Index 
Texts adopted
Wednesday, 12 March 2014 - StrasbourgFinal edition
Pakistan's regional role and political relations with the EU
 Anti-missile shield for Europe
 European fishing sector and the EU-Thailand free trade agreement
 European gastronomic heritage: cultural and educational aspects
 Protection of individuals with regard to the processing of personal data ***I
  Resolution
  Consolidated text
 Protection of the euro against counterfeiting (Pericles 2020) ***
 EU-Azerbaijan Agreement on the facilitation of the issuance of visas ***
 EU-Azerbaijan Agreement on the readmission of persons residing without authorisation ***
 Humanitarian engagement of armed non-State actors in child protection
 Number of interparliamentary delegations, delegations to joint interparliamentary committees and delegations to parliamentary cooperation committees and multilateral Parliamentary Assemblies
 Provision of food information to consumers as regards the definition of 'engineered nanomaterials'
 Processing of personal data for the purposes of crime prevention ***I
  Resolution
  Consolidated text
 Implementation of the Single European Sky ***I
  Resolution
  Consolidated text
 Aerodromes, air traffic management and air navigation services ***I
  Resolution
  Consolidated text
 Package travel and assisted travel arrangements ***I
  Resolution
  Consolidated text
 Fluorinated greenhouse gases ***I
  Resolution
  Consolidated text
 Freedom of movement for workers ***I
  Resolution
  Consolidated text
 Assessment of the effects of certain public and private projects on the environment ***I
  Resolution
  Consolidated text
 Statistics relating to external trade with non-member countries (delegated and implementing powers) ***I
  Resolution
  Consolidated text
 Copernicus Programme ***I
  Resolution
  Consolidated text
 European GNSS Agency ***I
  Resolution
  Consolidated text
 Priorities for EU relations with the Eastern partnership countries
 US NSA surveillance programme, surveillance bodies in various Member States and impact on EU citizens' fundamental rights
 Evaluation of justice in relation to criminal justice and the rule of law
 Preparing for a fully converged audiovisual world
 EU citizenship report 2013
 European Public Prosecutor’s Office
  Resolution
  Annex
 2013 progress report on Turkey
 EU strategy for the Arctic

Pakistan's regional role and political relations with the EU
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European Parliament resolution of 12 March 2014 on Pakistan’s regional role and political relations with the EU (2013/2168(INI) )
P7_TA(2014)0208 A7-0117/2014

The European Parliament,

–   having regard to Articles 2 and 21 of the Treaty on European Union (TEU) and to the Treaty on the Functioning of the European Union (TFEU),

–   having regard to the EU-Pakistan 5-year Engagement Plan of February 2012(1) ,

–   having regard to the EU Strategic Framework and Action Plan on Human Rights and Democracy (11855/2012), as adopted by the Foreign Affairs Council on 25 June 2012(2) ,

–   having regard to the European Security Strategy entitled ‘A Secure Europe in a Better World’, adopted by the European Council on 12 December 2003, and to the report on its implementation entitled ‘Providing Security in a Changing World’, endorsed by the European Council of 11-12 December 2008,

–   having regard to Regulation (EU) No 978/2012 of the European Parliament and of the Council of 25 October 2012 applying a scheme of generalised tariff preferences(3) , and providing, in particular, for the special incentive arrangement for ‘sustainable development and good governance’ (‘GSP+’),

–   having regard to Annex VIII of the above regulation, which lists the UN/ILO conventions on core human and labour rights and those related to the environment and to governance principles which Pakistan has ratified and has agreed to effectively implement,

–   having regard to the Foreign Affairs Council conclusions on Pakistan of 11 March 2013,

–   having regard to its resolution of 7 February 2013 on recent attacks on medical aid workers in Pakistan(4) , its position of 13 September 2012 on the proposal for a regulation of the European Parliament and of the Council introducing emergency autonomous trade preferences for Pakistan(5) , and its resolution of 15 December 2011 on the situation of women in Afghanistan and Pakistan(6) , and to the visit to Pakistan by a delegation from its Subcommittee on Human Rights in August 2013,

–   having regard to the report of the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedom while countering terrorism, Ben Emmerson of 18 September 2013, and the report of the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, of 13 September 2013,

–   having regard to UN General Assembly resolution 68/178 of 18 December 2013 on protection of human rights and fundamental freedoms while countering terrorism,

–   having regard to Rule 48 of its Rules of Procedure,

–   having regard to the report of the Committee on Foreign Affairs and the opinion of the Committee on Development (A7-0117/2014 ),

A.   whereas Pakistan’s strategic role in the region, its relationship to its neighbours and EU-Pakistan relations are of major and growing importance to the EU, given the country’s pivotal location at the heart of a volatile neighbourhood, its centrality to security and development in Central and South Asia, and its crucial role in combating terrorism, non-proliferation, drug trafficking, human trafficking and other transnational threats, all of which affect the security and well-being of European citizens;

B.   whereas parliamentary elections in May 2013 marked the first transfer of power from one elected civilian government to another in the modern history of Pakistan; whereas Pakistan’s democratic process is underpinned by wider societal changes, including a growing urban middle class and an increasingly vibrant civil society and independent media;

C.   whereas the country’s political and economic progress is hampered by pervasive internal and regional security problems, such as extremism, sectarian strife, suicide and targeted killings, and lawlessness in the tribal areas, compounded by the weakness of law enforcement agencies and the criminal justice system;

D.   whereas Pakistan has one of the highest out-of-school populations in the world, with an estimated 12 million children not attending school and about two thirds of Pakistani women and half of Pakistani men being illiterate; whereas the country is still ranked 134th out of 135 countries in the World Economic Forum’s ‘gender gap’ report;

E.   whereas, according to the Global Climate Risk Index, Pakistan is among the twelve countries most affected by climate change in the last twenty years, has suffered severe flooding and water shortages and is directly affected by the glacial retreat on the Himalayas and Karakorum ranges;

F.   whereas Pakistan is a semi-industrialised, lower middle-income country, with around one third of its population living below the poverty line; whereas Pakistan is ranked in 146th place among the 187 countries listed in the 2012 Human Development Index (HDI), down from 145th place in the listing for 2011; whereas the economic situation of Pakistan has been harmed by successive natural disasters, and whereas a high level of insecurity, instability and widespread corruption in the country weaken its economic growth and limit the government’s ability to develop the state;

G.   whereas Pakistan is vulnerable to a wide range of hazards, predominantly floods and earthquakes; whereas the volatile security situation, together with Pakistan’s social challenges, are working as a catalyst in increasing its vulnerability; whereas multiple years of disasters have exhausted the coping strategies of already impoverished communities and severely reduced their resilience to future disasters;

H.   whereas Pakistan’s constructive contribution is vital for achieving reconciliation, peace and political stability in its neighbourhood and, most notably, in Afghanistan, especially in the context of the planned withdrawal of NATO combat troops in 2014;

I.   whereas Pakistan is one of the largest recipients of EU development and humanitarian assistance, and whereas the EU is Pakistan’s largest export market;

J.   whereas Pakistan is an increasingly important partner of the EU in combating terrorism, nuclear proliferation, human and drug trafficking, and organised crime, and in the pursuit of regional stability;

K.   whereas the EU and Pakistan have recently chosen to deepen and broaden their bilateral ties, as exemplified by the five-year engagement plan, launched in February 2012, and the first EU-Pakistan Strategic Dialogue, held in June 2012;

L.   whereas the aim of the EU-Pakistan five-year engagement plan of 2012 is to build a strategic relationship and forge a partnership for peace and development rooted in shared values and principles;

M.   whereas, as from 1 January 2014, Pakistan is now integrated into the EU’s special generalised scheme of trade preferences (GSP+);

N.   whereas in September 2012 the Ali Enterprises factory in Karachi, which produces jeans for the European market, was devastated by a fire, resulting in the death of 286 trapped workers; whereas the integration of Pakistan into the GSP+ scheme could boost production in the textile sector and make the improvement of labour rights and production conditions ever more important;

1.   Underscores the significance of the May 2013 elections for the consolidation of democracy and civilian rule in Pakistan; encourages Pakistani political elites to use this momentum to further strengthen democratic institutions, the rule of law and civilian control over all areas of public administration, especially the security forces and the judiciary, to promote internal and regional security, to enact governance reforms to revive economic growth, strengthen transparency and the fight against organised crime and alleviate social injustices, and to halt and remedy all human rights abuses;

2.   Takes the view, however, that building a sustainable democracy and a pluralistic society – as well as achieving greater social justice, eradicating deep poverty and malnutrition in parts of the country, raising the basic education level and preparing the country for the effects of climate change – will entail deep and difficult reforms of Pakistan’s political and socio-economic order, which remains characterised by feudalistic structures of land ownership and political allegiances and imbalances in priorities between military spending on the one hand and welfare provision, education and economic development on the other, and a dysfunctional revenue collection system that systematically undercuts the state’s capacity to deliver public goods;

3.   Supports and encourages the efforts of the Pakistani Government to develop effective means to prevent and monitor the possibility of future natural disasters and for more effective coordination and cooperation of humanitarian aid with local actors, international NGOs and fundraisers;

4.   Reiterates that good governance, accountable and inclusive institutions, separation of powers and respect for fundamental rights are important elements to address the nexus of development and security in Pakistan; further believes that elected civilian governments, endowed with democratic legitimacy, devolution of power to the provinces and effective local government are the best means of containing the tide of violence and extremism, restoring state authority in the FATA areas, and ensuring Pakistan’s sovereignty and territorial integrity;

5.   Supports, in this context, the intent of the Pakistani Government to enter into a peace dialogue with the Tehreek-e-Taliban Pakistan (TTP), provided this paves the way for a political and lasting solution to the insurgency and a stable democratic order, respecting human rights; appeals to the negotiators, however, to take account of the fact that the level of education – particularly among women – is an absolutely decisive factor for the advancement of societies and to make schooling for girls an essential element in the negotiations;

6.   Appreciates Pakistan’s continued commitment to fight terrorism on both sides of its border, and encourages the authorities to take bolder steps to further limit the possibilities for the recruitment and training of terrorists on Pakistan’s territory, which constitutes a phenomenon that is making certain areas of Pakistan a safe haven for terrorist organisations, whose aim is to destabilise the country and the region, most importantly Afghanistan;

7.   Notes that the Pakistani Taliban leader Hakimullah Mehsud was killed by a US-operated drone on 1 November 2013 and that the Pakistani Parliament and the new government have formally opposed such interventions and that limits to the use of drone attacks should be framed more clearly in international law;

8.   Calls on the Pakistani Government to fulfil its security obligations and responsibilities by further engaging in the fight against extremism, terrorism and radicalisation, with the implementation of strict and uncompromising security measures and law enforcement, as well as by addressing inequality and socio-economic issues likely to fuel the radicalisation of Pakistani youth;

9.   Notes that the Pakistani Government has clearly expressed its opposition to US drone strikes on its territory; welcomes the UN General Assembly resolution which calls for further clarification of the legal framework applicable for the use of armed drones;

10.   Welcomes Pakistan’s contribution to state-building and reconciliation processes in Afghanistan, including assistance in facilitating the restart of peace talks; expects Pakistan’s positive attitude to continue in the run-up to Afghanistan’s presidential elections and beyond; expresses concern about geopolitical competition among neighbouring powers over influence in Afghanistan after the withdrawal of NATO combat troops;

11.   Sets its hope in Pakistan’s constructive role in promoting regional stability, including when it comes to the presence of NATO and EU Member States in post-2014 Afghanistan, by further advancing the trialogue format of engagement in Afghanistan with India, Turkey, China, Russia and the United Kingdom, and by fostering regional cooperation in the fight against trafficking in people, drugs, and goods;

12.   Is encouraged by recent tangible progress in the dialogue between Pakistan and India, especially as regards trade and people-to-people contacts, made possible by the constructive attitude of both parties; regrets that the dialogue’s achievements remain vulnerable to contingent events, such as ongoing incidents on the Line of Control separating Pakistan-occupied and Indian-occupied parts of Kashmir; asks both governments to ensure appropriate chains of command, accountability of military staff, and military-to-military dialogue, in order to avoid similar incidents in the future;

13.   Recognises Pakistan’s legitimate interest in building up strategic, economic and energy ties with China; considers it important that closer Pakistani-Chinese relations reinforce geopolitical stability in South Asia;

14.   Notes Pakistan’s pursuit of full membership of the Shanghai Cooperation Organisation (SCO) as a welcome sign of the country’s ambition to become more involved in multilateral initiatives; notes, however, the absence of any formal cooperation mechanism between the SCO and the EU, and points to divergences in their respective normative bases and outlooks on global issues;

15.   Is concerned by reports that Pakistan is considering exporting nuclear weapons to third countries; expects the EU and its Members States, despite official denials of the reports, to make clear to Pakistan that the export of nuclear weapons is unacceptable; calls on Pakistan, as a nuclear weapon state, to legally ban exports of all nuclear weapons-related material or know-how and to actively contribute to international non-proliferation efforts; considers that the signing and ratification of the Non-Proliferation Treaty (NPT) by Pakistan – as well as India – would demonstrate a strong commitment to peaceful regional co-existence and enormously contribute to the security of the whole region;

16.   Believes that the battle against extremism and radicalism is directly linked to stronger democratic processes and reaffirms the EU’s strong interest in, and continued support for, a democratic, secure and well-governed Pakistan, with an independent judicial system and good governance, that upholds the rule of law and human rights, enjoys friendly relations with neighbours and projects a stabilising influence in the region;

17.   Recalls that EU-Pakistan relations traditionally developed inside a framework focused on development and trade; appreciates the significant and enduring contribution of EU development and humanitarian cooperation and welcomes the decision to grant Pakistan the benefit of the EU’s GSP+ as from 2014; calls on Pakistan to fully comply with the relevant conditions attached thereto and invites the Commission to guarantee that enhanced monitoring is strictly applied, as provided for under the new GSP Regulation and underlines the fact that cooperation, particularly in the education, democracy-building and climate change adaption sectors, should continue to receive primary focus;

18.   Is convinced that EU-Pakistan relations need to grow deeper and more comprehensive by developing political dialogue, thereby maintaining a relationship of mutual interest amongst equal partners; welcomes, in this context, the adoption of the five-year engagement plan and the commencement of the EU-Pakistan Strategic Dialogue, reflecting the increased weight of political and security cooperation, including on counter-terrorism policy, disarmament and non-proliferation, as well as on migration, education and culture; expects, however, more progress in all areas of the engagement plan;

19.   Encourages both the EU and Pakistan to cooperate in the implementation process and to monitor progress on a regular basis by strengthening the dialogue between both parties in the long term;

20.   Considers that Pakistan’s democratic transition has engendered an opportunity for the EU to follow a more explicitly political approach in bilateral relations and provision of assistance; believes that EU support to Pakistan should prioritise the consolidation of democratic institutions at all levels, the strengthening of state capacity and good governance, the building of effective law enforcement and civilian counter-terrorism structures, including an independent judiciary, and the empowerment of civil society and free media;

21.   Welcomes, in this regard, the already existing comprehensive democracy support programmes in connection with the implementation of the 2008 and 2013 recommendations of the EU election observation missions;

22.   Invites the EEAS and the Commission to pursue a nuanced and multi-dimensional policy towards Pakistan that synergises all the relevant instruments at the EU’s disposal, such as political dialogue, security cooperation, trade and assistance, in line with the EU’s comprehensive approach to external action and with a view to preparations for the next EU-Pakistan summit;

23.   Asks the EEAS, the Commission and the Council also to ensure that EU policy towards Pakistan is contextualised and embedded in a broader strategy for the region, thereby reinforcing EU interests across South and Central Asia; considers it important that EU bilateral relations with Pakistan and neighbouring countries, in particular India, China and Iran, also serve to discuss and coordinate policies with respect to the situation in Afghanistan, in order to ensure a targeted approach; stresses, in this regard, the need for increased EU-US policy coordination and dialogue on regional issues;

24.   Believes that the future of EU-Pakistan relations should also be considered in the context of the EU’s evolving institutional toolbox for engagement with third countries, in particular through the format of strategic partnerships; reiterates its call for a conceptual refinement of the format, and for clearer and more consistent benchmarks to assess, inter alia, whether, and under what conditions, Pakistan might qualify as a strategic partner of the EU at some point in the future;

25.   Firmly reiterates that progress in bilateral relations is linked to improvement in Pakistan’s human rights record, in particular as regards eradicating bonded labour, child labour and human trafficking, curbing gender-based violence, enhancing women and girls’ rights, including that of access to education, ensuring freedom of speech and independent media, promoting tolerance and protection of vulnerable minorities by effectively fighting all forms of discrimination; recognises that this requires the end of the culture of impunity and the development of a reliable legal and judicial system at all levels, which is accessible to all;

26.   Remains deeply concerned about the quality of education and, in a related manner, the alarming situation of women in many parts of Pakistan; calls for concrete and visible measures to enforce women’s fundamental rights in the society, including the enactment of legislation against domestic violence, steps to improve the investigation and prosecution of honour killings and acid attacks, and a revision of the legislation that facilitates impunity; points to the need to ensure better access to education, better integration of women in the labour market and better maternal healthcare;

27.   Reiterates its deep concern that Pakistan’s blasphemy laws – which can carry the death sentence and are often used to justify censorship, criminalisation, persecution and, in certain cases, the murder of members of political and religious minorities – are open to a misuse that affects people of all faiths in Pakistan; underlines that the refusal to reform or repeal the blasphemy laws creates an environment of persistent vulnerability for minority communities; calls on the Pakistani government to implement a moratorium on the use of these laws, as a first step towards revising or revoking them, and to investigate and prosecute, as appropriate, campaigns of intimidation, threats, and violence against Christians, Ahmadis, and other vulnerable groups;

28.   Calls particularly on the Pakistani authorities: to apprehend and prosecute those inciting violence, or who are responsible for violent attacks on schools or minority groups such as Shia, including the Hazara community, Ahmadis and Christians, and to instruct the security forces to actively protect those facing attacks from extremist groups; to enact laws against domestic violence; to end enforced disappearances, extrajudicial killings and arbitrary detentions notably in Balochistan;

29.   Condemns all attacks on Christians and other religious minorities living in Pakistan and expects Pakistan to intensify its efforts to preserve freedom of religion and belief, including by easing the strict anti-blasphemy legislation and moving towards abolition of the death penalty;

30.   Welcomes the adoption in 2012 of the bill to create a National Human Rights Commission and urges the government to set up the commission so that it can start functioning;

31.   Notes that the EU is the major export partner for Pakistani goods (22,6 % in 2012); takes the view that EU trade-related support to Pakistan should help promote the diversification and development of production modes, including processing, provide assistance to regional integration and technology transfers, help facilitate the establishment or development of domestic productive capacity, and reduce income inequality;

32.   Recalls that the EU’s GSP+, which Pakistan benefits from as of 2014, is only granted to countries which have agreed in a binding manner to implement international human rights, labour rights and environment and good governance conventions; underlines notably Pakistan’s obligations under the conventions listed in Annex VIII and reminds the Commission of its obligation to monitor their effective implementation; recalls also that where a country ‘does not respect its binding undertakings’ the GSP+ will be temporarily withdrawn;

33.   Calls on the Pakistani authorities to take effective steps towards the implementation of the 36 ILO conventions which the country has ratified in order, notably, to allow labour unions to operate, to improve work conditions and safety standards, to eradicate child labour and to combat the most severe forms of exploitation of the three million female domestic workers;

34.   Calls on the Pakistani Government to sign up to the ILO/IFC-led ‘Better Work Programme’, as promised, in order to give added impetus to improvements in health and safety standards for workers; calls on all those directly or indirectly responsible for the factory fire at the Ali Enterprises garment factory, including the Social Accountability auditing company and European retailers involved, to finally pay the survivors of the fire full, long-term and fair compensation;

35.   Instructs its President to forward this resolution to the Government and National Assembly of Pakistan, the Council, the Commission, the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy, the EU Special Representative for Human Rights and the governments of the Member States.

(1) http://eeas.europa.eu/pakistan/docs/2012_feb_eu_pakistan_5_year_engagement_plan_en.pdf
(2) http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/131181.pdf
(3) OJ L 303, 31.10.2012, p. 1.
(4) Texts adopted, P7_TA(2013)0060 .
(5) OJ C 353 E, 3.12.2013, p. 323.
(6) OJ C 168 E, 14.6.2013, p. 119.


Anti-missile shield for Europe
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European Parliament resolution of 12 March 2014 on an anti-missile shield for Europe and its political and strategic implications (2013/2170(INI) )
P7_TA(2014)0209 A7-0109/2014

The European Parliament,

–   having regard to Article 42(7) of the Treaty on European Union (TEU) and to Article 222 of the Treaty on the Functioning of the European Union (TFEU),

–   having regard to Articles 24 and 42(2) TEU, Articles 122 and 196 TFEU and Declaration 37 on Article 222 TFEU,

–   having regard to the European Security Strategy, adopted by the European Council on 12 December 2003, and to the report on its implementation, endorsed by the European Council on 11-12 December 2008,

–   having regard to the European Union Internal Security Strategy, endorsed by the European Council on 25-26 March 2010,

–   having regard to the European Council conclusions of 19 December 2013 on the Common Security and Defence Policy,

–   having regard to the Strategic Concept for the Defence and Security of the Members of the North Atlantic Treaty Organisation, adopted at the NATO Summit in Lisbon on 19-20 November 2010,

–   having regard to the Chicago Summit Declaration Issued by the heads of state and government participating in the meeting of the North Atlantic Council in Chicago on 20 May 2012,

–   having regard to Rule 48 of its Rules of Procedure,

–   having regard to the report of the Committee on Foreign Affairs (A7-0109/2014 ),

A.   whereas the issue of Ballistic Missile Defence (BMD) was already raised in the past but has become more topical in recent years in view of the multiplication of threats stemming from the proliferation of nuclear weapons and other weapons of mass destruction, and the proliferation of ballistic missiles to which the North Atlantic Treaty Organisation (NATO) and its European allies must be able to respond effectively;

B.   whereas defence against ballistic or other types of missile attacks can constitute a positive development in European security in the context of a rapid international security dynamic, with several state and non-state actors developing missile technologies and various chemical, biological, radiological and nuclear defence (CBRN) capabilities with the potential to reach European territory;

C.   whereas NATO is developing a BMD capability to pursue its core task of collective defence, aiming to provide full coverage and protection to all European populations, territories and forces which are members of NATO against the increasing threats posed by the proliferation of ballistic missiles;

D.   whereas the essential contribution of the United States to BMD is confirmation of its commitment to NATO and the security of Europe and Europe’s allies, and highlights the importance of the transatlantic bond, with equipment already in place in Romania and more expected to be placed in Poland in the near future;

E.   whereas the Common Security and Defence Policy will be developed in full complementarity with NATO, under the agreed framework for the EU-NATO strategic partnership, as confirmed by the European Council on 19 December 2013;

1.   Argues that as BMD technologies develop and are implemented, new dynamics are brought about in European security, resulting in a need for the Member States to take into account the implications of BMD for their security;

2.   Recalls that NATO BMD measures are developed and constructed to defend its member states from potential ballistic missile attacks; calls on the Vice‑President / High Representative to pursue a strategic partnership with NATO, taking account of the issue of BMD, which should lead to the provision of full coverage and protection for all EU Member States, thus avoiding a situation in which the security afforded to them would be in anyway differentiated;

3.   Welcomes the achievement of interim NATO BMD capability, which will provide maximum coverage within the means available to defend populations, territories and forces across southern European NATO member states against a ballistic missile attack; welcomes, also, the aim to provide full coverage and protection for European NATO member states by the end of the decade;

4.   Stresses that EU initiatives, such as Pooling & Sharing, may prove helpful in strengthening cooperation between Member States in the areas of BMD and in carrying out joint research and development work; notes that, in the long term, such cooperation could also lead to the further consolidation of the European defence industry;

5.   Calls on the European External Action Service, the Commission, the European Defence Agency and the Council to include BMD issues in future security strategies, studies and white papers;

6.   Stresses that, due to the financial crisis and budget cuts, not enough resources are being used to maintain sufficient defence capabilities, thereby leading to a reduction in the EU’s military capabilities and industrial capacity;

7.   Stresses that the NATO BMD plan is in no way aimed at Russia and that NATO is prepared to cooperate with Russia based on the assumption of cooperation between two independent missile defence systems – NATO’s BMD and that of Russia; highlights the fact that while effective cooperation with Russia could bring measurable benefits, it must be pursued on the basis of full reciprocity and transparency, as increasing mutual trust is vital for the gradual development of such cooperation; notes, in this connection, that moving Russian missiles closer to NATO and EU borders is counterproductive;

8.   Instructs its President to forward this resolution to the President of the European Council, the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy, the Council, the Commission, the parliaments of the Member States, the NATO Parliamentary Assembly and the Secretary-General of NATO.


