Decision of the European Ombudsman of 9 November 2020 on internal rules to restrict certain data subject rights in the processing of personal data

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

2 The European Ombudsman’s Office, as the controller, is represented by the European Ombudsman.

1 The European Ombudsman 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 Decision of the European Ombudsman of 4 November 2004 on the conduct of administrative inquiries and disciplinary proceedings, and when notifying cases to OLAF; (b) pursuant to Article 25(1)(h) of the Regulation, when ensuring that staff members of the European Ombudsman may report facts confidentially where they believe there are serious irregularities, as set out in the Decision of the European Ombudsman of 20 February 2015 on internal rules concerning whistleblowing; (c) pursuant to Article 25(1)(h) of the Regulation, when ensuring that staff members of the European Ombudsman are able to report to ethics correspondents and/or the Conciliation Committee in the context of a harassment procedure, as defined by the Decision of the European Ombudsman on a Policy for the prevention of and protection against harassment in the Ombudsman’s Office; (d) pursuant to Article 25(1)(c), (g) and (h) of the Regulation, when conducting internal audits in relation to activities or departments of the European Ombudsman; (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)(h) of the Regulation, when conducting inquiries into alleged instances of maladministration in the activities of the EU institutions, bodies, offices and agencies, in accordance with Article 228 of the Treaty on the Functioning of the European Union and the Ombudsman’s Statute and Implementing Provisions.

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, the European Ombudsman 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. The European Ombudsman 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, the European Ombudsman 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 the European Ombudsman.

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 the European Ombudsman 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 the European Ombudsman assesses the necessity and proportionality of a restriction it shall consider the potential risks to the rights and freedoms of the data subject.

1 The European Ombudsman 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 European Ombudsman’s internal decisions, procedures and implementing rules. The safeguards shall include: (a) a clear definition of roles, responsibilities and procedural steps; (b) if appropriate, a secure electronic environment which prevents unlawful and accidental access or transfer of electronic data to unauthorised persons; (c) if appropriate, secure storage and processing of paper-based documents; (d) due monitoring of restrictions and a periodic review of their application. 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 personal data shall be retained in accordance with the applicable retention rules of the European Ombudsman, 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 The European Ombudsman’s 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 The European Ombudsman’s DPO may request a review of the application of a restriction. The European Ombudsman shall inform its DPO in writing of the outcome of the review.

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

1 The European Ombudsman shall include a section in the data protection notices published on its website 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 The European Ombudsman shall inform data subjects individually, in writing and without undue delay of ongoing or future restrictions of their rights. The European Ombudsman 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 their rights to lodge a complaint with the EDPS.

3 The European Ombudsman 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, the European Ombudsman shall provide the information to the data subject.

1 Where the European Ombudsman 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, the European Ombudsman 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, the European Ombudsman 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 the European Ombudsman 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 The European Ombudsman may defer, omit or deny the provision of information concerning the reasons for the 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, the European Ombudsman shall provide the information to the data subject.

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