College Decision 2020-04 of 15 July 2020 on internal rules concerning restrictions of certain data subject rights in relation to the processing of personal data in the framework of activities carried out by Eurojust

1 This Decision lays down rules relating to the conditions under which Eurojust may restrict the application of Articles 4, 14 to 22, 35 and 36, pursuant to Article 25 of the Regulation.

2 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 electronic communications.

3 This Decision applies to the processing of personal data by Eurojust insofar as it processes personal data for purposes related to administrative inquiries, pre-disciplinary, disciplinary and suspension proceedings, preliminary activities related to cases of potential irregularities reported to OLAF, processing whistleblowing cases, (formal and informal) procedures of harassment, processing internal and external complaints, conducting internal audits, investigations carried out by the Data Protection Officer in line with Article 45(2) of Regulation (EU) 2018/1725 and (IT) security investigations handled internally or with external involvement (e.g. CERT-EU).

4 The categories of personal data covered by this Decision include identification, contact, behavioural and financial data.

5 Eurojust, as the controller, is represented by the Administrative Director.

1 Eurojust may restrict the application of Articles 14 to 22, 35 and 36, and Article 4 thereof in so far as its provisions correspond to the rights and obligations provided for in Articles 14 to 20: (a) pursuant to Article 25(1)(b), (c), (f), (g) and (h) of the Regulation, when conducting administrative inquiries, pre-disciplinary, disciplinary or suspension proceedings under Article 86 and Annex IX of the Staff Regulations, and the Eurojust Decision of 23 September 2013 laying down general implementing provisions on the conduct of administrative inquiries and disciplinary procedures, and when notifying cases to OLAF; (b) pursuant to Article 25(1)(h) of the Regulation, when ensuring that Eurojust staff members may report facts confidentially where they believe there are serious irregularities, as set out in College Decision 2019-02 of 29 January 2019 on Eurojust guidelines on whistleblowing; (c) pursuant to Article 25(1)(h) of the Regulation, when ensuring that Eurojust staff members are able to report to confidential counsellors in the context of a harassment procedure, as defined in its Decision of 31 January 2012 on the policy of Eurojust for protecting the dignity of the person and preventing psychological and sexual harassment; (d) pursuant to Article 25(1)(c), (g) and (h) of the Regulation, when conducting internal audits in relation to activities or departments of Eurojust; (e) pursuant to Article 25(1)(c), (d), (g) and (h) of the Regulation, when providing or receiving assistance to or from other Union institutions, bodies, offices and agencies or cooperating with them in the context of activities under points (a) to (d) of this paragraph and pursuant to relevant service level agreements, memoranda of understanding and cooperation agreements; (f) pursuant to Article 25(1)(c), (g) and (h) of the Regulation, when providing or receiving assistance to or from third countries national authorities and international organisations or cooperating with such authorities and organisations, either at their request or on its own initiative; (g) pursuant to Article 25(1)(c), (g) and (h) of the Regulation, when providing or receiving assistance and cooperation to and from EU Member States’ public authorities, either at their request or on its own initiative; (h) pursuant to Article 25(1)(e) of the Regulation, when processing personal data in documents obtained by the parties or interveners in the context of proceedings before the Court of Justice of the European Union; (i) pursuant to Article 25(1)(i) of the Regulation, when processing of personal data is necessary for enforcement of civil law claims.

2 Any restriction shall respect the essence of fundamental rights and freedoms and be necessary and proportionate in a democratic society.

3 A necessity and proportionality test shall be carried out on a case-by-case basis before restrictions are applied. Restrictions shall be limited to what is strictly necessary to achieve their objective.

4 For accountability purposes, Eurojust shall draw up a record describing the reasons for restrictions that are applied, which grounds among those listed in paragraph 1 apply and the outcome of the necessity and proportionality test. Those records shall be part of a register, which shall be made available on request to the EDPS. Eurojust shall prepare periodic reports on the application of Article 25 of the Regulation.

5 When processing personal data received from other organisations in the context of its tasks, Eurojust shall consult those organisations on potential grounds for imposing restrictions and the necessity and proportionality of the restrictions concerned, unless this would jeopardise the activities of Eurojust.