European fishing sector and the EU-Thailand free trade agreement
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European Parliament resolution of 12 March 2014 on the situation and future prospects of the European fishing sector in the context of the Free Trade Agreement between the EU and Thailand (2013/2179(INI) )
P7_TA(2014)0210 A7-0130/2014

The European Parliament,

–   having regard to Article 3(5) of the Treaty on European Union on the EU’s relations with the rest of the world,

–   having regard to Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing(1) (the IUU Regulation),

–   having regard to the Commission Communication of 25 October 2011 entitled ‘A renewed EU strategy 2011-14 for Corporate Social Responsibility’ (COM(2011)0681 ),

–   having regard to Written Questions E-000618/2013 of 22 January 2013 on abuses in retail trade supply chains and E-002894/2013 of 13 March 2013 on the free trade agreement with Thailand and child labour in the canning industry, and the Commission’s answers thereto,

–   having regard to its resolution of 22 November 2012 on the external dimension of the common fisheries policy(2) ,

–   having regard to Rule 48 of its Rules of Procedure,

–   having regard to the report of the Committee on Fisheries and the opinion of the Committee on International Trade (A7-0130/2014 ),

A.   whereas the European fishing sector is exiting a period of crisis that has affected the catch, processing and aquaculture sectors, and this situation has dramatically weakened its competitiveness, particularly when the global market is being liberalised and at the same time, certain developing countries with abundant marine resources are starting to emerge as new fishing powers;

B.   whereas the European fishing and processing industry is vital in terms of securing the supply of food to European citizens and a basis for the livelihood of coastal areas that largely depend on those activities; whereas the survival of the sector will be jeopardised if the EU liberalises trade in fishery products with developing countries that wish to export their products to the key Community market, especially if they are offered zero duty;

C.   whereas the EU is the world’s largest importer of fishery products and its dependence on imports makes the Community market highly attractive to exporters, in particular bearing in mind that demand for fishery products in the EU is rising by 1,5 % each year;

D.   whereas Thailand is the world’s main producer of canned tuna, with 46 % of world production, and its exports of canned tuna to the EU, more than 90 000 tonnes each year, amount to almost 20 % of all Community imports from third countries, with the US, the EU and Japan being the main destination markets for exports of fishery products from Thailand;

E.   whereas Thailand is the world’s main importer of fresh, chilled and frozen tuna for its canning industry;

F.   whereas 80 % of tuna is consumed in tinned form and, according to the most recent data available from the Food and Agriculture Organisation’s (FAO) FISHSTAT database, 21 % of the global output of canned and prepared tuna is produced in the EU, whilst the remaining 79 % is produced in third countries, most of them developing countries;

G.   having regard to the trade, economic and strategic importance of Thailand for the EU, and the substantial benefits of the Free Trade Agreement (FTA) between the EU and Thailand for the EU economy as a whole;

H.   whereas the EU supports regional integration among ASEAN (Association of Southeast Asian Nations) member countries whereas the FTA with Thailand constitutes an essential pillar in this integration process, of which the ultimate objective is to conclude a region-to-region FTA in the future;

I.   whereas the signing of an EU-ASEAN FTA has been a priority objective for the EU since 2007, with the hope of including Indonesia, Malaysia, the Philippines, Singapore, Thailand, Brunei and Vietnam; whereas the lack of progress in the negotiations on this regional agreement has led to the opening of bilateral negotiations with ASEAN member countries, including Thailand, with a political commitment to conclude the FTA within two years;

J.   whereas if Thailand, Indonesia and the Philippines are included in the central and western Pacific region, the production of canned tuna in the region accounts for almost half of global production;

K.   whereas the changes that have occurred in relation to producers of canned tuna and the production of tuna loins have been accompanied by a trend towards global supply to processing countries with low production costs which are located close to the raw material (such as Thailand, the Philippines, Indonesia, Papua New Guinea and Ecuador), and the number of countries involved in the production and export of canned tuna is rising;

L.   whereas Thailand and the Philippines are the main exporting countries of prepared and canned tuna to the EU, with imports from Thailand having risen by 20 % whilst those from the Philippines have fallen by 5 %;

M.   whereas any tariff reduction for canned and prepared tuna could have an impact on the preferences enjoyed by the countries of the African, Caribbean and Pacific Group of States (ACP) and the beneficiaries of the generalised system of preferences (GSP+), under which third countries undertake to comply with certain policies on matters such as respect for human rights, labour, the environment and good governance in exchange for tariff preferences;

N.   whereas a tariff reduction would also distort the European market, given that the bulk of the EU tuna canning industry is located in regions that are heavily dependent on fisheries, such as Galicia, Brittany, the Azores (an outermost region), the Basque Country and Sardinia; whereas the EU tuna industry is the world’s second largest producer of canned tuna and its long-established activity is crucial in terms of creating added value and generating employment within the EU, guaranteeing the highest possible social, environmental and health and hygiene protection standards;

O.   whereas the main aim of the preferential rules of origin is to establish the existence of a sufficient economic link between the products imported into the EU and the countries benefiting from the preferences granted by it, in order to ensure that those preferences are not wrongfully diverted to other countries for which they were not intended;

P.   whereas a discussion of trade in fishery products refers to trade in a natural resource the sustainability of which is influenced by a wide range of factors, including the sound management and sustainable exploitation of fishery resources and the control of illegal fishing, pollution, climate change and market demand; whereas all of these external factors affect international trade in fishery products and, consequently, fishery products should be considered as sensitive products that may be given special protection;

Q.   whereas an adequate and constant supply of raw material is essential for the continued existence and economic development of tuna processing companies in the EU;

R.   whereas the World Trade Organisation (WTO) argues that free trade is an instrument for growth the objective of which is sustainable development in social, economic and environmental terms;

S.   whereas, in this connection, trade rules represent a basic and fundamental tool for ensuring that trade is beneficial and achieve the objectives of protecting health and the environment and guaranteeing the proper management of natural resources;

T.   whereas globalisation has significantly increased the volume of fish traded internationally and there is widespread concern that many producer countries lack sufficient resources to manage and/or exploit fish stocks in a sustainable manner, guarantee an adequate level of health and hygiene protection, mitigate the environmental impact of fishing and aquaculture, and guarantee respect for human rights in general as well as promote labour rights and social conditions in particular;

U.   whereas some of the EU’s trade partners show weaknesses in relation to the three aspects of the sustainable development of fisheries: social, economic and environmental;

V.   whereas the sustainable management of tuna stocks is guaranteed by the five regional fisheries organisations (RFOs) for tuna; whereas international cooperation between states and with the RFOs is vital in order to safeguard the sustainability of tuna stocks;

W.   whereas both the ILO and various NGOs have recently uncovered serious shortcomings with regard to social and labour conditions and respect for human rights in the Thai fishing industry; whereas the media have reported and the Government of Thailand has acknowledged that a section of the Thai fishing industry uses forced labour carried out by immigrants who are victims of human trafficking, and that two multinational tuna canning companies in Thailand use child labour;

X.   whereas according to the FAO, it is common practice for Thai fishing vessels to be seized by neighbouring coastal states and their captains accused of illegal fishing in or illegal intrusion into their exclusive economic zone;

Y.   whereas in 2013 the Spanish authorities refused permission for tuna from tuna vessels flying the Ghanaian flag to be landed and marketed on the grounds that those vessels were involved in illegal, unreported and unregulated (IUU) fishing, given that they had failed to comply with International Commission for the Conservation of Atlantic Tunas management measures, and whereas private companies based in Thailand had a stake in most of the tuna vessels concerned;

Z.   whereas numerous consignments of canned tuna imported from Thailand have been rejected in the EU in recent months owing to their inadequate heat treatment, which is essential in order to neutralise microorganisms which would otherwise pose a risk to human health;

1.   Requests that fish products, such as canned tuna imported from Thailand, which have the potential to disrupt the EU’s production of and market for these products, be treated as sensitive products; Believes, furthermore, that any decision concerning greater access for Thai canned and processed tuna should only be taken following rigorous impact assessments and in close consultation with industry, in order to analyse and evaluate the impact that greater access may have in the processing industry and the marketing of seafood products in the EU;

2.   Calls for access to the EU market for canned and prepared fish and shellfish from Thailand to remain subject to the current tariff and thus to be excluded from tariff reductions; recommends that long transitional periods and partial liberalisation commitments, including the imposition of quotas, be established for canned and prepared fish and shellfish products should tariff reductions be introduced, so as to safeguard the competitiveness of the Community tuna industry and preserve the significant activity and social dimension associated with the tuna industry in the EU, which provides 25 000 direct and 54 000 indirect jobs;

3.   Calls for rigorous impact assessments to be carried out where appropriate, before any type of tariff concessions or any other rules are applied, in order to analyse and assess the impact that those concessions or rules may have on the EU seafood processing and marketing industry;

4.   Calls, in the case of sensitive products, for full compliance with solid and coherent strict rules of origin, to be enforced without exception and for cumulation to be strictly limited to those products for which Thailand is mainly a processor rather than a fishing country;

5.   Demands that imports of canned tuna and other fish products from Thailand be subject, insofar as is possible, to the same competitive conditions as fish products of EU origin; considers this demand to imply in particular that the FTA must contain an ambitious trade and sustainable development chapter, whereby Thailand undertakes to respect, promote and implement internationally recognised labour standards, as enshrined in the fundamental ILO conventions, including those on forced labour and child labour; considers, furthermore, that respect for human rights, the protection of the environment and the conservation and sustainable exploitation of fisheries resources, the fight against illegal, unreported and unregulated fishing and conformity with the EU’s sanitary and phytosanitary rules should be strictly enforced; believes, in this connection, that the Commission should regularly report to Parliament on Thailand’s compliance with the above-mentioned obligations;

6.   Calls on the Commission to ensure that the IUU Regulation is effectively implemented and that the FTA negotiations result in an explicit reference thereto within the body of the text of the agreement;

7.   Considers that the best way to ensure Thailand’s full cooperation in the fight against IUU fishing is to include an explicit reference to the IUU Regulation in the text of the FTA;

8.   Calls for the FTA to include a requirement for compliance with International Labour Organisation conventions and greater transparency, surveillance, oversight, and traceability in the Thai fisheries sector, so that fishing activities can be monitored;

9.   Insists that product traceability be guaranteed as a vital element in protecting human health and the environment, as well as a fundamental factor and basic tool in controlling illegal fishing;

10.   Calls for the FTA to remain consistent with other Community policies and with the promotion of corporate social responsibility strategies; calls for safeguard clauses to be set out;

11.   Stresses that Parliament’s decision to give its consent on the FTA will take into account the overall outcome of the negotiations, including those of the fisheries sector;

12.   Calls for reciprocity in market access and the elimination of any kind of discrimination in the services sector;

13.   Hopes that Thailand, as the world’s largest exporter of canned tuna, will participate in and cooperate with the three RFOs for tuna in the region, i.e. the Inter-American Tropical Tuna Commission, the Western and Central Pacific Fisheries Commission and the South Pacific Regional Fisheries Management Organisation, as well as the Indian Ocean tuna RFO, of which it is a member;

14.   Supports the existence of a policy for the conservation and sustainable management of fishery resources;

15.   Instructs its President to forward this resolution to the Council and Commission.

(1) OJ L 286, 29.10.2008, p. 1.
(2) Texts adopted, P7_TA(2012)0461 .


European gastronomic heritage: cultural and educational aspects
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European Parliament resolution of 12 March 2014 on the European gastronomic heritage: cultural and educational aspects (2013/2181(INI) )
P7_TA(2014)0211 A7-0127/2014

The European Parliament,

–   having regard to the report of its Committee on the Environment, Public Health and Food Safety on the proposal for a regulation of the European Parliament and of the Council on the provision of food information to consumers (COM(2008)0040 ),

–   having regard to the 2002 United Nations Educational, Scientific and Cultural Organisation (UNESCO) report on nutrition,

–   having regard to the World Health Organisation (WHO) Report on Food and Nutrition Policy for Schools,

–   having regard to the Commission White Paper of 30 May 2007 on ‘A Strategy for Europe on nutrition, overweight and obesity related health issues’ (COM(2007)0279 ),

–   having regard to the conclusions of the WHO European Ministerial Conference on Nutrition and Non-communicable Diseases in the Context of Health 2020, held on 4 and 5 July 2013 in Vienna,

–   having regard to the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage of 17 October 2003,

–   having regard to the inclusion of the Mediterranean diet in the UNESCO Representative List of the Intangible Cultural Heritage of Humanity of 16 November 2010 and of 4 December 2013,

–   having regard to the inclusion of the gastronomic meal of the French in the UNESCO Representative List of the Intangible Cultural Heritage of Humanity (Decision 5.COM 6.14),

–   having regard to Rule 48 of its Rules of Procedure,

–   having regard to the report of the Committee on Culture and Education (A7-0127/2014 ),

Educational aspects

A.   whereas the present and future health and wellbeing of the population is determined by diet and the environment and hence by farming, fishing and livestock breeding methods;

B.   whereas the WHO’s Global School Health Initiative sees educational centres as important spaces for the acquisition of theoretical and practical knowledge about health, nutrition, food and gastronomy;

C.   whereas a poor diet may have disastrous consequences; whereas, at the WHO European Ministerial Conference in July 2013, European health ministers called for coordinated action 'to tackle obesity and poor diets’, which are the causes of an epidemic of non‑communicable diseases, such as heart complaints, diabetes and cancer;

D.   whereas the stereotypical ideas about body image and food which are prevalent in society can cause serious eating and psychological disorders, such as anorexia and bulimia; whereas it is important to talk openly about these issues, in particular with adolescents;

E.   whereas, according to the European Food Information Council, in 2006 some 33 million people in Europe were at risk of malnutrition; whereas the situation has worsened since the start of the crisis;

F.   whereas childhood is a decisive period in terms of providing education in healthy behaviour, and knowledge leading to the adoption of a healthy lifestyle, and whereas school is an area in which effective action can be taken to shape healthy long-term behaviour in future generations;

G.   whereas educational centres offer spaces and instruments that can promote the knowledge and preparation of foodstuffs and help to establish dietary patterns which, together with the regular practice of moderate exercise, can create the basis for a healthy lifestyle;

H.   whereas information, education and awareness-raising form part of the EU strategy to support Member States in reducing alcohol-related harm (COM(2006)0625 ), and whereas this strategy recognises appropriate consumption patterns; whereas the Council issued a recommendation on 5 June 2001 on the drinking of alcohol by young people, in particular children and adolescents, which envisaged fostering a multisectoral approach to education;

I.   whereas the need to include food in school curricula, in terms of both nutritional aspects and gastronomy, was recognised by the European Nutrition Foundations (ENF) network at its meeting on ‘Nutrition in schools across Europe and the role of foundations’, which unanimously agreed to convey this concern to bodies such as the European Parliament and the Commission;

J.   whereas different countries have, through various domestic bodies, pushed through recognition of the Mediterranean diet as part of UNESCO’s Intangible Cultural Heritage of Humanity, resulting in the promotion and establishment of patterns of behaviour that ensure a healthy lifestyle thanks to a holistic approach that takes into account aspects relating to education, food, school, family life, nutrition, territory, landscape, etc.;

K.   whereas the Mediterranean diet offers a balanced and healthy combination of eating habits and lifestyle that is directly related to the prevention of chronic illnesses and to health promotion in both the school and the family environment;

L.   whereas European ‘food at school’ programmes seek to ensure that the food served in school canteens includes all the necessary elements of a high-quality, balanced diet; whereas education in the broadest sense of the term, including in the area of food, consolidates the concept of a healthy lifestyle based on a balanced diet among schoolchildren;

M.   whereas serious education in nutritional matters ensures public awareness of matters such as the correlation between foods, food sustainability and the health of the planet;

N.   whereas increases in the prices charged in school canteens and for food in general are denying many households, and in particular children, access to a balanced, high-quality diet;

O.   whereas media reporting and advertising have a bearing on consumption patterns;

P.   whereas if people are to have the chance to acquire a detailed knowledge of the products used and their intrinsic quality and taste, it is essential to develop suitable labelling schemes which provide all consumers with clear information about the composition and origin of products;

Q.   whereas the training given to gastronomy-sector workers contributes to the process of passing on knowledge about, raising the profile of, safeguarding and developing European gastronomy;

Cultural aspects

R.   whereas gastronomy is the combination of knowledge, experience, art and craft, which provides a healthy and pleasurable eating experience;

S.   whereas gastronomy forms part of our identity and is an essential component of the European cultural heritage and of the cultural heritage of the Member States;

T.   whereas the EU has encouraged the identification, defence and international protection of geographical indications, designations of origin and traditional specialities in respect of agri-food products;

U.   whereas gastronomy is not only an elite art form based on the careful preparation of food, but also reflects an acknowledgement of the value of the raw materials it uses, of their quality and of the need for excellence at all stages in the processing of foodstuffs, a concept which incorporates respect for animals and nature;

V.   whereas gastronomy is closely bound up with farming practices in European regions and with their local products;

W.   whereas it is important to preserve the rites and customs linked to local and regional gastronomy, for example, and to foster the development of European gastronomy;

X.   whereas gastronomy is one of the most important cultural expressions of human beings and the term should be understood as referring not only to what is known as ‘haute cuisine’, but to all culinary forms from the various regions and social strata, including those deriving from traditional local cuisine;

Y.   whereas the survival of typical cuisine forming part of our culinary and cultural heritage is very frequently jeopardised by the invasion of standardised foods;

Z.   whereas the quality, reputation and diversity of European gastronomy make it essential that sufficient food of sufficient quality be produced in Europe;

AA.   whereas gastronomy is identified with the various aspects of diet, and whereas its three primary pillars are health, eating habits and pleasure; whereas in many countries the culinary arts are an important aspect of social life and help to bring people together; whereas experiencing different gastronomic cultures is one form of cultural exchange and sharing; whereas it also has a positive influence on social and family relations;

AB.   whereas UNESCO’s recognition of the Mediterranean diet as an intangible cultural heritage is important because it considers this diet to comprise a set of knowledge, skills, practices, rituals, traditions and symbols that are related to agricultural crops, fisheries and livestock farming, and to methods of conserving, processing, cooking, sharing and eating food;

AC.   whereas the eating habits of the European peoples offer a rich sociocultural heritage which we have an obligation to hand down to future generations; whereas schools, together with family homes, are the ideal places in which to acquire this knowledge;

AD.   whereas gastronomy is becoming a leading element in attracting tourism and the interaction between tourism, gastronomy and nutrition is having an extremely positive effect in terms of promoting tourism;

AE.   whereas it is important to pass on to future generations an awareness of the gastronomic riches of their regions and of European gastronomy in general;

AF.   whereas gastronomy helps to promote the regional heritage;

AG.   whereas it is essential to promote local and regional products in order to preserve our gastronomic heritage, on the one hand, and guarantee fair remuneration for producers and the widest possible availability of the products in question, on the other;

AH.   whereas gastronomy is a source of both cultural and economic wealth for the regions which make up the EU;

AI.   whereas the European heritage is made up of a set of tangible and intangible elements and, in the case of gastronomy and food, is also formed by the locality and landscape from which the products for consumption originate;

AJ.   whereas the longevity, diversity and cultural richness of European gastronomy are founded on the availability of high-quality local produce;

Educational aspects

1.   Asks the Member States to include the study and sensory experience of food, nutritional health and dietary habits, including historical, geographical, cultural and experiential aspects, in school education from early childhood as a means of improving the health and wellbeing of the population, the quality of food and respect for the environment; welcomes the gastronomic education programmes being conducted in schools in a number of Member States, some in cooperation with leading chefs; emphasises the importance of combining education in healthy eating habits with measures to combat the stereotypes which can cause serious eating and psychological disorders, such as anorexia or bulimia;

2.   Stresses, by the same token, the importance of implementing the WHO’s recommendations on tackling obesity and poor diets; expresses alarm at the ongoing problem of malnutrition in Europe and its increased prevalence since the start of the crisis, and urges the Member States to do everything they can to make a healthy diet a feasible option for everyone, for example by ensuring that school or municipal canteens offer high-quality food and are open to the public;

3.   Points to the need also to enhance the school curriculum with information about gastronomic culture (in particular at local level), food preparation, production, conservation and distribution processes, the social and cultural influence of foodstuffs, and consumer rights; urges the Member States to incorporate into their school curricula workshops on the development of the senses, in particular taste, which combine instruction on the nutritional benefits of foodstuffs with the provision of information on the regional and national gastronomic heritage;

4.   Recalls that in some countries nutrition is already included in school curricula, while in others it is not compulsory per se but is taught by various means, such as programmes offered by local authorities or private bodies;

5.   Reiterates the need for education in schools about nutrition and a good, healthy and enjoyable diet;

6.   Points out that sport and physical exercise should be stepped up in primary and secondary schools throughout the EU;

7.   Recalls that good nutrition enhances children’s wellbeing and improves their capacity to learn, as well as making them more resistant to disease and helping them to develop healthily;

8.   Points out that dietary habits acquired in childhood can influence food preferences and choices – and methods of cooking and eating foods – in adulthood, that childhood is therefore the best time to educate a person’s taste and that school offers an ideal opportunity to introduce pupils to the diversity of products and gastronomies;

9.   Considers that programmes should be offered with a view to providing education about, and raising awareness of, the consequences of inappropriate alcohol consumption, and encouraging proper and intelligent consumption patterns thanks to an understanding of the special characteristics of wines, their geographical indications (GIs), grape varieties, production processes and the meaning of traditional terms;

10.   Asks the Commission to encourage projects which involve exchanges of information and practices in the area of nutrition, food and gastronomies, for example as part of the Comenius (school education) strand of the Erasmus+ programme; calls for the EU and its Member States, furthermore, to promote intercultural exchange in sectors related to catering, food and gastronomy, taking advantage of the opportunities offered by the Erasmus+ programme for high-quality training, mobility and apprenticeships for learners and professionals;

11.   Points out that education in nutrition and gastronomy, including respect for nature and the environment, should include the participation of families, teachers, the educational community, information channels and all education professionals;

12.   Highlights the usefulness of information and communication technologies (ICT) as an educational tool to assist learning; encourages the creation of interactive platforms to facilitate access to, and dissemination of, the European, national and regional gastronomic heritage in order to promote the preservation and transmission of traditional knowledge among professionals, artisans and citizens;

13.   Calls on the Commission, the Council and the Member States to consider stricter control of content and advertising dealing with food products, especially in terms of nutrition;

14.   Reminds the Member States to make sure that all advertising and sponsorship of junk food is banned in schools;

15.   Calls on the Member States to ensure that teachers are properly trained, in collaboration with nutritionists and doctors, to teach food sciences correctly in schools and universities; points out that nutrition and the environment are co-dependent and also calls, therefore, for the updating of knowledge about the natural environment;

16.   Calls on the Commission and the Council to study programmes for training gastronomy professionals; encourages the Member States to promote such training; stresses the importance of this training covering local and European gastronomy, the diversity of products, and processes for the preparation, production, conservation and distribution of food;

17.   Stresses the importance of training for gastronomy professionals highlighting ‘homemade’, local and varied produce;

18.   Calls on the Member States to exchange knowledge and best practices concerning gastronomy-related activities in education and to promote gastronomic awareness in the various regions; calls also for an exchange of best practices or for thought to be given to shortening the food chain by focusing on local seasonal produce;

19.   Points to the need to make use of funding programmes under the common agricultural policy for 2014-2020 with a view to promoting healthy eating in schools;

20.   Recalls that the boost given by recognition of the Mediterranean diet and the gastronomic meal of the French as part of UNESCO’s Intangible Cultural Heritage of Humanity has led to the creation of institutions and bodies promoting knowledge, practice and education in relation to the values and habits of a healthy and balanced diet;

Cultural aspects

21.   Emphasises the need to create awareness of the diversity and quality of the regions, landscapes and products that are the basis of Europe’s gastronomy, which forms part of our cultural heritage and also constitutes a unique and internationally recognised lifestyle; stresses that this sometimes requires respect for local habits;

22.   Points out that gastronomy is an instrument which can be used to develop growth and jobs in a wide range of economic sectors, such as the restaurant, tourism, agri-food and research industries; notes that gastronomy can also develop a keen sense for the protection of nature and the environment, which ensures that food has a more authentic taste and is less processed with additives or preservatives;

