CELEX: 
Language: en
Date: 2016-04-06
Title: Position of the Council at first reading with a view to the adoption of a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 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

Council of the
                 European Union
                                                           Brussels, 6 April 2016
                                                           (OR. en)
                                                           5418/16
       Interinstitutional File:
          2012/0010 (COD)
                                                           DATAPROTECT 1
                                                           JAI 37
                                                           DAPIX 8
                                                           FREMP 3
                                                           COMIX 36
                                                           CODEC 51
LEGISLATIVE ACTS AND OTHER INSTRUMENTS
Subject:            Position of the Council at first reading with a view to the adoption of a
                    DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
                    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
5418/16                                                               AV/NT/vm
                                              DGD 2                                           EN
 ---pagebreak---                                      DIRECTIVE (EU) 2016/…
                OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
                                                  of …
                                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
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE 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,
Having regard to the opinion of the Committee of the Regions 1,
Acting in accordance with the ordinary legislative procedure 2,
1
        OJ C 391, 18.12.2012, p. 127.
2
        Position of the European Parliament of 12 March 2014 (OJ …) and Council position of ….
        Position of the European Parliament of … and decision of the Council of ….
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                                                  DGD 2                                     EN
 ---pagebreak--- Whereas:
(1)     The protection of natural persons in relation to the processing of personal data is a
        fundamental right. Article 8(1) of the Charter of Fundamental Rights of the
        European Union (‘the Charter’) and Article 16(1) of the Treaty on the Functioning of the
        European Union (TFEU) provide that everyone has the right to the protection of personal
        data concerning him or her.
(2)     The principles of, and rules on the protection of natural persons with regard to the
        processing of their personal data should, whatever their nationality or residence, respect
        their fundamental rights and freedoms, in particular their right to the protection of personal
        data. This Directive is intended to 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 the collection and sharing of personal data has
        increased significantly. Technology allows personal data to be processed on an
        unprecedented scale in order to pursue activities such as the prevention, investigation,
        detection or prosecution of criminal offences or the execution of criminal penalties.
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                                               DGD 2                                              EN
 ---pagebreak--- (4)     The free flow of personal data between competent authorities for the purposes of the
        prevention, investigation, detection or prosecution of criminal offences or the execution of
        criminal penalties, including the safeguarding against and the prevention of threats to
        public security within the Union and the transfer of such personal data to third countries
        and international organisations, should be facilitated while ensuring a high level of
        protection of personal data. Those developments require the building of a strong and more
        coherent framework for the protection of personal data in the Union, backed by strong
        enforcement.
(5)     Directive 95/46/EC of the European Parliament and of the Council 1 applies to all
        processing of personal data 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
        cooperation in criminal matters and police cooperation.
(6)     Council Framework Decision 2008/977/JHA 2 applies in the areas of judicial cooperation in
        criminal matters and police cooperation. The scope of application of that Framework
        Decision is limited to the processing of personal data transmitted or made available
        between Member States.
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, 23.11.1995, p. 31).
2
      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).
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                                               DGD 2                                            EN
 ---pagebreak--- (7)     Ensuring a consistent and high level of protection of the personal data of natural persons
        and facilitating the exchange of personal data between competent authorities of Members
        States is crucial in order to ensure effective judicial cooperation in criminal matters and
        police cooperation. To that end, the level of protection of the rights and freedoms 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, including the safeguarding against and the
        prevention of threats to public security, should be equivalent in all Member States.
        Effective protection of personal data throughout the Union requires the strengthening of
        the rights of data subjects and of the obligations of those who process personal data, as
        well as equivalent powers for monitoring and ensuring compliance with the rules for the
        protection of personal data in the Member States.
(8)     Article 16(2) TFEU mandates the European Parliament and the Council to lay down the
        rules relating to the protection of natural person s with regard to the processing of personal
        data and the rules relating to the free movement of personal data.
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                                                 DGD 2                                            EN
 ---pagebreak--- (9)     On that basis, Regulation (EU) 2016/… of the European Parliament and of the Council 1∗
        lays down general rules to protect natural persons in relation to the processing of personal
        data and to ensure the free movement of personal data within the Union.
(10)    In Declaration No 21 on the protection of personal data in the fields of judicial cooperation
        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 personal data in the fields of judicial cooperation in criminal matters and police
        cooperation based on Article 16 TFEU may prove necessary because of the specific nature
        of those fields.
1
      Regulation (EU) 2016/… of the European Parliament and of the Council of … 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 …).
∗
      OJ: please insert the number of the Regulation in st 5419/16 and the publication reference.
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                                                 DGD 2                                           EN
 ---pagebreak--- (11)    It is therefore appropriate for those fields to be addressed by a directive that lays down the
        specific rules relating to 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,
        including the safeguarding against and the prevention of threats to public security,
        respecting the specific nature of those activities. Such competent authorities may include
        not only public authorities such as the judicial authorities, the police or other
        law-enforcement authorities but also any other body or entity entrusted by Member State
        law to exercise public authority and public powers for the purposes of this Directive.
        Where such a body or entity processes personal data for purposes other than for the
        purposes of this Directive, Regulation (EU) 2016/… ∗ applies. Regulation (EU) 2016/…∗
        therefore applies in cases where a body or entity collects personal data for other purposes
        and further processes those personal data in order to comply with a legal obligation to
        which it is subject. For example, for the purposes of investigation detection or prosecution
        of criminal offences financial institutions retain certain personal data which are processed
        by them, and provide those personal data only to the competent national authorities in
        specific cases and in accordance with Member State law. A body or entity which processes
        personal data on behalf of such authorities within the scope of this Directive should be
        bound by a contract or other legal act and by the provisions applicable to processors
        pursuant to this Directive, while the application of Regulation (EU) 2016/…∗ remains
        unaffected for the processing of personal data by the processor outside the scope of this
        Directive.
∗
      OJ: please insert the number of the Regulation in st 5419/16.
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                                                 DGD 2                                            EN
 ---pagebreak--- (12)    The activities carried out by the police or other law-enforcement authorities are focused
        mainly on the prevention, investigation, detection or prosecution of criminal offences,
        including police activities without prior knowledge if an incident is a criminal offence or
        not. Such activities can also include the exercise of authority by taking coercive measures
        such as police activities at demonstrations, major sporting events and riots. They also
        include maintaining law and order as a task conferred on the police or other
        law-enforcement authorities where necessary to safeguard against and prevent threats to
        public security and to fundamental interests of the society protected by law which may lead
        to a criminal offence. Member States may entrust competent authorities with other tasks
        which are not necessarily carried out for the purposes of the prevention, investigation,
        detection or prosecution of criminal offences, including the safeguarding against and the
        prevention of threats to public security, so that the processing of personal data for those
        other purposes, in so far as it is within the scope of Union law, falls within the scope of
        Regulation (EU) 2016/… ∗.
(13)    A criminal offence within the meaning of this Directive should be an autonomous concept
        of Union law as interpreted by the Court of Justice of the European Union (the ‘Court of
        Justice’).
∗
      OJ: please insert the number of the Regulation in st 5419/16.
5418/16                                                                 AV/NT/vm                    7
                                                 DGD 2                                            EN
 ---pagebreak--- (14)    Since 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, activities concerning national security,
        activities of agencies or units dealing with national security issues and the processing of
        personal data by the Member States when carrying out activities which fall within the
        scope of Chapter 2 of Title V of the Treaty on European Union (TEU) should not be
        considered to be activities falling within the scope of this Directive.
(15)    In order to ensure the same level of protection for natural persons through legally
        enforceable rights throughout the Union and to prevent divergences hampering the
        exchange of personal data between competent authorities, this Directive should provide for
        harmonised rules for the protection and the free movement of personal data processed for
        the purposes of the prevention, investigation, detection or prosecution of criminal offences
        or the execution of criminal penalties, including the safeguarding against and the
        prevention of threats to public security. The approximation of Member States’ laws should
        not result in any lessening of the personal data protection they afford but should, on the
        contrary, seek to ensure a high level of protection within the Union. Member States should
        not be precluded from providing higher safeguards than those established in this Directive
        for the protection of the rights and freedoms of the data subject with regard to the
        processing of personal data by competent authorities.
5418/16                                                                 AV/NT/vm                     8
                                                DGD 2                                            EN
 ---pagebreak--- (16)    This Directive is without prejudice to the principle of public access to official documents.
        Under Regulation (EU) 2016/… ∗ personal data in official documents held by a public
        authority or a public or private body for the performance of a task carried out in the public
        interest may be disclosed by that authority or body in accordance with Union or
        Member State law to which the public authority or body is subject in order to reconcile
        public access to official documents with the right to the protection of personal data.
(17)    The protection afforded by this Directive should apply to natural persons, whatever their
        nationality or place of residence, in relation to the processing of their personal data.
(18)    In order to prevent creating a serious risk of circumvention, the protection of natural
        persons should be technologically neutral and should not depend on the techniques used.
        The protection of natural persons should apply to the processing of personal data by
        automated means, as well as to manual processing, if the personal 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.
∗
      OJ: please insert the number of the Regulation in st 5419/16.
5418/16                                                                  AV/NT/vm                     9
                                                DGD 2                                               EN
 ---pagebreak--- (19)    Regulation (EC) No 45/2001 of the European Parliament and of the Council 1 applies to the
        processing of personal data by the Union institutions, bodies, offices and agencies.
        Regulation (EC) No 45/2001 and other Union legal acts applicable to such processing of
        personal data should be adapted to the principles and rules established in Regulation
        (EU) 2016/… ∗.
(20)    This Directive does not preclude Member States from specifying processing operations and
        processing procedures in national rules on criminal procedures in relation to the processing
        of personal data by courts and other judicial authorities, in particular as regards personal
        data contained in a judicial decision or in records in relation to criminal proceedings.
1
      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).
∗
      OJ: please insert the number of the Regulation in st 5419/16.
5418/16                                                                  AV/NT/vm                    10
                                               DGD 2                                              EN
 ---pagebreak--- (21)    The principles of data 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 reasonably likely to be used, such as singling out,
        either by the controller or by another person to identify the natural person directly or
        indirectly. To ascertain whether means are reasonably likely to be used to identify the
        natural person, account should be taken of all objective factors, such as the costs of and the
        amount of time required for identification, taking into consideration the available
        technology at the time of the processing and technological developments. The principles of
        data protection should therefore not apply to anonymous information, namely information
        which does not relate to an identified or identifiable natural person or to personal data
        rendered anonymous in such a manner that the data subject is no longer identifiable.
(22)    Public authorities to which personal data are disclosed in accordance with a legal
        obligation for the exercise of their official mission, such as tax and customs authorities,
        financial investigation units, independent administrative authorities, or financial market
        authorities responsible for the regulation and supervision of securities markets should not
        be regarded as recipients if they receive personal data which are necessary to carry out a
        particular inquiry in the general interest, in accordance with Union or Member State law.
        The requests for disclosure sent by the public authorities should always be in writing,
        reasoned and occasional and should not concern the entirety of a filing system or lead to
        the interconnection of filing systems. The processing of personal data by those public
        authorities should comply with the applicable data protection rules according to the
        purposes of the processing.
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                                                 DGD 2                                            EN
 ---pagebreak--- (23)    Genetic data should be defined as personal data relating to the inherited or acquired genetic
        characteristics of a natural person which give unique information about the physiology or
        health of that natural person and which result from the analysis of a biological sample from
        the natural person in question, in particular chromosomal, deoxyribonucleic acid (DNA) or
        ribonucleic acid (RNA) analysis, or from the analysis of another element enabling
        equivalent information to be obtained. Considering the complexity and sensitivity of
        genetic information, there is a great risk of misuse and re-use for various purposes by the
        controller. Any discrimination based on genetic features should in principle be prohibited.
(24)    Personal data concerning health should include all data pertaining to the health status of a
        data subject which reveal information relating to the past, current or future physical or
        mental health status of the data subject. This includes information about the natural person
        collected in the course of the registration for, or the provision of, health care services as
        referred to in Directive 2011/24/EU of the European Parliament and of the Council 1 to that
        natural person; a number, symbol or particular assigned to a natural person to uniquely
        identify the natural person for health purposes; information derived from the testing or
        examination of a body part or bodily substance, including from genetic data and biological
        samples; and any information on, for example, a disease, disability, disease risk, medical
        history, clinical treatment or the physiological or biomedical state of the data subject
        independent of its source, for example from a physician or other health professional, a
        hospital, a medical device or an in vitro diagnostic test.
1
      Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on
      the application of patients’ rights in cross-border healthcare (OJ L 88, 4.4.2011, p. 45).
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                                                 DGD 2                                              EN
 ---pagebreak--- (25)    All Member States are affiliated to the International Criminal Police Organisation
        (Interpol). To fulfil its mission, Interpol receives, stores and circulates personal data to
        assist competent authorities in preventing and combating international crime. It is therefore
        appropriate to strengthen cooperation between the Union and Interpol by promoting an
        efficient exchange of personal data whilst ensuring respect for fundamental rights and
        freedoms regarding the automatic processing of personal data. Where personal data are
        transferred from the Union to Interpol, and to countries which have delegated members to
        Interpol, this Directive, in particular the provisions on international transfers, should apply.
        This Directive should be without prejudice to the specific rules laid down in Council
        Common Position 2005/69/JHA 1 and Council Decision 2007/533/JHA 2
1
      Council Common Position 2005/69/JHA of 24 January 2005 on exchanging certain data
      with Interpol (OJ L 27, 29.1.2005, p. 61).
2
      Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of
      the second generation Schengen Information System (SIS II) (OJ L 205, 7.8.2007, p. 63).
5418/16                                                                  AV/NT/vm                     13
                                                  DGD 2                                             EN
 ---pagebreak--- (26)    Any processing of personal data must be lawful, fair and transparent in relation to the
        natural persons concerned, and only processed for specific purposes laid down by law.
        This does not in itself prevent the law-enforcement authorities from carrying out activities
        such as covert investigations or video surveillance. Such activities can be done for the
        purposes of the prevention, investigation, detection or prosecution of criminal offences or
        the execution of criminal penalties, including the safeguarding against and the prevention
        of threats to public security, as long as they are laid down by law and constitute a
        necessary and proportionate measure in a democratic society with due regard for the
        legitimate interests of the natural person concerned. The data protection principle of fair
        processing is a distinct notion from the right to a fair trial as defined in Article 47 of the
        Charter and in Article 6 of the European Convention for the Protection of Human Rights
        and Fundamental Freedoms (‘ECHR’). Natural persons should be made aware of risks,
        rules, safeguards and rights in relation to the processing of their personal data and how to
        exercise their rights in relation to the processing. In particular, the specific purposes for
        which the personal data are processed should be explicit and legitimate and determined at
        the time of the collection of the personal data. The personal data should be adequate and
        relevant for the purposes for which they are processed. It should, in particular, be ensured
        that the personal data collected are not excessive and not kept longer than is necessary for
        the purpose for which they are processed. Personal data should be processed only if the
        purpose of the processing could not reasonably be fulfilled by other means. In order to
        ensure that the data are not kept longer than necessary, time limits should be established by
        the controller for erasure or for a periodic review. Member States should lay down
        appropriate safeguards for personal data stored for longer periods for archiving in the
        public interest, scientific, statistical or historical use.
5418/16                                                                   AV/NT/vm                     14
                                                   DGD 2                                             EN
 ---pagebreak--- (27)    For the prevention, investigation and prosecution of criminal offences, it is necessary for
        competent authorities to process personal data collected in the context of the prevention,
        investigation, detection or prosecution of specific criminal offences beyond that context in
        order to develop an understanding of criminal activities and to make links between
        different criminal offences detected.
(28)    In order to maintain security in relation to processing and to prevent processing in
        infringement of this Directive, personal data should be processed in a manner that ensures
        an appropriate level of security and confidentiality, including by preventing unauthorised
        access to or use of personal data and the equipment used for the processing, and that takes
        into account available state of the art and technology, the costs of implementation in
        relation to the risks and the nature of the personal data to be protected.
(29)    Personal data should be collected for specified, explicit and legitimate purposes within the
        scope of this Directive and should not be processed for purposes incompatible with the
        purposes of the prevention, investigation, detection or prosecution of criminal offences or
        the execution of criminal penalties, including the safeguarding against and the prevention
        of threats to public security. If personal data are processed by the same or another
        controller for a purpose within the scope of this Directive other than that for which it has
        been collected, such processing should be permitted under the condition that such
        processing is authorised in accordance with applicable legal provisions and is necessary for
        and proportionate to that other purpose.