1 Assessments of the risks to the rights and freedoms of data subjects of imposing restrictions and details of the period of application of those restrictions shall be registered in the record of processing activities maintained by Eurojust under Article 31 of the Regulation. They shall also be recorded in any data protection impact assessments regarding those restrictions conducted under Article 39 of the Regulation.

2 Whenever Eurojust assesses the necessity and proportionality of a restriction it shall consider the potential risks to the rights and freedoms of the data subject. In case where Eurojust 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 Eurojust’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 Eurojust shall implement safeguards to prevent abuse and unlawful access or transfer of the personal data in respect of which restrictions apply or could be applied. Such safeguards shall include technical and organisational measures and be detailed as necessary in Eurojust internal decisions, procedures and implementing rules. The safeguards shall include: (a) a clear definition of roles, responsibilities and procedural steps; (b) all electronic data shall be stored in a secure IT application, which prevents unlawful and accidental access or transfer of electronic data to unauthorised persons, according to Eurojust’s security standards, as well as in specific electronic folders accessible only to authorised staff. Appropriate levels of access shall be granted individually; (c) paper documents shall be kept in secured cupboards and only accessible to authorised staff; (d) due monitoring of restrictions and a periodic review of their application; (e) all persons having access to the data are bound by the obligation of confidentiality. The reviews referred to in point (d) shall be conducted at least every six months.

2 Restrictions shall be lifted as soon as the circumstances that justify them no longer apply.

3 The retention period of the personal data referred to in Article 1(4) shall be no longer than necessary and appropriate for the purposes for which the data are processed. The personal data shall be retained in accordance with the applicable Eurojust retention rules set in Article 18 and Annex of the Rules of Procedure on the Processing and Protection of Personal Data at Eurojust , to be defined in the data protection records maintained under Article 31 of the Regulation. At the end of the retention period, the personal data shall be deleted, anonymised or transferred to archives in accordance with Article 13 of the Regulation.

1 Eurojust DPO shall be informed without undue delay whenever data subject rights are restricted in accordance with this Decision. He or she shall be given access to the associated records and any documents concerning the factual or legal context.

2 Eurojust DPO may request a review of the application of a restriction. Eurojust shall inform its DPO in writing of the outcome of the review.

3 Eurojust shall document the involvement of the DPO in the application of restrictions, including what information is shared with him or her.

1 Eurojust shall include a section in the data protection notices published on its website/intranet providing general information to data subjects on the potential for restriction of data subjects’ rights pursuant to Article 2(1). The information shall cover which rights may be restricted, the grounds on which restrictions may be applied and their potential duration.

2 Eurojust shall inform data subjects individually, in writing and without undue delay of ongoing or future restrictions of their rights. Eurojust shall inform the data subject of the principal reasons on which the application of the restriction is based, of their right to consult the DPO with a view to challenging the restriction and of his/her right to lodge a complaint with the EDPS.

3 Eurojust may defer, omit or deny the provision of information concerning the reasons for a restriction and the right to lodge a complaint with the EDPS for as long as it would cancel the effect of the restriction. Assessment of whether this would be justified shall take place on a case-by-case basis. As soon as it would no longer cancel the effect of the restriction, Eurojust shall provide the information to the data subject.

1 Where Eurojust is under an obligation to communicate a data breach under Article 35(1) of the Regulation, it may, in exceptional circumstances, restrict such communication wholly or partly. It shall document in a note the reasons for the restriction, the legal ground for it under Article 2 and an assessment of its necessity and proportionality. The note shall be communicated to the EDPS at the time of the notification of the personal data breach.

2 Where the reasons for the restriction no longer apply, Eurojust shall communicate the personal data breach to the data subject concerned and inform him or her of the principal reasons for the restriction and of his or her right to lodge a complaint with the EDPS.

1 In exceptional circumstances, Eurojust may restrict the right to confidentiality of electronic communications under Article 36 of the Regulation. Such restrictions shall comply with Directive 2002/58/EC of the European Parliament and of the Council .

2 Where Eurojust restricts the right to confidentiality of electronic communications, it shall inform the data subject concerned, in its reply to any request from the data subject, of the principal reasons on which the application of the restriction is based and of his or her right to lodge a complaint with the EDPS.

3 Eurojust may defer, omit or deny the provision of information concerning the reasons for a restriction and the right to lodge a complaint with the EDPS for as long as it would cancel the effect of the restriction. Assessment of whether this would be justified shall take place on a case-by-case basis.

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