Collection and processing in Luxembourg
EU regulation
Data Protection Principles
Controllers are responsible for compliance with a set of core principles which apply to all processing of personal data. Under these principles, personal data must be (Article 5):
- Processed lawfully, fairly and in a transparent manner (lawfulness, fairness and transparency principle)
- Collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes (purpose limitation principle)
- Adequate, relevant and limited to what is necessary in relation to the purpose(s) (data minimization principle)
- Accurate and where necessary kept up-to-date (accuracy principle)
- Kept in a form which permits identification of data subjects for no longer than is necessary for the purpose(s) for which the data are processed (storage limitation principle)
- Processed in a manner that ensures appropriate security of the personal data, using appropriate technical and organizational measures (integrity and confidentiality principle)
The controller is responsible for and must be able to demonstrate compliance with the above principles (accountability principle). Accountability is a core theme of the GDPR. Organizations must not only comply with the GDPR but also be able to demonstrate compliance perhaps years after a particular decision relating to processing personal data was taken. Record keeping, audit and appropriate governance will all form a key role in achieving accountability.
Legal Basis under Article 6
In addition, in order to satisfy the lawfulness principle, each use of personal data must be justified by reference to an appropriate basis for processing. The legal bases (also known lawful bases or lawful grounds) under which personal data may be processed are (Article 6(1)):
- With the consent of the data subject (where consent must be "freely given, specific, informed and unambiguous," and must be capable of being withdrawn at any time)
- Where necessary for the performance of a contract to which the data subject is party, or to take steps at the request of the data subject prior to entering into a contract
- Where necessary to comply with a legal obligation (of the EU) to which the controller is subject
- Where necessary to protect the vital interests of the data subject or another person (generally recognized as being limited to 'life or death' scenarios, such as medical emergencies)
- Where necessary for the performance of a task carried out in the public interest, or in the exercise of official authority vested in the controller
- Where necessary for the purposes of the legitimate interests of the controller or a third party (which is subject to a balancing test, in which the interests of the controller must not override the interests or fundamental rights and freedoms of the data subject. Note also that this basis cannot be relied upon by a public authority in the performance of its tasks)
Special Category Data
Processing of special category data is prohibited (Article 9), except where one of the following exemptions applies (which, in effect, operate as secondary bases which must be established for the lawful processing of special category data, in addition to an Article 6 basis):
- With the explicit consent of the data subject
- Where necessary for the purposes of carrying out obligations and exercising rights under employment, social security and social protection law or a collective agreement
- Where necessary to protect the vital interests of the data subject or another natural person who is physically or legally incapable of giving consent
- In limited circumstances by certain not-for-profit bodies
- Where processing relates to the personal data which are manifestly made public by the data subject
- Where processing is necessary for the establishment, exercise or defense of legal claims or where courts are acting in their legal capacity
- Where necessary for reasons of substantial public interest on the basis of Union or Member State law, proportionate to the aim pursued and with appropriate safeguards
- Where necessary for preventative or occupational medicine, for assessing the working capacity of the employee, medical diagnosis, provision of health or social care or treatment of the management of health or social care systems and services
- Where necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of health care and of medical products and devices
- Where necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with restrictions set out in Article 89(1)
Member States are permitted to introduce domestic laws including further conditions and limitations for processing with regard to processing genetic data, biometric data and health data.
Criminal Convictions and Offences data
Processing of personal data relating to criminal convictions and offences is prohibited unless carried out under the control of an official public authority, or specifically authorized by Member State domestic law (Article 10).
Processing for a Secondary Purpose
Increasingly, organizations wish to re-purpose personal data – ie, use data collected for one purpose for a new purpose which was not disclosed to the data subject at the time the data were first collected. This is potentially in conflict with the core principle of purpose limitation; to ensure that the rights of data subjects are protected. The GDPR sets out a series of factors that the controller must consider to ascertain whether the new process is compatible with the purposes for which the personal data were initially collected (Article 6(4)). These include:
- Any link between the original purpose and the new purpose
- The context in which the data have been collected
- The nature of the personal data, in particular whether special categories of data or data relating to criminal convictions are processed (with the inference being that if they are it will be much harder to form the view that a new purpose is compatible)
- The possible consequences of the new processing for the data subjects
- The existence of appropriate safeguards, which may include encryption or pseudonymization
If the controller concludes that the new purpose is incompatible with the original purpose, then the only bases to justify the new purpose are consent or a legal obligation (more specifically an EU or Member State law which constitutes a necessary and proportionate measure in a democratic society).
