shall be carried out based on the present rules. It shall be documented through an internal assessment note for accountability purposes on a case by case basis. 6. EDA shall review the application of the restriction every six months from its adoption and at the closure of the relevant inquiry, procedure or investigation. Thereafter, the controller shall monitor the need to maintain any restriction every six months. The record and, where applicable, the documents containing underlying factual and legal elements shall be registered. They shall be made available to the European Data Protection Supervisor on request. 7. Restrictions shall be lifted as soon as the circumstances that justify them no longer apply. In particular, where it is considered that the exercise of the restricted right would no longer cancel the effect of the restriction imposed or adversely affect the rights or freedoms of other data subjects. 8. Without prejudice to the provisions of paragraph 10, EDA, where proportionate, shall also inform individually all data subjects, which are considered persons concerned in the specific processing operation, of their rights concerning present or future restrictions without undue delay and in a written form. 9. Where EDA restricts, wholly or partially, the provision of information to the data subjects referred to in paragraph 9, it shall record the reasons for the restriction, the legal ground in accordance with this article, including an assessment of the necessity and proportionality of the restriction. The record and, where applicable, the documents containing underlying factual and legal elements shall be registered. They shall be made available to the European Data Protection Supervisor on request. 10. The restriction referred to in paragraph 10 shall continue to apply as long as the reasons justifying it remain applicable. 11. Where the reasons for the restriction no longer apply, EDA shall provide information to the data subject on the principal reasons on which the application of a restriction is based. At the same time, EDA shall inform the data subject of the right of lodging a complaint with the European Data Protection Supervisor at any time or of seeking a judicial remedy in the Court of Justice of the European Union.

Article 5 Review by the Data Protection Officer 1. EDA shall, without undue delay, involve the Data Protection Officer of EDA (hereinafter ‘DPO’) whenever the controller restricts the application of data subjects’ rights, or extends the restriction, in accordance with this decision. The controller shall provide the DPO access to the record containing the assessment of the necessity and proportionality of the restriction and document the date of informing the DPO in the record. 2. The DPO may request the controller in writing to review the application of the restrictions. The controller shall inform the DPO in writing about the outcome of the requested review. 3. The controller shall inform the DPO when the restriction has been lifted. 4. The involvement of the DPO throughout the whole procedure shall be duly documented.

Article 6 Provision of information to data subject In duly justified cases and under the conditions stipulated in this decision, the right to information may be restricted by the controller in the context of the following processing operations: (a) The performance of administrative inquiries and disciplinary proceedings; (b) Preliminary activities related to cases of potential irregularities reported to OLAF; (c) Whistleblowing procedures; (d) procedures of cases of harassment; (e) Processing internal and external complaints; (f) The investigations carried out by the DPO in line with Article 45(2) of Regulation (EU) 2018/1725; (g) (IT) security investigations handled internally or with external involvement; (h) carrying out activities to protect other important objectives of general public interest of the Union or of a Member State, in particular the objectives of the common foreign and security policy of the Union as provided for by Decision (CFSP) 2015/1835.

Article 7 Right of access by data subject 1. In duly justified cases and under the conditions stipulated in this decision, the right to access may be restricted by the controller in the context of the following processing operations, where necessary and proportionate: (a) the performance of administrative inquiries and disciplinary proceedings; (b) preliminary activities related to cases of potential irregularities reported to OLAF; (c) whistleblowing procedures; (d) procedures for cases of harassment; (e) processing internal and external complaints; (f) the investigations carried out by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725; (g) (IT) security investigations handled internally or with external involvement; (h) carrying out activities to protect other important objectives of general public interest of the Union or of a Member State, in particular the objectives of the common foreign and security policy of the Union as provided for by Decision (CFSP) 2015/1835. 2. Where data subjects request access to their personal data processed in the context of one or more specific cases or to a particular processing operation, in accordance with Article 17 of Regulation (EU) 2018/1725, EDA shall limit its assessment of the request to such personal data only. 3. Where EDA restricts, wholly or partly, the right of access, referred to in Article 17 of Regulation (EU) 2018/1725, it shall take the following steps: (a) it shall inform the data subject concerned, in its reply to the request, of the restriction applied and of the principal reasons thereof, and of the possibility of lodging a complaint with the European Data Protection Supervisor or of seeking a judicial remedy in the Court of Justice of the European Union; (b) it shall document in an internal assessment note the reasons for the restriction, including an assessment of the necessity, proportionality of the restriction and its duration. The provision of information referred to in point (a) may be deferred, omitted or denied if it would cancel the effect of the restriction in accordance with Article 25(8) of Regulation (EU) 2018/1725.