23.   Stresses the importance of gastronomy in promoting the hospitality sector across Europe and vice versa;

24.   Recognises the role played by our skilled and talented chefs in preserving and exporting our gastronomic heritage, and the importance of maintaining our culinary expertise as a key factor adding value in both educational and economic terms;

25.   Welcomes initiatives to promote Europe’s gastronomic heritage, such as local and regional gastronomic fairs and festivals that reinforce the concept of proximity as an element in respect for the environment and our surroundings and guarantee greater consumer confidence; encourages the inclusion of a European dimension in these initiatives;

26.   Welcomes the three EU schemes relating to geographical indications and traditional specialities, known as protected designation of origin (PDO), protected geographical indication (PGI), and traditional specialities guaranteed (TSG), which enhance the value of European agricultural products at EU and international level; calls on the Member States and their regions to develop PDO labels, especially common PDO labels for products of the same kind emanating from cross-border geographical areas;

27.   Welcomes initiatives such as the ‘slow food’ movement, which helps to engender general public appreciation of the social and cultural importance of food, and the ‘Wine in Moderation’ initiative, which promotes a lifestyle and a level of alcohol consumption associated with moderation;

28.   Emphasises also the role played by the Academies of Gastronomy, the European Federation of Nutrition Foundations and the Paris-based International Academy of Gastronomy in the study and dissemination of the gastronomic heritage;

29.   Calls on the Member States to draw up and implement policies to qualitatively and quantitatively improve the gastronomic industry, both intrinsically and in terms of its contribution to tourism, within the framework of the cultural and economic development of the regions;

30.   Stresses that gastronomy is a strong cultural export for the EU and for individual Member States;

31.   Calls on the Member States to support initiatives related to agri-tourism that foster knowledge of the cultural and landscape heritage, offer regional support and promote rural development;

32.   Urges the Member States and the Commission to develop the cultural aspects of gastronomy and to foster eating habits which maintain consumer health, further the exchange and sharing of cultures and promote the regions, while at the same time retaining the pleasure associated with eating, conviviality and sociability;

33.   Invites the Member States to collaborate with each other and support initiatives to maintain the high quality, diversity, heterogeneity and singularity of local, regional and national traditional products in order to combat homogenisation, which in the long term will diminish Europe’s gastronomic heritage;

34.   Encourages the Commission, the Council and the Member States to make the importance of supporting sustainable and varied European food production of high quality and in sufficient quantity an integral part of their deliberations on food policy, with a view to sustaining European culinary diversity;

35.   Calls on the Commission and the Member States to strengthen measures for the recognition and labelling of European food production in order to enhance the value of those products, provide better information to consumers and protect the diversity of European gastronomy;

36.   Points out that it is important to recognise and enhance the value of high-quality gastronomic produce; urges the Commission, the Council and the Member States to consider the introduction of consumer information from caterers on dishes prepared on the spot from raw products;

37.   Encourages the Commission, the Council and the Member States to study the impact of the laws they adopt on the capacity, diversity and quality of food production in the EU and to take measures to combat the counterfeiting of products;

38.   Supports such initiatives as may be developed by Member States and their regions to promote and preserve all the territories, landscapes and products that make up their local gastronomic heritage; urges the regions to promote local and dietetic gastronomy in schools and collective catering in association with local producers in order to preserve and enhance the regional gastronomic heritage, stimulate local agriculture and shorten supply chains;

39.   Calls on the Member States to take measures to preserve the European gastronomy-related heritage, such as protection of the architectural heritage of traditional food markets, wineries or other facilities, and of artefacts and machinery related to food and gastronomy;

40.   Highlights the importance of identifying, cataloguing, transmitting and disseminating the cultural richness of European gastronomy; advocates the establishment of a European observatory for gastronomy;

41.   Recommends to the Commission that it include European gastronomy in its cultural initiatives and programmes;

42.   Welcomes the inclusion in UNESCO’s Representative List of the Intangible Cultural Heritage of Humanity of the gastronomic meal of the French, the Mediterranean diet, the Croatian gingerbread craft and traditional Mexican cuisine, and encourages the Member States to request the inclusion of their gastronomic traditions and practices in the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, in order to help preserve them;

43.   Encourages European cities to apply for the title of UNESCO City of Gastronomy, promoted by the organisation’s Creative Cities Network;

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44.   Instructs its President to forward this resolution to the Council and the Commission, and to the governments and parliaments of the Member States.


Protection of individuals with regard to the processing of personal data ***I
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Resolution
Consolidated text
European Parliament legislative resolution of 12 March 2014 on the proposal for a regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (COM(2012)0011 – C7-0025/2012 – 2012/0011(COD) ) (Ordinary legislative procedure: first reading)
P7_TA(2014)0212 A7-0402/2013

The European Parliament,

–   having regard to the Commission proposal to Parliament and the Council (COM(2012)0011 ),

–   having regard to Article 294(2) and Articles 16(2) and 114(1) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7‑0025/2012 ),

–   having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–   having regard to the reasoned opinions submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Belgian Chamber of Representatives, the German Bundesrat, the French Senate, the Italian Chamber of Deputies and the Swedish Parliament, asserting that the draft legislative act does not comply with the principle of subsidiarity,

–   having regard to the opinion of the European Economic and Social Committee of 23 May 2012(1) ,

–   after consulting the Committee of the Regions,

–   having regard to the opinion of the European Data Protection Supervisor of 7 March 2012(2) ,

–   having regard to the opinion of the European Union Agency for Fundamental Rights of 1 October 2012,

–   having regard to Rule 55 of its Rules of Procedure,

–   having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinions of the Committee on Employment and Social Affairs, the Committee on Industry, Research and Energy, the Committee on the Internal Market and Consumer Protection and the Committee on Legal Affairs (A7-0402/2013 ),

1.   Adopts its position at first reading hereinafter set out;

2.   Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

3.   Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Position of the European Parliament adopted at first reading on 12 March 2014 with a view to the adoption of Regulation (EU) No .../2014 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation)
(Text with EEA relevance)

P7_TC1-COD(2012)0011


THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 16(2) and Article 114(1) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee(3) ,

After consulting the Committee of the Regions,

Having regard to the opinion of the European Data Protection Supervisor(4)

Acting in accordance with the ordinary legislative procedure(5)

Whereas:

(1)   The protection of natural persons in relation to the processing of personal data is a fundamental right. Article 8(1) of the Charter of Fundamental Rights of the European Union ('Charter') and Article 16(1) of the Treaty lay down that everyone has the right to the protection of personal data concerning him or her.

(2)   The processing of personal data is designed to serve man; the principles and rules on the protection of individuals with regard to the processing of their personal data should, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably their right to the protection of personal data. It should contribute to the accomplishment of an area of freedom, security and justice and of an economic union, to economic and social progress, the strengthening and the convergence of the economies within the internal market, and the well-being of individuals.

(3)   Directive 95/46/EC of the European Parliament and of the Council(6) seeks to harmonise the protection of fundamental rights and freedoms of natural persons in respect of processing activities and to guarantee the free flow of personal data between Member States.

(4)   The economic and social integration resulting from the functioning of the internal market has led to a substantial increase in cross-border flows. The exchange of data between economic and social, public and private actors across the Union increased. National authorities in the Member States are being called upon by Union law to co-operate and exchange personal data so as to be able to perform their duties or carry out tasks on behalf of an authority in another Member State.

(5)   Rapid technological developments and globalisation have brought new challenges for the protection of personal data. The scale of data sharing and collecting has increased spectacularly. Technology allows both private companies and public authorities to make use of personal data on an unprecedented scale in order to pursue their activities. Individuals increasingly make personal information available publicly and globally. Technology has transformed both the economy and social life, and requires to further facilitate the free flow of data within the Union and the transfer to third countries and international organisations, while ensuring an high level of the protection of personal data.

(6)   These developments require building a strong and more coherent data protection framework in the Union, backed by strong enforcement, given the importance to create the trust that will allow the digital economy to develop across the internal market. Individuals should have control of their own personal data and legal and practical certainty for individuals, economic operators and public authorities should be reinforced.

(7)   The objectives and principles of Directive 95/46/EC remain sound, but it has not prevented fragmentation in the way data protection is implemented across the Union, legal uncertainty and a widespread public perception that there are significant risks for the protection of individuals associated notably with online activity. Differences in the level of protection of the rights and freedoms of individuals, notably to the right to the protection of personal data, with regard to the processing of personal data afforded in the Member States may prevent the free flow of personal data throughout the Union. These differences may therefore constitute an obstacle to the pursuit of economic activities at the level of the Union, distort competition and impede authorities in the discharge of their responsibilities under Union law. This difference in levels of protection is due to the existence of differences in the implementation and application of Directive 95/46/EC.

(8)   In order to ensure consistent and high level of protection of individuals and to remove the obstacles to flows of personal data, the level of protection of the rights and freedoms of individuals with regard to the processing of such data should be equivalent in all Member States. Consistent and homogenous application of the rules for the protection of the fundamental rights and freedoms of natural persons with regard to the processing of personal data should be ensured throughout the Union.

(9)   Effective protection of personal data throughout the Union requires strengthening and detailing the rights of data subjects and the obligations of those who process and determine the processing of personal data, but also equivalent powers for monitoring and ensuring compliance with the rules for the protection of personal data and equivalent sanctions for offenders in the Member States.

(10)   Article 16(2) of the Treaty mandates the European Parliament and the Council to lay down the rules relating to the protection of individuals with regard to the processing of personal data and the rules relating to the free movement of personal data.

(11)   In order to ensure a consistent level of protection for individuals throughout the Union and to prevent divergences hampering the free movement of data within the internal market, a Regulation is necessary to provide legal certainty and transparency for economic operators, including micro, small and medium-sized enterprises, and to provide individuals in all Member States with the same level of legally enforceable rights and obligations and responsibilities for controllers and processors, to ensure consistent monitoring of the processing of personal data, and equivalent sanctions in all Member States as well as effective co-operation by the supervisory authorities of different Member States. To take account of the specific situation of micro, small and medium-sized enterprises, this Regulation includes a number of derogations. In addition, the Union institutions and bodies, Member States and their supervisory authorities are encouraged to take account of the specific needs of micro, small and medium-sized enterprises in the application of this Regulation. The notion of micro, small and medium-sized enterprises should draw upon Commission Recommendation 2003/361/EC(7) .

(12)   The protection afforded by this Regulation concerns natural persons, whatever their nationality or place of residence, in relation to the processing of personal data. With regard to the processing of data which concern legal persons and in particular undertakings established as legal persons, including the name and the form of the legal person and the contact details of the legal person, the protection of this Regulation should not be claimed by any person. This should also apply where the name of the legal person contains the names of one or more natural persons.

(13)   The protection of individuals should be technologically neutral and not depend on the techniques used; otherwise this would create a serious risk of circumvention. The protection of individuals should apply to processing of personal data by automated means as well as to manual processing, if the data are contained or are intended to be contained in a filing system. Files or sets of files as well as their cover pages, which are not structured according to specific criteria, should not fall within the scope of this Regulation.

(14)   This Regulation does not address issues of protection of fundamental rights and freedoms or the free flow of data related to activities which fall outside the scope of Union law, nor does it cover the processing of personal data by the Union institutions, bodies, offices and agencies, which are subject to . Regulation (EC) No 45/2001, or the processing of personal data by the Member States when carrying out activities in relation to the common foreign and security policy of the Union of the European Parliament and of the Council (8) should be brought in line with this Regulation and applied in accordance with this Regulation . [Am. 1]

(15)   This Regulation should not apply to processing of personal data by a natural person, which are exclusively personal, family-related, or domestic, such as correspondence and the holding of addresses or a private sale , and without any gainful interest and thus without any connection with a professional or commercial activity. The exemption should also not apply to controllers or processors which provide the means for processing personal data for such personal or domestic activities. However, this Regulation should apply to controllers and processors which provide the means for processing personal data for such personal or domestic activities. [Am. 2]

(16)   The protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data, is subject of a specific legal instrument at Union level. Therefore, this Regulation should not apply to the processing activities for those purposes. However, data processed by public authorities under this Regulation when used for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties should be governed by the more specific legal instrument at Union level (Directive 2014/.../EU of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data).

(17)   This Regulation should be without prejudice to the application of Directive 2000/31/EC of the European Parliament and of the Council(9) , in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive.

(18)   This Regulation allows the principle of public access to official documents to be taken into account when applying the provisions set out in this Regulation. Personal data in documents held by a public authority or public body may be disclosed by that authority or body in accordance with Union or Member State law regarding public access to official documents, which reconciles the right to data protection with the right of public access to official documents and constitutes a fair balance of the various interests involved . [Am. 3]

(19)   Any processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union should be carried out in accordance with this Regulation, regardless of whether the processing itself takes place within the Union or not. Establishment implies the effective and real exercise of activity through stable arrangements. The legal form of such arrangements, whether through a branch or a subsidiary with a legal personality, is not the determining factor in this respect.

(20)   In order to ensure that individuals are not deprived of the protection to which they are entitled under this Regulation, the processing of personal data of data subjects residing in the Union by a controller not established in the Union should be subject to this Regulation where the processing activities are related to the offering of goods or services, irrespective of whether connected to a payment or not, to such data subjects, or to the monitoring of the behaviour of such data subjects. In order to determine whether such a controller is offering goods or services to such data subjects in the Union, it should be ascertained whether it is apparent that the controller is envisaging the offering of services to data subjects in one or more Member States in the Union. [Am. 4]

(21)   In order to determine whether a processing activity can be considered to ‘monitor the behaviourof data subjects, it should be ascertained whether individuals are tracked on the internet with , regardless of the origins of the data, or if other data about them are collected, including from public registers and announcements in the Union that are accessible from outside of the Union, including with the intention to use, or potential of subsequent use of data processing techniques which consist of applying a ‘profile’ to an individual , particularly in order to take decisions concerning her or him or for analysing or predicting her or his personal preferences, behaviours and attitudes. [Am. 5]

(22)   Where the national law of a Member State applies by virtue of public international law, this Regulation should also apply to a controller not established in the Union, such as in a Member State's diplomatic mission or consular post.

(23)   The principles of data protection should apply to any information concerning an identified or identifiable natural person. To determine whether a person is identifiable, account should be taken of all the means likely reasonably likely to be used either by the controller or by any other person to identify or single out the individual directly or indirectly . To ascertain whether means are reasonably likely to be used to identify the individual, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration both available technology at the time of the processing and technological development. The principles of data protection should therefore not apply to anonymous data rendered anonymous in such a way that the data subject is no longer identifiable , which is information that does not relate to an identified or identifiable natural person . This Regulation does therefore not concern the processing of such anonymous data, including for statistical and research purposes . [Am. 6]

(24)   When using online services, individuals may be associated with online This Regulation should be applicable to processing involving identifiers provided by their devices, applications, tools and protocols, such as Internet Protocol addresses or cookie identifiers and Radio Frequency Identification tags, unless those identifiers do not relate to an identified or identifiable natural person . This may leave traces which, combined with unique identifiers and other information received by the servers, may be used to create profiles of the individuals and identify them. It follows that identification numbers, location data, online identifiers or other specific factors as such need not necessarily be considered as personal data in all circumstances . [Am. 7]

(25)   Consent should be given explicitly by any appropriate method enabling a freely given specific and informed indication of the data subject's wishes, either by a statement or by a clear affirmative action that is the result of choice by the data subject, ensuring that individuals are aware that they give their consent to the processing of personal data, including by . Clear affirmative action could include ticking a box when visiting an Internet website or by any other statement or conduct which clearly indicates in this context the data subject's acceptance of the proposed processing of his or her personal data. Silence, mere use of a service or inactivity should therefore not constitute consent. Consent should cover all processing activities carried out for the same purpose or purposes. If the data subject's consent is to be given following an electronic request, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided. [Am. 8]

(26)   Personal data relating to health should include in particular all data pertaining to the health status of a data subject; information about the registration of the individual for the provision of health services; information about payments or eligibility for healthcare with respect to the individual; a number, symbol or particular assigned to an individual to uniquely identify the individual for health purposes; any information about the individual collected in the course of the provision of health services to the individual; information derived from the testing or examination of a body part or bodily substance, including biological samples; identification of a person as provider of healthcare to the individual; or any information on e.g. a disease, disability, disease risk, medical history, clinical treatment, or the actual physiological or biomedical state of the data subject independent of its source, such as e.g. from a physician or other health professional, a hospital, a medical device, or an in vitro diagnostic test.

(27)   The main establishment of a controller in the Union should be determined according to objective criteria and should imply the effective and real exercise of management activities determining the main decisions as to the purposes, conditions and means of processing through stable arrangements. This criterion should not depend whether the processing of personal data is actually carried out at that location; the presence and use of technical means and technologies for processing personal data or processing activities do not, in themselves, constitute such main establishment and are therefore no determining criteria for a main establishment. The main establishment of the processor should be the place of its central administration in the Union.

(28)   A group of undertakings should cover a controlling undertaking and its controlled undertakings, whereby the controlling undertaking should be the undertaking which can exercise a dominant influence over the other undertakings by virtue, for example, of ownership, financial participation or the rules which govern it or the power to have personal data protection rules implemented.

(29)   Children deserve specific protection of their personal data, as they may be less aware of risks, consequences, safeguards and their rights in relation to the processing of personal data. To determine when an individual is a child, this Regulation should take over the definition laid down by the UN Convention on the Rights of the Child. Where data processing is based on the data subject’s consent in relation to the offering of goods or services directly to a child, consent should be given or authorised by the child’s parent or legal guardian in cases where the child is below the age of 13. Age-appropriate language should be used where the intended audience is children. Other grounds of lawful processing such as grounds of public interest should remain applicable, such as for processing in the context of preventive or counselling services offered directly to a child. [Am. 9]

(30)   Any processing of personal data should be lawful, fair and transparent in relation to the individuals concerned. In particular, the specific purposes for which the data are processed should be explicit and legitimate and determined at the time of the collection of the data. The data should be adequate, relevant and limited to the minimum necessary for the purposes for which the data are processed; this requires in particular ensuring that the data collected are not excessive and that the period for which the data are stored is limited to a strict minimum. Personal data should only be processed if the purpose of the processing could not be fulfilled by other means. Every reasonable step should be taken to ensure that personal data which are inaccurate are rectified or deleted. In order to ensure that the data are not kept longer than necessary, time limits should be established by the controller for erasure or for a periodic review.

(31)   In order for processing to be lawful, personal data should be processed on the basis of the consent of the person concerned or some other legitimate basis, laid down by law, either in this Regulation or in other Union or Member State law as referred to in this Regulation. In case of a child or a person lacking legal capacity, relevant Union or Member State law should determine the conditions under which consent is given or authorised by that person. [Am. 10]

(32)   Where processing is based on the data subject's consent, the controller should have the burden of proving that the data subject has given the consent to the processing operation. In particular in the context of a written declaration on another matter, safeguards should ensure that the data subject is aware that and to what extent consent is given. To comply with the principle of data minimisation, the burden of proof should not be understood as requiring the positive identification of data subjects unless necessary. Similar to civil law terms (e.g. Council Directive 93/13/EEC (10) ), data protection policies should be as clear and transparent as possible. They should not contain hidden or disadvantageous clauses. Consent cannot be given for the processing of personal data of third persons. [Am. 11]

(33)   In order to ensure free consent, it should be clarified that consent does not provide a valid legal ground where the individual has no genuine and free choice and is subsequently not able to refuse or withdraw consent without detriment. This is especially the case if the controller is a public authority that can impose an obligation by virtue of its relevant public powers and the consent cannot be deemed as freely given. The use of default options which the data subject is required to modify to object to the processing, such as pre-ticked boxes, does not express free consent. Consent for the processing of additional personal data that are not necessary for the provision of a service should not be required for using the service. When consent is withdrawn, this may allow the termination or non-execution of a service which is dependent on the data. Where the conclusion of the intended purpose is unclear, the controller should in regular intervals provide the data subject with information about the processing and request a re-affirmation of his or her consent. [Am. 12]

(34)   Consent should not provide a valid legal ground for the processing of personal data, where there is a clear imbalance between the data subject and the controller. This is especially the case where the data subject is in a situation of dependence from the controller, among others, where personal data are processed by the employer of employees' personal data in the employment context. Where the controller is a public authority, there would be an imbalance only in the specific data processing operations where the public authority can impose an obligation by virtue of its relevant public powers and the consent cannot be deemed as freely given, taking into account the interest of the data subject. [Am. 13]

(35)   Processing should be lawful where it is necessary in the context of a contract or the intended entering into a contract.

(36)   Where processing is carried out in compliance with a legal obligation to which the controller is subject or where processing is necessary for the performance of a task carried out in the public interest or in the exercise of an official authority, the processing should have a legal basis in Union law, or in a Member State law which meets the requirements of the Charter for any limitation of the rights and freedoms. This should include also collective agreements that could be recognised under national law as having general validity. It is also for Union or national law to determine whether the controller performing a task carried out in the public interest or in the exercise of official authority should be a public administration or another natural or legal person governed by public law, or by private law such as a professional association. [Am. 14]

(37)   The processing of personal data should equally be regarded as lawful where it is necessary to protect an interest which is essential for the data subject's life.

(38)   The legitimate interests of a the controller or, in case of disclosure, of the third party to whom the data are disclosed, may provide a legal basis for processing, provided that they meet the reasonable expectations of the data subject based on his or her relationship with the controller and that the interests or the fundamental rights and freedoms of the data subject are not overriding. This would need careful assessment in particular where the data subject is a child, given that children deserve specific protection. Provided that the interests or the fundamental rights and freedoms of the data subject are not overriding, processing limited to pseudonymous data should be presumed to meet the reasonable expectations of the data subject based on his or her relationship with the controller. The data subject should have the right to object the processing, on grounds relating to their particular situation and free of charge. To ensure transparency, the controller should be obliged to explicitly inform the data subject on the legitimate interests pursued and on the right to object, and also be obliged to document these legitimate interests. The interests and fundamental rights of the data subject could in particular override the interest of the data controller where personal data are processed in circumstances where data subjects do not reasonably expect further processing. Given that it is for the legislator to provide by law the legal basis for public authorities to process data, this legal ground should not apply for the processing by public authorities in the performance of their tasks. [Am. 15]

(39)   The processing of data to the extent strictly necessary and proportionate for the purposes of ensuring network and information security, i.e. the ability of a network or an information system to resist, at a given level of confidence, accidental events or unlawful or malicious actions that compromise the availability, authenticity, integrity and confidentiality of stored or transmitted data, and the security of the related services offered by, or accessible via, these networks and systems, by public authorities, Computer Emergency Response Teams – CERTs, Computer Security Incident Response Teams ­­– CSIRTs, providers of electronic communications networks and services and by providers of security technologies and services, constitutes a legitimate interest of the concerned data controller. This could, for example, include preventing unauthorised access to electronic communications networks and malicious code distribution and stopping ‘denial of service’ attacks and damage to computer and electronic communication systems. This principle also applies to processing of personal data to restrict abusive access to and use of publicly available network or information systems, such as the blacklisting of electronic identifiers. [Am. 16]

(39a)   Provided that the interests or the fundamental rights and freedoms of the data subject are not overriding, the prevention or limitation of damages on the side of the data controller should be presumed as carried out for the legitimate interest of the data controller or, in case of disclosure, of the third party to whom the data are disclosed, and as meeting the reasonable expectations of the data subject based on his or her relationship with the controller. The same principle also applies to the enforcement of legal claims against a data subject, such as debt collection or civil damages and remedies. [Am. 17]

(39b)   Provided that the interests or the fundamental rights and freedoms of the data subject are not overriding, the processing of personal data for the purpose of direct marketing for own or similar products and services or for the purpose of postal direct marketing should be presumed as carried out for the legitimate interest of the controller or, in case of disclosure, of the third party to whom the data are disclosed, and as meeting the reasonable expectations of the data subject based on his or her relationship with the controller if highly visible information on the right to object and on the source of the personal data is given. The processing of business contact details should be generally regarded as carried out for the legitimate interest of the controller or, in case of disclosure, of the third party to whom the data are disclosed, and as meeting the reasonable expectations of the data subject based on his or her relationship with the controller. The same should apply to the processing of personal data made manifestly public by the data subject. [Am. 18]

(40)   The processing of personal data for other purposes should be only allowed where the processing is compatible with those purposes for which the data have been initially collected, in particular where the processing is necessary for historical, statistical or scientific research purposes. Where the other purpose is not compatible with the initial one for which the data are collected, the controller should obtain the consent of the data subject for this other purpose or should base the processing on another legitimate ground for lawful processing, in particular where provided by Union law or the law of the Member State to which the controller is subject. In any case, the application of the principles set out by this Regulation and in particular the information of the data subject on those other purposes should be ensured. [Am. 19]

(41)   Personal data which are, by their nature, particularly sensitive and vulnerable in relation to fundamental rights or privacy, deserve specific protection. Such data should not be processed, unless the data subject gives his explicit consent. However, derogations from this prohibition should be explicitly provided for in respect of specific needs, in particular where the processing is carried out in the course of legitimate activities by certain associations or foundations the purpose of which is to permit the exercise of fundamental freedoms. [Am. 20]

(42)   Derogating from the prohibition on processing sensitive categories of data should also be allowed if done by a law, and subject to suitable safeguards, so as to protect personal data and other fundamental rights, where grounds of public interest so justify and in particular for health purposes, including public health and social protection and the management of health-care services, especially in order to ensure the quality and cost-effectiveness of the procedures used for settling claims for benefits and services in the health insurance system, or for historical, statistical and scientific research purposes, or for archive services . [Am. 21]

(43)   Moreover, the processing of personal data by official authorities for achieving aims, laid down in constitutional law or international public law, of officially recognised religious associations is carried out on grounds of public interest.