Transparency (Privacy Notices)
The GDPR places considerable emphasis on transparency, ie, the right for a data subject to understand how and why his or her data are used, and what other rights are available to data subjects to control processing. The presentation of granular, yet easily accessible, privacy notices should, therefore, be seen as a cornerstone of GDPR compliance.
Various information must be provided by controllers to data subjects in a concise, transparent and easily accessible form, using clear and plain language (Article 12(1)).
The following information must be provided (Article 13) at the time the data are obtained:
- The identity and contact details of the controller
- The data protection officer's contact details (if there is one)
- Both the purpose for which data will be processed and the legal basis for processing, including, if relevant, the legitimate interests for processing
- The recipients or categories of recipients of the personal data
- Details of international transfers
- The period for which personal data will be stored or, if that is not possible, the criteria used to determine this
- The existence of rights of the data subject including the right to access, rectify, require erasure, restrict processing, object to processing and data portability
- Where applicable, the right to withdraw consent, and the right to complain to supervisory authorities
- The consequences of failing to provide data necessary to enter into a contract
- The existence of any automated decision making and profiling and the consequences for the data subject
- In addition, where a controller wishes to process existing data for a new purpose, they must inform data subjects of that further processing, providing the above information
Somewhat different requirements apply (Article 14) where information has not been obtained from the data subject.
Rights of the Data Subject
Data subjects enjoy a range of rights to control the processing of their personal data, some of which are very broadly applicable, while others only apply in quite limited circumstances. Controllers must provide information on action taken in response to requests within one calendar month as a default, with a limited right for the controller to extend this period thereby a further two months where the request is onerous.
Right of access (Article 15)
A data subject is entitled to request access to and obtain a copy of his or her personal data, together with prescribed information about the how the data have been used by the controller.
Right to rectify (Article 16)
Data subjects may require inaccurate or incomplete personal data to be corrected or completed without undue delay.
Right to erasure ('right to be forgotten') (Article 17)
Data subjects may request erasure of their personal data. The forerunner of this right made headlines in 2014 when Europe’s highest court ruled against Google (Judgment of the CJEU in Case C-131/12), in effect requiring Google to remove search results relating to historic proceedings against a Spanish national for an unpaid debt on the basis that Google as a data controller of the search results had no legal basis to process that information.
The right is not absolute; it only arises in quite a narrow set of circumstances, notably where the controller no longer needs the data for the purposes for which they were collected or otherwise lawfully processed, or as a corollary of the successful exercise of the objection right, or of the withdrawal of consent.
Right to restriction of processing (Article 18)
Data subjects enjoy a right to restrict processing of their personal data in defined circumstances. These include where the accuracy of the data is contested; where the processing is unlawful; where the data are no longer needed save for legal claims of the data subject, or where the legitimate grounds for processing by the controller are contested.
Right to data portability (Article 20)
Where the processing of personal data is justified either on the basis that the data subject has given his or her consent to processing or where processing is necessary for the performance of a contract, then the data subject has the right to receive or have transmitted to another controller all personal data concerning him or her in a structured, commonly used and machine-readable format (eg, commonly used file formats recognized by mainstream software applications, such as .xsl).
Right to object (Article 21)
Data subjects have the right to object to processing on the legal basis of the legitimate interests of the data controller or where processing is in the public interest. Controllers will then have to suspend processing of the data until such time as they demonstrate “compelling legitimate grounds” for processing which override the rights of the data subject.
In addition, data subjects enjoy an unconditional right to object to the processing of personal data for direct marketing purposes at any time.