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                                                 DGD 2                                            EN
 ---pagebreak--- (30)    The principle of accuracy of data should be applied while 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 natural persons and are
        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.
(31)    It is inherent to the processing of personal data in the areas of judicial cooperation in
        criminal matters and police cooperation that personal data relating to different categories of
        data subjects are processed. Therefore, a clear distinction should, where applicable and 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 other parties, such as
        witnesses; persons possessing relevant information or contacts; and associates of suspects
        and convicted criminals. This should not prevent the application of the right of
        presumption of innocence as guaranteed by the Charter and by the ECHR, as interpreted in
        the case-law of the Court of Justice and by the European Court of Human Rights
        respectively.
(32)    The competent authorities should ensure that personal data which are inaccurate,
        incomplete or no longer up to date are not transmitted or made available. In order to ensure
        the protection of natural persons, the accuracy, completeness or the extent to which the
        personal data are up to date and the reliability of the personal data transmitted or made
        available, the competent authorities should, as far as possible, add necessary information in
        all transmissions of personal data.
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                                                DGD 2                                             EN
 ---pagebreak--- (33)    Where this Directive refers to Member State law, a legal basis or a legislative measure, this
        does not necessarily require a legislative act adopted by a parliament, without prejudice to
        requirements pursuant to the constitutional order of the Member State concerned.
        However, such a Member State law, legal basis or legislative measure should be clear and
        precise and its application foreseeable for those subject to it, as required by the case-law of
        the Court of Justice and the European Court of Human Rights. Member State law
        regulating the processing of personal data within the scope of this Directive should specify
        at least the objectives, the personal data to be processed, the purposes of the processing and
        procedures for preserving the integrity and confidentiality of personal data and procedures
        for its destruction, thus providing sufficient guarantees against the risk of abuse and
        arbitrariness.
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                                                DGD 2                                              EN
 ---pagebreak--- (34)    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, including the safeguarding against and the prevention of threats to
        public security, should cover any operation or set of operations which are performed upon
        personal data or sets of personal data for those purposes, whether by automated means or
        otherwise, such as collection, recording, organisation, structuring, storage, adaptation or
        alteration, retrieval, consultation, use, alignment or combination, restriction of processing,
        erasure or destruction. In particular, the rules of this Directive should apply to the
        transmission of personal data for the purposes of this Directive to a recipient not subject to
        this Directive. Such a recipient should encompass a natural or legal person, public
        authority, agency or any other body to which personal data are lawfully disclosed by the
        competent authority. Where personal data were initially collected by a competent authority
        for one of the purposes of this Directive, Regulation (EU) 2016/… ∗ should apply to the
        processing of those data for purposes other than the purposes of this Directive where such
        processing is authorised by Union or Member State law. In particular, the rules of
        Regulation (EU) 2016/…∗ should apply to the transmission of personal data for purposes
        outside the scope of this Directive. For the processing of personal data by a recipient that is
        not a competent authority or that is not acting as such within the meaning of this Directive
        and to which personal data are lawfully disclosed by a competent authority, Regulation
        (EU) 2016/…∗ should apply. While implementing this Directive, Member States should
        also be able to further specify the application of the rules of Regulation (EU) 2016/…∗,
        subject to the conditions set out therein.
∗
      OJ: please insert the number of the Regulation in st 5419/16.
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                                                  DGD 2                                           EN
 ---pagebreak--- (35)    In order to be lawful, the processing of personal data under this Directive should be
        necessary for the performance of a task carried out in the public interest by a competent
        authority based on Union or Member State law for the purposes of the prevention,
        investigation, detection or prosecution of criminal offences or the execution of criminal
        penalties, including the safeguarding against and the prevention of threats to public
        security. Those activities should cover the protection of vital interests of the data subject.
        The performance of the tasks of preventing, investigating, detecting or prosecuting
        criminal offences institutionally conferred by law to the competent authorities allows them
        to require or order natural persons to comply with requests made. In such a case, the
        consent of the data subject, as defined in Regulation (EU) 2016/… ∗, should not provide a
        legal ground for processing personal data by competent authorities. Where the data subject
        is required to comply with a legal obligation, the data subject has no genuine and free
        choice, so that the reaction of the data subject could not be considered to be a freely given
        indication of his or her wishes. This should not preclude Member States from providing, by
        law, that the data subject may agree to the processing of his or her personal data for the
        purposes of this Directive, such as DNA tests in criminal investigations or the monitoring
        of his or her location with electronic tags for the execution of criminal penalties.
∗
      OJ: please insert the number of the Regulation in st 5419/16.
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                                                DGD 2                                              EN
 ---pagebreak--- (36)    Member States should provide that where Union or Member State law applicable to the
        transmitting competent authority provides for specific conditions applicable in specific
        circumstances to the processing of personal data, such as the use of handling codes, the
        transmitting competent authority should inform the recipient of such personal data of those
        conditions and the requirement to respect them. Such conditions could, for example,
        include a prohibition against transmitting the personal data further to others, or using them
        for purposes other than those for which they were transmitted to the recipient, or informing
        the data subject in the case of a limitation of the right of information without the prior
        approval of the transmitting competent authority. Those obligations should also apply to
        transfers by the transmitting competent authority to recipients in third countries or
        international organisations. Member States should ensure that the transmitting competent
        authority does not apply such conditions to recipients in other Member States or to
        agencies, offices and bodies established pursuant to Chapters 4 and 5 of Title V of the
        TFEU other than those applicable to similar data transmissions within the Member State of
        that competent authority.
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                                                 DGD 2                                             EN
 ---pagebreak--- (37)    Personal data which are, by their nature, particularly sensitive in relation to fundamental
        rights and freedoms merit specific protection as the context of their processing could create
        significant risks to the fundamental rights and freedoms. Those personal data should
        include personal data revealing racial or ethnic origin, whereby the use of the term ‘racial
        origin’ in this Directive does not imply an acceptance by the Union of theories which
        attempt to determine the existence of separate human races. Such personal data should not
        be processed, unless processing is subject to appropriate safeguards for the rights and
        freedoms of the data subject laid down by law and is allowed in cases authorised by law;
        where not already authorised by such a law, the 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. Appropriate safeguards for the rights and
        freedoms of the data subject could include the possibility to collect those data only in
        connection with other data on the natural person concerned, the possibility to secure the
        data collected adequately, stricter rules on the access of staff of the competent authority to
        the data and the prohibition of transmission of those data. The processing of such data
        should also be allowed by law where the data subject has explicitly agreed to the
        processing that is particularly intrusive to him or her. However, the consent of the data
        subject should not provide in itself a legal ground for processing such sensitive personal
        data by competent authorities.
5418/16                                                                  AV/NT/vm                    21
                                                DGD 2                                             EN
 ---pagebreak--- (38)    The data subject should have the right not to be subject to a decision evaluating personal
        aspects relating to him or her which is based solely on automated processing and which
        produces adverse legal effects concerning, or significantly affects, him or her. In any case,
        such processing should be subject to suitable safeguards, including the provision of
        specific information to the data subject and the right to obtain human intervention, in
        particular to express his or her point of view, to obtain an explanation of the decision
        reached after such assessment or to challenge the decision. Profiling that results in
        discrimination against natural persons on the basis of personal data which are by their
        nature particularly sensitive in relation to fundamental rights and freedoms should be
        prohibited under the conditions laid down in Articles 21 and 52 of the Charter.
(39)    In order to enable him or her to exercise his or her rights, any information to the data
        subject should be easily accessible, including on the website of the controller, and easy to
        understand, using clear and plain language. Such information should be adapted to the
        needs of vulnerable persons such as children.
5418/16                                                                 AV/NT/vm                    22
                                                 DGD 2                                           EN
 ---pagebreak--- (40)    Modalities should be provided for facilitating the exercise of the data subject’s rights under
        the provisions adopted pursuant to this Directive, including mechanisms to request and, if
        applicable, obtain, free of charge, in particular, access to and rectification or erasure of
        personal data and restriction of processing. The controller should be obliged to respond to
        requests of the data subject without undue delay, unless the controller applies limitations to
        data subject rights in accordance with this Directive. Moreover, if requests are manifestly
        unfounded or excessive, such as where the data subject unreasonably and repetitiously
        requests information or where the data subject abuses his or her right to receive
        information, for example, by providing false or misleading information when making the
        request, the controller should be able to charge a reasonable fee or refuse to act on the
        request.
(41)    Where the controller requests the provision of additional information necessary to confirm
        the identity of the data subject, that information should be processed only for that specific
        purpose and should not be stored for longer than needed for that purpose.
(42)    At least the following information should be made available to the data subject: the identity
        of the controller, the existence of the processing operation, the purposes of the processing,
        the right to lodge a complaint and the existence of the right to request from the controller
        access to and rectification or erasure of personal data or restriction of processing. This
        could take place on the website of the competent authority. In addition, in specific cases
        and in order to enable the exercise of his or her rights, the data subject should be informed
        of the legal basis for the processing and of how long the data will be stored, in so far as
        such further information is necessary, taking into account the specific circumstances in
        which the data are processed, to guarantee fair processing in respect of the data subject.
5418/16                                                                  AV/NT/vm                    23
                                                 DGD 2                                              EN
 ---pagebreak--- (43)    A natural person should have the right of access to data which has been collected
        concerning him or her, and to exercise this right easily and at reasonable intervals, in order
        to be aware of and verify the lawfulness of the processing. Every data subject should
        therefore have the right to know, and obtain communications about, the purposes for which
        the data are processed, the period during which the data are processed and the recipients of
        the data, including those in third countries. Where such communications include
        information as to the origin of the personal data, the information should not reveal the
        identity of natural persons, in particular confidential sources. For that right to be complied
        with, it is sufficient that the data subject be in possession of a full summary of those data in
        an intelligible form, that is to say a form which allows that data subject to become aware of
        those data and to verify that they are accurate and processed in accordance with this
        Directive, so that it is possible for him or her to exercise the rights conferred on him or her
        by this Directive. Such a summary could be provided in the form of a copy of the personal
        data undergoing processing.
5418/16                                                                   AV/NT/vm                    24
                                                  DGD 2                                           EN
 ---pagebreak--- (44)    Member States should be able to adopt legislative measures delaying, restricting or
        omitting the information to data subjects or restricting, wholly or partly, the access to their
        personal data to the extent that and as long as such a measure constitutes a necessary and
        proportionate measure in a democratic society with due regard for the fundamental rights
        and the legitimate interests of the natural person concerned, to avoid obstructing official or
        legal inquiries, investigations or procedures, to avoid prejudicing the prevention,
        investigation, detection or prosecution of criminal offences or the execution of criminal
        penalties, to protect public security or national security, or to protect the rights and
        freedoms of others. The controller should assess, by way of a concrete and individual
        examination of each case, whether the right of access should be partially or completely
        restricted.
(45)    Any refusal or restriction of access should in principle be set out in writing to the data
        subject and include the factual or legal reasons on which the decision is based.
(46)    Any restriction of the rights of the data subject must comply with the Charter and with the
        ECHR, as interpreted in the case-law of the Court of Justice and by the European Court of
        Human Rights respectively, and in particular respect the essence of those rights and
        freedoms.
5418/16                                                                  AV/NT/vm                    25
                                                 DGD 2                                             EN
 ---pagebreak--- (47)    A natural person should have the right to have inaccurate personal data concerning him or
        her rectified, in particular where it relates to facts, and the right to erasure where the
        processing of such data infringes this Directive. However, the right to rectification should
        not affect, for example, the content of a witness testimony. A natural person should also
        have the right to restriction of processing where he or she contests the accuracy of personal
        data and its accuracy or inaccuracy cannot be ascertained or where the personal data have
        to be maintained for purpose of evidence. In particular, instead of erasing personal data,
        processing should be restricted if in a specific case there are reasonable grounds to believe
        that erasure could affect the legitimate interests of the data subject. In such a case,
        restricted data should be processed only for the purpose which prevented their erasure.
        Methods to restrict the processing of personal data could include, inter alia, moving the
        selected data to another processing system, for example for archiving purposes, or making
        the selected data unavailable. In automated filing systems the restriction of processing
        should in principle be ensured by technical means. The fact that the processing of personal
        data is restricted should be indicated in the system in such a manner that it is clear that the
        processing of the personal data is restricted. Such rectification or erasure of personal data
        or restriction of processing should be communicated to recipients to whom the data have
        been disclosed and to the competent authorities from which the inaccurate data originated.
        The controllers should also abstain from further dissemination of such data.
5418/16                                                                    AV/NT/vm                   26
                                                  DGD 2                                            EN
 ---pagebreak--- (48)    Where the controller denies a data subject his or her right to information, access to or
        rectification or erasure of personal data or restriction of processing, the data subject should
        have the right to request that the national supervisory authority verify the lawfulness of the
        processing. The data subject should be informed of that right. Where the supervisory
        authority acts on behalf of the data subject, the data subject should be informed by the
        supervisory authority at least that all necessary verifications or reviews by the supervisory
        authority have taken place. The supervisory authority should also inform the data subject
        of the right to seek a judicial remedy.
(49)    Where the personal data are processed in the course of a criminal investigation and court
        proceedings in criminal matters, Member States should be able to provide that the exercise
        the right to information, access to and rectification or erasure of personal data and
        restriction of processing is carried out in accordance with national rules on judicial
        proceedings.
(50)    The 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 be obliged to implement appropriate and effective measures and should
        be able to demonstrate that processing activities are in compliance with this Directive.
        Such measures should take into account the nature, scope, context and purposes of the
        processing and the risk to the rights and freedoms of natural persons. The measures taken
        by the controller should include drawing up and implementing specific safeguards in
        respect of the treatment of personal data of vulnerable natural persons, such as children.
5418/16                                                                  AV/NT/vm                     27
                                                 DGD 2                                             EN
 ---pagebreak--- (51)    The risk to the rights and freedoms of natural persons, of varying likelihood and severity,
        may result from data processing which could lead to physical, material or non-material
        damage, in particular: where the processing may give rise to discrimination, identity theft
        or fraud, financial loss, damage to the reputation, loss of confidentiality of data protected
        by professional secrecy, unauthorised reversal of pseudonymisation or any other
        significant economic or social disadvantage; where data subjects might be deprived of their
        rights and freedoms or from exercising control over their personal data; where personal
        data are processed which reveal racial or ethnic origin, political opinions, religion or
        philosophical beliefs or trade-union membership; where genetic data or biometric data are
        processed in order to uniquely identify a person or where data concerning health or data
        concerning sex life and sexual orientation or criminal convictions and offences or related
        security measures are processed; where personal aspects are evaluated, in particular
        analysing and predicting aspects concerning performance at work, economic situation,
        health, personal preferences or interests, reliability or behaviour, location or movements, in
        order to create or use personal profiles; where personal data of vulnerable natural persons,
        in particular children, are processed; or where processing involves a large amount of
        personal data and affects a large number of data subjects.
(52)    The likelihood and severity of the risk should be determined by reference to the nature,
        scope, context and purposes of the processing. Risk should be evaluated on the basis of an
        objective assessment, through which it is established whether data-processing operations
        involve a high risk. A high risk is a particular risk of prejudice to the rights and freedoms
        of data subjects.
5418/16                                                                  AV/NT/vm                     28
                                                DGD 2                                              EN
 ---pagebreak--- (53)    The protection of the rights and freedoms of natural persons with regard to the processing
        of personal data requires that appropriate technical and organisational measures are taken,
        to ensure that the requirements of this Directive are met. The implementation of such
        measures should not depend solely on economic considerations. In order to be able to
        demonstrate compliance with this Directive, the controller should adopt internal policies
        and implement measures which adhere in particular to the principles of data protection by
        design and data protection by default. Where the controller has carried out a data
        protection impact assessment pursuant to this Directive, the results should be taken into
        account when developing those measures and procedures. The measures could consist,
        inter alia, of the use of pseudonymisation, as early as possible. The use of
        pseudonymisation for the purposes of this Directive can serve as a tool that could facilitate,
        in particular, the free flow of personal data within the area of freedom, security and justice.
