DECISION OF THE ADMINISTRATIVE BOARD OF THE EUROPEAN UNION AGENCY FOR THE COOPERATION OF ENERGY REGULATORS

of 12 December 2019

on 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 Agency

THE ADMINISTRATIVE BOARD OF THE EUROPEAN UNION AGENCY FOR THE COOPERATION OF ENERGY REGULATORS,

Having regard to the Treaty on the Functioning of the European Union,

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 Regulation (EU) 2019/942 of the European Parliament and of the Council of 5 June 2019 establishing a European Union Agency for the Cooperation of Energy Regulators (2), and, in particular, Article 19(1)(d) thereof,

Having regard to the Rules of procedure of the Administrative Board (3), and, in particular, Article 8 thereof,

Having regard to the opinion of the European Data Protection Supervisor of 2 October 2019 and to the European Data Protection Supervisor’ Guidance on Article 25 of the new Regulation and internal rules,

After consulting the Staff Committee,

Whereas:

(1) The European Union Agency for the Cooperation of Energy Regulators (‘the Agency’) carries out its activities in accordance with Regulation (EU) 2019/942.

(2) In accordance with Article 25(1) of Regulation (EU) 2018/1725, restrictions to the application of Articles 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 the Agency, 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 subject rights.

(4) Where the Agency 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, the Agency may conduct administrative inquiries, disciplinary proceedings, carry out preliminary activities related to cases of potential irregularities reported to the European Anti-Fraud Office (‘OLAF’), process whistleblowing cases, process (formal and informal) procedures of harassment, process internal and external complaints, conduct internal audits, carry out investigations by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725, monitor the wholesale energy markets and coordinate national regulatory authorities’ activities on potential breaches of Regulation (EU) No 1227/2011 of the European Parliament and of the Council (4) (‘REMIT’) and carry out internal information technology (IT) security investigations.

(6) The Agency 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) The Agency, represented by its Director, acts as the data Controller irrespective of further delegations of the Controller role within the Agency to reflect operational responsibilities for specific personal data processing operations.

(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, privacy statements or records of the Agency.

(9) The internal rules should apply to all processing operations carried out by the Agency in the performance of administrative inquiries, disciplinary proceedings, preliminary activities related to cases of potential irregularities reported to OLAF, whistleblowing procedures, (formal and informal) procedures for cases of harassment, processing internal and external complaints, internal audits, investigations carried out by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725, monitoring of wholesale energy markets and coordination of national regulatory authorities’ activities on potential breaches of REMIT, as well as (IT) security investigations handled internally or with external involvement (e.g. CERT-EU).

(10) These 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 apply to assistance and cooperation provided by the Agency to national authorities and international organisations outside of its administrative investigations.

(11) In the cases where these internal rules apply, the Agency has to 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.

(12) Within this framework the Agency is 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.

(13) However, the Agency 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.

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

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

(16) The Controller should inform the Data Protection Officer at the moment of deferral and during the revisions.

(17) Regulation (EU) 2018/1725 replaces Regulation (EC) No 45/2001 of the European Parliament and of the Council (5), without any transitional period, from the date on which it enters into force. The possibility to apply restrictions to certain rights of data subjects was provided for in Regulation (EC) No 45/2001. In order to avoid jeopardising Agency’s tasks and activities, this Decision should enter into force on the day following that of its publication in the Official Journal of the European Union.

(18) The European Data Protection Supervisor delivered an opinion on 2 October 2019, under Article 41(2) of Regulation (EU) 2018/1725, which has been duly considered in the consolidation of this Decision,

HAS ADOPTED THIS DECISION:

Article 1 Subject matter and scope 1. This Decision lays down rules relating to the conditions under which the Agency, in the framework of its procedures set out in paragraph 2 of this Article, may restrict the application of the rights enshrined in Articles 14 to 21, 35 and 36, as well as Article 4 of the Regulation (EU) 2018/1725, following Article 25 thereof. 2. Within the framework of the administrative functioning of the Agency, this Decision applies to the processing operations on personal data by the Agency for the purposes of conducting administrative inquiries, disciplinary proceedings, preliminary activities related to cases of potential irregularities reported to OLAF, processing whistleblowing cases, (formal and informal) procedures of harassment, processing internal and external complaints, conducting internal audits, investigations carried out by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725, monitoring of wholesale energy markets and coordination of national regulatory authorities’ activities on potential breaches of REMIT and (IT) security investigations handled internally or with external involvement (e.g. CERT-EU). 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 the Agency 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 Specification of the Controller and safeguards 1. The safeguards in place to avoid data breaches, leakages or unauthorised disclosure 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 a secure IT application according to the Agency’s security standards, as well as in specific electronic folders accessible only to authorised staff. Appropriate levels of access shall be granted individually; (c) All persons having access to the data are bound by the obligation of confidentiality. 2. The Controller of the processing operations is the Agency, represented by its Director, who may delegate the function of the Controller. Data subjects shall be informed of the delegated Controller by way of the data protection notices or records published on the website and/or the intranet of the Agency. 3. The retention period of the personal data referred to in Article 1(3) of this Decision 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, privacy statements or records referred to in Article 5(1) of this Decision. 4. Where the Agency 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 risk of negatively affecting the Agency’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 Restrictions 1. Any restriction shall only be applied by the Agency to safeguard: (a) 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; (b) the internal security of Union institutions and bodies, including of their electronic communications networks; (c) a monitoring, inspection or regulatory function connected, even occasionally, to the exercise of official authority in the cases referred to in point (a); (d) the protection of the data subject or the rights and freedoms of others. 2. As a specific application of the purposes described in paragraph 1 above, the Agency may apply restrictions, in the following circumstances: (a) in relation to personal data exchanged with Commission services or other Union institutions, bodies, agencies and offices, where the exercise of those rights and obligations could be restricted by Commission services or other Union institutions, bodies, agencies and offices on the basis of other acts provided for in Article 25 of Regulation (EU) 2018/1725, in accordance with Chapter IX of that Regulation or with the founding acts of other Union institutions, bodies, agencies and offices and where the purpose of such a restriction by that Union institution, body or agency would be jeopardised were the Agency not to apply an equivalent restriction in respect of the same personal data; (b) in relation to personal data exchanged with competent authorities of Member States or third countries or international organisations 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 (6), 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 (7) and where the purpose of such a restriction by the competent authorities of Member States would be jeopardised were the Agency not to apply an equivalent restriction in respect of the same personal data; (c) where there is clear and reasonable evidence that the exercise of those rights and obligations could likely jeopardise the Agency'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) of the first subparagraph, the Agency shall consult the relevant Commission services, Union institutions, bodies, agencies, offices or the competent authorities of Member States unless it is clear to the Agency that the application of a restriction is provided for by one of the acts referred to in those points. 3. 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. 4. If the application of a 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. 5. 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.

