Commission Decision (EU) 2024/1043 of 9 April 2024 laying down internal rules concerning the restriction of certain data subjects’ rights in the context of processing of personal data by the Chief Confidential Counsellor and the confidential counsellors in the performance of the tasks relating to the prevention of and fight against psychological and sexual harassment
Scope and subject matter
1. This Decision applies to the processing of personal data by the Commission as controller for the purposes of the performance of the tasks of the Chief Confidential Counsellor and the confidential counsellors to prevent and fight psychological or sexual harassment, as set out in Decision C(2023) 8630.
2. The categories of personal data covered by this Decision include identification, contact and behavioural data related to the behaviour of the alleged harasser towards the victim or other persons concerned, as well as personal data referred to in Article 10(1) and Article 11 of Regulation (EU) 2018/1725.
3. This Decision lays down the rules to be followed by the Commission to inform data subjects of the processing of their personal data in accordance with Articles 14, 15 and 16 of Regulation (EU) 2018/1725.
4. It also lays down the conditions under which the Commission may restrict the application of Articles 4, 14 to 17, 19, 20 and 35 of Regulation (EU) 2018/1725, in accordance with Article 25(1), point (h), thereof.
Applicable restrictions
1. Subject to Articles 3 to 7 of this Decision, where the exercise of the rights and obligations referred to in the following provisions would adversely affect the protection of the data subject or the rights and freedoms of others in accordance with Article 25(1), point (h), of Regulation (EU) 2018/1725, the Commission may restrict the application of:
(a)
Articles 14 to 17, 19, 20 and 35 of Regulation (EU) 2018/1725;
(b)
the principle of transparency laid down in Article 4(1), point (a), of Regulation (EU) 2018/1725 insofar as its provisions correspond to the rights and obligations provided for in Articles 14 to 17, 19 and 20 of that Regulation.
The Commission shall exercise the power granted in the first subparagraph only in order to safeguard either of the following:
(a)
the objectives of the informal procedure set out in Chapter II of Title II of Decision C(2023) 8630;
(b)
the performance of the tasks of the Chief Confidential Counsellor and of the confidential counsellors of the Commission for the prevention of and fight against psychological and sexual harassment.
The Commission shall exercise the power granted in the first subparagraph only in respect of either of the following personal data categories processed by the Commission:
(a)
data which victims report to the Chief Confidential Counsellor and the confidential counsellors of the Commission;
(b)
data which are detected by the Chief Confidential Counsellor as part of their task to inform the Director-General or the Head of Service concerned, and, if the victim agrees, IDOC, of recurrent allegations of harassment occurring in the same Directorate-General or Service.
2. The Commission may do so where the exercise of those rights and obligations would adversely affect the protection of the data subjects or the rights and freedoms of others in line with Article 25(1), point (h) of Regulation (EU) 2018/1725.
3. Paragraph 1 shall not affect the application of other Commission decisions laying down internal rules concerning the provision of information to data subjects and the restrictions under Article 25 of Regulation (EU) 2018/1725.
4. Before restrictions are applied, the Commission shall carry out a case-by-case assessment of their necessity and proportionality. Restrictions shall be limited to what is strictly necessary to achieve their objective.
Provision of information to data subjects
1. The Commission shall publish on its website a data protection notice that informs all data subjects of its activities involving processing of their personal data for the purposes set out in Article 2(1), second subparagraph.
2. The data protection notice shall include a section providing general information to data subjects on the potential for restriction of data subjects’ rights pursuant to Article 2(1). It shall cover the rights that may be restricted, the grounds on which restrictions may be applied and potential duration of those restrictions.
3. The Commission shall individually inform, by appropriate means, victims and witnesses who report cases of psychological and sexual harassment, about the processing of their personal data.
4. Upon completion of the informal procedure with the Chief Confidential Counsellor, the Commission shall inform the alleged harasser whose data subject rights have been restricted in accordance with this Decision individually, in writing and without undue delay of the relevant restrictions of their rights. The Commission shall inform the data subject of the principal reasons on which the application of the restriction is based, of their right to consult the Data Protection Officer with a view to challenging the restriction, and of their right to lodge a complaint with the European Data Protection Supervisor. The Commission may continue to restrict certain data subject rights linked to personal data processed for the purposes of the informal procedure after the completion of the informal procedure if this is strictly necessary for the protection of the victim or other persons concerned, and shall, if possible, provide an indication of a period in which the rights will be fully restored.