(54)    The protection of the rights and freedoms of data subjects as well as the responsibility and
        liability of controllers and processors, also in relation to the monitoring by and measures of
        supervisory authorities, requires a clear attribution of the responsibilities set out in this
        Directive, including where a controller determines the purposes and means of the
        processing jointly with other controllers or where a processing operation is carried out on
        behalf of a controller.
(55)    The carrying-out of processing by a processor should be governed by a legal act including
        a contract binding the processor to the controller and stipulating, in particular, that the
        processor should act only on instructions from the controller. The processor should take
        into account the principle of data protection by design and by default.
5418/16                                                                  AV/NT/vm                     29
                                                DGD 2                                                EN
 ---pagebreak--- (56)    In order to demonstrate compliance with this Directive, the controller or processor should
        maintain records regarding all categories of processing activities under its responsibility.
        Each controller and processor should be obliged to cooperate with the supervisory
        authority and make those records available to it on request, so that they might serve for
        monitoring those processing operations. The controller or the processor processing
        personal data in non-automated processing systems should have in place effective methods
        of demonstrating the lawfulness of the processing, of enabling self-monitoring and of
        ensuring data integrity and data security, such as logs or other forms of records.
(57)    Logs should be kept at least for operations in automated processing systems such as
        collection, alteration, consultation, disclosure including transfers, combination or erasure.
        The identification of the person who consulted or disclosed personal data should be logged
        and from that identification it should be possible to establish the justification for the
        processing operations. The logs should solely be used for the verification of the lawfulness
        of the processing, self-monitoring, for ensuring data integrity and data security and
        criminal proceedings. Self-monitoring also includes internal disciplinary proceedings of
        competent authorities.
(58)    A data protection impact assessment should be carried out by the controller where the
        processing operations are likely to result in a high risk to the rights and freedoms of data
        subjects by virtue of their nature, scope or purposes, which should include, in particular,
        the measures, safeguards and mechanisms envisaged to ensure the protection of personal
        data and to demonstrate compliance with this Directive. Impact assessments should cover
        relevant systems and processes of processing operations, but not individual cases.
5418/16                                                                  AV/NT/vm                    30
                                                 DGD 2                                            EN
 ---pagebreak--- (59)    In order to ensure effective protection of the rights and freedoms of data subjects, the
        controller or processor should consult the supervisory authority, in certain cases, prior to
        the processing.
(60)    In order to maintain security and to prevent processing that infringes this Directive, the
        controller or processor should evaluate the risks inherent in the processing and should
        implement measures to mitigate those risks, such as encryption. Such measures should
        ensure an appropriate level of security, including confidentiality and take into account the
        state of the art, the costs of implementation in relation to the risk and the nature of the
        personal data to be protected. In assessing data security risks, consideration should be
        given to the risks that are presented by data processing, such as the accidental or unlawful
        destruction, loss, alteration or unauthorised disclosure of or access to personal data
        transmitted, stored or otherwise processed, which may, in particular, lead to physical,
        material or non-material damage. The controller and processor should ensure that the
        processing of personal data is not carried out by unauthorised persons.
5418/16                                                                  AV/NT/vm                    31
                                                DGD 2                                               EN
 ---pagebreak--- (61)    A personal data breach may, if not addressed in an appropriate and timely manner, result in
        physical, material or non-material damage to natural persons such as loss of control over
        their personal data or limitation of their rights, discrimination, identity theft or fraud,
        financial loss, unauthorised reversal of pseudonymisation, damage to reputation, loss of
        confidentiality of personal data protected by professional secrecy or any other significant
        economic or social disadvantage to the natural person concerned. Therefore, as soon as the
        controller becomes aware that a personal data breach has occurred, the controller should
        notify the personal data breach to the supervisory authority without undue delay and,
        where feasible, not later than 72 hours after having become aware of it, unless the
        controller is able to demonstrate, in accordance with the accontability principle, that the
        personal data breach is unlikely to result in a risk to the rights and freedoms of natural
        persons. Where such notification cannot be achieved within 72 hours, the reasons for the
        delay should accompany the notification and information may be provided in phases
        without undue further delay.
5418/16                                                                  AV/NT/vm                    32
                                                DGD 2                                               EN
 ---pagebreak--- (62)    Natural persons should be informed without undue delay where the personal data breach is
        likely to result in a high risk to the rights and freedoms of natural persons, in order to allow
        them to take the necessary precautions. The communication should describe the nature of
        the personal data breach and include recommendations for the natural person concerned to
        mitigate potential adverse effects. Communication to data subjects should be made as soon
        as reasonably feasible, in close cooperation with the supervisory authority, and respecting
        guidance provided by it or other relevant authorities. For example, the need to mitigate an
        immediate risk of damage would call for a prompt communication to data subjects,
        whereas the need to implement appropriate measures against continuing or similar data
        breaches may justify more time for the communication. Where avoiding obstruction of
        official or legal inquiries, investigations or procedures, avoiding prejudice to the
        prevention, detection, investigation or prosecution of criminal offences or the execution of
        criminal penalties, protecting public security, protecting national security or protecting the
        rights and freedoms of others cannot be achieved by delaying or restricting the
        communication of a personal data breach to the natural person concerned, such
        communication could, in exceptional circumstances, be omitted.
5418/16                                                                  AV/NT/vm                      33
                                                  DGD 2                                             EN
 ---pagebreak--- (63)    The controller should designate a person who would assist it in monitoring internal
        compliance with the provisions adopted pursuant to this Directive, except where a
        Member State decides to exempt courts and other independent judicial authorities when
        acting in their judicial capacity. That person could be a member of the existing staff of the
        controller who received special training in data protection law and practice in order to
        acquire expert knowledge in that field. The necessary level of expert knowledge should be
        determined, in particular, according to the data processing carried out and the protection
        required for the personal data processed by the controller. His or her task could be carried
        out on a part-time or full-time basis. A data protection officer may be appointed jointly by
        several controllers, taking into account their organisational structure and size, for example
        in the case of shared resources in central units. That person can also be appointed to
        different positions within the structure of the relevant controllers. That person should help
        the controller and the employees processing personal data by informing and advising them
        on compliance with their relevant data protection obligations. Such data protection officers
        should be in a position to perform their duties and tasks in an independent manner in
        accordance with Member State law.
5418/16                                                                 AV/NT/vm                    34
                                                 DGD 2                                            EN
 ---pagebreak--- (64)    Member States should ensure that a transfer to a third country or to an international
        organisation takes place only if necessary for the prevention, investigation, detection or
        prosecution of criminal offences or the execution of criminal penalties, including the
        safeguarding against and the prevention of threats to public security, and that the controller
        in the third country or international organisation is an authority competent within the
        meaning of this Directive. A transfer should be carried out only by competent authorities
        acting as controllers, except where processors are explicitly instructed to transfer on behalf
        of controllers. Such 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 of
        protection, where appropriate safeguards have been provided, or where derogations for
        specific situations apply. Where personal data are transferred from the Union to
        controllers, to processors or to other recipients in third countries or international
        organisations, the level of protection of natural persons provided for in the Union by this
        Directive should not be undermined, including in cases of onward transfers of personal
        data from the third country or international organisation to controllers or processors in the
        same or in another third country or international organisation.
5418/16                                                                  AV/NT/vm                   35
                                                 DGD 2                                           EN
 ---pagebreak--- (65)    Where personal data are transferred from a Member State to third countries or international
        organisations, such a transfer should, in principle, take place only after the Member State
        from which the data were obtained has given its authorisation to the transfer. The interests
        of efficient law-enforcement cooperation require that where the nature of a threat to the
        public security of a Member State or a third country or to the essential interests of a
        Member State is so immediate as to render it impossible to obtain prior authorisation in
        good time, the competent authority should be able to transfer the relevant personal data to
        the third country or international organisation concerned without such a prior authorisation.
        Member States should provide that any specific conditions concerning the transfer should
        be communicated to third countries or international organisations. Onward transfers of
        personal data should be subject to prior authorisation by the competent authority that
        carried out the original transfer. When deciding on a request for the authorisation of an
        onward transfer, the competent authority that carried out the original transfer should take
        due account of all relevant factors, including the seriousness of the criminal offence, the
        specific conditions subject to which, and the purpose for which, the data was originally
        transferred, the nature and conditions of the execution of the criminal penalty, and the level
        of personal data protection in the third country or an international organisation to which
        personal data are onward transferred. The competent authority that carried out the original
        transfer should also be able to subject the onward transfer to specific conditions. Such
        specific conditions can be described, for example, in handling codes.
5418/16                                                                 AV/NT/vm                    36
                                                DGD 2                                            EN
 ---pagebreak--- (66)    The Commission should be able to decide with effect for the entire Union that certain third
        countries, a territory or one or more specified sectors 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 a level of protection. In
        such cases, transfers of personal data to those countries should be able to take place
        without the need to obtain any specific authorisation, except where another Member State
        from which the data were obtained has to give its authorisation to the transfer.
(67)    In line with the fundamental values on which the Union is founded, in particular the
        protection of human rights, the Commission should, in its assessment of the third country,
        or of a territory or specified sector within a third country, take into account how a
        particular third country respects the rule of law, access to justice as well as international
        human rights norms and standards and its general and sectoral law, including legislation
        concerning public security, defence and national security, as well as public order and
        criminal law. The adoption of an adequacy decision with regard to a territory or a specified
        sector in a third country should take into account clear and objective criteria, such as
        specific processing activities and the scope of applicable legal standards and legislation in
        force in the third country. The third country should offer guarantees ensuring an adequate
        level of protection essentially equivalent to that ensured within the Union, in particular
        where data are processed in one or several specific sectors. In particular, the third country
        should ensure effective independent data protection supervision and provide for
        cooperation mechanisms with the Member States’ data protection authorities, and the data
        subjects should be provided with effective and enforceable rights and effective
        administrative and judicial redress.
5418/16                                                                  AV/NT/vm                     37
                                                 DGD 2                                             EN
 ---pagebreak--- (68)    Apart from the international commitments the third country or international organisation
        has entered into, the Commission should also take account of obligations arising from the
        third country’s or international organisation’s participation in multilateral or regional
        systems, in particular in relation to the protection of personal data, as well as the
        implementation of such obligations. In particular the third country’s accession to the
        Council of Europe Convention of 28 January 1981 for the Protection of Individuals with
        regard to the Automatic Processing of Personal Data and its Additional Protocol should be
        taken into account. The Commission should consult with the European Data Protection
        Board established by Regulation (EU) 2016/… ∗ (the ‘Board’) when assessing the level of
        protection in third countries or international organisations. The Commission should also
        take into account any relevant Commission adequacy decision adopted in accordance with
        Article 45 of Regulation (EU) 2016/…∗.
(69)    The Commission should monitor the functioning of decisions on the level of protection in a
        third country, a territory or a specified sector within a third country, or an international
        organisation. In its adequacy decisions, the Commission should provide for a periodic
        review mechanism of their functioning. That periodic review should be undertaken in
        consultation with the third country or international organisation in question and should take
        into account all relevant developments in the third country or international organisation.
∗
      OJ: please insert the number of the Regulation in st 5419/16.
5418/16                                                                  AV/NT/vm                    38
                                                 DGD 2                                             EN
 ---pagebreak--- (70)    The Commission should also be able to recognise that a third country, a territory or a
        specified sector within a third country, or an international organisation, no longer ensures
        an adequate level of data protection. Consequently, the transfer of personal data to that
        third country or international organisation should be prohibited unless the requirements in
        this Directive relating to transfers subject to appropriate safeguards and derogations for
        specific situations are fulfilled. Provision should be made for procedures for consultations
        between the Commission and such third countries or international organisations. The
        Commission should, in a timely manner, inform the third country or international
        organisation of the reasons and enter into consultations with it in order to remedy the
        situation.
5418/16                                                                 AV/NT/vm                    39
                                                 DGD 2                                           EN
 ---pagebreak--- (71)    Transfers not based on such an adequacy decision should be allowed only where
        appropriate safeguards have been provided in a legally binding instrument which ensures
        the protection of personal data or where the controller has assessed all the circumstances
        surrounding the data transfer and, on the basis of that assessment, considers that
        appropriate safeguards with regard to the protection of personal data exist. Such legally
        binding instruments could, for example, be legally binding bilateral agreements which
        have been concluded by the Member States and implemented in their legal order and which
        could be enforced by their data subjects, ensuring compliance with data protection
        requirements and the rights of the data subjects, including the right to obtain effective
        administrative or judicial redress. The controller should be able to take into account
        cooperation agreements concluded between Europol or Eurojust and third countries which
        allow for the exchange of personal data when carrying out the assessment of all the
        circumstances surrounding the data transfer. The controller should be able to also take into
        account the fact that the transfer of personal data will be subject to confidentiality
        obligations and the principle of specificity, ensuring that the data will not be processed for
        other purposes than for the purposes of the transfer. In addition, the controller should take
        into account that the personal data will not be used to request, hand down or execute a
        death penalty or any form of cruel and inhuman treatment. While those conditions could be
        considered to be appropriate safeguards allowing the transfer of data, the controller should
        be able to require additional safeguards.
5418/16                                                                 AV/NT/vm                     40
                                                DGD 2                                             EN
 ---pagebreak--- (72)    Where no adequacy decision or appropriate safeguards exist, a transfer or a category of
        transfers could take place only in specific situations, if necessary 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;
        for the prevention of an immediate and serious threat to the public security of a
        Member State or a third country; in an individual case for the purposes of the prevention,
        investigation, detection or prosecution of criminal offences or the execution of criminal
        penalties, including the safeguarding against and the prevention of threats to public
        security; or in an individual case for the establishment, exercise or defence of legal claims.
        Those derogations should be interpreted restrictively and should not allow frequent,
        massive and structural transfers of personal data, or large-scale transfers of data, but should
        be limited to data strictly necessary. Such transfers should be documented and should be
        made available to the supervisory authority on request in order to monitor the lawfulness of
        the transfer.
5418/16                                                                 AV/NT/vm                     41
                                                 DGD 2                                             EN
 ---pagebreak--- (73)    Competent authorities of Member States apply bilateral or multilateral international
        agreements in force, concluded with third countries in the field of judicial cooperation in
        criminal matters and police cooperation, for the exchange of relevant information to allow
        them to perform their legally assigned tasks. In principle, this takes place through, or at
        least with, the cooperation of the authorities competent in the third countries concerned for
        the purposes of this Directive, sometimes even in the absence of a bilateral or multilateral
        international agreement. However, in specific individual cases, the regular procedures
        requiring contacting such an authority in the third country may be ineffective or
        inappropriate, in particular because the transfer could not be carried out in a timely
        manner, or because that authority in the third country does not respect the rule of law or
        international human rights norms and standards, so that competent authorities of
        Member States could decide to transfer personal data directly to recipients established in
        those third countries. This may be the case where there is an urgent need to transfer
        personal data to save the life of a person who is in danger of becoming a victim of a
        criminal offence or in the interest of preventing an imminent perpetration of a crime,
        including terrorism. Even if such a transfer between competent authorities and recipients
        established in third countries should take place only in specific individual cases, this
        Directive should provide for conditions to regulate such cases. Those provisions should not
        be considered to be derogations from any existing bilateral or multilateral international
        agreements in the field of judicial cooperation in criminal matters and police cooperation.
        Those rules should apply in addition to the other rules of this Directive, in particular those
        on the lawfulness of processing and Chapter V.
5418/16                                                                 AV/NT/vm                     42
                                                DGD 2                                              EN
 ---pagebreak--- (74)    Where personal data move across borders it may put at increased risk the ability of natural
        persons to exercise data protection rights to protect themselves from the unlawful use or
        disclosure of those 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 and inconsistent legal regimes. Therefore,
        there is a need to promote closer cooperation among data protection supervisory authorities
        to help them exchange information with their foreign counterparts.
(75)    The establishment in Member States of supervisory authorities that are able to exercise
        their functions with complete independence is an essential component of the protection of
        natural persons with regard to the processing of their personal data. The supervisory
        authorities should monitor the application of the provisions adopted pursuant to this
        Directive and should contribute to their consistent application throughout the Union in
        order to protect natural persons with regard to the processing of their personal data. To that
        end, the supervisory authorities should cooperate with each other and with the
        Commission.