(44)   Where in the course of electoral activities, the operation of the democratic system requires in a Member State that political parties compile data on people's political opinions, the processing of such data may be permitted for reasons of public interest, provided that appropriate safeguards are established.

(45)   If the data processed by a controller do not permit the controller to identify a natural person, the data controller should not be obliged to acquire additional information in order to identify the data subject for the sole purpose of complying with any provision of this Regulation. In case of a request for access, the controller should be entitled to ask the data subject for further information to enable the data controller to locate the personal data which that person seeks. If it is possible for the data subject to provide such data, controllers should not be able to invoke a lack of information to refuse an access request. [Am. 22]

(46)   The principle of transparency requires that any information addressed to the public or to the data subject should be easily accessible and easy to understand, and that clear and plain language is used. This is in particular relevant where in situations, such as online advertising, the proliferation of actors and the technological complexity of practice makes it difficult for the data subject to know and understand if personal data relating to him or her are being collected, by whom and for what purpose. Given that children deserve specific protection, any information and communication, where processing is addressed specifically to a child, should be in such a clear and plain language that the child can easily understand.

(47)   Modalities should be provided for facilitating the data subject’s exercise of his or her rights provided by this Regulation, including mechanisms to request obtain , free of charge, in particular access to data, rectification, erasure and to exercise the right to object. The controller should be obliged to respond to requests of the data subject within a fixed reasonable deadline and give reasons, in case he does not comply with the data subject's request. [Am. 23]

(48)   The principles of fair and transparent processing require that the data subject should be informed in particular of the existence of the processing operation and its purposes, how long the data will be likely stored for each purpose , if the data are to be transferred to third parties or third countries, on the existence of measures to object and of the right of access, rectification or erasure and on the right to lodge a complaint. Where the data are collected from the data subject, the data subject should also be informed whether they are obliged to provide the data and of the consequences, in cases they do not provide such data. This information should be provided, which can also mean made readily available, to the data subject after the provision of simplified information in the form of standardised icons. This should also mean that personal data are processed in a way that effectively allows the data subject to exercise his or her rights. [Am. 24]

(49)   The information in relation to the processing of personal data relating to the data subject should be given to him or her at the time of collection, or, where the data are not collected from the data subject, within a reasonable period, depending on the circumstances of the case. Where data can be legitimately disclosed to another recipient, the data subject should be informed when the data are first disclosed to the recipient.

(50)   However, it is not necessary to impose this obligation where the data subject already disposes of knows this information, or where the recording or disclosure of the data is expressly laid down by law, or where the provision of information to the data subject proves impossible or would involve disproportionate efforts. The latter could be particularly the case where processing is for historical, statistical or scientific research purposes; in this regard, the number of data subjects, the age of the data, and any compensatory measures adopted may be taken into consideration. [Am. 25]

(51)   Any person should have the right of access to data which have been collected concerning them, and to exercise this right easily, in order to be aware and verify the lawfulness of the processing. Every data subject should therefore have the right to know and obtain communication in particular for what purposes the data are processed, for what estimated period, which recipients receive the data, what is the general logic of the data that are undergoing the processing and what might be, at least when based on profiling, the consequences of such processing. This right should not adversely affect the rights and freedoms of others, including trade secrets or intellectual property and in particular , such as in relation to the copyright protecting the software. However, the result of these considerations should not be that all information is refused to the data subject. [Am. 26]

(52)   The controller should use all reasonable measures to verify the identity of a data subject that requests access, in particular in the context of online services and online identifiers. A controller should not retain personal data for the unique purpose of being able to react to potential requests.

(53)   Any person should have the right to have personal data concerning them rectified and a 'right to be forgotten erasure ' where the retention of such data is not in compliance with this Regulation. In particular, data subjects should have the right that their personal data are erased and no longer processed, where the data are no longer necessary in relation to the purposes for which the data are collected or otherwise processed, where data subjects have withdrawn their consent for processing or where they object to the processing of personal data concerning them or where the processing of their personal data otherwise does not comply with this Regulation. This right is particularly relevant, when the data subject has given their consent as a child, when not being fully aware of the risks involved by the processing, and later wants to remove such personal data especially on the Internet. However, the further retention of the data should be allowed where it is necessary for historical, statistical and scientific research purposes, for reasons of public interest in the area of public health, for exercising the right of freedom of expression, when required by law or where there is a reason to restrict the processing of the data instead of erasing them. Also, the right to erasure should not apply when the retention of personal data is necessary for the performance of a contract with the data subject, or when there is a legal obligation to retain this data. [Am. 27]

(54)   To strengthen the 'right to be forgotten erasure ' in the online environment, the right to erasure should also be extended in such a way that a controller who has made the personal data public without legal justification should be obliged to inform third parties which are processing such data that a data subject requests them to erase any links to, or copies or replications of that personal data. To ensure this information, the controller should take all reasonable steps, including technical measures, in relation to data for the publication of which the controller is responsible. In relation to a third party publication of personal data, the controller should be considered responsible for the publication, where the controller has authorised the publication by the third party take all necessary steps to have the data erased, including by third parties, without prejudice to the right of the data subject to claim compensation . [Am. 28]

(54a)   Data which are contested by the data subject and whose accuracy or inaccuracy cannot be determined should be blocked until the issue is cleared. [Am. 29]

(55)   To further strengthen the control over their own data and their right of access, data subjects should have the right, where personal data are processed by electronic means and in a structured and commonly used format, to obtain a copy of the data concerning them also in commonly used electronic format. The data subject should also be allowed to transmit those data, which they have provided, from one automated application, such as a social network, into another one. Data controllers should be encouraged to develop interoperable formats that enable data portability. This should apply where the data subject provided the data to the automated processing system, based on his or her consent or in the performance of a contract. Providers of information society services should not make the transfer of those data mandatory for the provision of their services. [Am. 30]

(56)   In cases where personal data might lawfully be processed to protect the vital interests of the data subject, or on grounds of public interest, official authority or the legitimate interests of a controller, any data subject should nevertheless be entitled to object to the processing of any data relating to him or her, free of charge and in a manner that can be easily and effectively invoked . The burden of proof should be on the controller to demonstrate that his or her legitimate interests may override the interests or the fundamental rights and freedoms of the data subject. [Am. 31]

(57)   Where personal data are processed for the purposes of direct marketing, the data subject should have has the right to object to such the processing free of charge and in a manner that can be easily and effectively invoked , the controller should explicitly offer it to the data subject in an intelligible manner and form, using clear and plain language and should clearly distinguish it from other information . [Am. 32]

(58)   Without prejudice to the lawfulness of the data processing, every natural person should have the right not to be subject to object to a measure which is based on profiling by means of automated processing. However, such measure . Profiling which leads to measures producing legal effects concerning the data subject or does similarly significantly affect the interests, rights or freedoms of the concerned data subject should only be allowed when expressly authorised by law, carried out in the course of entering or performance of a contract, or when the data subject has given his consent. In any case, such processing should be subject to suitable safeguards, including specific information of the data subject and the right to obtain human intervention assessment and that such measure should not concern a child. Such measures should not lead to discrimination against individuals on the basis of race or ethnic origin, political opinions, religion or beliefs, trade union membership, sexual orientation or gender identity. [Am. 33]

(58a)   Profiling based solely on the processing of pseudonymous data should be presumed not to significantly affect the interests, rights or freedoms of the data subject. Where profiling, whether based on a single source of pseudonymous data or on the aggregation of pseudonymous data from different sources, permits the controller to attribute pseudonymous data to a specific data subject, the processed data should no longer be considered to be pseudonymous. [Am. 34]

(59)   Restrictions on specific principles and on the rights of information, access, rectification and erasure or on the right of access and to obtain data portability , the right to object, measures based on profiling, as well as on the communication of a personal data breach to a data subject and on certain related obligations of the controllers may be imposed by Union or Member State law, as far as necessary and proportionate in a democratic society to safeguard public security, including the protection of human life especially in response to natural or man made disasters, the prevention, investigation and prosecution of criminal offences or of breaches of ethics for regulated professions, other specific and well-defined public interests of the Union or of a Member State, in particular an important economic or financial interest of the Union or of a Member State, or the protection of the data subject or the rights and freedoms of others. Those restrictions should be in compliance with requirements set out by the Charter and by the European Convention for the Protection of Human Rights and Fundamental Freedoms. [Am. 35]

(60)   Comprehensive responsibility and liability of the controller for any processing of personal data carried out by the controller or on the controller's behalf should be established, in particular with regard to documentation, data security, impact assessments, the data protection officer and oversight by data protection authorities . In particular, the controller should ensure and be obliged able to demonstrate the compliance of each processing operation with this Regulation. This should be verified by independent internal or external auditors. [Am. 36]

(61)   The protection of the rights and freedoms of data subjects with regard to the processing of personal data requires that appropriate technical and organisational measures are taken, both at the time of the design of the processing and at the time of the processing itself, to ensure that the requirements of this Regulation are met. In order to ensure and demonstrate compliance with this Regulation, the controller should adopt internal policies and implement appropriate measures, which meet in particular the principles of data protection by design and data protection by default. The principle of data protection by design requires data protection to be embedded within the entire life cycle of the technology, from the very early design stage, right through to its ultimate deployment, use and final disposal. This should also include the responsibility for the products and services used by the controller or processor. The principle of data protection by default requires privacy settings on services and products which should by default comply with the general principles of data protection, such as data minimisation and purpose limitation. [Am. 37]

(62)   The protection of the rights and freedoms of data subjects as well as the responsibility and liability of controllers and processor, also in relation to the monitoring by and measures of supervisory authorities, requires a clear attribution of the responsibilities under this Regulation, including where a controller determines the purposes, conditions and means of the processing jointly with other controllers or where a processing operation is carried out on behalf of a controller. The arrangement between the joint controllers should reflect the joint controllers' effective roles and relationships. The processing of personal data under this Regulation should include the permission for a controller to transmit the data to a joint controller or to a processor for the processing of the data on his or her behalf. [Am. 38]

(63)   Where a controller not established in the Union is processing personal data of data subjects residing in the Union whose processing activities are related to the offering of goods or services to such data subjects, or to the monitoring their behaviour , the controller should designate a representative, unless the controller is established in a third country ensuring an adequate level of protection, or the controller is a small or medium sized enterprise or processing relates to fewer than 5000 data subjects during any consecutive 12-month period and is not carried out on special categories of personal data, or is a public authority or body or where the controller is only occasionally offering goods or services to such data subjects. The representative should act on behalf of the controller and may be addressed by any supervisory authority. [Am. 39]

(64)   In order to determine whether a controller is only occasionally offering goods and services to data subjects residing in the Union, it should be ascertained whether it is apparent from the controller's overall activities that the offering of goods and services to such data subjects is ancillary to those main activities. [Am. 40]

(65)   In order to be able to demonstrate compliance with this Regulation, the controller or processor should document each processing operation maintain the documentation necessary in order to fulfill the requirements laid down in this Regulation . Each controller and processor should be obliged to co-operate with the supervisory authority and make this documentation, on request, available to it, so that it might serve for monitoring those processing operations evaluating the compliance with this Regulation . However, equal emphasis and significance should be placed on good practice and compliance and not just the completion of documentation . [Am. 41]

(66)   In order to maintain security and to prevent processing in breach of this Regulation, the controller or processor should evaluate the risks inherent to the processing and implement measures to mitigate those risks. These measures should ensure an appropriate level of security, taking into account the state of the art and the costs of their implementation in relation to the risks and the nature of the personal data to be protected. When establishing technical standards and organisational measures to ensure security of processing, the Commission should promote technological neutrality, interoperability and innovation should be promoted and, where appropriate, cooperate cooperation with third countries should be encouraged . [Am. 42]

(67)   A personal data breach may, if not addressed in an adequate and timely manner, result in substantial economic loss and social harm, including identity fraud, to the individual concerned. Therefore, as soon as the controller becomes aware that such a breach has occurred, the controller should notify the breach to the supervisory authority without undue delay and, where feasible, within 24 ,which should be presumed to be not later than 72 hours. Where this cannot achieved within 24 hours If applicable , an explanation of the reasons for the delay should accompany the notification. The individuals whose personal data could be adversely affected by the breach should be notified without undue delay in order to allow them to take the necessary precautions. A breach should be considered as adversely affecting the personal data or privacy of a data subject where it could result in, for example, identity theft or fraud, physical harm, significant humiliation or damage to reputation. The notification should describe the nature of the personal data breach and formulate recommendations for the individual concerned to mitigate potential adverse effects. Notifications to data subjects should be made as soon as reasonably feasible, and in close cooperation with the supervisory authority and respecting guidance provided by it or other relevant authorities (e.g. law enforcement authorities). For example, the chance for data subjects to mitigate an immediate risk of harm would call for a prompt notification of data subjects whereas the need to implement appropriate measures against continuing or similar data breaches may justify a longer delay. [Am. 43]

(68)   In order to determine whether a personal data breach is notified to the supervisory authority and to the data subject without undue delay, it should be ascertained whether the controller has implemented and applied appropriate technological protection and organisational measures to establish immediately whether a personal data breach has taken place and to inform promptly the supervisory authority and the data subject, before a damage to personal and economic interests occurs, taking into account in particular the nature and gravity of the personal data breach and its consequences and adverse effects for the data subject.

(69)   In setting detailed rules concerning the format and procedures applicable to the notification of personal data breaches, due consideration should be given to the circumstances of the breach, including whether or not personal data had been protected by appropriate technical protection measures, effectively limiting the likelihood of identity fraud or other forms of misuse. Moreover, such rules and procedures should take into account the legitimate interests of law enforcement authorities in cases where early disclosure could unnecessarily hamper the investigation of the circumstances of a breach.

(70)   Directive 95/46/EC provided for a general obligation to notify processing of personal data to the supervisory authorities. While this obligation produces administrative and financial burdens, it did not in all cases contribute to improving the protection of personal data. Therefore such indiscriminate general notification obligation should be abolished, and replaced by effective procedures and mechanism which focus instead on those processing operations which are likely to present specific risks to the rights and freedoms of data subjects by virtue of their nature, their scope or their purposes. In such cases, a data protection impact assessment should be carried out by the controller or processor prior to the processing, which should include in particular the envisaged measures, safeguards and mechanisms for ensuring the protection of personal data and for demonstrating the compliance with this Regulation.

(71)   This should in particular apply to newly established large scale filing systems, which aim at processing a considerable amount of personal data at regional, national or supranational level and which could affect a large number of data subjects.

(71a)   Impact assessments are the essential core of any sustainable data protection framework, making sure that businesses are aware from the outset of all possible consequences of their data processing operations. If impact assessments are thorough, the likelihood of any data breach or privacy-intrusive operation can be fundamentally limited. Data protection impact assessments should consequently have regard to the entire lifecycle management of personal data from collection to processing to deletion, describing in detail the envisaged processing operations, the risks to the rights and freedoms of data subjects, the measures envisaged to address the risks, safeguards, security measures and mechanisms to ensure compliance with this Regulation. [Am. 44]

(71b)   Controllers should focus on the protection of personal data throughout the entire data lifecycle from collection to processing to deletion by investing from the outset in a sustainable data management framework and by following it up with a comprehensive compliance mechanism. [Am. 45]

(72)   There are circumstances under which it may be sensible and economic that the subject of a data protection impact assessment should be broader than a single project, for example where public authorities or bodies intend to establish a common application or processing platform or where several controllers plan to introduce a common application or processing environment across an industry sector or segment or for a widely used horizontal activity.

(73)   Data protection impact assessments should be carried out by a public authority or public body if such an assessment has not already been made in the context of the adoption of the national law on which the performance of the tasks of the public authority or public body is based and which regulates the specific processing operation or set of operations in question. [Am. 46]

(74)   Where a data protection impact assessment indicates that processing operations involve a high degree of specific risks to the rights and freedoms of data subjects, such as excluding individuals from their right, or by the use of specific new technologies, the data protection officer or the supervisory authority should be consulted, prior to the start of operations, on a risky processing which might not be in compliance with this Regulation, and to make proposals to remedy such situation. Such A consultation of the supervisory authority should equally take place in the course of the preparation either of a measure by the national parliament or of a measure based on such legislative measure which defines the nature of the processing and lays down appropriate safeguards. [Am. 47]

(74a)   Impact assessments can only be of help if controllers make sure that they comply with the promises originally laid down in them. Data controllers should therefore conduct periodic data protection compliance reviews demonstrating that the data processing mechanisms in place comply with assurances made in the data protection impact assessment. It should further demonstrate the ability of the data controller to comply with the autonomous choices of data subjects. In addition, in case the review finds compliance inconsistencies, it should highlight these and present recommendations on how to achieve full compliance. [Am. 48]

(75)   Where the processing is carried out in the public sector or where, in the private sector, processing is carried out by a large enterprise relates to more than 5000 data subjects within 12 months , or where its core activities, regardless of the size of the enterprise, involve processing operations on sensitive data, or processing operations which require regular and systematic monitoring, a person should assist the controller or processor to monitor internal compliance with this Regulation. When establishing whether data about a large number of data subjects are processed, archived data that are restricted in such a way that they are not subject to the normal data access and processing operations of the controller and can no longer be changed should not be taken into account. Such data protection officers, whether or not an employee of the controller and whether or not performing that task full time , should be in a position to perform their duties and tasks independently and enjoy special protection against dismissal. Final responsibility should stay with the management of an organisation. The data protection officer should in particular be consulted prior to the design, procurement, development and setting-up of systems for the automated processing of personal data, in order to ensure the principles of privacy by design and privacy by default . [Am. 49]

(75a)   The data protection officer should have at least the following qualifications: extensive knowledge of the substance and application of data protection law, including technical and organisational measures and procedures; mastery of technical requirements for privacy by design, privacy by default and data security; industry-specific knowledge in accordance with the size of the controller or processor and the sensitivity of the data to be processed; the ability to carry out inspections, consultation, documentation, and log file analysis; and the ability to work with employee representation. The controller should enable the data protection officer to take part in advanced training measures to maintain the specialised knowledge required to perform his or her duties. The designation as a data protection officer does not necessarily require fulltime occupation of the respective employee. [Am. 50]

(76)   Associations or other bodies representing categories of controllers should be encouraged, after consultation of the representatives of the employees, to draw up codes of conduct, within the limits of this Regulation, so as to facilitate the effective application of this Regulation, taking account of the specific characteristics of the processing carried out in certain sectors. Such codes should make compliance with this Regulation easier for industry. [Am. 51]

(77)   In order to enhance transparency and compliance with this Regulation, the establishment of certification mechanisms, data protection seals and standardised marks should be encouraged, allowing data subjects to quickly, reliably and verifiably assess the level of data protection of relevant products and services. A "European Data Protection Seal" should be established at European level to create trust among data subjects, legal certainty for controllers, and at the same time export European data protection standards by allowing non-European companies to more easily enter European markets by being certified. [Am. 52]

(78)   Cross-border flows of personal data are necessary for the expansion of international trade and international co-operation. The increase in these flows has raised new challenges and concerns with respect to the protection of personal data. However, when personal data are transferred from the Union to third countries or to international organisations, the level of protection of individuals guaranteed in the Union by this Regulation should not be undermined. In any event, transfers to third countries may only be carried out in full compliance with this Regulation.

(79)   This Regulation is without prejudice to international agreements concluded between the Union and third countries regulating the transfer of personal data including appropriate safeguards for the data subjects ensuring an adequate level of protection for the fundamental rights of citizens . [Am. 53]

(80)   The Commission may decide with effect for the entire Union that certain third countries, or a territory or a processing sector within a third country, or an international organisation, offer an adequate level of data protection, thus providing legal certainty and uniformity throughout the Union as regards the third countries or international organisations which are considered to provide such level of protection. In these cases, transfers of personal data to these countries may take place without needing to obtain any further authorisation The Commission may also decide, having given notice and a complete justification to the third country, to revoke such a decision . [Am. 54]

(81)   In line with the fundamental values on which the Union is founded, in particular the protection of human rights, the Commission should, in its assessment of the third country, take into account how a given third country respects the rule of law, access to justice as well as international human rights norms and standards.

(82)   The Commission may equally recognise that a third country, or a territory or a processing sector within a third country, or an international organisation offers no adequate level of data protection. Any legislation which provides for extra-territorial access to personal data processed in the Union without authorisation under Union or Member State law should be considered as an indication of a lack of adequacy. Consequently the transfer of personal data to that third country should be prohibited. In that case, provision should be made for consultations between the Commission and such third countries or international organisations. [Am. 55]

(83)   In the absence of an adequacy decision, the controller or processor should take measures to compensate for the lack of data protection in a third country by way of appropriate safeguards for the data subject. Such appropriate safeguards may consist of making use of binding corporate rules, standard data protection clauses adopted by the Commission, standard data protection clauses adopted by a supervisory authority or contractual clauses authorised by a supervisory authority, or other suitable and proportionate measures justified in the light of all the circumstances surrounding a data transfer operation or set of data transfer operations and where authorised by a supervisory authority . Those appropriate safeguards should uphold a respect of the data subject’s rights adequate to intra-EU processing, in particular relating to purpose limitation, right to access, rectification, erasure and to claim compensation. Those safeguards should in particular guarantee the observance of the principles of personal data processing, safeguard the data subject’s rights and provide for effective redress mechanisms, ensure the observance of the principles of data protection by design and by default, guarantee the existence of a data protection officer. [Am. 56]

(84)   The possibility for the controller or processor to use standard data protection clauses adopted by the Commission or by a supervisory authority should neither prevent the possibility for controllers or processors to include the standard data protection clauses in a wider contract nor to add other clauses or supplementary safeguards as long as they do not contradict, directly or indirectly, the standard contractual clauses adopted by the Commission or by a supervisory authority or prejudice the fundamental rights or freedoms of the data subjects. The standard data protection clauses adopted by the Commission could cover different situations, namely transfers from controllers established in the Union to controllers established outside the Union and from controllers established in the Union to processors, including sub-processors, established outside the Union. Controllers and processors should be encouraged to provide even more robust safeguards via additional contractual commitments that supplement standard protection clauses. [Am. 57]

(85)   A corporate group should be able to make use of approved binding corporate rules for its international transfers from the Union to organisations within the same corporate group of undertakings, as long as such corporate rules include all essential principles and enforceable rights to ensure appropriate safeguards for transfers or categories of transfers of personal data. [Am. 58]

(86)   Provisions should be made for the possibility for transfers in certain circumstances where the data subject has given his consent, where the transfer is necessary in relation to a contract or a legal claim, where important grounds of public interest laid down by Union or Member State law so require or where the transfer is made from a register established by law and intended for consultation by the public or persons having a legitimate interest. In this latter case such a transfer should not involve the entirety of the data or entire categories of the data contained in the register and, when the register is intended for consultation by persons having a legitimate interest, the transfer should be made only at the request of those persons or if they are to be the recipients, taking into full account the interests and fundamental rights of the data subject . [Am. 59]

(87)   These derogations should in particular apply to data transfers required and necessary for the protection of important grounds of public interest, for example in cases of international data transfers between competition authorities, tax or customs administrations, financial supervisory authorities, between services competent for social security matters or for public health , or to competent public authorities for the prevention, investigation, detection and prosecution of criminal offences, including for the prevention of money laundering and the fight against terrorist financing. A transfer of personal data should equally be regarded as lawful where it is necessary to protect an interest which is essential for the data subject’s or another person’s life, if the data subject is incapable of giving consent. Transferring personal data for such important grounds of public interest should only be used for occasional transfers. In each and every case, a careful assessment of all circumstances of the transfer should be carried out . [Am. 60]

(88)   Transfers which cannot be qualified as frequent or massive, could also be possible for the purposes of the legitimate interests pursued by the controller or the processor, when they have assessed all the circumstances surrounding the data transfer. For the purposes of processing for historical, statistical and scientific research purposes, the legitimate expectations of society for an increase of knowledge should be taken into consideration. [Am. 61]

(89)   In any case, where the Commission has taken no decision on the adequate level of data protection in a third country, the controller or processor should make use of solutions that provide data subjects with a legally binding guarantee that they will continue to benefit from the fundamental rights and safeguards as regards processing of their data in the Union once those data have been transferred, to the extent that the processing is not massive, not repetitive and not structural . That guarantee should include financial indemnification in cases of loss or unauthorised access or processing of the data and an obligation, regardless of national legislation, to provide full details of all access to the data by public authorities in the third country . [Am. 62]

(90)   Some third countries enact laws, regulations and other legislative instruments which purport to directly regulate data processing activities of natural and legal persons under the jurisdiction of the Member States. The extraterritorial application of these laws, regulations and other legislative instruments may be in breach of international law and may impede the attainment of the protection of individuals guaranteed in the Union by this Regulation. Transfers should only be allowed where the conditions of this Regulation for a transfer to third countries are met. This may inter alia be the case where the disclosure is necessary for an important ground of public interest recognised in Union law or in a Member State law to which the controller is subject. The conditions under which an important ground of public interest exists should be further specified by the Commission in a delegated act. In cases where controllers or processors are confronted with conflicting compliance requirements between the jurisdiction of the Union on the one hand, and that of a third country on the other, the Commission should ensure that Union law takes precedence at all times. The Commission should provide guidance and assistance to the controller and processor, and it should seek to resolve the jurisdictional conflict with the third country in question . [Am. 63]

(91)   When personal data move across borders it may put at increased risk the ability of individuals to exercise data protection rights in particular to protect themselves from the unlawful use or disclosure of that information. At the same time, supervisory authorities may find that they are unable to pursue complaints or conduct investigations relating to the activities outside their borders. Their efforts to work together in the cross-border context may also be hampered by insufficient preventative or remedial powers, inconsistent legal regimes, and practical obstacles like resource constraints. Therefore, there is a need to promote closer co-operation among data protection supervisory authorities to help them exchange information and carry out investigations with their international counterparts.