Article 8 Right of rectification, erasure and restriction of processing 1. In duly justified cases and under the conditions stipulated in this decision, the right to rectification, erasure and restriction may be restricted by the controller in the context of the following processing operations, where necessary and appropriate: (a) the performance of administrative inquiries and disciplinary proceedings; (b) preliminary activities related to cases of potential irregularities reported to OLAF; (c) whistleblowing procedures; (d) procedures for cases of harassment; (e) processing internal and external complaints; (f) the investigations carried out by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725; (g) (IT) security investigations handled internally or with external involvement; (h) carrying out activities to protect other important objectives of general public interest of the Union or of a Member State, in particular the objectives of the common foreign and security policy of the Union as provided for by Decision (CFSP) 2015/1835. 2. Where EDA restricts wholly or partially, the application of the right to rectification, erasure and restriction of processing referred to in Articles 18, 19(1) and 20(1) of Regulation (EU) 2018/1725, it shall take the steps set out in Article 6(2) of this decision and register the record in accordance with Article 6(3) thereof.

Article 9 Communication of a personal data breach to the data subject and confidentiality of electronic communications 1. In duly justified cases and under the conditions stipulated in this decision, the right to the communication of a personal data breach may be restricted by the controller in the context of the following processing operations, where necessary and appropriate: (a) the performance of administrative inquiries and disciplinary proceedings; (b) preliminary activities related to cases of potential irregularities reported to OLAF; (c) whistleblowing procedures; (d) procedures for cases of harassment; (e) processing internal and external complaints; (f) the investigations carried out by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725; (g) (IT) security investigations handled internally or with external involvement; (h) carrying out activities to protect other important objectives of general public interest of the Union or of a Member State, in particular the objectives of the common foreign and security policy of the Union as provided for by Decision (CFSP) 2015/1835. 2. In duly justified cases and under the conditions stipulated in this decision, the right to confidentiality of electronic communications may be restricted by the controller in the context of the following processing operations, where necessary and appropriate: (a) the performance of administrative inquiries and disciplinary proceedings; (b) preliminary activities related to cases of potential irregularities reported to OLAF; (c) whistleblowing procedures; (d) procedures for cases of harassment; (e) processing internal and external complaints; (f) (IT) security investigations handled internally or with external involvement; (g) carrying out activities to protect other important objectives of general public interest of the Union or of a Member State, in particular the objectives of the common foreign and security policy of the Union, as provided for by Decision (CFSP) 2015/1835. 3. Where EDA restricts the communication of a personal data breach to the data subject or the confidentiality of electronic communications referred to in Articles 35 and 36 of Regulation (EU) 2018/1725, it shall record and register the reasons for the restriction in accordance with Article 5(3) of this decision. Article 5(4) of this decision shall apply.

Article 10 Entry into force This decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Done at Brussels, 24 February 2020.

(1) OJ L 295, 21.11.2018, p. 39.

(2) OJ L 266, 13.10.2015, p. 55.

(3) ‘Database’ means, in this Decision, a structured set of data stored electronically, including IT tools and applications and SharePoint.

(4) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).

(5) Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons 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, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89).