(76)    Member States may entrust a supervisory authority already established under Regulation
        (EU) 2016/… ∗ with the responsibility for the tasks to be performed by the national
        supervisory authorities to be established under this Directive.
∗
      OJ: please insert the number of the Regulation in st 5419/16.
5418/16                                                                AV/NT/vm                     43
                                               DGD 2                                             EN
 ---pagebreak--- (77)    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 the 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 cooperation with other supervisory authorities
        throughout the Union. Each supervisory authority should have a separate, public annual
        budget, which may be part of the overall state or national budget.
(78)    Supervisory authorities should be subject to independent control or monitoring
        mechanisms regarding their financial expenditure, provided that such financial control
        does not affect their independence.
(79)    The general conditions for the member or members of the supervisory authority should be
        laid down in Member State law and should in particular provide that those members should
        be either appointed by the parliament or the government or the head of State of the
        Member State based on a proposal from the government or a member of the government,
        or the parliament or its chamber, or by an independent body entrusted by Member State
        law with the appointment by means of a transparent procedure. In order to ensure the
        independence of the supervisory authority, the member or members should act with
        integrity, should refrain from any action incompatible with their duties and should not,
        during their term of office, engage in any incompatible occupation, whether gainful or not.
        In order to ensure the independence of the supervisory authority, the staff should be chosen
        by the supervisory authority which may include an intervention by an independent body
        entrusted by Member State law.
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                                                 DGD 2                                           EN
 ---pagebreak--- (80)    While this Directive applies also to the activities of national courts and other judicial
        authorities, the competence of the supervisory authorities should not cover the processing
        of personal data where courts are acting in their judicial capacity, in order to safeguard the
        independence of judges in the performance of their judicial tasks. That exemption should
        be limited to judicial activities in court cases and not apply to other activities where judges
        might be involved in accordance with Member State law. Member States should also be
        able to provide that the competence of the supervisory authority does not cover the
        processing of personal data of other independent judicial authorities when acting in their
        judicial capacity, for example public prosecutor’s office. In any event, the compliance with
        the rules of this Directive by the courts and other independent judicial authorities is always
        subject to independent supervision in accordance with Article 8(3) of the Charter.
(81)    Each supervisory authority should handle complaints lodged by any data subject and
        should investigate the matter or transmit it to the competent supervisory authority. 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 provided to the data subject.
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                                                 DGD 2                                             EN
 ---pagebreak--- (82)    In order to ensure effective, reliable and consistent monitoring of compliance with and
        enforcement of this Directive throughout the Union pursuant to the TFEU as interpreted by
        the Court of Justice, the supervisory authorities should have in each Member State the
        same tasks and effective powers, including investigative, corrective, and advisory powers
        which constitute necessary means to perform their tasks. However, their powers should not
        interfere with specific rules for criminal proceedings, including investigation and
        prosecution of criminal offences, or the independence of the judiciary. Without prejudice
        to the powers of prosecutorial authorities under Member State law, supervisory authorities
        should also have the power to bring infringements of this Directive to the attention of the
        judicial authorities or to engage in legal proceedings. The powers of supervisory
        authorities should be exercised in accordance with appropriate procedural safeguards laid
        down in Union and Member State law, impartially, fairly and within a reasonable time. In
        particular each measure should be appropriate, necessary and proportionate in view of
        ensuring compliance with this Directive, taking into account the circumstances of each
        individual case, respect the right of every person to be heard before any individual measure
        that would adversely affect the person concerned is taken, and avoiding superfluous costs
        and excessive inconvenience to the person concerned. Investigative powers as regards
        access to premises should be exercised in accordance with specific requirements in
        Member State law, such as the requirement to obtain a prior judicial authorisation. The
        adoption of a legally binding decision should be subject to judicial review in the
        Member State of the supervisory authority that adopted the decision.
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                                                DGD 2                                           EN
 ---pagebreak--- (83)    The supervisory authorities should assist one another in performing their tasks and provide
        mutual assistance, so as to ensure the consistent application and enforcement of the
        provisions adopted pursuant to this Directive.
(84)    The Board should contribute to the consistent application of this Directive throughout the
        Union, including advising the Commission and promoting the cooperation of the
        supervisory authorities throughout the Union.
(85)    Every data subject should have the right to lodge a complaint with a single supervisory
        authority and to an effective judicial remedy in accordance with Article 47 of the Charter
        where the data subject considers that his or her rights under provisions adopted pursuant to
        this Directive are infringed or where the supervisory authority does not act on a complaint,
        partially or wholly rejects or dismisses a complaint or does not act where such action is
        necessary to protect the rights of the data subject. The investigation following a complaint
        should be carried out, subject to judicial review, to the extent that is appropriate in the
        specific case. The competent 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 provided to the data subject. In order to facilitate the submission of
        complaints, each supervisory authority should take measures such as providing a complaint
        submission form which can be completed also electronically, without excluding other
        means of communication.
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                                                DGD 2                                               EN
 ---pagebreak--- (86)    Each natural or legal person should have the right to an effective judicial remedy before
        the competent national court against a decision of a supervisory authority which produces
        legal effects concerning that person. Such a decision concerns in particular the exercise of
        investigative, corrective and authorisation powers by the supervisory authority or the
        dismissal or rejection of complaints. However, that right does not encompass other
        measures of supervisory authorities which are not legally binding, such as opinions issued
        by or advice provided by the supervisory authority. Proceedings against a supervisory
        authority should be brought before the courts of the Member State where the supervisory
        authority is established and should be conducted in accordance with Member State law.
        Those courts should exercise full jurisdiction which should include jurisdiction to examine
        all questions of fact and law relevant to the dispute before it.
(87)    Where a data subject considers that his or her rights under this Directive are infringed, he
        or she should have the right to mandate a body which aims to protect the rights and
        interests of data subjects in relation to the protection of their personal data and is
        constituted according to Member State law to lodge a complaint on his or her behalf with a
        supervisory authority and to exercise the right to a judicial remedy. The right of
        representation of data subjects should be without prejudice to Member State procedural
        law which may require mandatory representation of data subjects by a lawyer, as defined
        in Council Directive 77/249/EEC 1, before national courts.
1
      Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by
      lawyers of freedom to provide services (OJ L 78, 26.3.1977, p. 17).
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                                                 DGD 2                                           EN
 ---pagebreak--- (88)    Any damage which a person may suffer as a result of processing that infringes the
        provisions adopted pursuant to this Directive should be compensated by the controller or
        any other authority competent under Member State law. The concept of damage should be
        broadly interpreted in the light of the case-law of the Court of Justice in a manner which
        fully reflects the objectives of this Directive. This is without prejudice to any claims for
        damage deriving from the violation of other rules in Union or Member State law. When
        reference is made to processing that is unlawful or that infringes the provisions adopted
        pursuant to this Directive it also covers processing that infringes implementing acts
        adopted pursuant to this Directive. Data subjects should receive full and effective
        compensation for the damage that they have suffered.
(89)    Penalties should be imposed on any natural or legal person, whether governed by private or
        public law, who infringes this Directive. Member States should ensure that the penalties
        are effective, proportionate and dissuasive and should take all measures to implement the
        penalties.
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                                                 DGD 2                                             EN
 ---pagebreak--- (90)    In order to ensure uniform conditions for the implementation of this Directive,
        implementing powers should be conferred on the Commission with regard to the adequate
        level of protection afforded by a third country, a territory or a specified sector within a
        third country, or an international organisation and the format and procedures for mutual
        assistance and the arrangements for the exchange of information by electronic means
        between supervisory authorities, and between supervisory authorities and the Board. Those
        powers should be exercised in accordance with Regulation (EU) No 182/2011 of the
        European Parliament and of the Council 1.
(91)    The examination procedure should be used for the adoption of implementing acts on the
        adequate level of protection afforded by a third country, a territory or a specified sector
        within a third country, or an international organisation and on the format and procedures
        for mutual assistance and the arrangements for the exchange of information by electronic
        means between supervisory authorities, and between supervisory authorities and the Board,
        given that those acts are of a general scope.
(92)    The Commission should adopt immediately applicable implementing acts where, in duly
        justified cases relating to a third country, a territory or a specified sector within a third
        country, or an international organisation which no longer ensure an adequate level of
        protection, imperative grounds of urgency so require.
1
      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
      (OJ L 55, 28.2.2011, p. 13).
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                                                 DGD 2                                                EN
 ---pagebreak--- (93)    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 rather, 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
        TEU. 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 those objectives
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                                                 DGD 2                                            EN
 ---pagebreak--- (94)    Specific provisions of acts of the Union adopted in the field of judicial cooperation in
        criminal matters and police cooperation 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, such as, for
        example, the specific provisions concerning the protection of personal data applied
        pursuant to Council Decision 2008/615/JHA 1, or Article 23 of the Convention on Mutual
        Assistance in Criminal Matters between the Member States of the European Union 2. Since
        Article 8 of the Charter and Article 16 TFEU require that the fundamental right to the
        protection of personal data be ensured in a consistent manner throughout the Union, the
        Commission should evaluate the situation with regard to the relationship 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 those specific provisions with this Directive. Where
        appropriate, the Commission should make proposals with a view to ensuring consistent
        legal rules relating to the processing of personal data.
1
      Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border
      cooperation, particularly in combating terrorism and cross-border crime (OJ L 210,
      6.8.2008, p. 1).
2
      Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on
      European Union the Convention on Mutual Assistance in Criminal Matters between the
      Member States of the European Union (OJ C 197, 12.7.2000, p. 1).
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                                                DGD 2                                            EN
 ---pagebreak--- (95)    In order to ensure a comprehensive and consistent protection of personal data in the Union,
        international agreements which were concluded by Member States prior to the date of
        entry into force of this Directive and which comply with the relevant Union law applicable
        prior to that date should remain in force until amended, replaced or revoked.
(96)    Member States should be allowed a period of not more than two years from the date of
        entry into force of this Directive to transpose it. Processing already under way on that date
        should be brought into conformity with this Directive within the period of two years after
        which this Directive enters into force. However, where such processing complies with the
        Union law applicable prior to the date of entry into force of this Directive, the requirements
        of this Directive concerning the prior consultation of the supervisory authority should not
        apply to the processing operations already under way on that date given that those
        requirements, by their very nature, are to be met prior to the processing. Where
        Member States use the longer implementation period expiring seven years after the date of
        entry into force of this Directive for meeting the logging obligations for automated
        processing systems set up prior to that date, the controller or the processor should have in
        place effective methods for demonstrating the lawfulness of the data processing, for
        enabling self-monitoring and for ensuring data integrity and data security, such as logs or
        other forms of records.
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                                                 DGD 2                                           EN
 ---pagebreak--- (97)    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 2011/93/EU of
        the European Parliament and of the Council. 1
(98)    Framework Decision 2008/977/JHA should therefore be repealed.
(99)    In accordance with Article 6a of the Protocol No 21 on the position of the United Kingdom
        and Ireland in respect of the area of freedom, security and justice, as annexed to the TEU
        and to the TFEU, the United Kingdom and Ireland are not bound by the rules laid down in
        this Directive which relate to the processing of personal data by the Member States when
        carrying out activities which fall within the scope of Chapter 4 or Chapter 5 of Title V of
        Part Three of the TFEU where the United Kingdom and Ireland are not bound by the rules
        governing the forms of judicial cooperation in criminal matters or police cooperation
        which require compliance with the provisions laid down on the basis of Article 16 TFEU.
1
      Directive 2011/93/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).
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                                                DGD 2                                           EN
 ---pagebreak--- (100)   In accordance with Articles 2 and 2a of the Protocol No 22 on the position of Denmark, as
        annexed to the TEU and to the TFEU, Denmark is not bound by the rules laid down in this
        Directive or subject to their application which relate to the processing of personal data by
        the Member States when carrying out activities which fall within the scope of Chapter 4 or
        Chapter 5 of Title V of Part Three of the TFEU. Given that this Directive builds upon the
        Schengen acquis, under Title V of Part Three of the TFEU, Denmark, in accordance with
        Article 4 of that Protocol, is to decide within six months after adoption of this Directive
        whether it will implement it in its national law.
(101)   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. 1
(102)   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 2.
1
      OJ L 176, 10.7.1999, p. 36.
2
      OJ L 53, 27.2.2008, p. 52.
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                                                 DGD 2                                            EN
 ---pagebreak--- (103)   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 1.
(104)   This Directive respects the fundamental rights and observes the principles recognised in
        the Charter as enshrined in the TFEU, in particular 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 those 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.
(105)   In accordance with the Joint Political Declaration of 28 September 2011 of Member States
        and the Commission on explanatory documents, 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 measures. With regard to this Directive, the
        legislator considers the transmission of such documents to be justified.
1
      OJ L 160 of 18.6.2011, p. 21.
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                                                 DGD 2                                             EN
 ---pagebreak--- (106)   The European Data Protection Supervisor was consulted in accordance with Article 28(2)
        of Regulation (EC) No 45/2001 and delivered an opinion on 7 March 2012 1.
(107)   This Directive should not preclude Member States from implementing the exercise of the
        rights of data subjects on information, access to and rectification or erasure of personal
        data and restriction of processing in the course of criminal proceedings, and their possible
        restrictions thereto, in national rules on criminal procedure,
HAVE ADOPTED THIS DIRECTIVE:
1
      OJ C 192, 30.6.2012, p. 7.
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                                                 DGD 2                                           EN
 ---pagebreak---                                           CHAPTER I
                                GENERAL PROVISIONS
                                               Article 1
                                    Subject-matter and objectives
1.      This Directive lays down the rules relating to 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, including the safeguarding against and the prevention of threats to
        public security.
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,
              where such exchange is required by Union or Member State law, is neither restricted
              nor prohibited for reasons connected with the protection of natural persons with
              regard to the processing of personal data.
3.      This Directive shall not preclude Member States from providing higher safeguards than
        those established in this Directive for the protection of the rights and freedoms of the data
        subject with regard to the processing of personal data by competent authorities.
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                                                DGD 2                                             EN
 ---pagebreak---                                                 Article 2
                                                  Scope
1.       This Directive applies to the processing of personal data by competent authorities for the
         purposes set out 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 does not apply to the processing of personal data:
         (a)   in the course of an activity which falls outside the scope of Union law;
         (b)   by the Union institutions, bodies, offices and agencies.
                                                Article 3
                                               Definitions
For the purposes of this Directive:
(1)      ‘personal data’ means any information relating to an identified or identifiable natural
         person (‘data subject’); an identifiable natural person is one who can be identified, directly
         or indirectly, in particular by reference to an identifier such as a name, an identification
         number, location data, an online identifier or to one or more factors specific to the
         physical, physiological, genetic, mental, economic, cultural or social identity of that natural
         person;
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                                                 DGD 2                                              EN
 ---pagebreak--- (2)     ‘processing’ means any operation or set of operations which is performed on personal data
        or on sets of personal data, whether or not by automated means, such as collection,
        recording, organisation, structuring, storage, adaptation or alteration, retrieval,
        consultation, use, disclosure by transmission, dissemination or otherwise making available,
        alignment or combination, restriction, erasure or destruction;
(3)     ‘restriction of processing’ means the marking of stored personal data with the aim of
        limiting their processing in the future;
(4)     ‘profiling’ means any form of automated processing of personal data consisting of the use
        of personal data to evaluate certain personal aspects relating to a natural person, in
        particular to analyse or predict aspects concerning that natural person’s performance at
        work, economic situation, health, personal preferences, interests, reliability, behaviour,
        location or movements;
(5)     ‘pseudonymisation’ means the processing of personal data in such a manner that the
        personal data can no longer be attributed to a specific data subject without the use of
        additional information, provided that such additional information is kept separately and is
        subject to technical and organisational measures to ensure that the personal data are not
        attributed to an identified or identifiable natural person;
(6)     ‘filing system’ means any structured set of personal data which are accessible according to
        specific criteria, whether centralised, decentralised or dispersed on a functional or
        geographical basis;
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                                                 DGD 2                                           EN
 ---pagebreak--- (7)     ‘competent authority’ means:
        (a)   any public authority competent for the prevention, investigation, detection or
              prosecution of criminal offences or the execution of criminal penalties, including the
              safeguarding against and the prevention of threats to public security; or
        (b)   any other body or entity entrusted by Member State law to exercise public authority
              and public powers for the purposes of the prevention, investigation, detection or
              prosecution of criminal offences or the execution of criminal penalties, including the
              safeguarding against and the prevention of threats to public security;
(8)     ‘controller’ means the competent authority which, alone or jointly with others, determines
        the purposes and means of the processing of personal data; where the purposes and means
        of such processing are determined by Union or Member State law, the controller or the
        specific criteria for its nomination may be provided for by Union or Member State law;
(9)     ‘processor’ means a natural or legal person, public authority, agency or other body which
        processes personal data on behalf of the controller;
(10)    ‘recipient’ means a natural or legal person, public authority, agency or another body, to
        which the personal data are disclosed, whether a third party or not. However, public
        authorities which may receive personal data in the framework of a particular inquiry in
        accordance with Member State law shall not be regarded as recipients; the processing of
        those data by those public authorities shall be in compliance with the applicable data
        protection rules according to the purposes of the processing;
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                                               DGD 2                                            EN
 ---pagebreak--- (11)    ‘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;
(12)    ‘genetic data’ means personal data, relating to the inherited or acquired genetic
        characteristics of a natural person which give unique information about the physiology or
        the health of that natural person and which result, in particular, from an analysis of a
        biological sample from the natural person in question;
(13)    ‘biometric data’ means personal data resulting from specific technical processing relating
        to the physical, physiological or behavioural characteristics of a natural person, which
        allow or confirm the unique identification of that natural person, such as facial images or
        dactyloscopic data;
(14)    ‘data concerning health’ means personal data related to the physical or mental health of a
        natural person, including the provision of health care services, which reveal information
        about his or her health status;
(15)    ‘supervisory authority’ means an independent public authority which is established by a
        Member State pursuant to Article 41;
(16)    ‘international organisation’ means an organisation and its subordinate bodies governed by
        public international law, or any other body which is set up by, or on the basis of, an
        agreement between two or more countries.