(92)   The establishment of supervisory authorities in Member States, exercising their functions with complete independence, is an essential component of the protection of individuals with regard to the processing of their personal data. Member States may establish more than one supervisory authority, to reflect their constitutional, organisational and administrative structure. An authority shall have adequate financial and personal resources to fully carry out its role, taking into account the size of the population and the amount of personal data processing. [Am. 64]

(93)   Where a Member State establishes several supervisory authorities, it should establish by law mechanisms for ensuring the effective participation of those supervisory authorities in the consistency mechanism. That Member State should in particular designate the supervisory authority which functions as a single contact point for the effective participation of those authorities in the mechanism, to ensure swift and smooth co-operation with other supervisory authorities, the European Data Protection Board and the Commission.

(94)   Each supervisory authority should be provided with the adequate financial and human resources, paying particular attention to ensuring adequate technical and legal skills of staff, premises and infrastructure, which is necessary for the effective performance of their tasks, including for the tasks related to mutual assistance and co-operation with other supervisory authorities throughout the Union. [Am. 65]

(95)   The general conditions for the members of the supervisory authority should be laid down by law in each Member State and should in particular provide that those members should be either appointed by the parliament or the government of the Member State taking due care to minimise the possibility of political interference , and include rules on the personal qualification of the members, the avoidance of conflicts of interest and the position of those members. [Am. 66]

(96)   The supervisory authorities should monitor the application of the provisions pursuant to this Regulation and contribute to its consistent application throughout the Union, in order to protect natural persons in relation to the processing of their personal data and to facilitate the free flow of personal data within the internal market. For that purpose, the supervisory authorities should co-operate with each other and the Commission.

(97)   Where the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union takes place in more than one Member State, one single supervisory authority should be competent for monitoring the activities of act as the single contact point and the lead authority responsible for supervising the controller or processor throughout the Union and taking the related decisions, in order to increase the consistent application, provide legal certainty and reduce administrative burden for such controllers and processors. [Am. 67]

(98)   The competent lead authority, providing such one-stop shop, should be the supervisory authority of the Member State in which the controller or processor has its main establishment or its representative . The European Data Protection Board may designate the lead authority through the consistency mechanism in certain cases at the request of a competent authority. [Am. 68]

(98a)   Data subjects whose personal data are processed by a data controller or processor in another Member State should be able to complain to the supervisory authority of their choice. The lead data protection authority should coordinate its work with that of the other authorities involved. [Am. 69]

(99)   While this Regulation applies also to the activities of national courts, the competence of the supervisory authorities should not cover the processing of personal data when courts are acting in their judicial capacity, in order to safeguard the independence of judges in the performance of their judicial tasks. However, this exemption should be strictly limited to genuine judicial activities in court cases and not apply to other activities where judges might be involved in, in accordance with national law.

(100)   In order to ensure consistent monitoring and enforcement of this Regulation throughout the Union, the supervisory authorities should have in each Member State the same duties and effective powers, including powers of investigation, legally binding intervention, decisions and sanctions, particularly in cases of complaints from individuals, and to engage in legal proceedings. Investigative powers of supervisory authorities as regards access to premises should be exercised in conformity with Union law and national law. This concerns in particular the requirement to obtain a prior judicial authorisation.

(101)   Each supervisory authority should hear complaints lodged by any data subject or by associations acting in the public interest and should investigate the matter. The investigation following a complaint should be carried out, subject to judicial review, to the extent that is appropriate in the specific case. The supervisory authority should inform the data subject or the association of the progress and the outcome of the complaint within a reasonable period. If the case requires further investigation or coordination with another supervisory authority, intermediate information should be given to the data subject. [Am. 70]

(102)   Awareness raising activities by supervisory authorities addressed to the public should include specific measures directed at controllers and processors, including micro, small and medium-sized enterprises, as well as data subjects.

(103)   The supervisory authorities should assist each other in performing their duties and provide mutual assistance, so as to ensure the consistent application and enforcement of this Regulation in the internal market.

(104)   Each supervisory authority should have the right to participate in joint operations between supervisory authorities. The requested supervisory authority should be obliged to respond to the request in a defined time period.

(105)   In order to ensure the consistent application of this Regulation throughout the Union, a consistency mechanism for co-operation between the supervisory authorities themselves and the Commission should be established. This mechanism should in particular apply where a supervisory authority intends to take a measure as regards processing operations that are related to the offering of goods or services to data subjects in several Member States, or to the monitoring of such data subjects, or that might substantially affect the free flow of personal data. It should also apply where any supervisory authority or the Commission requests that the matter should be dealt with in the consistency mechanism. Furthermore, the data subjects should have the right to obtain consistency, if they deem a measure by a Data Protection Authority of a Member State has not fulfilled this criterion . This mechanism should be without prejudice to any measures that the Commission may take in the exercise of its powers under the Treaties. [Am. 71]

(106)   In application of the consistency mechanism, the European Data Protection Board should, within a determined period of time, issue an opinion, if a simple majority of its members so decides or if so requested by any supervisory authority or the Commission.

(106a)   In order to ensure the consistent application of this Regulation, the European Data Protection Board may in individual cases adopt a decision which is binding on the competent supervisory authorities. [Am. 72]

(107)   In order to ensure compliance with this Regulation, the Commission may adopt an opinion on this matter, or a decision, requiring the supervisory authority to suspend its draft measure. [Am. 73]

(108)   There may be an urgent need to act in order to protect the interests of data subjects, in particular when the danger exists that the enforcement of a right of a data subject could be considerably impeded. Therefore, a supervisory authority should be able to adopt provisional measures with a specified period of validity when applying the consistency mechanism.

(109)   The application of this mechanism should be a condition for the legal validity and enforcement of the respective decision by a supervisory authority. In other cases of cross-border relevance, mutual assistance and joint investigations might be carried out between the concerned supervisory authorities on a bilateral or multilateral basis without triggering the consistency mechanism.

(110)   At Union level, a European Data Protection Board should be set up. It should replace the Working Party on the Protection of Individuals with Regard to the Processing of Personal Data established by Directive 95/46/EC. It should consist of a head of a supervisory authority of each Member State and of the European Data Protection Supervisor. The Commission should participate in its activities. The European Data Protection Board should contribute to the consistent application of this Regulation throughout the Union, including by advising the Commission institutions of the Union and promoting co-operation of the supervisory authorities throughout the Union, including the coordination of joint operations . The European Data Protection Board should act independently when exercising its tasks. The European Data Protection Board should strengthen the dialogue with concerned stakeholders such as data subjects’ associations, consumer organisations, data controllers and other relevant stakeholders and experts. [Am. 74]

(111)   Every data Data subject subjects should have the right to lodge a complaint with a supervisory authority in any Member State and have the right to a an effective judicial remedy in accordance with Article 47 of the Charter if they consider that their rights under this Regulation are infringed or where the supervisory authority does not react on a complaint or does not act where such action is necessary to protect the rights of the data subject. [Am. 75]

(112)   Any body, organisation or association which aims to protects the rights and interests of data subjects in relation to the protection of their data acts in the public interest and is constituted according to the law of a Member State should have the right to lodge a complaint with a supervisory authority on behalf of data subjects with their consent or exercise the right to a judicial remedy on behalf of if mandated by the data subjects subject , or to lodge, independently of a data subject's complaint, an own complaint where it considers that a personal data breach of this Regulation has occurred. [Am. 76]

(113)   Each natural or legal person should have the right to a judicial remedy against decisions of a supervisory authority concerning them. Proceedings against a supervisory authority should be brought before the courts of the Member State, where the supervisory authority is established.

(114)   In order to strengthen the judicial protection of the data subject in situations where the competent supervisory authority is established in another Member State than the one where the data subject is residing, the data subject may request mandate any body, organisation or association aiming to protect the rights and interests of data subjects in relation to the protection of their data acting in the public interest to bring on the data subject's behalf proceedings against that supervisory authority to the competent court in the other Member State. [Am. 77]

(115)   In situations where the competent supervisory authority established in another Member State does not act or has taken insufficient measures in relation to a complaint, the data subject may request the supervisory authority in the Member State of his or her habitual residence to bring proceedings against that supervisory authority to the competent court in the other Member State. This does not apply to non-EU residents. The requested supervisory authority may decide, subject to judicial review, whether it is appropriate to follow the request or not. [Am. 78]

(116)   For proceedings against a controller or processor, the plaintiff should have the choice to bring the action before the courts of the Member States where the controller or processor has an establishment or, in case of EU residence, where the data subject resides, unless the controller is a public authority of the Union or a Member State acting in the exercise of its public powers. [Am. 79]

(117)   Where there are indications that parallel proceedings are pending before the courts in different Member States, the courts should be obliged to contact each other. The courts should have the possibility to suspend a case where a parallel case is pending in another Member State. Member States should ensure that court actions, in order to be effective, should allow the rapid adoption of measures to remedy or prevent an infringement of this Regulation.

(118)   Any damage, whether pecuniary or not, which a person may suffer as a result of unlawful processing should be compensated by the controller or processor, who may be exempted from liability only if they prove he proves that they are he is not responsible for the damage, in particular where he establishes fault on the part of the data subject or in case of force majeure. [Am. 80]

(119)   Penalties should be imposed to any person, whether governed by private or public law, who fails to comply with this Regulation. Member States should ensure that the penalties should be effective, proportionate and dissuasive and should take all measures to implement the penalties. The rules on penalties should be subject to appropriate procedural safeguards in conformity with the general principles of Union law and the Charter, including those concerning the right to an effective judicial remedy, due process and the principle of ne bis in idem. [Am. 81]

(119a)   In applying penalties, Member States should show full respect for appropriate procedural safeguards, including the right to an effective judicial remedy, due process, and the principle of ne bis in idem. [Am. 82]

(120)   In order to strengthen and harmonise administrative sanctions against infringements of this Regulation, each supervisory authority should have the power to sanction administrative offences. This Regulation should indicate these offences and the upper limit for the related administrative fines, which should be fixed in each individual case proportionate to the specific situation, with due regard in particular to the nature, gravity and duration of the breach. The consistency mechanism may also be used to cover divergences in the application of administrative sanctions.

(121)   The processing of personal data solely for journalistic purposes, or for the purposes of artistic or literary expression should qualify for exemption Whenever necessary, exemptions or derogations from the requirements of certain provisions of this Regulation for the processing of personal data should be provided for in order to reconcile the right to the protection of personal data with the right to freedom of expression, and notably the right to receive and impart information, as guaranteed in particular by Article 11 of the Charter. This should apply in particular to processing of personal data in the audiovisual field and in news archives and press libraries. Therefore, Member States should adopt legislative measures, which should lay down exemptions and derogations which are necessary for the purpose of balancing these fundamental rights. Such exemptions and derogations should be adopted by the Member States on general principles, on the rights of the data subject, on controller and processor, on the transfer of data to third countries or international organisations, on the independent supervisory authorities, and on co-operation and consistency and on specific data processing situations . This should not, however, lead Member States to lay down exemptions from the other provisions of this Regulation. In order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary to interpret notions relating to that freedom, such as journalism, broadly. Therefore, Member States should classify activities as "journalistic" for the purpose of the exemptions and derogations to be laid down under this Regulation if the object of these to cover all activities is which aim at the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them, also taking into account technological development . They should not be limited to media undertakings and may be undertaken for profit-making or for non-profit making purposes. [Am. 83]

(122)   The processing of personal data concerning health, as a special category of data which deserves higher protection, may often be justified by a number of legitimate reasons for the benefit of individuals and society as a whole, in particular in the context of ensuring continuity of cross-border healthcare. Therefore this Regulation should provide for harmonised conditions for the processing of personal data concerning health, subject to specific and suitable safeguards so as to protect the fundamental rights and the personal data of individuals. This includes the right for individuals to have access to their personal data concerning their health, for example the data in their medical records containing such information as diagnosis, examination results, assessments by treating physicians and any treatment or interventions provided.

(122a)   A professional who processes personal data concerning health should receive, if possible, anonymised or pseudonymised data, leaving the knowledge of the identity only to the general practitioner or to the specialist who has requested such data processing. [Am. 84]

(123)   The processing of personal data concerning health may be necessary for reasons of public interest in the areas of public health, without consent of the data subject. In that context, ‘public health’ should be interpreted as defined in Regulation (EC) No 1338/2008 of the European Parliament and of the Council(11) of 16 December 2008 on Community statistics on public health and health and safety at work , meaning all elements related to health, namely health status, including morbidity and disability, the determinants having an effect on that health status, health care needs, resources allocated to health care, the provision of, and universal access to, health care as well as health care expenditure and financing, and the causes of mortality. Such processing of personal data concerning health for reasons of public interest should not result in personal data being processed for other purposes by third parties such as employers, insurance and banking companies. [Am. 85]

(123a)   The processing of personal data concerning health, as a special category of data, may be necessary for reasons of historical, statistical or scientific research. Therefore this Regulation foresees an exemption from the requirement of consent in cases of research that serves a high public interest. [Am. 86]

(124)   The general principles on the protection of individuals with regard to the processing of personal data should also be applicable to the employment and the social security context. Therefore, in order Member States should be able to regulate the processing of employees' personal data in the employment and the processing of personal data in the social security context in accordance with the rules and minimum standards set out in , Member States should be able, within the limits of this Regulation, to adopt by law specific rules for . Where a statutory basis is provided in the Member State in question for the regulation of employment matters by agreement between employee representatives and the management of the undertaking or the controlling undertaking of a group of undertakings (collective agreement) or under Directive 2009/38/EC of the European Parliament and of the Council (12) , the processing of personal data in the an employment sector context may also be regulated by such an agreement . [Am. 87]

(125)   The processing of personal data for the purposes of historical, statistical or scientific research should, in order to be lawful, also respect other relevant legislation such as on clinical trials.

(125a)   Personal data may also be processed subsequently by archive services whose main or mandatory task is to collect, conserve, provide information about, exploit and disseminate archives in the public interest. Member State legislation should reconcile the right to the protection of personal data with the rules on archives and on public access to administrative information. Member States should encourage the drafting, in particular by the European Archives Group, of rules to guarantee the confidentiality of data vis-à-vis third parties and the authenticity, integrity and proper conservation of data. [Am. 88]

(126)   Scientific research for the purposes of this Regulation should include fundamental research, applied research, and privately funded research and in addition should take into account the Union's objective under Article 179(1) of the Treaty on the Functioning of the European Union of achieving a European Research Area. The processing of personal data for historical, statistical and scientific research purposes should not result in personal data being processed for other purposes, unless with the consent of the data subject or on the basis of Union or Member State law. [Am. 89]

(127)   As regards the powers of the supervisory authorities to obtain from the controller or processor access to personal data and access to its premises, Member States may adopt by law, within the limits of this Regulation, specific rules in order to safeguard the professional or other equivalent secrecy obligations, in so far as necessary to reconcile the right to the protection of personal data with an obligation of professional secrecy.

(128)   This Regulation respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States, as recognised in Article 17 of the Treaty on the Functioning of the European Union. As a consequence, where a church in a Member State applies, at the time of entry into force of this Regulation, comprehensive adequate rules relating to the protection of individuals with regard to the processing of personal data, these existing rules should continue to apply if they are brought in line with this Regulation and recognised as compliant . Such churches and religious associations should be required to provide for the establishment of a completely independent supervisory authority. [Am. 90]

(129)   In order to fulfil the objectives of this Regulation, namely to protect the fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data and to ensure the free movement of personal data within the Union, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission. In particular, delegated acts should be adopted in respect of lawfulness of processing ; specifying the criteria and conditions in relation to the consent of a child; processing of special categories of data; specifying the criteria and conditions for manifestly excessive requests and fees for exercising the rights of the data subject; criteria and requirements for the information to the data subject and in relation to the right of access conditions of icon-based mode for provision of information ; the right to be forgotten and to erasure; measures based on profiling; criteria and requirements in relation to the responsibility of the controller and to data protection by design and by default; a processor; criteria and requirements for the documentation and the security of processing; criteria and requirements for establishing a personal data breach and for its notification to the supervisory authority, and on the circumstances where a personal data breach is likely to adversely affect the data subject; the criteria and conditions for processing operations requiring a data protection impact assessment; the criteria and requirements for determining a high degree of specific risks which require prior consultation; designation and tasks of the data protection officer; declaring that codes of conduct are in line with this Regulation ; criteria and requirements for certification mechanisms; the adequate level of protection afforded by a third country or an international organisation; criteria and requirements for transfers by way of binding corporate rules; transfer derogations; administrative sanctions; processing for health purposes; and processing in the employment context and processing for historical, statistical and scientific research purposes . It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, in particular with the European Data Protection Board . The Commission, when preparing and drawing-up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council. [Am. 91]

(130)   In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission for: specifying standard forms for specific methods to obtain verifiable consent in relation to the processing of personal data of a child; standard procedures and forms for exercising the rights of the communication to the data subjects on the exercise of their rights ; standard forms for the information to the data subject; standard forms and procedures in relation to the right of access including for communicating the personal data to the data subject ; the right to data portability; standard forms in relation to the responsibility of the controller to data protection by design and by default and to the documentation to be kept by the controller and the processor ; specific requirements for the security of processing; the standard format and the procedures form for the notification of a personal data breach to the supervisory authority and the communication of a personal data breach to the data subject for documenting a personal data breach ; standards and procedures for a data protection impact assessment; forms and procedures for prior authorisation and prior consultation; technical standards and mechanisms for certification; the adequate level of protection afforded by a third country or a territory or a processing sector within that third country or an international organisation; disclosures not authorized by Union law; mutual assistance; joint operations; decisions under the consistency mechanism and information to the supervisory authority . Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers (13) . In this context, the Commission should consider specific measures for micro, small and medium-sized enterprises.[Am. 92]

(131)   The examination procedure should be used for the adoption of specifying standard forms in relation to the : for specific methods to obtain verifiable consent in relation to the processing of personal data of a child; standard procedures and forms for exercising the the communication to the data subjects on the exercice of their rights of data subjects ; standard forms for the information to the data subject; standard forms and procedures in relation to the right of access including for communicating the personal data to the data subject ;, the right to data portability; standard forms in relation to the responsibility of documentation to be kept by the controller to data protection by design and by default and to the documentation and the processor ; specific requirements for the security of processing; the standard format and the procedures for the notification of a personal data breach to the supervisory authority and the communication of for documenting a personal data breach to the data subject ; standards and procedures for a data protection impact assessment; forms and procedures for prior authorisation and prior consultation; technical standards and mechanisms for certification; the adequate level of protection afforded by a third country or a territory or a processing sector within that third country or an international organisation; disclosures not authorized by Union law; mutual assistance; joint operations; decisions under the consistency mechanism , and information to the supervisory authority, given that those acts are of general scope. [Am. 93]

(132)   The Commission should adopt immediately applicable implementing acts where, in duly justified cases relating to a third country or a territory or a processing sector within that third country or an international organisation which does not ensure an adequate level of protection and relating to matters communicated by supervisory authorities under the consistency mechanism, imperative grounds of urgency so require. [Am. 94]

(133)   Since the objectives of this Regulation, namely to ensure an equivalent level of protection of individuals and the free flow of data throughout the Union, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale or effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(134)   Directive 95/46/EC should be repealed by this Regulation. However, Commission decisions adopted and authorisations by supervisory authorities based on Directive 95/46/EC should remain in force. Commission decisions and authorisations by supervisory authorities relating to transfers of personal data to third countries pursuant to Article 41(8) should remain in force for a transition period of five years after the entry into force of this Regulation unless amended, replaced or repealed by the Commission before the end of this period. [Am. 95]

(135)   This Regulation should apply to all matters concerning the protection of fundamental rights and freedom vis-à-vis the processing of personal data, which are not subject to specific obligations with the same objective set out in Directive 2002/58/EC of the European Parliament and of the Council(14) , including the obligations on the controller and the rights of individuals. In order to clarify the relationship between this Regulation and Directive 2002/58/EC, the latter Directive should be amended accordingly.

(136)   As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis to the extent that it applies to the processing of personal data by authorities involved in the implementation of that acquis , within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis (15) .

(137)   As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis to the extent that it applies to the processing of personal data by authorities involved in the implementation of that acquis , within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (16) .

(138)   As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis to the extent that it applies to the processing of personal data by authorities involved in the implementation of that acquis , within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (17) .

(139)   In view of the fact that, as underlined by the Court of Justice of the European Union, the right to the protection of personal data is not an absolute right, but must be considered in relation to its function in society and be balanced with other fundamental rights, in accordance with the principle of proportionality, this Regulation respects all fundamental rights and observes the principles recognised in the Charter as enshrined in the Treaties, notably the right to respect for private and family life, home and communications, the right to the protection of personal data, the freedom of thought, conscience and religion, the freedom of expression and information, the freedom to conduct a business, the right to an effective remedy and to a fair trial as well as cultural, religious and linguistic diversity,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter and objectives

1.   This Regulation lays down rules relating to the protection of individuals with regard to the processing of personal data and rules relating to the free movement of personal data.

2.   This Regulation protects the fundamental rights and freedoms of natural persons, and in particular their right to the protection of personal data.

3.   The free movement of personal data within the Union shall neither be restricted nor prohibited for reasons connected with the protection of individuals with regard to the processing of personal data.

Article 2

Material scope

1.   This Regulation applies to the processing of personal data wholly or partly by automated means, irrespective of the method of processing, and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.

2.   This Regulation does not apply to the processing of personal data:

(a)   in the course of an activity which falls outside the scope of Union law, in particular concerning national security ;

(b)   by the Union institutions, bodies, offices and agencies;

(c)   by the Member States when carrying out activities which fall within the scope of Chapter 2 of Title V of the Treaty on European Union;

(d)   by a natural person without any gainful interest in the course of its own an exclusively personal or household activity. This exemption shall also apply to a publication of personal data where it can be reasonably expected that they will be only accessed by a limited number of persons ;

(e)   by competent public authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties.

3.   This Regulation shall be without prejudice to the application of Directive 2000/31/EC, in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive. [Am. 96]

Article 3

Territorial scope

1.   This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, whether the processing takes place in the Union or not .

2.   This Regulation applies to the processing of personal data of data subjects residing in the Union by a controller or processor not established in the Union, where the processing activities are related to:

(a)   the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or

(b)   the monitoring of their behaviour such data subjects .

