Decision of the Management Board of the European Union Agency for Cybersecurity of 21 November 2019 on internal rules concerning restrictions of certain rights of data subjects in relation to processing of personal data in the framework of the functioning of ENISA

1 This Decision lays down rules relating to the conditions under which ENISA in the framework of its procedures set out paragraph 2 may restrict the application of the rights enshrined in Articles 14 to 21, 35 and 36, as well as Article 4 thereof, following Article 25 of the Regulation (EU) 2018/1725.

2 Within the framework of the administrative functioning of ENISA, this Decision applies to the processing operations on personal data by ENISA for the purposes of: conducting administrative inquiries, disciplinary proceedings, preliminary activities related to cases of potential irregularities reported to OLAF, processing whistleblowing cases, (formal and informal) procedures of harassment, processing internal and external complaints, conducting internal audits, conducting assessments of cybersecurity incidents pursuant to Article 7(4) of the Regulation (EU) 2019/881, investigations carried out by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725 and (IT) security investigations handled internally or with external involvement (e.g. CERT-EU).

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

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

5 Subject to the conditions set out in this Decision, the restrictions may apply to the following rights: provision of information to data subjects, right of access, rectification, erasure, restriction of processing, communication of a personal data breach to the data subject or confidentiality of communication.

1 The safeguards in place to avoid data breaches, leakages or unauthorised disclosure are the following: (a) Paper documents shall be kept in secured cupboards and only accessible to authorised staff; (b) All electronic data shall be stored in a secure IT application according to the ENISA’s security standards, as well as in specific electronic folders accessible only to authorised staff. Appropriate levels of access shall be granted individually; (c) The database shall be password-protected under a single sign-on system and connected automatically to the user’s ID and password. Replacing users is strictly prohibited. E-records shall be held securely to safeguard the confidentiality and privacy of the data therein; (d) All persons having access to the data are bound by the obligation of confidentiality.

2 The controller of the processing operations is ENISA, represented by its Executive Director, who may delegate the function of the controller. Data subjects shall be informed of the delegated controller by way of the data protection notices or records published on the website and/or the intranet of ENISA.

3 The retention period of the personal data referred to in Article 1(3) shall be no longer than necessary and appropriate for the purposes for which the data are processed. It shall in any event not be longer than the retention period specified in the data protection notices, privacy statements or records referred to in Article 5(1).

4 Where ENISA considers to apply a restriction, the risk to the rights and freedoms of the data subject shall be weighed, in particular, against the risk to the rights and freedoms of other data subjects and the risk of cancelling the effect of the ENISA’s investigations or procedures for example by destroying evidence. The risks to the rights and freedoms of the data subject concern primarily, but are not limited to, reputational risks and risks to the right of defence and the right to be heard.

1 Any restriction shall only be applied by ENISA to safeguard: (a) the prevention, investigation, detection and prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security; (b) other important objectives of general public interest of the Union or of a Member State, in particular the objectives of the common foreign and security policy of the Union or an important economic or financial interest of the Union or of a Member State, including monetary, budgetary and taxation matters, public health and social security; (c) the internal security of Union institutions and bodies, including of their electronic communications networks; (d) the prevention, investigation, detection and prosecution of breaches of ethics for regulated professions; (e) a monitoring, inspection or regulatory function connected, even occasionally, to the exercise of official authority in the cases referred to in points (a) and (b); (f) the protection of the data subject or the rights and freedoms of others.

2 The assessment of cybersecurity incidents carried out by ENISA pursuant to Article 7(4) of the Regulation (EU) 2019/881 (Cybersecurity Act) falls under paragraph 1 point (b) of this Article.

3 As a specific application of the purposes described in paragraph 1 above, ENISA may apply restrictions in relation to personal data exchanged with Commission services or other Union institutions, bodies, agencies and offices, competent authorities of Member States or third countries or international organisations, respectively in the following circumstances: (a) where the exercise of those rights and obligations could be restricted by Commission services or other Union institutions, bodies, agencies and offices on the basis of other acts provided for in Article 25 of Regulation (EU) 2018/1725 or in accordance with Chapter IX of that Regulation or with the founding acts of other Union institutions, bodies, agencies and offices; (b) where the exercise of those rights and obligations could be restricted by competent authorities of Member States on the basis of acts referred to in Article 23 of Regulation (EU) 2016/679 of the European Parliament and of the Council , or under national measures transposing Articles 13(3), 15(3) or 16(3) of Directive (EU) 2016/680 of the European Parliament and of the Council ; (c) where the exercise of those rights and obligations could jeopardise ENISA’s cooperation with third countries or international organisations in the conduct of its tasks. Before applying restrictions in the circumstances referred to in points (a) and (b) of the first subparagraph, ENISA shall consult the relevant Commission services, Union institutions, bodies, agencies, offices or the competent authorities of Member States unless it is clear to ENISA that the application of a restriction is provided for by one of the acts referred to in those points.