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                                                DGD 2                                            EN
 ---pagebreak---                                        CHAPTER II
                                       PRINCIPLES
                                             Article 4
                       Principles relating to processing of personal data
1.      Member States shall provide for personal data to be:
        (a) processed lawfully and fairly;
        (b) collected for specified, explicit and legitimate purposes and not processed in a
            manner that is 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 is
            necessary for the purposes for which they are processed;
        (f) processed in a manner that ensures appropriate security of the personal data,
            including protection against unauthorised or unlawful processing and against
            accidental loss, destruction or damage, using appropriate technical or organisational
            measures.
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                                               DGD 2                                           EN
 ---pagebreak--- 2.       Processing by the same or another controller for any of the purposes set out in Article 1(1)
         other than that for which the personal data are collected shall be permitted in so far as:
         (a)    the controller is authorised to process such personal data for such a purpose in
                accordance with Union or Member State law; and
         (b)    processing is necessary and proportionate to that other purpose in accordance with
                Union or Member State law.
3.       Processing by the same or another controller may include archiving in the public interest,
         scientific, statistical or historical use, for the purposes set out in Article 1(1), subject to
         appropriate safeguards for the rights and freedoms of data subjects.
4.       The controller shall be responsible for, and be able to demonstrate compliance with,
         paragraphs 1, 2 and 3.
                                                   Article 5
                                     Time-limits for storage and review
Member States shall provide for appropriate time limits to be established for the erasure of personal
data or for a periodic review of the need for the storage of personal data. Procedural measures shall
ensure that those time limits are observed.
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                                                     DGD 2                                              EN
 ---pagebreak---                                                  Article 6
                         Distinction between different categories of data subject
Member States shall provide for the controller, where applicable and as far as possible, to make 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 rise to
          reasons for believing that he or she could be the victim of a criminal offence; and
(d)       other parties to a criminal offence, such as persons who might be called on to testify in
          investigations in connection with criminal offences or subsequent criminal proceedings,
          persons who can provide information on criminal offences, or contacts or associates of one
          of the persons referred to in points (a) and (b).
                                                 Article 7
            Distinction between personal data and verification of quality of personal data
1.        Member States shall provide for personal data based on facts to be distinguished, as far as
          possible, from personal data based on personal assessments.
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                                                  DGD 2                                            EN
 ---pagebreak--- 2.      Member States shall provide for the competent authorities to take all reasonable steps to
        ensure that personal data which are inaccurate, incomplete or no longer up to date are not
        transmitted or made available. To that end, each competent authority shall, as far as
        practicable, verify the quality of personal data before they are transmitted or made
        available. As far as possible, in all transmissions of personal data, necessary information
        enabling the receiving competent authority to assess the degree of accuracy, completeness
        and reliability of personal data, and the extent to which they are up to date shall be added.
3.      If it emerges that incorrect personal data have been transmitted or personal data have been
        unlawfully transmitted, the recipient shall be notified without delay. In such a case, the
        personal data shall be rectified or erased or processing shall be restricted in accordance
        with Article 16.
                                                 Article 8
                                      Lawfulness of processing
1.      Member States shall provide for processing to be lawful only if and to the extent that
        processing is necessary for the performance of a task carried out by a competent authority
        for the purposes set out in Article 1(1) and that it is based on Union or Member State law.
2.      Member State law regulating processing within the scope of this Directive shall specify at
        least the objectives of processing, the personal data to be processed and the purposes of the
        processing.
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                                                  DGD 2                                           EN
 ---pagebreak---                                                Article 9
                                   Specific processing conditions
1.      Personal data collected by competent authorities for the purposes set out in Article 1(1)
        shall not be processed for purposes other than those set out in Article 1(1) unless such
        processing is authorised by Union or Member State law. Where personal data are
        processed for such other purposes, Regulation (EU) 2016/… ∗ shall apply unless the
        processing is carried out in an activity which falls outside the scope of Union law.
2.      Where competent authorities are entrusted by Member State law with the performance of
        tasks other than those performed for the purposes set out in Article 1(1), Regulation
        (EU) 2016/…∗ shall apply to processing for such purposes, including for archiving
        purposes in the public interest, scientific or historical research purposes or statistical
        purposes, unless the processing is carried out in an activity which falls outside the scope of
        Union law.
3.      Member States shall, where Union or Member State law applicable to the transmitting
        competent authority provides specific conditions for processing, provide for the
        transmitting competent authority to inform the recipient of such personal data of those
        conditions and the requirement to comply with them.
4.      Member States shall provide for the transmitting competent authority not to apply
        conditions pursuant to paragraph 3 to recipients in other Member States or to agencies,
        offices and bodies established pursuant to Chapters 4 and 5 of Title V of the TFEU other
        than those applicable to similar transmissions of data within the Member State of the
        transmitting competent authority.
∗
      OJ: please insert the number of the Regulation in st 5419/16.
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                                                DGD 2                                              EN
 ---pagebreak---                                                  Article 10
                           Processing of special categories of personal data
Processing of personal data revealing racial or ethnic origin, political opinions, religious or
philosophical beliefs, or trade-union membership, and the processing of genetic data, biometric data
for the purpose of uniquely identifying a natural person, data concerning health or data concerning a
natural person’s sex life or sexual orientation shall be allowed only where strictly necessary, subject
to appropriate safeguards for the rights and freedoms of the data subject, and only:
(a)      where authorised by Union or Member State law;
(b)      to protect the vital interests of the data subject or of another natural person; or
(c)      where such processing relates to data which are manifestly made public by the data
         subject.
                                                 Article 11
                                 Automated individual decision-making
1.       Member States shall provide for a decision based solely on automated processing,
         including profiling, which produces an adverse legal effect concerning the data subject or
         significantly affects him or her, to be prohibited unless authorised by Union or
         Member State law to which the controller is subject and which provides appropriate
         safeguards for the rights and freedoms of the data subject, at least the right to obtain human
         intervention on the part of the controller.
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 ---pagebreak--- 2.      Decisions referred to in paragraph 1 of this Article shall not be based on special categories
        of personal data referred to in Article 10, unless suitable measures to safeguard the data
        subject's rights and freedoms and legitimate interests are in place.
3.      Profiling that results in discrimination against natural persons on the basis of special
        categories of personal data referred to in Article 10 shall be prohibited, in accordance with
        Union law.
                                         CHAPTER III
                        RIGHTS OF THE DATA SUBJECT
                                               Article 12
            Communication and modalities for exercising the rights of the data subject
1.      Member States shall provide for the controller to take reasonable steps to provide any
        information referred to in Article 13 and makes any communication with regard to
        Articles 11, 14 to 18 and 31 relating to processing to the data subject in a concise,
        intelligible and easily accessible form, using clear and plain language. The information
        shall be provided by any appropriate means, including by electronical means. As a general
        rule, the controller shall provide the information in the same form as the request.
2.      Member States shall provide for the controller to facilitate the exercise of the rights of the
        data subject under Articles 11 and 14 to 18.
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                                                 DGD 2                                            EN
 ---pagebreak--- 3.      Member States shall provide for the controller to inform the data subject in writing about
        the follow up to his or her request without undue delay.
4.      Member States shall provide for the information provided under Article 13 and any
        communication made or action taken pursuant to Articles 11, 14 to 18 and 31 to be
        provided free of charge. Where requests from a data subject are manifestly unfounded or
        excessive, in particular because of their repetitive character, the controller may either:
        (a)   charge a reasonable fee, taking into account the administrative costs of providing the
              information or communication or taking the action requested; or
        (b)   refuse to act on the request.
        The controller shall bear the burden of demonstrating the manifestly unfounded or
        excessive character of the request.
5.      Where the controller has reasonable doubts concerning the identity of the natural person
        making a request referred to in Article 14 or 16, the controller may request the provision of
        additional information necessary to confirm the identity of the data subject.
                                              Article 13
                   Information to be made available or given to the data subject
1.      Member States shall provide for the controller to make available to the data subject at least
        the following information:
        (a)   the identity and the contact details of the controller;
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                                                DGD 2                                              EN
 ---pagebreak---         (b)   the contact details of the data protection officer, where applicable;
        (c)   the purposes of the processing for which the personal data are intended;
        (d)   the right to lodge a complaint with a supervisory authority and the contact details of
              the supervisory authority;
        (e)   the existence of the right to request from the controller access to and rectification or
              erasure of personal data and restriction of processing of the personal data concerning
              the data subject.
2.      In addition to the information referred to in paragraph 1, Member States shall provide by
        law for the controller to give to the data subject, in specific cases, the following further
        information to enable the exercise of his or her rights:
        (a)   the legal basis for the processing;
        (b)   the period for which the personal data will be stored, or, where that is not possible,
              the criteria used to determine that period;
        (c)   where applicable, the categories of recipients of the personal data, including in third
              countries or international organisations;
        (d)   where necessary, further information, in particular where the personal data are
              collected without the knowledge of the data subject.
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                                                DGD 2                                              EN
 ---pagebreak--- 3.       Member States may adopt legislative measures delaying, restricting or omitting the
         provision of the information to the data subject pursuant to paragraph 2 to the extent that,
         and for as long as, such a measure constitutes a necessary and proportionate measure in a
         democratic society with due regard for the fundamental rights and the legitimate interests
         of the natural person concerned, in order to:
         (a)    avoid obstructing official or legal inquiries, investigations or procedures;
         (b)    avoid prejudicing the prevention, detection, investigation or prosecution of criminal
                offences or the execution of criminal penalties;
         (c)    protect public security;
         (d)    protect national security;
         (e)    protect the rights and freedoms of others.
4.       Member States may adopt legislative measures in order to determine categories of
         processing which may wholly or partly fall under points (a) to (e) of paragraph 3.
                                                Article 14
                                    Right of access by the data subject
Subject to Article 15, Member States shall provide for the right of the data subject to obtain from
the controller confirmation as to whether or not personal data concerning him or her are being
processed, and, where that is the case, access to the personal data and the following information:
(a)      the purposes of and legal basis for the processing;
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                                                  DGD 2                                           EN
 ---pagebreak--- (b)     the categories of personal data concerned;
(c)     the recipients or categories of recipients to whom the personal data have been disclosed, in
        particular recipients in third countries or international organisations;
(d)     where possible, the envisaged period for which the personal data will be stored, or, if not
        possible, the criteria used to determine that period;
(e)     the existence of the right to request from the controller rectification or erasure of personal
        data or restriction of processing of personal data concerning the data subject;
(f)     the right to lodge a complaint with 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 origin.
                                               Article 15
                                   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, and for as long as such a partial or complete
        restriction constitutes a necessary and proportionate measure in a democratic society with
        due regard for the fundamental rights and legitimate interests of the natural person
        concerned, in order to:
        (a)    avoid obstructing official or legal inquiries, investigations or procedures;
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                                                 DGD 2                                             EN
 ---pagebreak---         (b)    avoid prejudicing the prevention, detection, investigation or prosecution of criminal
               offences or the execution of criminal penalties;
        (c)    protect public security;
        (d)    protect national security;
        (e)    protect the rights and freedoms of others.
2.      Member States may adopt legislative measures in order to determine categories of
        processing which may wholly or partly fall under points (a) to (e) of paragraph 1.
3.      In the cases referred to in paragraphs 1 and 2, Member States shall provide for the
        controller to inform the data subject, without undue delay, in writing of any refusal or
        restriction of access and of the reasons for the refusal or the restriction. Such information
        may be omitted where the provision thereof would undermine a purpose under
        paragraph 1. Member States shall provide for the controller to inform the data subject of
        the possibility of lodging a complaint with a supervisory authority or seeking a judicial
        remedy.
4.      Member States shall provide for the controller to document the factual or legal reasons on
        which the decision is based. That information shall be made available to the supervisory
        authorities.
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                                                DGD 2                                              EN
 ---pagebreak---                                               Article 16
          Right to rectification or erasure of personal data and restriction of processing
1.      Member States shall provide for the right of the data subject to obtain from the controller
        without undue delay the rectification of inaccurate personal data relating to him or her.
        Taking into account the purposes of the processing, Member States shall provide for the
        data subject to have the right to have incomplete personal data completed, including by
        means of providing a supplementary statement.
2.      Member States shall require the controller to erase personal data without undue delay and
        provide for the right of the data subject to obtain from the controller the erasure of personal
        data concerning him or her without undue delay where processing infringes the provisions
        adopted pursuant to Article 4, 8 or 10, or where personal data must be erased in order to
        comply with a legal obligation to which the controller is subject.
3.      Instead of erasure, the controller shall restrict processing where:
        (a)    the accuracy of the personal data is contested by the data subject and their accuracy
               or inaccuracy cannot be ascertained; or
        (b)    the personal data must be maintained for the purposes of evidence.
        Where processing is restricted pursuant to point (a) of the first subparagraph, the controller
        shall inform the data subject before lifting the restriction of processing.
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                                                 DGD 2                                            EN
 ---pagebreak--- 4.      Member States shall provide for the controller to inform the data subject in writing of any
        refusal of rectification or erasure of personal data or restriction of processing and of the
        reasons for the refusal. Member States may adopt legislative measures restricting, wholly
        or partly, the obligation to provide such information to the extent that such a restriction
        constitutes a necessary and proportionate measure in a democratic society with due regard
        for the fundamental rights and legitimate interests of the natural person concerned in order
        to:
        (a)   avoid obstructing official or legal inquiries, investigations or procedures;
        (b)   avoid prejudicing the prevention, detection, investigation or prosecution of criminal
              offences or the execution of criminal penalties;
        (c)   protect public security;
        (d)   protect national security;
        (e)   protect the rights and freedoms of others.
        Member States shall provide for the controller to inform the data subject of the possibility
        of lodging a complaint with a supervisory authority or seeking a judicial remedy.
5.      Member States shall provide for the controller to communicate the rectification of
        inaccurate personal data to the competent authority from which the inaccurate personal
        data originate.
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                                                 DGD 2                                             EN
 ---pagebreak--- 6.       Member States shall, where personal data has been rectified or erased or processing has
         been restricted pursuant to paragraphs 1, 2 and 3, provide for the controller to notify the
         recipients and that the recipients shall rectify or erase the personal data or restrict
         processing of the personal data under their responsibility.
                                                Article 17
         Exercise of rights by the data subject and verification by the supervisory authority
1.       In the cases referred to in Article 13(3), Article 15(3) and Article 16(4) Member States
         shall adopt measures providing that the rights of the data subject may also be exercised
         through the competent supervisory authority.