3.   This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where the national law of a Member State applies by virtue of public international law. [Am. 97]

Article 4

Definitions

For the purposes of this Regulation:

(1)   'data subject' means an identified natural person or a natural person who can be identified, directly or indirectly, by means reasonably likely to be used by the controller or by any other natural or legal person, in particular by reference to an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person;

(2)   'personal data' means any information relating to a an identified or identifiable natural person (' data subject' ) ; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, unique identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social or gender identity of that person;

(2a)   'pseudonymous data' means personal data that cannot be attributed to a specific data subject without the use of additional information, as long as such additional information is kept separately and subject to technical and organisational measures to ensure non-attribution;

(2b)   ‘encrypted data’ means personal data, which through technological protection measures are rendered unintelligible to any person who is not authorised to access them;

(3)   'processing' means any operation or set of operations which is performed upon personal data or sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, erasure or destruction;

(3a)   'profiling' means any form of automated processing of personal data intended to evaluate certain personal aspects relating to a natural person or to analyse or predict in particular that natural person’s performance at work, economic situation, location, health, personal preferences, reliability or behaviour;

(4)   'filing system' means any structured set of personal data which are accessible according to specific criteria, whether centralized, decentralized or dispersed on a functional or geographical basis;

(5)   'controller' means the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes, conditions and means of the processing of personal data; where the purposes, conditions and means of processing are determined by Union law or Member State law, the controller or the specific criteria for his nomination may be designated by Union law or by Member State law;

(6)   'processor' means a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller;

(7)   'recipient' means a natural or legal person, public authority, agency or any other body to which the personal data are disclosed;

(7a)   ‘third party’ means any natural or legal person, public authority, agency or any other body other than the data subject, the controller, the processor and the persons who, under the direct authority of the controller or the processor, are authorized to process the data;

(8)   'the data subject's consent' means any freely given specific, informed and explicit indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative action, signifies agreement to personal data relating to him or her being processed;

(9)   'personal data breach' means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed;

(10)   'genetic data' means all personal data, of whatever type, concerning relating to the genetic characteristics of an individual which are have been inherited or acquired during early prenatal development as they result from an analysis of a biological sample from the individual in question, in particular by chromosomal, desoxyribonucleic acid (DNA) or ribonucleic acid (RNA) analysis or analysis of any other element enabling equivalent information to be obtained ;

(11)   'biometric data' means any personal data relating to the physical, physiological or behavioural characteristics of an individual which allow his or her unique identification, such as facial images, or dactyloscopic data;

(12)   ‘data concerning health’ means any information personal data which relate to the physical or mental health of an individual, or to the provision of health services to the individual;

(13)   ‘main establishment’ means as regards the controller, the place of its establishment the place of establishment of the undertaking or group of undertakings in the Union, whether controller or processor, where the main decisions as to the purposes, conditions and means of the processing of personal data are taken. ; if no decisions as to the purposes, conditions and means of the processing of personal data are taken in the Union, the main establishment is the place where the main processing activities in the context of the activities of an establishment of a controller in the Union take place. As regards the processor, 'main establishment' means the place of its central administration in the Union The following objective criteria may be considered among others: the location of the controller or processor's headquarters; the location of the entity within a group of undertakings which is best placed in terms of management functions and administrative responsibilities to deal with and enforce the rules as set out in this Regulation; the location where effective and real management activities are exercised determining the data processing through stable arrangements ;

(14)   ‘representative’ means any natural or legal person established in the Union who, explicitly designated by the controller, acts and may be addressed by any supervisory authority and other bodies in the Union instead of represents the controller, with regard to the obligations of the controller under this Regulation;

(15)   ‘enterprise’ means any entity engaged in an economic activity, irrespective of its legal form, thus including, in particular, natural and legal persons, partnerships or associations regularly engaged in an economic activity;

(16)   'group of undertakings' means a controlling undertaking and its controlled undertakings;

(17)   ‘binding corporate rules’ means personal data protection policies which are adhered to by a controller or processor established on the territory of a Member State of the Union for transfers or a set of transfers of personal data to a controller or processor in one or more third countries within a group of undertakings;

(18)   'child' means any person below the age of 18 years;

(19)   'supervisory authority' means a public authority which is established by a Member State in accordance with Article 46. [Am. 98]

CHAPTER II

PRINCIPLES

Article 5

Principles relating to personal data processing

Personal data must shall be:

(a)   processed lawfully, fairly and in a transparent manner in relation to the data subject (lawfulness, fairness and transparency) ;

(b)   collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes (purpose limitation) ;

(c)   adequate, relevant, and limited to the minimum necessary in relation to the purposes for which they are processed; they shall only be processed if, and as long as, the purposes could not be fulfilled by processing information that does not involve personal data (data minimisation) ;

(d)   accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (accuracy) ;

(e)   kept in a form which permits direct or indirect identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the data will be processed solely for historical, statistical or scientific research or for archive purposes in accordance with the rules and conditions of Article Articles 83 and 83a and if a periodic review is carried out to assess the necessity to continue the storage, and if appropriate technical and organisational measures are put in place to limit access to the data only for these purposes (storage minimisation) ;

(ea)   processed in a way that effectively allows the data subject to exercise his or her rights (effectiveness);

(eb)   processed in a way that protects against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (integrity);

(f)   processed under the responsibility and liability of the controller, who shall ensure and be able to demonstrate for each processing operation the compliance with the provisions of this Regulation (accountability) . [Am. 99]

Article 6

Lawfulness of processing

1.   Processing of personal data shall be lawful only if and to the extent that at least one of the following applies:

(a)   the data subject has given consent to the processing of his or her personal data for one or more specific purposes;

(b)   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;

(c)   processing is necessary for compliance with a legal obligation to which the controller is subject;

(d)   processing is necessary in order to protect the vital interests of the data subject;

(e)   processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;

(f)   processing is necessary for the purposes of the legitimate interests pursued by a the controller or , in case of disclosure, by the third party to whom the data are disclosed, and which meet the reasonable expectations of the data subject based on his or her relationship with the controller , except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child . This shall not apply to processing carried out by public authorities in the performance of their tasks.

2.   Processing of personal data which is necessary for the purposes of historical, statistical or scientific research shall be lawful subject to the conditions and safeguards referred to in Article 83.

3.   The basis of the processing referred to in points (c) and (e) of paragraph 1 must be provided for in:

(a)   Union law, or

(b)   the law of the Member State to which the controller is subject.

The law of the Member State must meet an objective of public interest or must be necessary to protect the rights and freedoms of others, respect the essence of the right to the protection of personal data and be proportionate to the legitimate aim pursued. Within the limits of this Regulation, the law of the Member State may provide details of the lawfulness of processing, particularly as regards data controllers, the purpose of processing and purpose limitation, the nature of the data and the data subjects, processing measures and procedures, recipients, and the duration of storage.

4.   Where the purpose of further processing is not compatible with the one for which the personal data have been collected, the processing must have a legal basis at least in one of the grounds referred to in points (a) to (e) of paragraph 1. This shall in particular apply to any change of terms and general conditions of a contract.

5.   The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the conditions referred to in point (f) of paragraph 1 for various sectors and data processing situations, including as regards the processing of personal data related to a child. [Am. 100]

Article 7

Conditions for consent

1.   Where processing is based on consent, The the controller shall bear the burden of proof for the data subject's consent to the processing of his or her personal data for specified purposes.

2.   If the data subject's consent is to be given in the context of a written declaration which also concerns another matter, the requirement to give consent must be presented clearly distinguishable in its appearance from this other matter. Provisions on the data subject’s consent which are partly in violation of this Regulation are fully void.

3.   Notwithstanding other legal grounds for processing, The the data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal. It shall be as easy to withdraw consent as to give it. The data subject shall be informed by the controller if withdrawal of consent may result in the termination of the services provided or of the relationship with the controller.

4.   Consent shall not provide a legal basis for the processing, where there is a significant imbalance between the position of the data subject and the controller be purpose-limited and shall lose its validity when the purpose ceases to exist or as soon as the processing of personal data is no longer necessary for carrying out the purpose for which they were originally collected. The execution of a contract or the provision of a service shall not be made conditional on the consent to the processing of data that is not necessary for the execution of the contract or the provision of the service pursuant to Article 6(1), point (b) . [Am. 101]

Article 8

Processing of personal data of a child

1.   For the purposes of this Regulation, in relation to the offering of information society goods or services directly to a child, the processing of personal data of a child below the age of 13 years shall only be lawful if and to the extent that consent is given or authorised by the child's parent or custodian legal guardian . The controller shall make reasonable efforts to obtain verifiable verify such consent, taking into consideration available technology without causing otherwise unnecessary processing of personal data .

1a.   Information provided to children, parents and legal guardians in order to express consent, including about the controller’s collection and use of personal data, should be given in a clear language appropriate to the intended audience.

2.   Paragraph 1 shall not affect the general contract law of Member States such as the rules on the validity, formation or effect of a contract in relation to a child.

3.   The Commission European Data Protection Board shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose entrusted with the task of further specifying the criteria and requirements issuing guidelines, recommendations and best practices for the methods to obtain verifiable of verifying consent referred to in paragraph 1, in accordance with Article 66 . In doing so, the Commission shall consider specific measures for micro, small and medium-sized enterprises.

4.   The Commission may lay down standard forms for specific methods to obtain verifiable consent referred to in paragraph 1. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2). [Am. 102]

Article 9

Processing of special Special categories of personal data

1.   The processing of personal data, revealing race or ethnic origin, political opinions, religion or philosophical beliefs, sexual orientation or gender identity, trade-union membership and activities , and the processing of genetic or biometric data or data concerning health or sex life or , administrative sanctions, judgments, criminal or suspected offences, convictions or related security measures shall be prohibited.

2.   Paragraph 1 shall not apply where if one of the following applies :

(a)   the data subject has given consent to the processing of those personal data for one or more specified purposes , subject to the conditions laid down in Articles 7 and 8, except where Union law or Member State law provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject; or

(aa)   processing is necessary for the performance or execution 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;

(b)   processing is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller in the field of employment law in so far as it is authorised by Union law or Member State law or collective agreements providing for adequate safeguards for the fundamental rights and the interests of the data subject such as the right to non-discrimination, subject to the conditions and safeguards referred to in Article 82 ; or

(c)   processing is necessary to protect the vital interests of the data subject or of another person where the data subject is physically or legally incapable of giving consent; or

(d)   processing is carried out in the course of its legitimate activities with appropriate safeguards by a foundation, association or any other non-profit-seeking body with a political, philosophical, religious or trade-union aim and on condition that the processing relates solely to the members or to former members of the body or to persons who have regular contact with it in connection with its purposes and that the data are not disclosed outside that body without the consent of the data subject; or

(e)   the processing relates to personal data which are manifestly made public by the data subject; or

(f)   processing is necessary for the establishment, exercise or defence of legal claims; or

(g)   processing is necessary for the performance of a task carried out in the for reasons of high public interest, on the basis of Union law, or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable measures to safeguard the fundamental rights and the data subject's legitimate interests of the data subject ; or

(h)   processing of data concerning health is necessary for health purposes and subject to the conditions and safeguards referred to in Article 81; or

(i)   processing is necessary for historical, statistical or scientific research purposes subject to the conditions and safeguards referred to in Article 83; or

(ia)   processing is necessary for archive services subject to the conditions and safeguards referred to in Article 83a; or

(j)   processing of data relating to administrative sanctions, judgments, criminal offences, convictions or related security measures is carried out either under the control of official authority or when the processing is necessary for compliance with a legal or regulatory obligation to which a controller is subject, or for the performance of a task carried out for important public interest reasons, and in so far as authorised by Union law or Member State law providing for adequate safeguards. A complete for the fundamental rights and the interests of the data subject . Any register of criminal convictions shall be kept only under the control of official authority.

3.   The Commission European Data Protection Board shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose entrusted with the task of further specifying the criteria, conditions and appropriate safeguards issuing guidelines, recommendations and best practices for the processing of the special categories of personal data referred to in paragraph 1 and the exemptions laid down in paragraph 2, in accordance with Article 66 . [Am. 103]

Article 10

Processing not allowing identification

1.   If the data processed by a controller do not permit the controller or processor to directly or indirectly identify a natural person, or consist only of pseudonymous data, the controller shall not be obliged to process or acquire additional information in order to identify the data subject for the sole purpose of complying with any provision of this Regulation.

2.   Where the data controller is unable to comply with a provision of this Regulation because of paragraph 1, the controller shall not be obliged to comply with that particular provision of this Regulation. Where as a consequence the data controller is unable to comply with a request of the data subject, it shall inform the data subject accordingly. [Am. 104]

Article 10a

General principles for the rights of the data subject

1.   The basis of data protection is clear and unambiguous rights for the data subject which shall be respected by the data controller. The provisions of this Regulation aim to strengthen, clarify, guarantee and, where appropriate, codify these rights.

2.   Such rights include, inter alia, the provision of clear and easily understandable information regarding the processing of the data subject’s personal data, the right of access, rectification and erasure of his or her data, the right to obtain data, the right to object to profiling, the right to lodge a complaint with the competent data protection authority and to bring legal proceedings as well as the right to compensation and damages resulting from an unlawful processing operation. Such rights shall in general be exercised free of charge. The data controller shall respond to requests from the data subject within a reasonable period of time. [Am. 105]

CHAPTER III

RIGHTS OF THE DATA SUBJECT

SECTION 1

TRANSPARENCY AND MODALITIES

Article 11

Transparent information and communication

1.   The controller shall have concise, transparent, clear and easily accessible policies with regard to the processing of personal data and for the exercise of the data subject’s rights.

2.   The controller shall provide any information and any communication relating to the processing of personal data to the data subject in an intelligible form, using clear and plain language, adapted to the data subject, in particular for any information addressed specifically to a child. [Am. 106]

Article 12

Procedures and mechanisms for exercising the rights of the data subject

1.   The controller shall establish procedures for providing the information referred to in Article 14 and for the exercise of the rights of data subjects referred to in Article 13 and Articles 15 to 19. The controller shall provide in particular mechanisms for facilitating the request for the actions referred to in Article 13 and Articles 15 to 19. Where personal data are processed by automated means, the controller shall also provide means for requests to be made electronically where possible .

2.   The controller shall inform the data subject without undue delay and, at the latest within one month 40 calendar days of receipt of the request, whether or not any action has been taken pursuant to Article 13 and Articles 15 to 19 and shall provide the requested information. This period may be prolonged for a further month, if several data subjects exercise their rights and their cooperation is necessary to a reasonable extent to prevent an unnecessary and disproportionate effort on the part of the controller. The information shall be given in writing and, where possible, the controller may provide remote access to a secure system which would provide the data subject with direct access to his or her personal data . Where the data subject makes the request in electronic form, the information shall be provided in electronic form where possible , unless otherwise requested by the data subject.

3.   If the controller refuses to does not take action at the request of the data subject, the controller shall inform the data subject of the reasons for the refusal inaction and on the possibilities of lodging a complaint to the supervisory authority and seeking a judicial remedy.

4.   The information and the actions taken on requests referred to in paragraph 1 shall be free of charge. Where requests are manifestly excessive, in particular because of their repetitive character, the controller may charge a reasonable fee taking into account the administrative costs for providing the information or taking the action requested, or the controller may not take the action requested . In that case, the controller shall bear the burden of proving the manifestly excessive character of the request.

5.   The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and conditions for the manifestly excessive requests and the fees referred to in paragraph 4.

6.   The Commission may lay down standard forms and specifying standard procedures for the communication referred to in paragraph 2, including the electronic format. In doing so, the Commission shall take the appropriate measures for micro, small and medium-sized enterprises. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2). [Am. 107]

Article 13

Rights in relation to recipients Notification requirement in the event of rectification and erasure

The controller shall communicate any rectification or erasure carried out in accordance with Articles 16 and 17 to each recipient to whom the data have been disclosed transferred , unless this proves impossible or involves a disproportionate effort. The controller shall inform the data subject about those recipients if the data subject requests this. [Am. 108]

Article 13a

Standardised information policies

1.   Where personal data relating to a data subject are collected, the controller shall provide the data subject with the following particulars before providing information pursuant to Article 14:

(a)   whether personal data are collected beyond the minimum necessary for each specific purpose of the processing;

(b)   whether personal data are retained beyond the minimum necessary for each specific purpose of the processing;

(c)   whether personal data are processed for purposes other than the purposes for which they were collected;

(d)   whether personal data are disseminated to commercial third parties;

(e)   whether personal data are sold or rented out;

(f)   whether personal data are retained in encrypted form.

2.   The particulars referred to in paragraph 1 shall be presented pursuant to the Annex to this Regulation in an aligned tabular format, using text and symbols, in the following three columns:

(a)   the first column depicts graphical forms symbolising those particulars;

(b)   the second column contains essential information describing those particulars;

(c)   the third column depicts graphical forms indicating whether a specific particular is met.

3.   The information referred to in paragraphs 1 and 2 shall be presented in an easily visible and clearly legible way and shall appear in a language easily understood by the consumers of the Member States to whom the information is provided. Where the particulars are presented electronically, they shall be machine readable.

4.   Additional particulars shall not be provided. Detailed explanations or further remarks regarding the particulars referred to in paragraph 1 may be provided together with the other information requirements pursuant to Article 14.

5.   The Commission shall be empowered to adopt, after requesting an opinion of the European Data Protection Board, delegated acts in accordance with Article 86 for the purpose of further specifying the particulars referred to in paragraph 1 and their presentation as referred to in paragraph 2 and in the Annex to this Regulation. [Am. 109]

SECTION 2

INFORMATION AND ACCESS TO DATA

Article 14

Information to the data subject

1.   Where personal data relating to a data subject are collected, the controller shall provide the data subject with at least the following information, after the particulars pursuant to Article 13a have been provided :

(a)   the identity and the contact details of the controller and, if any, of the controller's representative and of the data protection officer;

(b)   the purposes of the processing for which the personal data are intended, as well as information regarding the security of the processing of personal data, including the contract terms and general conditions where the processing is based on point (b) of Article 6(1) and the legitimate interests pursued by the controller where the processing is based on , where applicable, information on how they implement and meet the requirements of point (f) of Article 6(1);

(c)   the period for which the personal data will be stored, or if this is not possible, the criteria used to determine this period ;

(d)   the existence of the right to request from the controller access to and rectification or erasure of the personal data concerning the data subject, or to object to the processing of such personal data, or to obtain data ;

(e)   the right to lodge a complaint with the supervisory authority and the contact details of the supervisory authority;

(f)   the recipients or categories of recipients of the personal data;

(g)   where applicable, that the controller intends to transfer the data to a third country or international organisation and on the level of protection afforded by that third country or international organisation by reference to the existence or absence of an adequacy decision by the Commission, or in case of transfers referred to in Article 42 or 43, reference to the appropriate safeguards and the means to obtain a copy of them ;

(ga)   where applicable, information about the existence of profiling, of measures based on profiling, and the envisaged effects of profiling on the data subject;

(gb)   meaningful information about the logic involved in any automated processing;

(h)   any further information which is necessary to guarantee fair processing in respect of the data subject, having regard to the specific circumstances in which the personal data are collected. or processed, in particular the existence of certain processing activities and operations for which a personal data impact assessment has indicated that there may be a high risk;

(ha)   where applicable, information whether personal data were provided to public authorities during the last consecutive 12-month period.

2.   Where the personal data are collected from the data subject, the controller shall inform the data subject, in addition to the information referred to in paragraph 1, whether the provision of personal data is obligatory mandatory or voluntary optional , as well as the possible consequences of failure to provide such data.

2a.   In deciding on further information which is necessary to make the processing fair under point (h) of paragraph 1, controllers shall have regard to any relevant guidance under Article 34.

3.   Where the personal data are not collected from the data subject, the controller shall inform the data subject, in addition to the information referred to in paragraph 1, from which source the specific personal data originate. If personal data originate from publicly available sources, a general indication may be given.

4.   The controller shall provide the information referred to in paragraphs 1, 2 and 3:

(a)   at the time when the personal data are obtained from the data subject or without undue delay where the above is not feasible ; or

(aa)   at the request of a body, organisation or association referred to in Article 73;

(b)   where the personal data are not collected from the data subject, at the time of the recording or within a reasonable period after the collection, having regard to the specific circumstances in which the data are collected or otherwise processed, or, if a disclosure transfer to another recipient is envisaged, and at the latest when the data are first disclosed. at the time of the first transfer, or, if the data are to be used for communication with the data subject concerned, at the latest at the time of the first communication to that data subject; or

(ba)   only on request where the data are processed by a small or micro enterprise which processes personal data only as an ancillary activity.

5.   Paragraphs 1 to 4 shall not apply, where:

(a)   the data subject has already the information referred to in paragraphs 1, 2 and 3; or

(b)   the data are processed for historical, statistical or scientific research purposes subject to the conditions and safeguards referred to in Articles 81 and 83, are not collected from the data subject and the provision of such information proves impossible or would involve a disproportionate effort and the controller has published the information for anyone to retrieve ; or

(c)   the data are not collected from the data subject and recording or disclosure is expressly laid down by law to which the controller is subject, which provides appropriate measures to protect the data subject's legitimate interests, considering the risks represented by the processing and the nature of the personal data ; or

(d)   the data are not collected from the data subject and the provision of such information will impair the rights and freedoms of others other natural persons , as defined in Union law or Member State law in accordance with Article 21;

(da)   the data are processed in the exercise of his profession by, or are entrusted or become known to, a person who is subject to an obligation of professional secrecy regulated by Union or Member State law or to a statutory obligation of secrecy, unless the data are collected directly from the data subject.

6.   In the case referred to in point (b) of paragraph 5, the controller shall provide appropriate measures to protect the data subject's rights or legitimate interests.

7.   The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria for categories of recipients referred to in point (f) of paragraph 1, the requirements for the notice of potential access referred to in point (g) of paragraph 1, the criteria for the further information necessary referred to in point (h) of paragraph 1 for specific sectors and situations, and the conditions and appropriate safeguards for the exceptions laid down in point (b) of paragraph 5. In doing so, the Commission shall take the appropriate measures for micro, small and medium-sized-enterprises.

8.   The Commission may lay down standard forms for providing the information referred to in paragraphs 1 to 3, taking into account the specific characteristics and needs of various sectors and data processing situations where necessary. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2). [Am. 110]

Article 15

Right of to access and to obtain data for the data subject

1.   The Subject to Article 12(4), the data subject shall have the right to obtain from the controller at any time, on request, confirmation as to whether or not personal data relating to the data subject are being processed. Where such personal data are being processed, and, in clear and plain language, the controller shall provide the following information:

(a)   the purposes of the processing for each category of personal data ;

(b)   the categories of personal data concerned;

(c)   the recipients or categories of recipients to whom the personal data are to be or have been disclosed, in particular including to recipients in third countries;

(d)   the period for which the personal data will be stored, or if this is not possible, the criteria used to determine this period ;

(e)   the existence of the right to request from the controller rectification or erasure of personal data concerning the data subject or to object to the processing of such personal data;

(f)   the right to lodge a complaint with the supervisory authority and the contact details of the supervisory authority;

(g)   communication of the personal data undergoing processing and of any available information as to their source;

(h)   the significance and envisaged consequences of such processing, at least in the case of measures referred to in Article 20. ;

(ha)   meaningful information about the logic involved in any automated processing;

(hb)   without prejudice to Article 21, in the event of disclosure of personal data to a public authority as a result of a public authority request, confirmation of the fact that such a request has been made.

2.   The data subject shall have the right to obtain from the controller communication of the personal data undergoing processing. Where the data subject makes the request in electronic form, the information shall be provided in an electronic form and structured format , unless otherwise requested by the data subject. Without prejudice to Article 10, the controller shall take all reasonable steps to verify that the person requesting access to the data is the data subject.

2a.   Where the data subject has provided the personal data where the personal data are processed by electronic means, the data subject shall have the right to obtain from the controller a copy of the provided personal data in an electronic and interoperable format which is commonly used and allows for further use by the data subject without hindrance from the controller from whom the personal data are withdrawn. Where technically feasible and available, the data shall be transferred directly from controller to controller at the request of the data subject.

2b.   This Article shall be without prejudice to the obligation to delete data when no longer necessary under point (e) of Article 5(1).

2c.   There shall be no right of access in accordance with paragraphs 1 and 2 when data within the meaning of point (da) of Article 14(5) are concerned, except if the data subject is empowered to lift the secrecy in question and acts accordingly.

3.   The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and requirements for the communication to the data subject of the content of the personal data referred to in point (g) of paragraph 1.

