Management Board Decision 28/2022 of 4 April 2022 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 the European Border and Coast Guard Agency

1 This Decision lays down rules relating to the conditions under which the Agency may restrict the application of Article 4, 14 to 22, 35 and 36 of the Regulation, pursuant to Article 25 of the Regulation and Article 86(2) of the EBCG Regulation. This Decision applies to the processing of personal data by the Agency for the purpose of administrative tasks in accordance with Article 87(1)(h) of the EBCG Regulation.

2 In accordance with paragraph 1 and subject to the conditions set out in this Decision, the restrictions may be applied to the following rights: right of information to be provided to the data subject, right of access by the data subject, right of the data subject to rectification, erasure and restriction of processing and rights to communication of a personal data breach to the data subject and confidentiality of electronic communications.

3 The categories of personal data concerned by this Decision are both objective/hard data (e.g. identification data, contact data, professional data, administrative data, data received from specific sources, electronic communications and traffic data) and subjective/soft data (e.g. reasoning, behavioural data, appraisals, data related to performance and conduct and data related to, or brought forward in connection with, the subject matter of the procedure or activity in question).

4 The Agency, as the controller, is represented by the Executive Director. The Agency’s rules implementing the Regulation in respect of data controllership shall apply .

5 Data subjects shall be informed of the designated controllers through information or records published on the website and/or the intranet of the Agency.