2.       Member States shall provide for the controller to inform the data subject of the possibility
         of exercising his or her rights through the supervisory authority pursuant to paragraph 1.
3.       Where the right referred to in paragraph 1 is exercised, the supervisory authority shall
         inform the data subject at least that all necessary verifications or a review by the
         supervisory authority have taken place. The supervisory authority shall also inform the
         data subject of his or her right to seek a judicial remedy.
                                                Article 18
                 Rights of the data subject in criminal investigations and proceedings
Member States may provide for the exercise of the rights referred to in Articles 13, 14 and 16 to be
carried out in accordance with Member State law where the personal data are contained in a judicial
decision or record or case file processed in the course of criminal investigations and proceedings.
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                                                  DGD 2                                            EN
 ---pagebreak---                                        CHAPTER IV
                        CONTROLLER AND PROCESSOR
                                          SECTION 1
                                GENERAL OBLIGATIONS
                                             Article 19
                                   Obligations of the controller
1.      Member States shall provide for the controller, taking into account the nature, scope,
        context and purposes of processing, as well as the risks of varying likelihood and severity
        for the rights and freedoms of natural persons, to implement appropriate technical and
        organisational measures to ensure and to be able to demonstrate that processing is
        performed in accordance with this Directive. Those measures shall be reviewed and
        updated where necessary.
2.      Where proportionate in relation to the processing activities, the measures referred to in
        paragraph 1 shall include the implementation of appropriate data protection policies by the
        controller.
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                                               DGD 2                                             EN
 ---pagebreak---                                                 Article 20
                              Data protection by design and by default
1.      Member States shall provide for the controller, taking into account the state of the art, the
        cost of implementation and the nature, scope, context and purposes of processing, as well
        as the risks of varying likelihood and severity for rights and freedoms of natural persons
        posed by the processing, both at the time of the determination of the means for processing
        and at the time of the processing itself, to implement appropriate technical and
        organisational measures, such as pseudonymisation, which are designed to implement data
        protection principles, such as data minimisation, in an effective manner and to integrate the
        necessary safeguards into the processing, in order to meet the requirements of this
        Directive and protect the rights of data subjects.
2.      Member States shall provide for the controller to implement appropriate technical and
        organisational measures ensuring that, by default, only personal data which are necessary
        for each specific purpose of the processing are processed. That obligation applies to the
        amount of personal data collected, the extent of their processing, the period of their storage
        and their accessibility. In particular, such measures shall ensure that by default personal
        data are not made accessible without the individual’s intervention to an indefinite number
        of natural persons.
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                                                 DGD 2                                            EN
 ---pagebreak---                                               Article 21
                                           Joint controllers
1.      Member States shall, where two or more controllers jointly determine the purposes and
        means of processing, provide for them to be joint controllers. They shall, in a transparent
        manner, determine their respective responsibilities for compliance with this Directive, in
        particular as regards the exercise of the rights of the data subject and their respective duties
        to provide the information referred to in Article 13, by means of an arrangement between
        them unless, and in so far as, the respective responsibilities of the controllers are
        determined by Union or Member State law to which the controllers are subject. The
        arrangement shall designate the contact point for data subjects. Member States may
        designate which of the joint controllers can act as a single contact point for data subjects to
        exercise their rights.
2.      Irrespective of the terms of the arrangement referred to in paragraph 1, Member States may
        provide for the data subject to exercise his or her rights under the provisions adopted
        pursuant to this Directive in respect of and against each of the controllers.
                                              Article 22
                                              Processor
1.      Member States shall, where processing is to be carried out on behalf of a controller,
        provide for the controller to use only processors providing sufficient guarantees to
        implement appropriate technical and organisational measures in such a manner that the
        processing will meet the requirements of this Directive and ensure the protection of the
        rights of the data subject.
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                                                DGD 2                                              EN
 ---pagebreak--- 2.      Member States shall provide for the processor not to engage another processor without
        prior specific or general written authorisation by the controller. In the case of general
        written authorisation, the processor shall inform the controller of any intended changes
        concerning the addition or replacement of other processors, thereby giving the controller
        the opportunity to object to such changes.
3.      Member States shall provide for the processing by a processor to be governed by a contract
        or other legal act under Union or Member State law, that is binding on the processor with
        regard to the controller and that sets out the subject-matter and duration of the processing,
        the nature and purpose of the processing, the type of personal data and categories of data
        subjects and the obligations and rights of the controller. That contract or other legal act
        shall stipulate, in particular, that the processor:
        (a)    acts only on instructions from the controller;
        (b)    ensures that persons authorised to process the personal data have committed
               themselves to confidentiality or are under an appropriate statutory obligation of
               confidentiality;
        (c)    assists the controller by any appropriate means to ensure compliance with the
               provisions on the data subject’s rights;
        (d)    at the choice of the controller, deletes or returns all the personal data to the controller
               after the end of the provision of data processing services, and deletes existing copies
               unless Union or Member State law requires storage of the personal data;
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                                                  DGD 2                                              EN
 ---pagebreak---           (e)    makes available to the controller all information necessary to demonstrate
                 compliance with this Article;
          (f)    complies with the conditions referred to in paragraphs 2 and 3 for engaging another
                 processor.
4.        The contract or the other legal act referred to in paragraph 3 shall be in writing, including
          in an electronic form.
5.        If a processor determines, in infringement of this Directive, the purposes and means of
          processing, that processor shall be considered to be a controller in respect of that
          processing.
                                                Article 23
                      Processing under the authority of the controller or processor
Member States shall provide for the processor and any person acting under the authority of the
controller or of the processor, who has access to personal data, not to process those data except on
instructions from the controller, unless required to do so by Union or Member State law.
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                                                  DGD 2                                             EN
 ---pagebreak---                                               Article 24
                                  Records of processing activities
1.      Member States shall provide for controllers to maintain a record of all categories of
        processing activities under their responsibility. That record shall contain all of the
        following information:
        (a)   the name and contact details of the controller and, where applicable, the joint
              controller and the data protection officer;
        (b)   the purposes of the processing;
        (c)   the categories of recipients to whom the personal data have been or will be disclosed
              including recipients in third countries or international organisations;
        (d)   a description of the categories of data subject and of the categories of personal data;
        (e)   where applicable, the use of profiling;
        (f)   where applicable, the categories of transfers of personal data to a third country or an
              international organisation;
        (g)   an indication of the legal basis for the processing operation, including transfers, for
              which the personal data are intended;
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                                                DGD 2                                             EN
 ---pagebreak---         (h)   where possible, the envisaged time limits for erasure of the different categories of
              personal data;
        (i)   where possible, a general description of the technical and organisational security
              measures referred to in Article 29(1).
2.      Member States shall provide for each processor to maintain a record of all categories of
        processing activities carried out on behalf of a controller, containing:
        (a)   the name and contact details of the processor or processors, of each controller on
              behalf of which the processor is acting and, where applicable, the data protection
              officer;
        (b)   the categories of processing carried out on behalf of each controller;
        (c)   where applicable, transfers of personal data to a third country or an international
              organisation where explicitly instructed to do so by the controller, including the
              identification of that third country or international organisation;
        (d)   where possible, a general description of the technical and organisational security
              measures referred to in Article 29(1).
3.      The records referred to in paragraphs 1 and 2 shall be in writing, including in electronic
        form.
        The controller and the processor shall make those records available to the supervisory
        authority on request.
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                                                DGD 2                                             EN
 ---pagebreak---                                                Article 25
                                                Logging
1.      Member States shall provide for logs to be kept for at least the following processing
        operations in automated processing systems: collection, alteration, consultation, disclosure
        including transfers, combination and erasure. The logs of consultation and disclosure shall
        make it possible to establish the justification, date and time of such operations and, as far
        as possible, the identification of the person who consulted or disclosed personal data, and
        the identity of the recipients of such personal data.
2.      The logs shall be used solely for verification of the lawfulness of processing,
        self-monitoring, ensuring the integrity and security of the personal data, and for criminal
        proceedings.
3.      The controller and the processor shall make the logs available to the supervisory authority
        on request.
                                               Article 26
                             Cooperation with the supervisory authority
Member States shall provide for the controller and the processor to cooperate, on request, with the
supervisory authority in the performance of its tasks on request.
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                                                 DGD 2                                            EN
 ---pagebreak---                                                 Article 27
                                  Data protection impact assessment
1.      Where a type of processing, in particular, using new technologies, and taking into account
        the nature, scope, context and purposes of the processing is likely to result in a high risk to
        the rights and freedoms of natural persons, Member States shall provide for the controller
        to carry out, prior to the processing, an assessment of the impact of the envisaged
        processing operations on the protection of personal data.
2.      The assessment referred to in paragraph 1 shall contain at least a general description of the
        envisaged processing operations, an assessment of the risks to the rights and freedoms of
        data subjects, the measures envisaged to address those risks, safeguards, security measures
        and mechanisms to ensure the protection of personal data and to demonstrate compliance
        with this Directive, taking into account the rights and legitimate interests of the data
        subjects and other persons concerned.
                                                Article 28
                            Prior consultation of the supervisory authority
1.      Member States shall provide for the controller or processor to consult the supervisory
        authority prior to processing which will form part of a new filing system to be created,
        where:
        (a)    a data protection impact assessment as provided for in Article 27 indicates that the
               processing would result in a high risk in the absence of measures taken by the
               controller to mitigate the risk; or
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 ---pagebreak---         (b)   the type of processing, in particular, where using new technologies, mechanisms or
              procedures, involves a high risk to the rights and freedoms of data subjects.
2.      Member States shall provide for the supervisory authority to be consulted during the
        preparation of a proposal for a legislative measure to be adopted by a national parliament
        or of a regulatory measure based on such a legislative measure, which relates to
        processing.
3.      Member States shall provide that the supervisory authority may establish a list of the
        processing operations which are subject to prior consultation pursuant to paragraph 1.
4.      Member States shall provide for the controller to provide the supervisory authority with the
        data protection impact assessment pursuant to Article 27 and, on request, with any other
        information to allow the supervisory authority to make an assessment of the compliance of
        the processing and in particular of the risks for the protection of personal data of the data
        subject and of the related safeguards.
5.      Member States shall, where the supervisory authority is of the opinion that the intended
        processing referred to in paragraph 1 of this Article would infringe the provisions adopted
        pursuant to this Directive, in particular where the controller has insufficiently identified or
        mitigated the risk, provide for the supervisory authority to provide, within a period of up to
        six weeks of receipt of the request for consultation, written advice to the controller and,
        where applicable, to the processor, and may use any of its powers referred to in Article 47.
        That period may be extended by a month, taking into account the complexity of the
        intended processing. The supervisory authority shall inform the controller and, where
        applicable, the processor of any such extension within one month of receipt of the request
        for consultation, together with the reasons for the delay.
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                                                DGD 2                                              EN
 ---pagebreak---                                             SECTION 2
                             SECURITY OF PERSONAL DATA
                                               Article 29
                                         Security of processing
1.      Member States shall provide for the controller and the processor, taking into account the
        state of the art, the costs of implementation and the nature, scope, context and purposes of
        the processing as well as the risk of varying likelihood and severity for the rights and
        freedoms of natural persons, to implement appropriate technical and organisational
        measures to ensure a level of security appropriate to the risk, in particular as regards the
        processing of special categories of personal data referred to in Article 10.
2.      In respect of automated processing, each Member State shall provide for the controller or
        processor, following an evaluation of the risks, to implement measures designed to:
        (a)    deny unauthorised persons access to processing equipment used for processing
               (equipment access control);
        (b)    prevent the unauthorised reading, copying, modification or removal of data media
               (data media control);
        (c)    prevent the unauthorised input of personal data and the unauthorised inspection,
               modification or deletion of stored personal data (storage control);
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                                                 DGD 2                                             EN
 ---pagebreak---         (d) prevent the use of automated processing systems by unauthorised persons using data
            communication equipment (user control);
        (e) ensure that persons authorised to use an automated processing system have access
            only to the personal data covered by their access authorisation (data access control);
        (f) ensure that it is possible to verify and establish the bodies to which 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 processing systems and when and by whom the
            personal 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 the 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).
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                                               DGD 2                                            EN
 ---pagebreak---                                               Article 30
                Notification of a personal data breach to the supervisory authority
1.      Member States shall, in the case of a personal data breach, provide for the controller to
        notify without undue delay and, where feasible, not later than 72 hours after having
        become aware of it, the personal data breach to the supervisory authority, unless the
        personal data breach is unlikely to result in a risk to the rights and freedoms of natural
        persons. Where the notification to the supervisory authority is not made within 72 hours, it
        shall be accompanied by reasons for the delay.
2.      The processor shall notify the controller without undue delay after becoming 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, where possible, the
              categories and approximate number of data subjects concerned and the categories
              and approximate number of personal data records concerned;
        (b)   communicate the name and contact details of the data protection officer or other
              contact point where more information can be obtained;
        (c)   describe the likely consequences of the personal data breach;
        (d)   describe the measures taken or proposed to be taken by the controller to address the
              personal data breach, including, where appropriate, measures to mitigate its possible
              adverse effects.
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                                               DGD 2                                               EN
 ---pagebreak--- 4.      Where, and in so far as, it is not possible to provide the information at the same time, the
        information may be provided in phases without undue further delay.
5.      Member States shall provide for the controller to document any personal data breaches
        referred to in paragraph 1, comprising the facts relating to the personal data breach, its
        effects and the remedial action taken. That documentation shall enable the supervisory
        authority to verify compliance with this Article.
6.      Member States shall, where the personal data breach involves personal data that have been
        transmitted by or to the controller of another Member State, provide for the information
        referred to in paragraph 3 to be communicated to the controller of that Member State
        without undue delay.
                                              Article 31
                   Communication of a personal data breach to the data subject
1.      Member States shall, where the personal data breach is likely to result in a high risk to the
        rights and freedoms of natural persons, provide for the controller to communicate the
        personal data breach to the data subject without undue delay.
2.      The communication to the data subject referred to in paragraph 1 of this Article shall
        describe in clear and plain language the nature of the personal data breach and shall
        contain at least the information and the recommendations provided for in points (b), (c)
        and (d) of Article 30(3).
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                                                DGD 2                                             EN
 ---pagebreak--- 3.      The communication to the data subject referred to in paragraph 1 shall not be required if
        any of the following conditions are met:
        (a)    the controller has implemented appropriate technological and organisational
               protection measures, and that those measures were applied to the personal data
               affected by the personal data breach, in particular those that render the personal data
               unintelligible to any person who is not authorised to access it, such as encryption;
        (b)    the controller has taken subsequent measures which ensure that the high risk to the
               rights and freedoms of data subjects referred to in paragraph 1 is no longer likely to
               materialise;
        (c)    it would involve a disproportionate effort. In such a case, there shall instead be a
               public communication or a similar measure whereby the data subjects are informed
               in an equally effective manner.
4.      If the controller has not already communicated the personal data breach to the data subject,
        the supervisory authority, having considered the likelihood of the personal data breach
        resulting in a high risk, may require it to do so, or may decide that any of the conditions
        referred to in paragraph 3 are met.
5.      The communication to the data subject referred to in paragraph 1 of this Article may be
        delayed, restricted or omitted subject to the conditions and on the grounds referred to in
        Article 13(3).
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                                                 DGD 2                                             EN
 ---pagebreak---                                              SECTION 3
                               DATA PROTECTION OFFICER
                                                Article 32
                               Designation of the data protection officer
1.      Member States shall provide for the controller to designate a data protection officer.
        Member States may exempt courts and other independent judicial authorities when acting
        in their judicial capacity from that obligation.
2.      The data protection officer shall be designated on the basis of his or her professional
        qualities and, in particular, his or her expert knowledge of data protection law and practice
        and ability to fulfil the tasks referred to in Article 34.
3.      A single data protection officer may be designated for several competent authorities, taking
        account of their organisational structure and size.
4.      Member States shall provide for the controller to publish the contact details of the data
        protection officer and communicate them to the supervisory authority.
                                                Article 33
                                 Position of the data protection officer
1.      Member States shall provide for the controller to ensure that the data protection officer is
        involved, properly and in a timely manner, in all issues which relate to the protection of
        personal data.