4.   The Commission may specify standard forms and procedures for requesting and granting access to the information referred to in paragraph 1, including for verification of the identity of the data subject and communicating the personal data to the data subject, taking into account the specific features and necessities of various sectors and data processing situations. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2). [Am. 111]

SECTION 3

RECTIFICATION AND ERASURE

Article 16

Right to rectification

The data subject shall have the right to obtain from the controller the rectification of personal data relating to him or her which are inaccurate. The data subject shall have the right to obtain completion of incomplete personal data, including by way of supplementing a corrective statement.

Article 17

Right to be forgotten and to erasure

1.   The data subject shall have the right to obtain from the controller the erasure of personal data relating to him or her and the abstention from further dissemination of such data, especially in relation to personal data which are made available by the data subject while he or she was a child, and to obtain from third parties the erasure of any links to, or copy or replication of, those data where one of the following grounds applies:

(a)   the data are no longer necessary in relation to the purposes for which they were collected or otherwise processed;

(b)   the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or when the storage period consented to has expired, and where there is no other legal ground for the processing of the data;

(c)   the data subject objects to the processing of personal data pursuant to Article 19;

(ca)   a court or regulatory authority based in the Union has ruled as final and absolute that the data concerned must be erased;

(d)   the processing of the data does not comply with this Regulation for other reasons have been unlawfully processed .

1a.   The application of paragraph 1 shall be dependent upon the ability of the controller to verify that the person requesting the erasure is the data subject.

2.   Where the controller referred to in paragraph 1 has made the personal data public without a justification based on Article 6(1) , it shall take all reasonable steps, including technical measures, in relation to data for the publication of which the controller is responsible, to inform third parties which are processing such data, that a data subject requests them to erase any links to, or copy or replication of that personal data. Where the controller has authorised a third party publication of personal data, the controller shall be considered responsible for that publication to have the data erased, including by third parties, without prejudice to Article 77. The controller shall inform the data subject, where possible, of the action taken by the relevant third parties .

3.   The controller and, where applicable, the third party shall carry out the erasure without delay, except to the extent that the retention of the personal data is necessary:

(a)   for exercising the right of freedom of expression in accordance with Article 80;

(b)   for reasons of public interest in the area of public health in accordance with Article 81;

(c)   for historical, statistical and scientific research purposes in accordance with Article 83;

(d)   for compliance with a legal obligation to retain the personal data by Union or Member State law to which the controller is subject; Member State laws shall meet an objective of public interest, respect the essence of the right to the protection of personal data and be proportionate to the legitimate aim pursued;

(e)   in the cases referred to in paragraph 4.

4.   Instead of erasure, the controller shall restrict processing of personal data in such a way that it is not subject to the normal data access and processing operations and cannot be changed anymore, where:

(a)   their accuracy is contested by the data subject, for a period enabling the controller to verify the accuracy of the data;

(b)   the controller no longer needs the personal data for the accomplishment of its task but they have to be maintained for purposes of proof;

(c)   the processing is unlawful and the data subject opposes their erasure and requests the restriction of their use instead;

(ca)   a court or regulatory authority based in the Union has ruled as final and absolute that the processing concerned must be restricted;

(d)   the data subject requests to transmit the personal data into another automated processing system in accordance with paragraphs 2a of Article 18(2). 15;

(da)   the particular type of storage technology does not allow for erasure and has been installed before the entry into force of this Regulation.

5.   Personal data referred to in paragraph 4 may, with the exception of storage, only be processed for purposes of proof, or with the data subject's consent, or for the protection of the rights of another natural or legal person or for an objective of public interest.

6.   Where processing of personal data is restricted pursuant to paragraph 4, the controller shall inform the data subject before lifting the restriction on processing.

7.   The controller shall implement mechanisms to ensure that the time limits established for the erasure of personal data and/or for a periodic review of the need for the storage of the data are observed.

8.   Where the erasure is carried out, the controller shall not otherwise process such personal data.

8a.   The controller shall implement mechanisms to ensure that the time limits established for the erasure of personal data and/or for a periodic review of the need for the storage of the data are observed.

9.   The Commission shall be empowered to adopt, after requesting an opinion of the European Data Protection Board, delegated acts in accordance with Article 86 for the purpose of further specifying:

(a)   the criteria and requirements for the application of paragraph 1 for specific sectors and in specific data processing situations;

(b)   the conditions for deleting links, copies or replications of personal data from publicly available communication services as referred to in paragraph 2;

(c)   the criteria and conditions for restricting the processing of personal data referred to in paragraph 4. [Am. 112]

Article 18

Right to data portability

1.   The data subject shall have the right, where personal data are processed by electronic means and in a structured and commonly used format, to obtain from the controller a copy of data undergoing processing in an electronic and structured format which is commonly used and allows for further use by the data subject.

2.   Where the data subject has provided the personal data and the processing is based on consent or on a contract, the data subject shall have the right to transmit those personal data and any other information provided by the data subject and retained by an automated processing system, into another one, in an electronic format which is commonly used, without hindrance from the controller from whom the personal data are withdrawn.

3.   The Commission may specify the electronic format referred to in paragraph 1 and the technical standards, modalities and procedures for the transmission of personal data pursuant to paragraph 2. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2). [Am. 113]

SECTION 4

RIGHT TO OBJECT AND PROFILING

Article 19

Right to object

1.   The data subject shall have the right to object, on grounds relating to their particular situation, at any time to the processing of personal data which is based on points (d), and (e) and (f) of Article 6(1), unless the controller demonstrates compelling legitimate grounds for the processing which override the interests or fundamental rights and freedoms of the data subject.

2.   Where the processing of personal data are processed for direct marketing purposes is based on point (f) of Article 6(1) , the data subject shall have, at any time and without any further justification, the right to object free of charge in general or for any particular purpose to the processing of his or her personal data for such marketing . This right shall be explicitly offered to the data subject in an intelligible manner and shall be clearly distinguishable from other information.

2a.   The right referred to in paragraph 2 shall be explicitly offered to the data subject in an intelligible manner and form, using clear and plain language, in particular if addressed specifically to a child, and shall be clearly distinguishable from other information.

2b.   In the context of the use of information society services, and notwithstanding Directive 2002/58/EC, the right to object may be exercised by automated means using a technical standard which allows the data subject to clearly express his or her wishes.

3.   Where an objection is upheld pursuant to paragraphs 1 and 2, the controller shall no longer use or otherwise process the personal data concerned for the purposes determined in the objection . [Am. 114]

Article 20

Measures based on profiling Profiling

1.   Without prejudice to the provisions in Article 6, Every every natural person shall have the right to object not to be subject to a measure which produces legal effects concerning this natural person or significantly affects this natural person, and which is based solely on automated processing intended to evaluate certain personal aspects relating to this natural person or to analyse or predict in particular the natural person's performance at work, economic situation, location, health, personal preferences, reliability or behaviour profiling in accordance with Article 19. The data subject shall be informed about the right to object to profiling in a highly visible manner .

2.   Subject to the other provisions of this Regulation, a person may be subjected to a measure of the kind referred to in paragraph 1 profiling which leads to measures producing legal effects concerning the data subject or does similarly significantly affect the interests, rights or freedoms of the concerned data subject only if the processing:

(a)   is carried out in the course of necessary for the entering into, or performance of, a contract, where the request for the entering into or the performance of the contract, lodged by the data subject, has been satisfied or where , provided that suitable measures to safeguard the data subject's legitimate interests have been adduced, such as the right to obtain human intervention ; or

(b)   is expressly authorized by a Union or Member State law which also lays down suitable measures to safeguard the data subject's legitimate interests; or

(c)   is based on the data subject's consent, subject to the conditions laid down in Article 7 and to suitable safeguards.

3.   Automated processing of personal data intended to evaluate certain personal aspects relating to a natural person Profiling that has the effect of discriminating against individuals on the basis of race or ethnic origin, political opinions, religion or beliefs, trade union membership, sexual orientation or gender identity, or that results in measures which have such effect, shall be prohibited. The controller shall implement effective protection against possible discrimination resulting from profiling. Profiling shall not be based solely on the special categories of personal data referred to in Article 9.

4.   In the cases referred to in paragraph 2, the information to be provided by the controller under Article 14 shall include information as to the existence of processing for a measure of the kind referred to in paragraph 1 and the envisaged effects of such processing on the data subject.

5.   The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and conditions for Profiling which leads to measures producing legal effects concerning the data subject or does similarly significantly affect the interests, rights or freedoms of the concerned data subject shall not be based solely or predominantly on automated processing and shall include human assessment, including an explanation of the decision reached after such an assessment. The suitable measures to safeguard the data subject's legitimate interests referred to in paragraph 2 shall include the right to obtain human assessment and an explanation of the decision reached after such assessment .

5a.   The European Data Protection Board shall be entrusted with the task of issuing guidelines, recommendations and best practices in accordance with point (b) of Article 66(1) for further specifying the criteria and conditions for profiling pursuant to paragraph 2. [Am. 115]

SECTION 5

Restrictions

Article 21

Restrictions

1.   Union or Member State law may restrict by way of a legislative measure the scope of the obligations and rights provided for in points (a) to (e) of Article 5 and Articles 11 to 20 19 and Article 32, when such a restriction constitutes meets a clearly defined objective of public interest, respects the essence of the right to protection of personal data, is proportionate to the legitimate aim pursued and respects the fundamental rights and interests of the data subject and is a necessary and proportionate measure in a democratic society to safeguard:

(a)   public security;

(b)   the prevention, investigation, detection and prosecution of criminal offences;

(c)   other public interests of the Union or of a Member State, in particular an important economic or financial interest of the Union or of a Member State, including monetary, budgetary and taxation matters and the protection of market stability and integrity ;

(d)   the prevention, investigation, detection and prosecution of breaches of ethics for regulated professions;

(e)   a monitoring, inspection or regulatory function connected, even occasionally, with in the framework of the exercise of official a competent public authority in cases referred to in (a), (b), (c) and (d);

(f)   the protection of the data subject or the rights and freedoms of others.

2.   In particular, any legislative measure referred to in paragraph 1 must be necessary and proportionate in a democratic society and shall contain specific provisions at least as to the objectives to be pursued by the processing and the determination of the controller. :

(a)   the objectives to be pursued by the processing;

(b)   the determination of the controller;

(c)   the specific purposes and means of processing;

(d)   the safeguards to prevent abuse or unlawful access or transfer;

(e)   the right of data subjects to be informed about the restriction.

2a.   Legislative measures referred to in paragraph 1 shall neither permit nor oblige private controllers to retain data additional to those strictly necessary for the original purpose. [Am. 116]

CHAPTER IV

CONTROLLER AND PROCESSOR

SECTION 1

GENERAL OBLIGATIONS

Article 22

Responsibility and accountability of the controller

1.   The controller shall adopt appropriate policies and implement appropriate and demonstrable technical and organisational measures to ensure and be able to demonstrate in a transparent manner that the processing of personal data is performed in compliance with this Regulation, having regard to the state of the art, the nature of personal data processing, the context, scope and purposes of the processing, the risks for the rights and freedoms of the data subjects and the type of the organisation, both at the time of the determination of the means for processing and at the time of the processing itself .

1a.   Having regard to the state of the art and the cost of implementation, the controller shall take all reasonable steps to implement compliance policies and procedures that persistently respect the autonomous choices of data subjects. Those compliance policies shall be reviewed at least every two years and updated where necessary.

2.   The measures provided for in paragraph 1 shall in particular include:

(a)   keeping the documentation pursuant to Article 28;

(b)   implementing the data security requirements laid down in Article 30;

(c)   performing a data protection impact assessment pursuant to Article 33;

(d)   complying with the requirements for prior authorisation or prior consultation of the supervisory authority pursuant to Article 34(1) and (2);

(e)   designating a data protection officer pursuant to Article 35(1).

3.   The controller shall implement mechanisms to ensure the verification of the be able to demonstrate the adequacy and effectiveness of the measures referred to in paragraphs 1 and 2. If proportionate, this verification shall be carried out by independent internal or external auditors Any regular general reports of the activities of the controller, such as the obligatory reports by publicly traded companies, shall contain a summary description of the policies and measures referred to in paragraph 1 .

3a.   The controller shall have the right to transmit personal data inside the Union within the group of undertakings the controller is part of, where such processing is necessary for legitimate internal administrative purposes between connected business areas of the group of undertakings and an adequate level of data protection as well as the interests of the data subjects are safeguarded by internal data protection provisions or equivalent codes of conduct as referred to in Article 38.

4.   The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of specifying any further criteria and requirements for appropriate measures referred to in paragraph 1 other than those already referred to in paragraph 2, the conditions for the verification and auditing mechanisms referred to in paragraph 3 and as regards the criteria for proportionality under paragraph 3, and considering specific measures for micro, small and medium-sized-enterprises. [Am. 117]

Article 23

Data protection by design and by default

1.   Having regard to the state of the art and the cost of implementation , current technical knowledge, international best practices and the risks represented by the data processing, the controller and the processor, if any, shall, both at the time of the determination of the purposes and means for processing and at the time of the processing itself, implement appropriate and proportionate technical and organisational measures and procedures in such a way that the processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject, in particular with regard to the principles laid down in Article 5. Data protection by design shall have particular regard to the entire lifecycle management of personal data from collection to processing to deletion, systematically focusing on comprehensive procedural safeguards regarding the accuracy, confidentiality, integrity, physical security and deletion of personal data. Where the controller has carried out a data protection impact assessment pursuant to Article 33, the results shall be taken into account when developing those measures and procedures .

1a.   In order to foster its widespread implementation in different economic sectors, data protection by design shall be a prerequisite for public procurement tenders according to Directive 2004/18/EC of the European Parliament and of the Council (18) as well as according to Directive 2004/17/EC of the European Parliament and of the Council (19) (Utilities Directive).

2.   The controller shall implement mechanisms for ensuring ensure that, by default, only those personal data are processed which are necessary for each specific purpose of the processing and are especially not collected or , retained or disseminated beyond the minimum necessary for those purposes, both in terms of the amount of the data and the time of their storage. In particular, those mechanisms shall ensure that by default personal data are not made accessible to an indefinite number of individuals and that data subjects are able to control the distribution of their personal data .

3.   The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of specifying any further criteria and requirements for appropriate measures and mechanisms referred to in paragraph 1 and 2, in particular for data protection by design requirements applicable across sectors, products and services.

4.   The Commission may lay down technical standards for the requirements laid down in paragraph 1 and 2. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2). [Am. 118]

Article 24

Joint controllers

Where a controller determines several controllers jointly determine the purposes, conditions and means of the processing of personal data jointly with others , the joint controllers shall determine their respective responsibilities for compliance with the obligations under this Regulation, in particular as regards the procedures and mechanisms for exercising the rights of the data subject, by means of an arrangement between them. The arrangement shall duly reflect the joint controllers' respective effective roles and relationships vis-à-vis data subjects, and the essence of the arrangement shall be made available for the data subject. In case of unclarity of the responsibility, the controllers shall be jointly and severally liable. [Am. 119]

Article 25

Representatives of controllers not established in the Union

1.   In the situation referred to in Article 3(2), the controller shall designate a representative in the Union.

2.   This obligation shall not apply to:

(a)   a controller established in a third country where the Commission has decided that the third country ensures an adequate level of protection in accordance with Article 41; or

(b)   an enterprise employing fewer than 250 persons a controller processing personal data which relate to less than 5000 data subjects during any consecutive 12-month period and not processing special categories of personal data as referred to in Article 9(1), location data or data on children or employees in large-scale filing systems ; or

(c)   a public authority or body; or

(d)   a controller offering only occasionally offering goods or services to data subjects residing in the Union, unless the processing of personal data concerns special categories of personal data as referred to in Article 9(1), location data or data on children or employees in large-scale filing systems .

3.   The representative shall be established in one of those Member States where the data subjects whose personal data are processed in relation to the offering of goods or services to them the data subjects , or whose behaviour is monitored, reside the monitoring of them , takes place .

4.   The designation of a representative by the controller shall be without prejudice to legal actions which could be initiated against the controller itself. [Am. 120]

Article 26

Processor

1.   Where a processing operation is to be carried out on behalf of a controller, the controller shall choose a processor providing sufficient guarantees to implement appropriate technical and organisational measures and procedures in such a way that the processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject, in particular in respect of the technical security measures and organisational measures governing the processing to be carried out and shall ensure compliance with those measures.

2.   The carrying out of processing by a processor shall be governed by a contract or other legal act binding the processor to the controller. The controller and the processor shall be free to determine respective roles and tasks with respect to the requirements of this Regulation, and shall provide that and stipulating in particular that the processor shall:

(a)   act process personal data only on instructions from the controller, in particular, where the transfer of the personal data used is prohibited , unless otherwise required by Union law or Member State law ;

(b)   employ only staff who have committed themselves to confidentiality or are under a statutory obligation of confidentiality;

(c)   take all required measures pursuant to Article 30;

(d)   enlist determine the conditions for e nlisting another processor only with the prior permission of the controller, unless otherwise determined ;

(e)   insofar as this is possible given the nature of the processing, create in agreement with the controller the necessary appropriate and relevant technical and organisational requirements for the fulfilment of the controller’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III;

(f)   assist the controller in ensuring compliance with the obligations pursuant to Articles 30 to 34, taking into account the nature of processing and the information available to the processor ;

(g)   hand over return all results to the controller after the end of the processing, and not process the personal data otherwise and delete existing copies unless Union or Member State law requires storage of the data ;

(h)   make available to the controller and the supervisory authority all information necessary to control demonstrate compliance with the obligations laid down in this Article and allow on-site inspections .

3.   The controller and the processor shall document in writing the controller's instructions and the processor's obligations referred to in paragraph 2.

3a.   The sufficient guarantees referred to in paragraph 1 may be demonstrated by adherence to codes of conduct or certification mechanisms pursuant to Article 38 or 39 of this Regulation.

4.   If a processor processes personal data other than as instructed by the controller or becomes the determining party in relation to the purposes and means of data processing , the processor shall be considered to be a controller in respect of that processing and shall be subject to the rules on joint controllers laid down in Article 24.

5.   The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and requirements for the responsibilities, duties and tasks in relation to a processor in line with paragraph 1, and conditions which allow facilitating the processing of personal data within a group of undertakings, in particular for the purposes of control and reporting. [Am. 121]

Article 27

Processing under the authority of the controller and processor

The processor and any person acting under the authority of the controller or of the processor who has access to personal data shall not process them except on instructions from the controller, unless required to do so by Union or Member State law.

Article 28

Documentation

1.   Each controller and processor and, if any, the controller's representative, shall maintain regularly updated documentation of all processing operations under its responsibility necessary to fulfill the requirements laid down in this Regulation .

2.   The In addition, each controller and processor shall maintain documentation shall contain at least of the following information:

(a)   the name and contact details of the controller, or any joint controller or processor, and of the representative, if any;

(b)   the name and contact details of the data protection officer, if any;

(c)   the purposes of the processing, including the legitimate interests pursued by the controller where the processing is based on point (f) of Article 6(1);

(d)   a description of categories of data subjects and of the categories of personal data relating to them;

(e)   the recipients or categories of recipients of the personal data, including name and contact details of the controllers to whom personal data are disclosed for the legitimate interest pursued by them , if any ;

(f)   where applicable, transfers of data to a third country or an international organisation, including the identification of that third country or international organisation and, in case of transfers referred to in point (h) of Article 44(1), the documentation of appropriate safeguards;

(g)   a general indication of the time limits for erasure of the different categories of data;

(h)   the description of the mechanisms referred to in Article 22(3).

3.   The controller and the processor and, if any, the controller's representative, shall make the documentation available, on request, to the supervisory authority.

4.   The obligations referred to in paragraphs 1 and 2 shall not apply to the following controllers and processors:

(a)   a natural person processing personal data without a commercial interest; or

(b)   an enterprise or an organisation employing fewer than 250 persons that is processing personal data only as an activity ancillary to its main activities.

5.   The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and requirements for the documentation referred to in paragraph 1, to take account of in particular the responsibilities of the controller and the processor and, if any, the controller's representative.

6.   The Commission may lay down standard forms for the documentation referred to in paragraph 1. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2). [Am. 122]

Article 29

Co-operation with the supervisory authority

1.   The controller and, if any, the processor and, if any, the representative of the controller, shall co-operate, on request, with the supervisory authority in the performance of its duties, in particular by providing the information referred to in point (a) of Article 53(2) and by granting access as provided in point (b) of that paragraph.

2.   In response to the supervisory authority's exercise of its powers under Article 53(2), the controller and the processor shall reply to the supervisory authority within a reasonable period to be specified by the supervisory authority. The reply shall include a description of the measures taken and the results achieved, in response to the remarks of the supervisory authority. [Am. 123]

SECTION 2

DATA SECURITY

Article 30

Security of processing

1.   The controller and the processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risks represented by the processing and the nature of the personal data to be protected , taking into account the results of a data protection impact assessment pursuant to Article 33, having regard to the state of the art and the costs of their implementation.

1a.   Having regard to the state of the art and the cost of implementation, such a security policy shall include:

(a)   the ability to ensure that the integrity of the personal data is validated;

(b)   the ability to ensure the ongoing confidentiality, integrity, availability and resilience of systems and services processing personal data;

(c)   the ability to restore the availability and access to data in a timely manner in the event of a physical or technical incident that impacts the availability, integrity and confidentiality of information systems and services;

(d)   in the case of sensitive personal data processing according to Articles 8 and 9, additional security measures to ensure situational awareness of risks and the ability to take preventive, corrective and mitigating action in near real time against vulnerabilities or incidents detected that could pose a risk to the data;

(e)   a process for regularly testing, assessing and evaluating the effectiveness of security policies, procedures and plans put in place to ensure ongoing effectiveness.

2.   The controller and the processor shall, following an evaluation of the risks, take the measures referred to in paragraph 1 to protect personal data against accidental or unlawful destruction or accidental loss and to prevent any unlawful forms of processing, in particular any unauthorised disclosure, dissemination or access, or alteration of personal data. shall at least:

(a)   ensure that personal data can be accessed only by authorised personnel for legally authorised purposes;

(b)   protect personal data stored or transmitted against accidental or unlawful destruction, accidental loss or alteration, and unauthorised or unlawful storage, processing, access or disclosure; and

(c)   ensure the implementation of a security policy with respect to the processing of personal data.

3.   The Commission European Data Protection Board shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and conditions entrusted with the task of issuing guidelines, recommendations and best practices in accordance with point (b) of Article 66 ( 1) for the technical and organisational measures referred to in paragraphs 1 and 2, including the determinations of what constitutes the state of the art, for specific sectors and in specific data processing situations, in particular taking account of developments in technology and solutions for privacy by design and data protection by default, unless paragraph 4 applies .

4.   The Commission may adopt, where necessary, implementing acts for specifying the requirements laid down in paragraphs 1 and 2 to various situations, in particular to:

(a)   prevent any unauthorised access to personal data;

(b)   prevent any unauthorised disclosure, reading, copying, modification, erasure or removal of personal data;

(c)   ensure the verification of the lawfulness of processing operations.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2). [Am. 124]

Article 31

Notification of a personal data breach to the supervisory authority

1.   In the case of a personal data breach, the controller shall without undue delay and, where feasible, not later than 24 hours after having become aware of it, notify the personal data breach to the supervisory authority. The notification to the supervisory authority shall be accompanied by a reasoned justification in cases where it is not made within 24 hours.

2.   Pursuant to point (f) of Article 26(2), the The processor shall alert and inform the controller immediately without undue delay after the establishment of a personal data breach.

3.   The notification referred to in paragraph 1 shall at least:

(a)   describe the nature of the personal data breach including the categories and number of data subjects concerned and the categories and number of data records concerned;

(b)   communicate the identity and contact details of the data protection officer or other contact point where more information can be obtained;

(c)   recommend measures to mitigate the possible adverse effects of the personal data breach;

(d)   describe the consequences of the personal data breach;

(e)   describe the measures proposed or taken by the controller to address the personal data breach and mitigate its effects .

The information may, if necessary, be provided in phases.

4.   The controller shall document any personal data breaches, comprising the facts surrounding the breach, its effects and the remedial action taken. This documentation must be sufficient to enable the supervisory authority to verify compliance with this Article and with Article 30 . The documentation shall only include the information necessary for that purpose.

4a.   The supervisory authority shall keep a public register of the types of breaches notified.

5.   The Commission European Data Protection Board shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose entrusted with the task of further specifying the criteria and requirements issuing guidelines, recommendations and best practices in accordance with point (b) of Article 66(1) for establishing the data breach and determining the undue delay referred to in paragraphs 1 and 2 and for the particular circumstances in which a controller and a processor is are required to notify the personal data breach.