1 The Agency may restrict the application of Articles 14 to 22, 35 and 36 of the Regulation, and Article 4 thereof in so far as its provisions correspond to the rights and obligations provided for in Articles 14 to 22 in the context of the purpose of processing personal data indicated in Article 1(1) of the Decision: (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 Management Board Decision 26/2018 of 25 October 2018 adopting general implementing provisions on the conduct of administrative inquiries and disciplinary procedures, when notifying cases to OLAF and pursuant to Article 25(1)(c), (g) and (h) of the Regulation, when the DPO investigates matters directly related to his/her tasks in particular when conducting inquiries on processing activities carried out at the Agency pursuant to Article 5(11) of Management Board Decision 56/2021 of 15 October 2021. The Agency may restrict some of the rights referred to in Article 1(2) of the Decision of a staff member, a person concerned or a third party in relation to any information capable of seriously affecting future or ongoing inquiries, pre-disciplinary, disciplinary or suspension proceedings including statements of witnesses and other documents; (b) pursuant to Article 25(1)(h) of the Regulation, when ensuring that Agency staff members may report facts confidentially where they believe there are serious irregularities, as set out in Management Board Decision 17/2019 of 18 July 2019 adopting the Frontex Guidelines on Whistleblowing The Agency may restrict some of the rights referred to in Article 1(2) of the Decision of data subjects potentially implicated in the alleged wrongdoings in relation to any information which could compromise the anonymity of person reporting a serious irregularity; (c) pursuant to Article 25(1)(h) of the Regulation, when ensuring that Agency staff members may use the support of the confidential counsellors, as defined by Management Board Decision 16/2019 of 18 July 2019 on the Frontex policy on protecting the dignity of the person and preventing psychological harassment and sexual harassment. The Agency may restrict some of the rights referred to in Article 1(2) of the Decision of alleged harassers, where necessary, to protect the anonymity of the potential victim of harassment and the anonymity of witnesses; (d) pursuant to Article 25(1)(c), (g) and (h) of the Regulation, when conducting internal and external audits in relation to activities or departments of the Agency in particular when internal audits are conducted by the Internal Audit Capability of the Agency. The Agency may restrict some of the rights referred to in Article 1(2) of data subjects in relation to information capable of compromising the confidentiality of information gathered from the audit or interfering with the conduct of an ongoing audit; (e) pursuant to Article 25(1)(b), (e), (g) and (h) of the Regulation, in the context of investigations from the European Public Prosecutor’s Office (EPPO). The Agency may restrict some of the rights referred to in Article 1(2) of this Decision of data subjects in relation to information necessary for ensuring proper conduct and confidentiality of investigations by the EPPO; (f) pursuant to Article 25(1)(c), (e), (g) and (h) of the Regulation, when handling complaints including those received by the Agency in the context of the complaints mechanism set up in accordance with Article 111 of the EBCG Regulation to monitor and ensure respect for fundamental rights in all the activities of the Agency and the relevant Decision of the Executive Director. The Agency may restrict some of the rights referred to in Article 1(2) of this Decision of a staff member involved in an Agency activity , who is subject to a complaint, in relation to any information capable of seriously affecting the review and handling of the complaint; (g) pursuant to Article 25(1)(c), (e), (g) and (h) of the Regulation, when handling incident reports under Article 38(3)(h) of the EBCG Regulation and Decision of the Executive Director of 19 April 2021 on Standard Operating Procedure (SOP) – Serious Incident Reporting. The Agency may restrict some of the rights referred to in Article 1(2) of this Decision of data subjects contained in the Serious Incident Report in relation to information capable of seriously affecting the validation and assessment of the Serious Incident Report as well as follow up actions and the anonymity of witnesses or other persons reporting incidents including migrants and returnees; (h) pursuant to Article 25(1)(b), (c), (f), (g) and (h) of the Regulation, when monitoring the application of the provisions on the use of force by statutory staff of the European Border and Coast Guard Standing Corps under Article 55(5)(a) of the EBCG Regulation and Management Board Decision 7/2021 of 20 January 2021 and when monitoring the use of force by staff seconded to the Agency by the Member States for a long term, staff provided by Member States for short-term deployments and staff forming part of the reserve for rapid reaction for rapid border interventions while applying force in Frontex operational activities in accordance with the relevant Decision of the Executive Director. The Agency may restrict some of the rights referred to in Article 1(2) of this Decision of data subjects contained in a report on the use of force in relation to information (including statements of witnesses and other documents) capable of seriously affecting the verification of the report and any future or ongoing follow-up actions including inquiries, pre-disciplinary, disciplinary or suspension proceedings; (i) pursuant to Article 25(1)(b), (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 (h) of this paragraph and pursuant to relevant service level agreements, memoranda of understanding and working arrangements; (j) pursuant to Article 25(1)(b), (c), (g) and (h) of the Regulation, when providing or receiving assistance and cooperation to and from Member States’ competent national authorities, either at their request or on its own initiative in particular in the context of activities under points (f) to (h) of this paragraph and pursuant to provisions of the EBCG Regulation and Decisions of the Management Board; (k) pursuant to Article 25(1)(b), (c), (g) and (h) of the Regulation, when providing or receiving assistance to or from competent national authorities of the third countries and international organisations or cooperating with such authorities and organisations in particular pursuant to relevant, memoranda of understanding and working arrangements; (l) pursuant to Article 25(1)(e) of the Regulation, when processing personal data in the context of proceedings before the Court of Justice of the European Union or national courts and tribunals; (m) pursuant to Article 25(1)(h) of the Regulation, when the handling of requests for access by staff members to their medical files related to their medical and psychological fitness, if a direct access to these files could be harmful to the data subject concerned considering the health or mental status of the data subject. In such cases the Agency shall provide indirect access to the relevant medical information through the Agency’s medical advisor or an external medical provider; (n) pursuant to Article 25(1)(c), (d), (g) and (h) of the Regulation, when conducting security analyses which may lead to internal investigations related to cyber security incidents or IT system abuse, including external involvement of CERT-EU, ensuring internal security by means of video surveillance, access control and investigation purposes, securing communication and information systems and carrying out technical security counter-measures. The Agency may restrict some of the rights referred to in Article 1(2) of this Decision of data subjects in relation to information capable of seriously affecting those security analyses, means of ensuring internal security including access control, security investigations and technical security counter-measures.

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 Agency 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 Agency shall prepare and make public 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 Agency 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 Agency.

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

3 Restrictions shall not apply where the exercise of the restricted right would deprive the restriction of its purpose or adversely affect the rights or freedoms of other data subjects.

1 The Agency shall implement safeguards to prevent abuse and unlawful access or transfer of the personal data for which restrictions apply or could be applied. Such safeguards shall include technical and organisational measures and be detailed as necessary in Decisions of the Agency’s Management Board, Decisions of the Executive Director, operational plans drawn up in accordance with Article 38 of the EBCG Regulation, internal decisions, procedures and Administrative Notices. 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 and may result in lifting restrictions in accordance with paragraph 2. The reviews shall be documented by the designated controller for accountability purposes.

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 Agency retention rules, 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 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 DPO may request a review of the application of a restriction. The Agency shall inform the DPO in writing of the outcome of the review.

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

4 The designated controllers shall inform the DPO when a restriction has been lifted.

1 The Agency shall include a section in the data protection notices published on its website and intranet providing general information to data subjects on potential restrictions 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 Agency shall inform data subjects individually, in writing and without undue delay of ongoing or future restrictions of their rights. The Agency 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 Agency 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 Agency shall provide the information to the data subject.

1 Where the Agency 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 Agency 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 Agency 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 Agency 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 Agency 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.