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                                                  DGD 2                                          EN
 ---pagebreak--- 2.      The controller shall support the data protection officer in performing the tasks referred to
        in Article 34 by providing resources necessary to carry out those tasks and access to
        personal data and processing operations, and to maintain his or her expert knowledge.
                                               Article 34
                                 Tasks of the data protection officer
Member States shall provide for the controller to entrust the data protection officer at least with the
following tasks:
(a)     to inform and advise the controller and the employees who carry out processing of their
        obligations pursuant to this Directive and to other Union or Member State data protection
        provisions;
(b)     to monitor compliance with this Directive, with other Union or Member State data
        protection provisions and with the policies of the controller in relation to the protection of
        personal data, including the assignment of responsibilities, awareness-raising and training
        of staff involved in processing operations, and the related audits;
(c)     to provide advice where requested as regards the data protection impact assessment and
        monitor its performance pursuant to Article 27;
(d)     to cooperate with the supervisory authority;
(e)     to act as the contact point for the supervisory authority on issues relating to processing,
        including the prior consultation referred to in Article 28, and to consult, where appropriate,
        with regard to any other matter.
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                                                DGD 2                                              EN
 ---pagebreak---                                          CHAPTER V
                        TRANSFER OF PERSONAL DATA
                                TO THIRD COUNTRIES
                   OR INTERNATIONAL ORGANISATIONS
                                              Article 35
                          General principles for transfers of personal data
1.      Member States shall provide for any transfer by competent authorities of personal data
        which are undergoing processing or are intended for processing after transfer to a third
        country or to an international organisation including for onward transfers to another third
        country or international organisation to take place, subject to compliance with the national
        provisions adopted pursuant to other provisions of this Directive, only where the
        conditions laid down in this Chapter are met, namely:
        (a)   the transfer is necessary for the purposes set out in Article 1(1);
        (b)   the personal data are transferred to a controller in a third country or international
              organisation that is an authority competent for the purposes referred to in
              Article 1(1);
        (c)   where personal data are transmitted or made available from another Member State,
              that Member State has given its prior authorisation to the transfer in accordance with
              its national law;
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                                                DGD 2                                              EN
 ---pagebreak---         (d)   the Commission has adopted an adequacy decision pursuant to Article 36, or, in the
              absence of such a decision, appropriate safeguards have been provided or exist
              pursuant to Article 37, or, in the absence of an adequacy decision pursuant to
              Article 36 and of appropriate safeguards in accordance with Article 37, derogations
              for specific situations apply pursuant to Article 38; and
        (e)   in the case of an onward transfer to another third country or international
              organisation, the competent authority that carried out the original transfer or another
              competent authority of the same Member State authorises the onward transfer, after
              taking into due account all relevant factors, including the seriousness of the criminal
              offence, the purpose for which the personal data was originally transferred and the
              level of personal data protection in the third country or an international organisation
              to which personal data are onward transferred.
2.      Member States shall provide for transfers without the prior authorisation by another
        Member State in accordance with point (c) of paragraph 1 to be permitted only if the
        transfer of the personal data is necessary for the prevention of an immediate and serious
        threat to public security of a Member State or a third country or to essential interests of a
        Member State and the prior authorisation cannot be obtained in good time. The authority
        responsible for giving prior authorisation shall be informed without delay.
3.      All provisions in this Chapter shall be applied in order to ensure that the level of protection
        of natural persons ensured by this Directive is not undermined.
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                                                DGD 2                                             EN
 ---pagebreak---                                               Article 36
                            Transfers on the basis of 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 that the third
        country, a territory or one or more specified sectors within that third country, or the
        international organisation in question ensures an adequate level of protection. Such a
        transfer shall not require any specific authorisation.
2.      When assessing the adequacy of the level of protection, the Commission shall, in
        particular, take account of the following elements:
        (a)   the rule of law, respect for human rights and fundamental freedoms, relevant
              legislation, both general and sectoral, including concerning public security, defence,
              national security and criminal law and the access of public authorities to personal
              data, as well as the implementation of such legislation, data protection rules,
              professional rules and security measures, including rules for the onward transfer of
              personal data to another third country or international organisation, which are
              complied with in that country or international organisation, case-law, as well as
              effective and enforceable data subject rights and effective administrative and judicial
              redress for the data subjects whose personal data are transferred;
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                                                DGD 2                                           EN
 ---pagebreak---         (b)   the existence and effective functioning of one or more independent supervisory
              authorities in the third country or to which an international organisation is subject,
              with responsibility for ensuring and enforcing compliance with data protection rules,
              including adequate enforcement powers, for assisting and advising data subjects in
              exercising their rights and for cooperation with the supervisory authorities of the
              Member States; and
        (c)   the international commitments the third country or international organisation
              concerned has entered into, or other obligations arising from legally binding
              conventions or instruments as well as from its participation in multilateral or regional
              systems, in particular in relation to the protection of personal data.
3.      The Commission, after assessing the adequacy of the level of protection, may decide, by
        means of implementing act, that a third country, a territory or one or more specified sectors
        within a third country, or an international organisation ensures an adequate level of
        protection within the meaning of paragraph 2 of this Article. The implementing act shall
        provide a mechanism for periodic review, at least every four years, which shall take into
        account all relevant developments in the third country or international organisation. The
        implementing act shall specify its territorial and sectoral application and, where applicable,
        identify the supervisory authority or authorities referred to in point (b) of paragraph 2 of
        this Article. The implementing act shall be adopted in accordance with the examination
        procedure referred to in Article 58(2).
4.      The Commission shall, on an ongoing basis, monitor developments in third countries and
        international organisations that could affect the functioning of decisions adopted pursuant
        to paragraph 3.
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                                                DGD 2                                             EN
 ---pagebreak--- 5.      The Commission shall, where available information reveals, in particular following the
        review referred to in paragraph 3 of this Article, that a third country, a territory or one or
        more specified sectors within a third country, or an international organisation no longer
        ensures an adequate level of protection within the meaning of paragraph 2 of this Article,
        to the extent necessary, repeal, amend or suspend the decision referred to in paragraph 3 of
        this Article by means of implementing acts without retro-active effect. Those
        implementing acts shall be adopted in accordance with the examination procedure referred
        to in Article 58(2).
        On duly justified imperative grounds of urgency, the Commission shall adopt immediately
        applicable implementing acts in accordance with the procedure referred to in Article 58(3).
6.      The Commission shall enter into consultations with the third country or international
        organisation with a view to remedying the situation giving rise to the decision made
        pursuant to paragraph 5.
7.      Member States shall provide for a decision pursuant to paragraph 5 to be without prejudice
        to transfers of personal data to the third country, the territory or one or more specified
        sectors within that third country, or the international organisation in question pursuant to
        Articles 37 and 38.
8.      The Commission shall publish in the Official Journal of the European Union and on its
        website a list of the third countries, territories and specified sectors within a third country
        and international organisations for which it has decided that an adequate level of protection
        is or is no longer ensured.
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                                                  DGD 2                                             EN
 ---pagebreak---                                                 Article 37
                             Transfers subject to appropriate safeguards
1.      In the absence of a decision pursuant to Article 36(3), Member States shall provide that a
        transfer of personal data to a third country or an international organisation may take place
        where:
        (a)   appropriate safeguards with regard to the protection of personal data are provided for
              in a legally binding instrument; or
        (b)   the controller has assessed all the circumstances surrounding the transfer of personal
              data and concludes that appropriate safeguards exist with regard to the protection of
              personal data.
2.      The controller shall inform the supervisory authority about categories of transfers under
        point (b) of paragraph 1.
3.      When a transfer is based on point (b) of paragraph 1, such a transfer shall be documented
        and the documentation must be made available to the supervisory authority on request,
        including the date and time of the transfer, information about the receiving competent
        authority, the justification for the transfer and the personal data transferred.
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                                                  DGD 2                                          EN
 ---pagebreak---                                                 Article 38
                                  Derogations for specific situations
1.      In the absence of an adequacy decision pursuant to Article 36, or of appropriate safeguards
        pursuant to Article 37, Member States shall provide that a transfer or a category of
        transfers of personal data to a third country or an international organisation may take place
        only on the condition that the transfer is necessary:
        (a)    in order to protect the vital interests of the data subject or another person;
        (b)    to safeguard legitimate interests of the data subject, where the law of the
               Member State transferring the personal data so provides;
        (c)    for the prevention of an immediate and serious threat to public security of a
               Member State or a third country;
        (d)    in individual cases for the purposes set out in Article 1(1); or
        (e)    in an individual case for the establishment, exercise or defence of legal claims
               relating to the purposes set out in Article 1(1).
2.      Personal data shall not be transferred if the transferring competent authority determines
        that fundamental rights and freedoms of the data subject concerned override the public
        interest in the transfer set out in points (d) and (e) of paragraph 1.
3.      Where a transfer is based on paragraph 1, such a transfer shall be documented and the
        documentation shall be made available to the supervisory authority on request, including
        the date and time of the transfer, information about the receiving competent authority, the
        justification for the transfer and the personal data transferred.
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                                                  DGD 2                                          EN
 ---pagebreak---                                                 Article 39
                 Transfer of personal data to recipients established in third countries
1.      By way of derogation from point (b) of Article 35(1) and without prejudice to any
        international agreement referred to in paragraph 2 of this Article, Union or Member State
        law may provide for the competent authorities referred to in point (7)(a) of Article 3, in
        individual and specific cases, to transfer personal data directly to recipients established in
        third countries only if the other provisions of this Directive are complied with and all of the
        following conditions are fulfilled:
        (a)    the transfer is strictly necessary for the performance of a task of the transferring
               competent authority as provided for by Union or Member State law for the purposes
               set out in Article 1(1);
        (b)    the transferring competent authority determines that no fundamental rights and
               freedoms of the data subject concerned override the public interest necessitating the
               transfer in the case at hand;
        (c)    the transferring competent authority considers that the transfer to an authority that is
               competent for the purposes referred to in Article 1(1) in the third country is
               ineffective or inappropriate, in particular because the transfer cannot be achieved in
               good time;
        (d)    the authority that is competent for the purposes referred to in Article 1(1) in the third
               country is informed without undue delay, unless this is ineffective or inappropriate;
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                                                  DGD 2                                             EN
 ---pagebreak---           (e)   the transferring competent authority informs the recipient of the specified purpose or
                purposes for which the personal data are only to be processed by the latter provided
                that such processing is necessary.
2.        An international agreement referred to in paragraph 1 shall be any bilateral or multilateral
          international agreement in force between Member States and third countries in the field of
          judicial cooperation in criminal matters and police cooperation.
3.        The transferring competent authority shall inform the supervisory authority about transfers
          under this Article.
4.        Where a transfer is based on paragraph 1, such a transfer shall be documented.
                                                Article 40
                      International cooperation for the protection of personal data
In relation to third countries and international organisations, the Commission and Member States
shall take appropriate steps to:
(a)       develop international cooperation mechanisms to facilitate the effective 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;
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                                                  DGD 2                                             EN
 ---pagebreak--- (c)     engage relevant stakeholders in discussion and activities aimed at furthering international
        cooperation in the enforcement of legislation for the protection of personal data;
(d)     promote the exchange and documentation of personal data protection legislation and
        practice, including on jurisdictional conflicts with third countries.
                                         CHAPTER VI
             INDEPENDENT SUPERVISORY AUTHORITIES
                                            SECTION 1
                                   INDEPENDENT STATUS
                                              Article 41
                                         Supervisory authority
1.      Each Member State shall provide for one or more independent public authorities to be
        responsible for monitoring the application of this Directive, in order to protect the
        fundamental rights and freedoms of natural persons in relation to processing and to
        facilitate the free flow of personal data within the Union.
2.      Each supervisory authority shall contribute to the consistent application of this Directive
        throughout the Union. For that purpose, the supervisory authorities shall cooperate with
        each other and with the Commission in accordance with Chapter VII.
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                                                DGD 2                                            EN
 ---pagebreak--- 3.      Member States may provide for a supervisory authority established under Regulation
        (EU) 2016/… ∗ to be the supervisory authority referred to in this Directive and to assume
        responsibility for the tasks of the supervisory authority to be established under paragraph 1
        of this Article.
4.      Where more than one supervisory authority is established in a Member State, that
        Member State shall designate the supervisory authority which are to represent those
        authorities in the Board referred to in Article 51.
                                               Article 42
                                             Independence
1.      Each Member State shall provide for each supervisory authority to act with complete
        independence in performing its tasks and exercising its powers in accordance with this
        Directive.
2.      Member States shall provide for the member or members of their supervisory authorities in
        the performance of their tasks and exercise of their powers in accordance with this
        Directive, to remain free from external influence, whether direct or indirect, and that they
        shall neither seek nor take instructions from anybody.
3.      Members of Member States’ supervisory authorities 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.
∗
      OJ: please insert the number of the Regulation in st 5419/16.
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                                                DGD 2                                            EN
 ---pagebreak--- 4.      Each Member State shall ensure that each supervisory authority is provided with the
        human, technical and financial resources, premises and infrastructure necessary for the
        effective performance of its tasks and exercise of its powers, including those to be carried
        out in the context of mutual assistance, cooperation and participation in the Board.
5.      Each Member State shall ensure that each supervisory authority chooses and has its own
        staff which shall be subject to the exclusive direction of the member or members of the
        supervisory authority concerned.
6.      Each Member State shall ensure that each supervisory authority is subject to financial
        control which does not affect its independence and that it has separate, public annual
        budgets, which may be part of the overall state or national budget.
                                              Article 43
                  General conditions for the members of the supervisory authority
1.      Member States shall provide for each member of their supervisory authorities to be
        appointed by means of a transparent procedure by:
        –     their parliament;
        –     their government;
        –     their head of State; or
        –     an independent body entrusted with the appointment under Member State law.
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                                                DGD 2                                            EN
 ---pagebreak--- 2.      Each member shall have the qualifications, experience and skills, in particular in the area
        of the protection of personal data, required to perform their duties and exercise their
        powers.
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 the law of the Member State
        concerned.
4.      A member shall be dismissed only in cases of serious misconduct or if the member no
        longer fulfils the conditions required for the performance of the duties.
                                               Article 44
                       Rules on the establishment of the supervisory authority
1.      Each Member State shall provide by law for all of the following:
        (a)   the establishment of each supervisory authority;
        (b)   the qualifications and eligibility conditions required to be appointed as a member of
              each supervisory authority;
        (c)   the rules and procedures for the appointment of the member or members of each
              supervisory authority;
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                                                 DGD 2                                          EN
 ---pagebreak---         (d)   the duration of the term of the member or members of each supervisory authority of
              not less than four years, except for the first appointment after … [OJ please insert the
              date of entry into force of this Directive], part of which may take place for a shorter
              period where that is necessary to protect the independence of the supervisory
              authority by means of a staggered appointment procedure;
        (e)   whether and, if so, for how many terms the member or members of each supervisory
              authority is eligible for reappointment;
        (f)   the conditions governing the obligations of the member or members and staff of each
              supervisory authority, prohibitions on actions, occupations and benefits incompatible
              therewith during and after the term of office and rules governing the cessation of
              employment.
2       The member or members and the staff of each supervisory authority shall, in accordance
        with Union or Member State law, be subject to a duty of professional secrecy both during
        and after their term of office, with regard to any confidential information which has come
        to their knowledge in the course of the performance of their tasks or the exercise of their
        powers. During their term of office, that duty of professional secrecy shall in particular
        apply to reporting by natural persons of infringements of this Directive.
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                                                DGD 2                                            EN
 ---pagebreak---                                           SECTION 2
                         COMPETENCE, TASKS AND POWERS
                                             Article 45
                                            Competence
1.      Each Member State shall provide for each supervisory authority to be competent for the
        performance of the tasks assigned to, and for the exercise of the powers conferred on, it in
        accordance with this Directive on the territory of its own Member State.
2.      Each Member State shall provide for each supervisory authority not to be competent for
        the supervision of processing operations of courts when acting in their judicial capacity.
        Member States may provide for their supervisory authority not to be competent to
        supervise processing operations of other independent judicial authorities when acting in
        their judicial capacity.