4 Any restriction shall be necessary and proportionate taking into account the risks to the rights and freedoms of data subjects and respect the essence of the fundamental rights and freedoms in a democratic society.

5 If the application of restriction is considered, a necessity and proportionality test shall be carried out based on the present rules. It shall be documented through an internal assessment note for accountability purposes on a case by case basis.

6 Restrictions shall be lifted as soon as the circumstances that justify them no longer apply. In particular, where it is considered that the exercise of the restricted right would no longer cancel the effect of the restriction imposed or adversely affect the rights or freedoms of other data subjects.

1 ENISA shall, without undue delay, inform the Data Protection Officer of the Agency (‘the DPO’) whenever the controller restricts the application of data subjects’ rights, or extends the restriction, in accordance with this Decision. The controller shall provide the DPO access to the record containing the assessment of the necessity and proportionality of the restriction and document the date of informing the DPO in the record. ENISA shall involve the DPO throughout all the relevant procedures and the DPO’s involvement shall be documented.

2 The DPO may request the controller in writing to review the application of the restrictions. The controller shall inform the DPO in writing about the outcome of the requested review.

3 The controller shall inform the DPO when the restriction has been lifted.

1 In duly justified cases and under the conditions stipulated in this Decision, the right to information may be restricted by the controller in the context of the following processing operations: (a) the performance of administrative inquiries and disciplinary proceedings; (b) preliminary activities related to cases of potential irregularities reported to OLAF; (c) whistleblowing procedures; (d) (formal and informal) procedures for cases of harassment; (e) processing internal and external complaints; (f) internal audits; (g) the investigations carried out by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725; (h) (IT) security investigations handled internally or with external involvement (e.g. CERT-EU); (i) assessments of cybersecurity incidents carried out by ENISA pursuant to Article 7(4) of the Regulation (EU) 2019/881, in line with Article 3 paragraph 2 of this Decision. ENISA shall include in the data protection notices, privacy statements or records in the sense of Article 31 of the Regulation (EU) 2018/1725, published on its website and/or on the intranet informing data subjects of their rights in the framework of a given procedure, information relating to the potential restriction of these rights. The information shall cover which rights may be restricted, the reasons and the potential duration.

2 Without prejudice to the provisions of paragraph 3 of this Article, ENISA, where proportionate, shall also inform individually all data subjects, which are considered persons concerned in the specific processing operation, of their rights concerning present or future restrictions without undue delay and in a written form.

3 Where ENISA restricts, wholly or partly, the provision of information to the data subjects referred to in paragraph 2 of this Article, it shall record the reasons for the restriction, the legal ground in accordance with Article 3 of this Decision, including an assessment of the necessity and proportionality of the restriction. The record and, where applicable, the documents containing underlying factual and legal elements shall be registered. Upon request, they shall be made available to the European Data Protection Supervisor.

4 The restriction referred to in paragraph 3 of this Article shall continue to apply as long as the reasons justifying it remain applicable. Where the reasons for the restriction no longer apply, ENISA shall provide information to the data subject on the principal reasons on which the application of a restriction is based. At the same time, ENISA shall inform the data subject of the right of lodging a complaint with the European Data Protection Supervisor at any time or of seeking a judicial remedy in the Court of Justice of the European Union. ENISA shall review the application of the restriction every six months from its adoption and at the closure of the relevant inquiry, procedure or investigation. Thereafter, the controller shall monitor the need to maintain any restriction every six months.