The right not to be subject to automated decision making, including profiling (Article 22)
Automated decision making (including profiling) "which produces legal effects concerning [the data subject] … or similarly significantly affects him or her" is only permitted where:
- Necessary for entering into or performing a contract
- Authorized by EU or Member State law
- The data subject has given their explicit (ie, opt-in) consent
Further, where significant automated decisions are taken on the basis of grounds (a) or (c), the data subject has the right to obtain human intervention, to contest the decision, and to express his or her point of view.
Luxembourg regulation
The Law of August 1, 2018 on the organization of the National Data Protection Commission provides specific regulations concerning the processing of personal data for the purposes of the surveillance of employees at the workplace by the employer (thus modifying Article L. 261-1(1) of the Labor Code). In this respect, the employer must comply with a certain set of obligations, in addition to its general obligations as a data controller under the GDPR.
Notably, the employer must inform certain employee representation bodies of the contemplated processing of personal data. This information must contain a detailed description of the purposes of the contemplated processing, the means of implementation of the surveillance, and the retention policy for the personal data concerned.
When employees or their representation bodies are informed that their personal data may be processed for surveillance purposes, they may ask the CNPD for a preliminary opinion on the compliance of such surveillance project with applicable data protection legislation. The employer may not begin surveillance until the CNPD hands out its decision.
When surveillance has already been put it place by the employer, employees have a right to file a complaint with the CNPD if they believe that processing does not comply with applicable data protection legislation. Filing such complaint may not be held as a grounds for dismissal.
Finally, the Law of August, 1 2018 on the organization of the National Data Protection Commission provides three specific provisions complementing the GDPR in matters left to Member State discretion.
1. Processing of personal data for the sole purpose of journalism, university research, art or literature
This processing is not subject to:
- Prohibitions on processing special categories of personal data set out under Article 9(1) GDPR
- Limitations applicable to processing of personal data relating to criminal convictions and offences (Article 10, GDPR):
- Provided such processing concerns data made publicly available (in an obvious fashion) by the data subject
- If the data are directly connected to the public life of the data subject
- If the data are directly connected to an event in which the data subject has willingly become involved
- Obligations imposed on the data controller in case of a transfer of personal data to third countries or international organizations (Chapter V, GDPR)
- The obligation of the data controller to provide information to the data subject where personal data are collected from the data subject (Article 13, GDPR), when providing such information would jeopardize the collection of personal data from such data subject
- The obligation of the data controller to provide information to the data subject where personal data have not been obtained from the data subject (Article 14, GDPR), when providing such information would jeopardize either the collection of personal data, a publication project, making such personal data available to the public in any way whatsoever or would provide indications as to the source of information
- The obligation to provide the data subject with the right of access to his or her personal data. Such right is postponed and limited, in that it cannot enable the data subject to identify the source of information. This right may be exercised only through the CNPD and in the presence of the President of the Press Council or his or her representative
2. Processing of personal data for scientific or historical research purposes, for statistical purposes, or for archiving purposes in the public interest
When personal data is processed for scientific or historical research purposes or for statistical purposes, the rights of the data subject specified under articles 15, 16, 18 and 21 GDPR may be limited provided that such rights would make impossible or seriously impede the accomplishment of the specific concerned purposes.
Such limitation on data subject rights may only be applied where the data controller puts in place an extensive set of additional appropriate safeguard measures for the rights and freedom of the data subject (Article 65 of the Law of August 1, 2018 on the organization of the National Data Protection Commission), such as, in particular:
- The appointment of a DPO
- Performing an impact assessment of the contemplated processing on the protection of personal data
- Anonymizing the data processed
In any event, the additional safeguard measures must be put in place in accordance with the nature, scope, context and purposes of the processing, as well as the risks for the rights and freedoms of the relevant data subjects. In this regard, if the data controller elects not to put in place one of the measures listed in Article 65 of the Law of August 1, 2018 on the organization of the National Data Protection Commission, it must then formally document and justify why it chose not to do so.
Finally, processing of special categories of personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes (Article 9(2)(j), GDPR) is allowed under the same conditions (ie, putting in place additional appropriate safeguard measures as defined under Article 65 of the Law of August 1, 2018 on the organization of the National Data Protection Commission).
3. Processing of special categories of personal data
Genetic data may not be processed for purposes of exercising the controller's own rights in the field of employment and insurance law.