                                             Article 46
                                               Tasks
1.      Each Member State shall provide, on its territory, for each supervisory authority to:
        (a)    monitor and enforce the application of the provisions adopted pursuant to this
               Directive and its implementing measures;
        (b)    promote public awareness and understanding of the risks, rules, safeguards and rights
               in relation to processing;
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                                               DGD 2                                            EN
 ---pagebreak---         (c) advise, in accordance with Member State law, the national parliament, the
            government and other institutions and bodies on legislative and administrative
            measures relating to the protection of natural persons’ rights and freedoms with
            regard to processing;
        (d) promote the awareness of controllers and processors of their obligations under this
            Directive;
        (e) upon request, provide information to any data subject concerning the exercise of their
            rights under this Directive and, if appropriate, cooperate with the supervisory
            authorities in other Member States to that end;
        (f) deal with complaints lodged by a data subject, or by a body, organisation or
            association in accordance with Article 55, and investigate, to the extent appropriate,
            the subject-matter of the complaint and inform the complainant of the progress and
            the outcome of the investigation within a reasonable period, in particular if further
            investigation or coordination with another supervisory authority is necessary;
        (g) check the lawfulness of processing pursuant to Article 17, and inform the data
            subject within a reasonable period of the outcome of the check pursuant to
            Article 17(3) or of the reasons why the check has not been carried out;
        (h) cooperate with, including by sharing information, and provide mutual assistance to
            other supervisory authorities, with a view to ensuring the consistency of application
            and enforcement of this Directive;
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                                              DGD 2                                            EN
 ---pagebreak---         (i)    conduct investigations on the application of this Directive, including on the basis of
               information received from another supervisory authority or other public authority;
        (j)    monitor relevant developments insofar as they have an impact on the protection of
               personal data, in particular the development of information and communication
               technologies;
        (k)    provide advice on the processing operations referred to in Article 28; and
        (l)    contribute to the activities of the Board.
2.      Each supervisory authority shall facilitate the submission of complaints referred to in point
        (f) of paragraph 1 by measures such as providing a complaint submission form, which can
        be completed electronically, without excluding other means of communication.
3.      The performance of the tasks of each supervisory authority shall be free of charge for the
        data subject and for the data protection officer.
4.      Where a request is manifestly unfounded or excessive, in particular because it is repetitive,
        the supervisory authority may charge a reasonable fee based on its administrative costs, or
        may refuse to act on the request. The supervisory authority shall bear the burden of
        demonstrating that the request is manifestly unfounded or excessive.
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                                                  DGD 2                                          EN
 ---pagebreak---                                               Article 47
                                               Powers
1.      Each Member State shall provide by law for each supervisory authority to have effective
        investigative powers. Those powers shall include at least the power to obtain from the
        controller and the processor access to all personal data that are being processed and to all
        information necessary for the performance of its tasks.
2.      Each Member State shall provide by law for each supervisory authority to have effective
        corrective powers such as, for example:
        (a)   to issue warnings to a controller or processor that intended processing operations are
              likely to infringe the provisions adopted pursuant to this Directive;
        (b)   to order the controller or processor to bring processing operations into compliance
              with the provisions adopted pursuant to this Directive, where appropriate, in a
              specified manner and within a specified period, in particular by ordering the
              rectification or erasure of personal data or restriction of processing pursuant to
              Article 16;
        (c)   to impose a temporary or definitive limitation, including a ban, on processing.
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                                                DGD 2                                            EN
 ---pagebreak--- 3.      Each Member State shall provide by law for each supervisory authority to have effective
        advisory powers to advise the controller in accordance with the prior consultation
        procedure referred to in Article 28 and to issue, on its own initiative or on request, opinions
        to its national parliament and its government or, in accordance with its national law, to
        other institutions and bodies as well as to the public on any issue related to the protection
        of personal data.
4.      The exercise of the powers conferred on the supervisory authority pursuant to this Article
        shall be subject to appropriate safeguards, including effective judicial remedy and due
        process, as set out in Union and Member State law in accordance with the Charter.
5.      Each Member State shall provide by law for each supervisory authority to have the power
        to bring infringements of provisions adopted pursuant to this Directive to the attention of
        judicial authorities and, where appropriate, to commence or otherwise engage in legal
        proceedings, in order to enforce the provisions adopted pursuant to this Directive.
                                              Article 48
                                     Reporting of infringements
Member States shall provide for competent authorities to put in place effective mechanisms to
encourage confidential reporting of infringements of this Directive.
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                                                DGD 2                                              EN
 ---pagebreak---                                                 Article 49
                                             Activity reports
Each supervisory authority shall draw up an annual report on its activities, which may include a list
of types of infringement notified and types of penalties imposed. Those reports shall be transmitted
to the national parliament, the government and other authorities as designated by Member State law.
They shall be made available to the public, the Commission and the Board.
                                         CHAPTER VII
                                       COOPERATION
                                                Article 50
                                           Mutual assistance
1.       Each Member State shall provide for their supervisory authorities to provide each other
         with relevant information and mutual assistance in order to implement and apply this
         Directive in a consistent manner, and to put in place measures for effective cooperation
         with one another. Mutual assistance shall cover, in particular, information requests and
         supervisory measures, such as requests to carry out consultations, inspections and
         investigations.
2.       Each Member States shall provide for each supervisory authority to take all appropriate
         measures required to reply to a request of another supervisory authority without undue
         delay and no later than one month after receiving the request. Such measures may include,
         in particular, the transmission of relevant information on the conduct of an investigation.
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                                                 DGD 2                                            EN
 ---pagebreak--- 3.      Requests for assistance shall contain all the necessary information, including the purpose
        of and reasons for the request. Information exchanged shall be used only for the purpose
        for which it was requested.
4.      The requested supervisory authority shall not refuse to comply with the request unless:
        (a)   it is not competent for the subject-matter of the request or for the measures it is
              requested to execute; or
        (b)   compliance with the request would infringe this Directive or Union or Member State
              law to which the supervisory authority receiving the request is subject.
5.      The requested supervisory authority shall inform the requesting supervisory authority of
        the results or, as the case may be, of the progress of the measures taken in order to respond
        to the request. The requested supervisory authority shall provide reasons for any refusal to
        comply with a request pursuant to paragraph 4.
6.      Requested supervisory authorities shall, as a rule, supply the information requested by
        other supervisory authorities by electronic means, using a standardised format.
7.      Requested supervisory authorities shall not charge a fee for any action taken by them
        pursuant to a request for mutual assistance. Supervisory authorities may agree on rules to
        indemnify each other for specific expenditure arising from the provision of mutual
        assistance in exceptional circumstances.
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                                                 DGD 2                                            EN
 ---pagebreak--- 8.      The Commission may, by means of implementing acts, specify the format and procedures
        for mutual assistance referred to in this Article and the arrangements for the exchange of
        information by electronic means between supervisory authorities, and between supervisory
        authorities and the Board. Those implementing acts shall be adopted in accordance with
        the examination procedure referred to in Article 58(2).
                                              Article 51
                                         Tasks of the Board
1.      The Board established by Regulation (EU) 2016/… ∗ shall perform all of 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 its own initiative, on request of one of its members or on request of the
              Commission, any question covering the application of this Directive and issue
              guidelines, recommendations and best practices in order to encourage consistent
              application of this Directive;
        (c)   draw up guidelines for supervisory authorities concerning the application of
              measures referred to in Article 47(1) and (3);
∗
      OJ: please insert the number of the Regulation in st 5419/16.
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 ---pagebreak---         (d) issue guidelines, recommendations and best practices in accordance with point (b) of
            this paragraph for establishing personal data breaches and determining the undue
            delay referred to in Article 30(1) and (2) and for the particular circumstances in
            which a controller or a processor is required to notify the personal data breach;
        (e) issue guidelines, recommendations and best practices in accordance with point (b) of
            this paragraph as to the circumstances in which a personal data breach is likely to
            result in a high risk to the rights and freedoms of natural persons as referred to in
            Article 31(1);
        (f) review the practical application of the guidelines, recommendations and best
            practices referred to in points (b) and (c);
        (g) provide the Commission with an opinion for the assessment of the adequacy of the
            level of protection in a third country, a territory or one or more specified sectors
            within a third country, or an international organisation, including for the assessment
            whether such a third country, territory, specified sector, or international organisation
            no longer ensures an adequate level of protection;
        (h) promote the cooperation and the effective bilateral and multilateral exchange of
            information and best practices between the supervisory authorities;
        (i) promote common training programmes and facilitate personnel exchanges between
            the supervisory authorities and, where appropriate, with the supervisory authorities
            of third countries or with international organisations;
        (j) promote the exchange of knowledge and documentation on data protection law and
            practice with data protection supervisory authorities worldwide.
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 ---pagebreak---         With regard to point (g) of the first subparagraph, the Commission shall provide the Board
        with all necessary documentation, including correspondence with the government of the
        third country, with the territory or specified sector within that third country, or with the
        international organisation.
2.      Where the Commission requests advice from the Board, it may indicate a time limit, taking
        into account the urgency of the matter.
3.      The Board shall forward its opinions, guidelines, recommendations and best practices to
        the Commission and to the committee referred to in Article 58(1) and make them public.
4.      The Commission shall inform the Board of the action it has taken following opinions,
        guidelines, recommendations and best practices issued by the Board.
                                        CHAPTER VIII
                  REMEDIES, LIABILITY AND PENALTIES
                                               Article 52
                      Right to lodge a complaint with a supervisory authority
1.      Without prejudice to any other administrative or judicial remedy, Member States shall
        provide for every data subject to have the right to lodge a complaint with a single
        supervisory authority, if the data subject considers that the processing of personal data
        relating to him or her infringes provisions adopted pursuant to this Directive.
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 ---pagebreak--- 2.      Member States shall provide for the supervisory authority with which the complaint has
        been lodged to transmit it to the competent supervisory authority, without undue delay if
        the complaint is not lodged with the supervisory authority that is competent pursuant to
        Article 45(1). The data subject shall be informed about the transmission.
3.      Member States shall provide for the supervisory authority with which the complaint has
        been lodged to provide further assistance on request of the data subject.
4.      The data subject shall be informed by the competent supervisory authority of the progress
        and the outcome of the complaint, including of the possibility of a judicial remedy
        pursuant to Article 53.
                                               Article 53
                Right to an effective judicial remedy against a supervisory authority
1.      Without prejudice to any other administrative or non-judicial remedy, Member States shall
        provide for the right of a natural or legal person to an effective judicial remedy against a
        legally binding decision of a supervisory authority concerning them.
2.      Without prejudice to any other administrative or non-judicial remedy, each data subject
        shall have the right to an effective judicial remedy where the supervisory authority which
        is competent pursuant to Article 45(1) does not handle a complaint or does not inform the
        data subject within three months of the progress or outcome of the complaint lodged
        pursuant to Article 52.
3.      Member States shall provide for proceedings against a supervisory authority to be brought
        before the courts of the Member State where the supervisory authority is established.
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 ---pagebreak---                                                  Article 54
                 Right to an effective judicial remedy against a controller or processor
Without prejudice to any available administrative or non-judicial remedy, including the right to
lodge a complaint with a supervisory authority pursuant to Article 52, Member States shall provide
for the right of a data subject to an effective judicial remedy where he or she considers that his or
her rights laid down in provisions adopted pursuant to this Directive have been infringed as a result
of the processing of his or her personal data in non-compliance with those provisions.
                                                 Article 55
                                     Representation of data subjects
Member States shall, in accordance with Member State procedural law, provide for the data subject
to have the right to mandate a not-for-profit body, organisation or association which has been
properly constituted in accordance with Member State law, has statutory objectives which are in the
public interest and is active in the field of protection of data subject’s rights and freedoms with
regard to the protection of their personal data to lodge the complaint on his or her behalf and to
exercise the rights referred to in Articles 52, 53 and 54 on his or her behalf.
                                                 Article 56
                                          Right to compensation
Member States shall provide for any person who has suffered material or non-material damage as a
result of an unlawful processing operation or of any act infringing national provisions adopted
pursuant to this Directive to have the right to receive compensation for the damage suffered from
the controller or any other authority competent under Member State law.
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 ---pagebreak---                                               Article 57
                                               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 shall be effective, proportionate and dissuasive.
                                        CHAPTER IX
                                IMPLEMENTING ACTS
                                              Article 58
                                        Committee procedure
1.      The Commission shall be assisted by the committee established by Article 93 of
        Regulation (EU) 2016/… ∗. 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.
∗
       OJ: please insert the number of the Regulation in st 5419/16.
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 ---pagebreak---                                            CHAPTER X
                                    FINAL PROVISIONS
                                               Article 59
                            Repeal of Framework Decision 2008/977/JHA
1.       Framework Decision 2008/977/JHA is repealed with effect from …[two years from the
         date of entry into force of this Directive].
2.       References to the repealed Decision referred to in paragraph 1 shall be construed as
         references to this Directive.
                                               Article 60
                                   Union legal acts already in force
The specific provisions for the protection of personal data in Union legal acts that entered into force
on or before … [the date of entry into force of this Directive] in the field of judicial co-operation in
criminal matters and police co-operation, which regulate processing 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, shall remain unaffected.
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 ---pagebreak---                                                 Article 61
                   Relationship with previously concluded international agreements
            in the field of judicial cooperation in criminal matters and police cooperation
International agreements involving the transfer of personal data to third countries or international
organisations which were concluded by Member States prior to … [the date of entry into force of
this Directive] and which are in accordance with Union law applicable prior to [the date of entry
into force of this Directive]shall remain in force until amended, replaced or revoked.
                                                Article 62
                                           Commission reports
1.       By … [6 years after the date of entry into force of this Directive], and every four years
         thereafter, the Commission shall submit a report on the evaluation and review of this
         Directive to the European Parliament and to the Council. The reports shall be made public.
2.       In the context of the evaluations and reviews referred to in paragraph 1, the Commission
         shall examine, in particular, the application and functioning of Chapter V on the transfer of
         personal data to third countries or international organisations with particular regard to
         decisions adopted pursuant to Articles 36(3) and 39.
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 ---pagebreak--- 3.      For the purposes of paragraphs 1 and 2, the Commission may request information from
        Member States and supervisory authorities.
4.      In carrying out the evaluations and reviews referred to in paragraphs 1 and 2, the
        Commission shall take into account the positions and findings of the European Parliament,
        of the Council and of other relevant bodies or sources.
5.      The Commission shall, if necessary, submit appropriate proposals with a view to amending
        this Directive, in particular taking account of developments in information technology and
        in the light of the state of progress in the information society.
6.      By … [three years after the date of entry into force of this Directive], the Commission shall
        review other legal acts adopted by the Union which regulate processing by the competent
        authorities for the purposes set out in Article 1(1) including those referred to in Article 60,
        in order to assess the need to align them with this Directive and to make, where
        appropriate, the necessary proposals to amend those acts to ensure a consistent approach to
        the protection of personal data within the scope of this Directive.
                                                Article 63
                                             Transposition
1.      Member States shall adopt and publish, by … [date/two years after the date of entry into
        force of this Directive], 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 … [date/two years after the date of
        entry into force of this Directive].
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 ---pagebreak---         When Member States adopt those provisions, they shall contain a reference to this
        Directive or shall 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.      By way of derogation from paragraph 1, a Member State may provide, exceptionally,
        where it involves disproportionate effort, for automated processing systems set up before
        … [the date of entry into force of this Directive] to be brought into conformity with
        Article 25 (1) by …[7 years of the date of entry into force of this Directive].
3.      By way of derogation from paragraphs 1 and 2 of this Article,, a Member State may, in
        exceptional circumstances, bring an automated processing system as referred to in
        paragraph 2 of this Article into conformity with Article 25(1) within a specified period
        after the period referred to in paragraph 2 of this Article, if it would otherwise cause
        serious difficulties for the operation of that particular automated processing system. The
        Member State concerned shall notify the Commission of the grounds for those serious
        difficulties and the grounds for the specified period within which it shall bring that
        particular automated processing system into conformity with Article 25(1). The specified
        period shall in any event not be later than … [10 years after the date of entry into force of
        this Directive].
4.      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.
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 ---pagebreak---                                                Article 64
                                            Entry into force
This Directive shall enter into force on the day following that of its publication in the Official
Journal of the European Union.
                                               Article 65
                                              Addressees
This Directive is addressed to the Member States.
Done at …,
For the European Parliament                                  For the Council
The President                                                The President
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