Right of access by data subjects, right of erasure and right to restriction of processing
1. Where the Commission restricts, wholly or partly, the right of access to personal data by data subjects, the right of erasure, or the right to restriction of processing as referred to in Articles 17, 19 and 20 of Regulation (EU) 2018/1725, it shall inform the data subject concerned in writing and without undue delay, in its reply to the request for access, erasure or restriction of processing, of the following:
(a)
the restriction applied and the principal reasons on which the application of the restriction is based;
(b)
the possibility of lodging a complaint with the European Data Protection Supervisor or of seeking a judicial remedy with Court of Justice of the European Union.
2. The provision of information concerning the principal reasons for the restriction referred to in paragraph 1, point (a), may be deferred, omitted, or denied for as long as this would cancel the effect of the restriction The Commission shall assess if such a restriction is justified on a case-by-case basis.
Communication and notification of personal data breaches
1. Where the Commission is under an obligation to communicate a personal data breach to the data subject under Article 35(1) of Regulation (EU) 2018/1725, 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 European Data Protection Supervisor at the time of the notification of the personal data breach.
2. Where the reasons for the restriction no longer apply, the Commission shall communicate the personal data breach to the data subject concerned and inform them of the principal reasons for the restriction and of their right to lodge a complaint with the European Data Protection Supervisor.
3. Where the Commission notifies the personal data breach to the European Data Protection Supervisor pursuant to Article 34(1) of Regulation (EU) 2018/1725, it shall accompany the notification with the record it made pursuant to Article 6 of this Decision.
Recording and registering of restrictions
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 Commission under Article 31 of the Regulation (EU) 2018/1725. The record shall state how the exercise of the right by the relevant data subject would undermine the applicable ground set out in Article 25(1), point (h), of Regulation (EU) 2018/1725.
2. The Commission shall record the reasons for any individual assessment concerning each restriction applied pursuant to this Decision, including an assessment of the risks to the rights and freedoms of data subjects of imposing a restriction and the necessity and proportionality of the restriction, taking into account the relevant elements set out in Article 25(2) of Regulation (EU) 2018/1725.
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.
4. The Commission shall prepare periodic reports on the application of Article 25 of the Regulation (EU) 2018/1725.
Duration of restrictions
1. Restrictions referred to in Articles 3, 4 and 5 shall continue to apply as long as the reasons justifying them remain applicable.
2. Where the reasons justifying the restriction referred to in Articles 3, 4 or 5 no longer apply, the Commission shall lift the restriction. At the same time, the Commission shall also provide the principal reasons for applying that restriction to the data subject and inform them of the possibility 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.
3. The Commission shall review the application of the restrictions referred to in Articles 3, 4 and 5 every six months. The review shall include an assessment of the necessity and proportionality of the restriction, taking into account the relevant elements set out in Article 25(2) of Regulation (EU) 2018/1725.
Safeguards and storage periods
1. The Commission shall implement safeguards to prevent abuse and unlawful access to or transfer of personal data in respect of which restrictions apply or could be applied. Such safeguards shall include technical and organisational measures such as:
(a)
a clear definition of roles, responsibilities, access rights and procedural steps;
(b)
a secure electronic environment to prevent unlawful or accidental access to or transfer of electronic data to unauthorised persons;
(c)
a secure storage and processing of paper documents limited to what is strictly necessary to achieve the purpose of processing;
(d)
due monitoring of restrictions and a periodic review of their application, which shall be conducted at least every six months.
2. Restrictions referred to in Article 2 shall be lifted as soon as the reasons justifying them cease to exist.
3. The personal data shall be retained in accordance with the applicable Commission retention rules, to be defined in the records kept under Article 31 of Regulation (EU) 2018/1725. At the end of the retention period, the personal data shall be deleted, anonymised or transferred to the archives in accordance with Article 13 of Regulation (EU) 2018/1725.
Ex-ante review by the Data Protection Coordinator and ex-post review by the Data Protection Officer of the Commission
1. The Data Protection Coordinator of the Directorate-General responsible for Human Resources shall be consulted in advance of any restrictions that may be applied and verify their compliance with this Decision.
2. The Data Protection Officer of the Commission shall be informed, without undue delay, whenever data subjects’ rights are restricted in accordance with this Decision. Upon request, the Data Protection Officer shall be provided with access to the record and any documents containing underlying factual and legal elements.
3. The Data Protection Officer may request a review of the application of a restriction. The Data Protection Officer shall be informed in writing of the outcome of the requested review.
4. The Commission shall document the involvement of the Data Protection Officer and the Data Protection Coordinator, including what information is shared with them, in each case where the rights and obligations referred to in Article 2(1), first subparagraph, are restricted.
Entry into force
This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