1 In duly justified cases and under the conditions stipulated in this Decision, the right to access may be restricted by the controller in the context of the following processing operations, where necessary and proportionate: (a) the performance of administrative inquiries and disciplinary proceedings; (b) preliminary activities related to cases of potential irregularities reported to OLAF; (c) whistleblowing procedures; (d) (formal and informal) procedures for cases of harassment; (e) processing internal and external complaints; (f) internal audits; (g) the investigations carried out by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725; (h) (IT) security investigations handled internally or with external involvement (e.g. CERT-EU); (i) assessments of cybersecurity incidents carried out by ENISA pursuant to Article 7(4) of the Regulation (EU) 2019/881, in line with Article 3 paragraph 2 of this Decision. Where data subjects request access to their personal data processed in the context of one or more specific cases or to a particular processing operation, in accordance with Article 17 of Regulation (EU) 2018/1725, ENISA shall limit its assessment of the request to such personal data only.

2 Where ENISA restricts, wholly or partly, the right of access, referred to in Article 17 of Regulation (EU) 2018/1725, it shall take the following steps: (a) it shall inform the data subject concerned, in its reply to the request, of the restriction applied and of the principal reasons thereof, and of the possibility of lodging a complaint with the European Data Protection Supervisor or of seeking a judicial remedy in the Court of Justice of the European Union; (b) it shall document in an internal assessment note the reasons for the restriction, including an assessment of the necessity, proportionality of the restriction and its duration. The provision of information referred to in point (a) may be deferred, omitted or denied if it would cancel the effect of the restriction in accordance with Article 25(8) of Regulation (EU) 2018/1725. ENISA shall review the application of the restriction every six months from its adoption and at the closure of the relevant investigation. Thereafter, the controller shall monitor the need to maintain any restriction every six months.

3 The record and, where applicable, the documents containing underlying factual and legal elements shall be registered. They shall be made available to the European Data Protection Supervisor on request.

1 In duly justified cases and under the conditions stipulated in this Decision, the right to rectification, erasure and restriction may be restricted by the controller in the context of the following processing operations, where necessary and appropriate: (a) the performance of administrative inquiries and disciplinary proceedings; (b) preliminary activities related to cases of potential irregularities reported to OLAF; (c) whistleblowing procedures; (d) (formal and informal) procedures for cases of harassment; (e) processing internal and external complaints; (f) internal audits; (g) the investigations carried out by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725; (h) (IT) security investigations handled internally or with external involvement (e.g. CERT-EU); (i) assessments of cybersecurity incidents carried out by ENISA pursuant to article 7(4) of the Regulation (EU) 2019/881, in line with Article 3 paragraph 2 of this Decision.

2 Where ENISA restricts, wholly or partly, the application of the right to rectification, erasure and restriction of processing referred to in Articles 18, 19(1) and 20(1) of Regulation (EU) 2018/1725, it shall take the steps set out in Article 6(2) of this Decision and in accordance with Article 6(3) thereof.

1 In duly justified cases and under the conditions stipulated in this Decision, the right to the communication of a personal data breach may be restricted by the controller in the context of the following processing operations, where necessary and appropriate: (a) the performance of administrative inquiries and disciplinary proceedings; (b) preliminary activities related to cases of potential irregularities reported to OLAF; (c) whistleblowing procedures; (d) processing internal and external complaints; (e) internal audits; (f) the investigations carried out by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725; (g) (IT) security investigations handled internally or with external involvement (e.g. CERT-EU); (h) assessments of cybersecurity incidents carried out by ENISA pursuant to article 7(4) of the Regulation (EU) 2019/881, in line with Article 3 paragraph 2 of this Decision.

2 In duly justified cases and under the conditions stipulated in this Decision, the right to confidentiality of electronic communications may be restricted by the controller in the context of the following processing operations, where necessary and appropriate: (a) the performance of administrative inquiries and disciplinary proceedings; (b) preliminary activities related to cases of potential irregularities reported to OLAF; (c) whistleblowing procedures; (d) formal procedures for cases of harassment; (e) processing internal and external complaints; (f) (IT) security investigations handled internally or with external involvement (e.g. CERT-EU). (g) assessments of cybersecurity incidents carried out by ENISA pursuant to Article 7(4) of the Regulation (EU) 2019/881, in line with Article 3 paragraph 2.

3 Where ENISA restricts the communication of a personal data breach to the data subject or the confidentiality of electronic communications referred to in Articles 35 and 36 of Regulation (EU) 2018/1725, it shall apply the provisions of Article 5(3) of this Decision. Article 5(4) of this Decision shall apply.

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