Guidelines 06/2020 on the interplay of the Second Payment Services Directive and the GDPR

Section  2.2 Article 6 (1)(b) of the GDPR (processing is necessary for the performance of a contract)

14 Payment services are always provided on a contractual basis between the payment services user and the payment services provider. As stated in recital 87 of the PSD2, “[t]his Directive should concern only contractual obligations and responsibilities between the payment service user and the payment service provider.” In terms of the GDPR, the main legal basis for the processing of personal data for the provision of payment services is Article 6 (1) (b) of the GDPR, meaning that the processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract.

15 The payment services under the PSD2 are defined in annex 1 of the PSD2. The provision of these services as defined by the PSD2 is a prerequisitefor the establishment of a contract in which parties have access to payment account data of the payment service user. In relation to payment initiation services and account information services under the PSD2, contracts may incorporate terms that also impose conditions about additional services that are not regulated by the PSD2. The EDPB Guidelines 2/2019 on the processing of personal data under Article 6(1)(b) GDPR in the context of the provision of online services to data subjects make clear that controllers have to assess what processing of personal data is objectively necessary to perform the contract. These Guidelines point out that the justification of the necessity is dependent on the nature of the service, the mutual perspectives and expectations of the parties to the contract, the rationale of the contract and the essential elements of the contract.

16 The EDPBguidelines 2/2019also make clear that, in light of Article 7 (4) of the GDPR, a distinctionis made between processing activities necessary for the performance of a contract and terms making the service conditional on certain processing activities that are not in fact necessary for the performance of the contract. ‘Necessary for performance’ clearly requires something more than a contractual clause. The controller should be able to demonstrate how the main object of the specific contract with the data subject cannot, as a matter of fact, be performed if the specific processing of the personal data in question does not occur. Merely referencing or mentioning data processing in a contract is not enough to bring the processing in question within the scope of Article 6 (1) (b) of the GDPR.

17 Article 5 (1) (b) of the GDPR provides for the purpose limitation principle, which requires that personal data must be collected for specified, explicit, and legitimate purposes and not further processed in a manner that is incompatible with those purposes. When assessing whether Article 6 (1) (b) is an appropriate legal basis for an online (payment) service, regard should be given to the particular aim, purpose, or objective of the service. The purposes of the processing must be clearly specified and communicated to the data subject, in line with the controller’s purpose limitation and transparency obligations. Assessing what is ‘necessary’ involves a combined, fact-based assessment of the processing “for the objective pursued and of whether it is less intrusive compared to other options for achieving the same goal”. Article 6 (1) (b) does not cover processing which is useful but not objectively necessary for performing the contractual service or for taking relevant pre-contractual steps at the request of the data subject, even if it is necessary for the controller’s other business purposes.

18 The EDPBGuidelines 2/2019 make clear that contracts cannot artificially expand the categories of personal data or types of processing operation that the controller needs to carry out for the performance of the contract within the meaning of Article 6 (1) (b). These Guidelines also address cases in which ‘take it or leave it’ situations may be created for data subjects who may only be interested in one of the services. This could happen when a controller wishes to bundle several separate services or elements of a service with different fundamental purposes, features or rationale into one contract. Where the contract consists of several separate services or elementsof a service that can in fact reasonably be performed independently of one another, the applicability of Article 6 (1) (b) should be assessed in the context of each of those services separately, looking at what is objectively necessary to perform each of the individual services which the data subject has a ctively requested or signed up for.

19 In line with the abovementioned Guidelines, controllers have to assess what is objectively necessary for the performance of the contract. Where controllers cannot demonstrate that the processing of the personal payment account datai s objectively necessary for the provision of each of the seservices separately, Article 6 (1) (b) of the GDPR is not a valid legal ground for processing. In these cases, the controller should consider another legal basis for processing.