Article 4 Review by the Data Protection Officer 1. The Agency shall, without undue delay, involve the Data Protection Officer of the Agency (‘the DPO’) throughout all the relevant procedures established by this Decision and shall ensure that the DPO’s involvement is documented. This shall include documenting in writing any relevant assessments and opinions rendered by the DPO regarding the applicability of a restriction to a given case. 2. In particular, the Agency shall, without undue delay, inform the 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. 3. 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. 4. The Controller shall inform the DPO when the restriction has been lifted.

Article 5 Provision of information to data subject 1. 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) (formal and informal) procedures for cases of harassment; (e) processing internal and external complaints; (f) internal audits; (g) the investigations carried out by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725; (h) monitoring of wholesale energy markets and coordination of national regulatory authorities’ activities on potential breaches of REMIT; (i) (IT) security investigations handled internally or with external involvement (e.g. CERT-EU). The Agency shall include in the data protection notices, privacy statements or records in the sense of Article 31 of Regulation (EU) 2018/1725, published on its website and/or on the intranet informing data subjects of their rights in the framework of a given procedure, information relating to the potential restriction of these rights. The information shall indicate which rights may be restricted, the reasons and the potential duration. 2. Without prejudice to the provisions of paragraph 3, the Agency, 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. 3. Where the Agency restricts, wholly or partly, the provision of information to the data subjects referred to in paragraph 2, it shall record the reasons for the restriction, the legal ground in accordance with Article 3 of this Decision, 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. 4. The restriction referred to in paragraph 3 shall continue to apply as long as the reasons justifying it remain applicable. Where the reasons for the restriction no longer apply, the Agency shall provide information to the data subject on the principal reasons on which the application of a restriction is based. At the same time, the Agency 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. The Agency shall review the application of the restriction, to confirm whether the factual and legal grounds for the restriction continue to apply every six months from its application and at the closure of the relevant inquiry, procedure or investigation. Thereafter, the Controller shall periodically monitor the need to maintain any restriction every six months.

Article 6 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) (formal and informal) procedures for cases of harassment; (e) processing internal and external complaints; (f) internal audits; (g) the investigations carried out by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725; (h) monitoring of wholesale energy markets and coordination of national regulatory authorities’ activities on potential breaches of REMIT; (i) (IT) security investigations handled internally or with external involvement (e.g. CERT-EU). 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, the Agency shall limit its assessment of the request to such personal data only. 2. Where the Agency 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. The Agency shall review the application of the restriction, to confirm whether the factual and legal grounds for the restriction continue to apply every six months from its application and at the closure of the relevant investigation. Thereafter, the Controller shall periodically monitor the need to maintain any restriction every six months. 3. 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.

Article 7 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) (formal and informal) procedures for cases of harassment; (e) processing internal and external complaints; (f) internal audits; (g) the investigations carried out by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725; (h) monitoring of wholesale energy markets and coordination of national regulatory authorities’ activities on potential breaches of REMIT; (i) (IT) security investigations handled internally or with external involvement (e.g. CERT-EU). 2. Where the Agency restricts, wholly or partly, 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. Article 6(3) of this Decision shall apply to any restrictions implemented under this Article.

Article 8 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) processing internal and external complaints; (e) internal audits; (f) the investigations carried out by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725; (g) monitoring of wholesale energy markets and coordination of national regulatory authorities’ activities on potential breaches of REMIT; (h) (IT) security investigations handled internally or with external involvement (e.g. CERT-EU). 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) formal procedures for cases of harassment; (e) processing internal and external complaints; (f) monitoring of wholesale energy markets and coordination of national regulatory authorities’ activities on potential breaches of REMIT; (g) (IT) security investigations handled internally or with external involvement (e.g. CERT-EU). 3. Where the Agency 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 take the steps in accordance with Article 5(3) and 5(4) of this Decision. Article 6(3) of this Decision shall apply to any restrictions implemented under this Article.

Article 9 Entry into force This Decision shall enter into force on the day following that of its publication in the Official Journal of the European Union.

Done at Ljubljana, 12 December 2019. Fоr the Administrative Board The Chair Dr. R. JORDAN

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

(2) OJ L 158, 14.6.2019, p. 22.

(3) Decision of the Administrative Board No 03/2010 of on 6 May 2010, as amended.

(4) Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency (OJ L 326, 8.12.2011, p. 1).

(5) 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 8, 12.1.2001, p. 1).

(6) 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).

(7) 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).