Guidelines 9/2020 on relevant and reasoned objection under Regulation 2016/679

Paragraph 3.2.2  Risks to fundamental rights and freedoms of data subjects

39. The issue at stake concerns the impact the draft decision as a whole would have on the data subjects’ rights and fundamental freedoms. This may concern the findings the LSA made as to whether the controller or processor breached the GDPR and/or the imposition of corrective measures.

40. The approach to assessing the risk posed by the draft decision is not the same as that applied by a controller in carrying out a DPIA to establish the risk of an intended processing operation, since the subject matter of the assessment is totally different: namely, the effects produced by the conclusions drawn by the LSA as set out in the draft decision regarding an infringement that has been found to have been committed/not to have been committed. Those conclusions may entail the taking of certain measures (the ‘envisaged action’). As said, it is by having regard to the draft decision as a whole that such risk is to be demonstrated by the CSA.

41. Recital 129 of the GDPR clarifies that “[t]he powers of supervisory authorities should be exercised in accordance with appropriate procedural safeguards set out in Union and Member State law, impartially, fairly and within a reasonable time” and that “each measure should be appropriate, necessary and proportionate in view of ensuring compliance with this Regulation, taking into account the circumstances of each individual case, respect the right of every person to be heard before any individual measure which would affect him or her adversely is taken and avoid superfluous costs and excessive inconveniences for the persons concerned”.

42. Therefore, the evaluation of the risks posed by the draft decision to the rights and freedoms of data subjects can rely, inter alia, on the appropriateness, necessity, and proportionality of the measures envisaged (or not envisaged) therein as based on the findings related to the existence of an infringement and the possible remedial actions set forth by the controller / processor.

43. Additionally, the risks at stake may refer to the impact of the draft decision on the fundamental rightsand freedoms of the data subjects whose personal data are processed by the controller, but also to the impact on the rights and freedoms of data subjects whose personal data might be processed in the future and to the possible reduction of future infringements of the GDPR.

Example: The draft decision concluded that the principle of data minimisation enshrined in Article 5 (1)(c) GDPR was not breached. The CSA brings factual and legal arguments to show the processing activity carried out by the controller had resulted in a breach of Article 5 (1)(c) and to argue that a reprimand should be issued against the controller. In order to demonstrate the significance of the risks for the rights and freedoms of data subjects, the CSA argued that the absence of a reprimand for the violation of a fundamental principle would amount to a dangerous precedent, sending a deceiving message to the market and to data subjects, and would endanger the data subjects whose personal data are and will be processed by the controller.