6.   The Commission may lay down the standard format of such notification to the supervisory authority, the procedures applicable to the notification requirement and the form and the modalities for the documentation referred to in paragraph 4, including the time limits for erasure of the information contained therein. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2). [Am. 125]

Article 32

Communication of a personal data breach to the data subject

1.   When the personal data breach is likely to adversely affect the protection of the personal data, the or privacy, the rights or the legitimate interests of the data subject, the controller shall, after the notification referred to in Article 31, communicate the personal data breach to the data subject without undue delay.

2.   The communication to the data subject referred to in paragraph 1 shall be comprehensive and use clear and plain language. It shall describe the nature of the personal data breach and contain at least the information and the recommendations provided for in points (b) and , (c) and (d) of Article 31(3) and information about the rights of the data subject, including redress .

3.   The communication of a personal data breach to the data subject shall not be required if the controller demonstrates to the satisfaction of the supervisory authority that it has implemented appropriate technological protection measures, and that those measures were applied to the data concerned by the personal data breach. Such technological protection measures shall render the data unintelligible to any person who is not authorised to access it.

4.   Without prejudice to the controller's obligation to communicate the personal data breach to the data subject, if the controller has not already communicated the personal data breach to the data subject, the supervisory authority, having considered the likely adverse effects of the breach, may require it to do so.

5.   The Commission European Data Protection Board shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose entrusted with the task of further specifying the criteria and requirements issuing guidelines, recommendations and best practices in accordance with point (b) of Article 66(1) as to the circumstances in which a personal data breach is likely to adversely affect the personal data, the privacy, the rights or the legitimate interests of the data subject referred to in paragraph 1.

6.   The Commission may lay down the format of the communication to the data subject referred to in paragraph 1 and the procedures applicable to that communication. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2). [Am. 126]

Article 32a

Risk analysis

1.   The controller, or where applicable the processor, shall carry out a risk analysis of the potential impact of the intended data processing on the rights and freedoms of the data subjects, assessing whether its processing operations are likely to present specific risks.

2.   The following processing operations are likely to present specific risks:

(a)   processing of personal data relating to more than 5000 data subjects during any consecutive 12-month period;

(b)   processing of special categories of personal data as referred to in Article 9(1), location data or data on children or employees in large scale filing systems;

(c)   profiling on which measures are based that produce legal effects concerning the individual or similarly significantly affect the individual;

(d)   processing of personal data for the provision of health care, epidemiological researches, or surveys of mental or infectious diseases, where the data are processed for taking measures or decisions regarding specific individuals on a large scale;

(e)   automated monitoring of publicly accessible areas on a large scale;

(f)   other processing operations for which the consultation of the data protection officer or supervisory authority is required pursuant to point (b) of Article 34(2);

(g)   where a personal data breach would likely adversely affect the protection of the personal data, the privacy, the rights or the legitimate interests of the data subject;

(h)   the core activities of the controller or the processor consist of processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and systematic monitoring of data subjects;

(i)   where personal data are made accessible to a number of persons which cannot reasonably be expected to be limited.

3.   According to the result of the risk analysis:

(a)   where any of the processing operations referred to in point (a) or (b) of paragraph 2 exist, controllers not established in the Union shall designate a representative in the Union in line with the requirements and exemptions laid down in Article 25;

(b)   where any of the processing operations referred to in point (a), (b) or (h)of paragraph 2 exist, the controller shall designate a data protection officer in line with the requirements and exemptions laid down in Article 35;

(c)   where any of the processing operations referred to in point (a), (b), (c), (d), (e), (f), (g) or (h) of paragraph 2 exist, the controller or the processor acting on the controller's behalf shall carry out a data protection impact assessment pursuant to Article 33;

(d)   where processing operations referred to in point (f) of paragraph 2 exist, the controller shall consult the data protection officer, or in case a data protection officer has not been appointed, the supervisory authority pursuant to Article 34.

4.   The risk analysis shall be reviewed at the latest after one year, or immediately, if the nature, the scope or the purposes of the data processing operations change significantly. Where pursuant to point (c) of paragraph 3 the controller is not obliged to carry out a data protection impact assessment, the risk analysis shall be documented. [Am. 127]

SECTION 3

Lifecycle DATA PROTECTION IMPACT ASSESSMENT AND PRIOR AUTHORISATION Management [Am. 128]

Article 33

Data protection impact assessment

1.   Where processing operations present specific risks to the rights and freedoms of data subjects by virtue of their nature, their scope or their purposes, required pursuant to point (c) of Article 32a(3 ) the controller or the processor acting on the controller's behalf shall carry out an assessment of the impact of the envisaged processing operations on the rights and freedoms of the data subjects, especially their right to protection of personal data. A single assessment shall be sufficient to address a set of similar processing operations that present similar risks.

2.   The following processing operations in particular present specific risks referred to in paragraph 1:

(a)   a systematic and extensive evaluation of personal aspects relating to a natural person or for analysing or predicting in particular the natural person's economic situation, location, health, personal preferences, reliability or behaviour, which is based on automated processing and on which measures are based that produce legal effects concerning the individual or significantly affect the individual;

(b)   information on sex life, health, race and ethnic origin or for the provision of health care, epidemiological researches, or surveys of mental or infectious diseases, where the data are processed for taking measures or decisions regarding specific individuals on a large scale;

(c)   monitoring publicly accessible areas, especially when using optic-electronic devices (video surveillance) on a large scale;

(d)   personal data in large scale filing systems on children, genetic data or biometric data;

(e)   other processing operations for which the consultation of the supervisory authority is required pursuant to point (b) of Article 34(2).

3.   The assessment shall have regard to the entire lifecycle management of personal data from collection to processing to deletion. It shall contain at least a general description of the envisaged processing operations, an assessment of the risks to the rights and freedoms of data subjects, the measures envisaged to address the risks, safeguards, security measures and mechanisms to ensure the protection of personal data and to demonstrate compliance with this Regulation, taking into account the rights and legitimate interests of data subjects and other persons concerned : .

(a)   a systematic description of the envisaged processing operations, the purposes of the processing and, if applicable, the legitimate interests pursued by the controller;

(b)   an assessment of the necessity and proportionality of the processing operations in relation to the purposes;

(c)   an assessment of the risks to the rights and freedoms of data subjects, including the risk of discrimination being embedded in or reinforced by the operation;

(d)   a description of the measures envisaged to address the risks and minimise the volume of personal data which are processed;

(e)   a list of safeguards, security measures and mechanisms to ensure the protection of personal data, such as pseudonymisation, and to demonstrate compliance with this Regulation, taking into account the rights and legitimate interests of data subjects and other persons concerned;

(f)   a general indication of the time limits for erasure of the different categories of data;

(g)   an explanation which data protection by design and default practices pursuant to Article 23 have been implemented;

(h)   a list of the recipients or categories of recipients of the personal data;

(i)   where applicable, a list of the intended transfers of data to a third country or an international organisation, including the identification of that third country or international organisation;

(j)   an assessment of the context of the data processing.

3a.   If the controller or the processor has designated a data protection officer, he or she shall be involved in the impact assessment proceeding.

3b.   The assessment shall be documented and lay down a schedule for regular periodic data protection compliance reviews pursuant to Article 33a(1). The assessment shall be updated without undue delay, if the results of the data protection compliance review referred to in Article 33a show compliance inconsistencies. The controller and the processor and, if any, the controller's representative shall make the assessment available, on request, to the supervisory authority.

4.   The controller shall seek the views of data subjects or their representatives on the intended processing, without prejudice to the protection of commercial or public interests or the security of the processing operations.

5.   Where the controller is a public authority or body and where the processing results from a legal obligation pursuant to point (c) of Article 6(1) providing for rules and procedures pertaining to the processing operations and regulated by Union law, paragraphs 1 to 4 shall not apply, unless Member States deem it necessary to carry out such assessment prior to the processing activities.

6.   The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and conditions for the processing operations likely to present specific risks referred to in paragraphs 1 and 2 and the requirements for the assessment referred to in paragraph 3, including conditions for scalability, verification and auditability. In doing so, the Commission shall consider specific measures for micro, small and medium-sized enterprises.

7.   The Commission may specify standards and procedures for carrying out and verifying and auditing the assessment referred to in paragraph 3. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2). [Am. 129]

Article 33a

Data protection compliance review

1.   At the latest two years after the carrying out of an impact assessment pursuant to Article 33(1), the controller or the processor acting on the controller's behalf shall carry out a compliance review. This compliance review shall demonstrate that the processing of personal data is performed in compliance with the data protection impact assessment.

2.   The compliance review shall be carried out periodically at least once every two years, or immediately when there is a change in the specific risks presented by the processing operations.

3.   Where the compliance review results show compliance inconsistencies, the compliance review shall include recommendations on how to achieve full compliance.

4.   The compliance review and its recommendations shall be documented. The controller and the processor and, if any, the controller's representative shall make the compliance review available, on request, to the supervisory authority.

5.   If the controller or the processor has designated a data protection officer, he or she shall be involved in the compliance review proceeding. [Am. 130]

Article 34

Prior authorisation and prior consultation

1.   The controller or the processor as the case may be shall obtain an authorisation from the supervisory authority prior to the processing of personal data, in order to ensure the compliance of the intended processing with this Regulation and in particular to mitigate the risks involved for the data subjects where a controller or processor adopts contractual clauses as provided for in point (d) of Article 42(2) or does not provide for the appropriate safeguards in a legally binding instrument as referred to in Article 42(5) for the transfer of personal data to a third country or an international organisation.

2.   The controller or processor acting on the controller's behalf shall consult the data protection officer, or in case a data protection officer has not been appointed, the supervisory authority prior to the processing of personal data in order to ensure the compliance of the intended processing with this Regulation and in particular to mitigate the risks involved for the data subjects where:

(a)   a data protection impact assessment as provided for in Article 33 indicates that processing operations are by virtue of their nature, their scope or their purposes, likely to present a high degree of specific risks; or

(b)   the data protection officer or the supervisory authority deems it necessary to carry out a prior consultation on processing operations that are likely to present specific risks to the rights and freedoms of data subjects by virtue of their nature, their scope and/or their purposes, and specified according to paragraph 4.

3.   Where the competent supervisory authority is of the opinion determines in accordance with its power that the intended processing does not comply with this Regulation, in particular where risks are insufficiently identified or mitigated, it shall prohibit the intended processing and make appropriate proposals to remedy such non-compliance.

4.   The supervisory authority European Data Protection Board shall establish and make public a list of the processing operations which are subject to prior consultation pursuant to point (b) of paragraph 2. The supervisory authority shall communicate those lists to the European Data Protection Board.

5.   Where the list provided for in paragraph 4 involves processing activities which are related to the offering of goods or services to data subjects in several Member States, or to the monitoring of their behaviour, or may substantially affect the free movement of personal data within the Union, the supervisory authority shall apply the consistency mechanism referred to in Article 57 prior to the adoption of the list.

6.   The controller or processor shall provide the supervisory authority, on request, with the data protection impact assessment provided for in pursuant to Article 33 and, on request, with any other information to allow the supervisory authority to make an assessment of the compliance of the processing and in particular of the risks for the protection of personal data of the data subject and of the related safeguards.

7.   Member States shall consult the supervisory authority in the preparation of a legislative measure to be adopted by the national parliament or of a measure based on such a legislative measure, which defines the nature of the processing, in order to ensure the compliance of the intended processing with this Regulation and in particular to mitigate the risks involved for the data subjects.

8.   The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and requirements for determining the high degree of specific risk referred to in point (a) of paragraph 2.

9.   The Commission may set out standard forms and procedures for prior authorisations and consultations referred to in paragraphs 1 and 2, and standard forms and procedures for informing the supervisory authorities pursuant to paragraph 6. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2). [Am. 131]

SECTION 4

DATA PROTECTION OFFICER

Article 35

Designation of the data protection officer

1.   The controller and the processor shall designate a data protection officer in any case where:

(a)   the processing is carried out by a public authority or body; or

(b)   the processing is carried out by an enterprise employing 250 persons or more a legal person and relates to more than 5000 data subjects in any consecutive 12-month period ; or

(c)   the core activities of the controller or the processor consist of processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and systematic monitoring of data subjects. ; or

(d)   the core activities of the controller or the processor consist of processing special categories of data pursuant to Article 9(1), location data or data on children or employees in large scale filing systems.

2.   In the case referred to in point (b) of paragraph 1, a A group of undertakings may appoint a single main responsible data protection officer, provided it is ensured that a data protection officer is easily accessible from each establishment .

3.   Where the controller or the processor is a public authority or body, the data protection officer may be designated for several of its entities, taking account of the organisational structure of the public authority or body.

4.   In cases other than those referred to in paragraph 1, the controller or processor or associations and other bodies representing categories of controllers or processors may designate a data protection officer.

5.   The controller or processor shall designate the data protection officer on the basis of professional qualities and, in particular, expert knowledge of data protection law and practices and ability to fulfil the tasks referred to in Article 37. The necessary level of expert knowledge shall be determined in particular according to the data processing carried out and the protection required for the personal data processed by the controller or the processor.

6.   The controller or the processor shall ensure that any other professional duties of the data protection officer are compatible with the person's tasks and duties as data protection officer and do not result in a conflict of interests.

7.   The controller or the processor shall designate a data protection officer for a period of at least two four years in case of an employee or two years in case of an external service contractor . The data protection officer may be reappointed for further terms. During their his or her term of office, the data protection officer may only be dismissed, if the data protection officer he or she no longer fulfils the conditions required for the performance of their his or her duties.

8.   The data protection officer may be employed by the controller or processor, or fulfil his or her tasks on the basis of a service contract.

9.   The controller or the processor shall communicate the name and contact details of the data protection officer to the supervisory authority and to the public.

10.   Data subjects shall have the right to contact the data protection officer on all issues related to the processing of the data subject’s data and to request exercising the rights under this Regulation.

11.   The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and requirements for the core activities of the controller or the processor referred to in point (c) of paragraph 1 and the criteria for the professional qualities of the data protection officer referred to in paragraph 5. [Am. 132]

Article 36

Position of the data protection officer

1.   The controller or the processor shall ensure that the data protection officer is properly and in a timely manner involved in all issues which relate to the protection of personal data.

2.   The controller or processor shall ensure that the data protection officer performs the duties and tasks independently and does not receive any instructions as regards the exercise of the function. The data protection officer shall directly report to the executive management of the controller or the processor. The controller or processor shall for this purpose designate an executive management member who shall be responsible for the compliance with the provisions of this Regulation.

3.   The controller or the processor shall support the data protection officer in performing the tasks and shall provide all means, including staff, premises, equipment and any other resources necessary to carry out the duties and tasks referred to in Article 37, and to maintain his or her professional knowledge .

4.   Data protection officers shall be bound by secrecy concerning the identity of data subjects and concerning circumstances enabling data subjects to be identified, unless they are released from that obligation by the data subject. [Am. 133]

Article 37

Tasks of the data protection officer

1.   The controller or the processor shall entrust the data protection officer at least with the following tasks:

(a)   to raise awareness, to inform and advise the controller or the processor of their obligations pursuant to this Regulation, in particular with regard to technical and organisational measures and procedures, and to document this activity and the responses received;

(b)   to monitor the implementation and application of the policies of the controller or processor in relation to the protection of personal data, including the assignment of responsibilities, the training of staff involved in the processing operations, and the related audits;

(c)   to monitor the implementation and application of this Regulation, in particular as to the requirements related to data protection by design, data protection by default and data security and to the information of data subjects and their requests in exercising their rights under this Regulation;

(d)   to ensure that the documentation referred to in Article 28 is maintained;

(e)   to monitor the documentation, notification and communication of personal data breaches pursuant to Articles 31 and 32;

(f)   to monitor the performance of the data protection impact assessment by the controller or processor and the application for prior authorisation or prior consultation, if required pursuant to Articles 32a, 33 and 34;

(g)   to monitor the response to requests from the supervisory authority, and, within the sphere of the data protection officer's competence, co-operating with the supervisory authority at the latter's request or on the data protection officer’s own initiative;

(h)   to act as the contact point for the supervisory authority on issues related to the processing and consult with the supervisory authority, if appropriate, on his or her own initiative;

(i)   to verify the compliance with this Regulation under the prior consultation mechanism laid down in Article 34;

(j)   to inform the employee representatives on data processing of the employees.

2.   The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and requirements for tasks, certification, status, powers and resources of the data protection officer referred to in paragraph 1. [Am. 134]

SECTION 5

CODES OF CONDUCT AND CERTIFICATION

Article 38

Codes of conduct

1.   The Member States, the supervisory authorities and the Commission shall encourage the drawing up of codes of conduct or the adoption of codes of conduct drawn up by a supervisory authority intended to contribute to the proper application of this Regulation, taking account of the specific features of the various data processing sectors, in particular in relation to:

(a)   fair and transparent data processing;

(aa)   respect for consumer rights;

(b)   the collection of data;

(c)   the information of the public and of data subjects;

(d)   requests of data subjects in exercise of their rights;

(e)   information and protection of children;

(f)   transfer of data to third countries or international organisations;

(g)   mechanisms for monitoring and ensuring compliance with the code by the controllers adherent to it;

(h)   out-of-court proceedings and other dispute resolution procedures for resolving disputes between controllers and data subjects with respect to the processing of personal data, without prejudice to the rights of the data subjects pursuant to Articles 73 and 75.

2.   Associations and other bodies representing categories of controllers or processors in one Member State which intend to draw up codes of conduct or to amend or extend existing codes of conduct may submit them to an opinion of the supervisory authority in that Member State. The supervisory authority may shall without undue delay give an opinion on whether the processing under the draft code of conduct or the amendment is in compliance with this Regulation. The supervisory authority shall seek the views of data subjects or their representatives on these drafts.

3.   Associations and other bodies representing categories of controllers or processors in several Member States may submit draft codes of conduct and amendments or extensions to existing codes of conduct to the Commission.

4.   The Commission may adopt implementing acts shall be empowered to adopt, after requesting an opinion of the European Data Protection Board, delegated acts in accordance with Article 86 for deciding that the codes of conduct and amendments or extensions to existing codes of conduct submitted to it pursuant to paragraph 3 are in line with this Regulation and have general validity within the Union. Those implementing acts delegated acts shall be adopted in accordance with the examination procedure set out in Article 87(2) confer enforceable rights on data subjects .

5.   The Commission shall ensure appropriate publicity for the codes which have been decided as having general validity in accordance with paragraph 4. [Am. 135]

Article 39

Certification

1.   The Member States and the Commission shall encourage, in particular at European level, the establishment of data protection certification mechanisms and of data protection seals and marks, allowing data subjects to quickly assess the level of data protection provided by controllers and processors. The data protection certifications mechanisms shall contribute to the proper application of this Regulation, taking account of the specific features of the various sectors and different processing operations.

1a.   Any controller or processor may request any supervisory authority in the Union, for a reasonable fee taking into account the administrative costs, to certify that the processing of personal data is performed in compliance with this Regulation, in particular with the principles set out in Article 5, 23 and 30, the obligations of the controller and the processor, and the data subject’s rights.

1b.   The certification shall be voluntary, affordable, and available via a process that is transparent and not unduly burdensome.

1c.   The supervisory authorities and the European Data Protection Board shall cooperate under the consistency mechanism pursuant to Article 57 to guarantee a harmonised data protection certification mechanism including harmonised fees within the Union.

1d.   During the certification procedure, the supervisory authorities may accredit specialised third party auditors to carry out the auditing of the controller or the processor on their behalf. Third party auditors shall have sufficiently qualified staff, be impartial and free from any conflict of interests regarding their duties. Supervisory authorities shall revoke accreditation, if there are reasons to believe that the auditor does not fulfil its duties correctly. The final certification shall be provided by the supervisory authority.

1e.   Supervisory authorities shall grant controllers and processors, who pursuant to the auditing have been certified that they process personal data in compliance with this Regulation, the standardised data protection mark named "European Data Protection Seal".

1f.   The "European Data Protection Seal" shall be valid for as long as the data processing operations of the certified controller or processor continue to fully comply with this Regulation.

1g.   Notwithstanding paragraph 1f, the certification shall be valid for maximum five years.

1h.   The European Data Protection Board shall establish a public electronic register in which all valid and invalid certificates which have been issued in the Member States can be viewed by the public.

1i.   The European Data Protection Board may on its own initiative certify that a data protection-enhancing technical standard is compliant with this Regulation.

2.   The Commission shall be empowered to adopt, after requesting an opinion of the European Data Protection Board and consulting with stakeholders, in particular industry and non-governmental organisations, delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and requirements for the data protection certification mechanisms referred to in paragraph 1 paragraphs 1a to 1h , including requirements for accreditation of auditors, conditions for granting and withdrawal, and requirements for recognition within the Union and in third countries. Those delegated acts shall confer enforceable rights on data subjects.

3.   The Commission may lay down technical standards for certification mechanisms and data protection seals and marks and mechanisms to promote and recognize certification mechanisms and data protection seals and marks. Those implementing acts shall be adopted in accordance with the examination procedure set out in Article 87(2). [Am. 136]

CHAPTER V

TRANSFER OF PERSONAL DATA TO THIRD COUNTRIES OR INTERNATIONAL ORGANISATIONS

Article 40

General principle for transfers

Any transfer of personal data which are undergoing processing or are intended for processing after transfer to a third country or to an international organisation may only take place if, subject to the other provisions of this Regulation, the conditions laid down in this Chapter are complied with by the controller and processor, including for onward transfers of personal data from the third country or an international organisation to another third country or to another international organisation.

Article 41

Transfers with an adequacy decision

1.   A transfer may take place where the Commission has decided that the third country, or a territory or a processing sector within that third country, or the international organisation in question ensures an adequate level of protection. Such transfer shall not require any further specific authorisation.

2.   When assessing the adequacy of the level of protection, the Commission shall give consideration to the following elements:

(a)   the rule of law, relevant legislation in force, both general and sectoral, including concerning public security, defence, national security and criminal law as well as the implementation of this legislation , the professional rules and security measures which are complied with in that country or by that international organisation, jurisprudential precedents, as well as effective and enforceable rights including effective administrative and judicial redress for data subjects, in particular for those data subjects residing in the Union whose personal data are being transferred;

(b)   the existence and effective functioning of one or more independent supervisory authorities in the third country or international organisation in question responsible for ensuring compliance with the data protection rules, including sufficient sanctioning powers, for assisting and advising the data subjects in exercising their rights and for co-operation with the supervisory authorities of the Union and of Member States; and

(c)   the international commitments the third country or international organisation in question has entered into, in particular any legally binding conventions or instruments with respect to the protection of personal data .

3.   The Commission may shall be empowered to adopt delegated acts in accordance with Article 86 to decide that a third country, or a territory or a processing sector within that third country, or an international organisation ensures an adequate level of protection within the meaning of paragraph 2. Those implementing acts Such delegated acts shall be adopted in accordance with the examination procedure referred to in Article 87(2) provide for a sunset clause if they concern a processing sector and shall be revoked according to paragraph 5 as soon as an adequate level of protection according to this Regulation is no longer ensured .

4.   The implementing delegated act shall specify its geographical territorial and sectoral application, and, where applicable, identify the supervisory authority mentioned in point (b) of paragraph 2.

4a.   The Commission shall, on an on-going basis, monitor developments in third countries and international organisations that could affect the elements listed in paragraph 2 where a delegated act pursuant to paragraph 3 has been adopted.

5.   The Commission may shall be empowered to adopt delegated acts in accordance with Article 86 to decide that a third country, or a territory or a processing sector within that third country, or an international organisation does not ensure or no longer ensures an adequate level of protection within the meaning of paragraph 2 of this Article, in particular in cases where the relevant legislation, both general and sectoral, in force in the third country or international organisation, does not guarantee effective and enforceable rights including effective administrative and judicial redress for data subjects, in particular for those data subjects residing in the Union whose personal data are being transferred. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2), or, in cases of extreme urgency for individuals with respect to their right to personal data protection, in accordance with the procedure referred to in Article 87(3).

6.   Where the Commission decides pursuant to paragraph 5, any transfer of personal data to the third country, or a territory or a processing sector within that third country, or the international organisation in question shall be prohibited, without prejudice to Articles 42 to 44. At the appropriate time, the Commission shall enter into consultations with the third country or international organisation with a view to remedying the situation resulting from the Decision decision made pursuant to paragraph 5 of this Article.

6a.   Prior to adopting a delegated act pursuant to paragraphs 3 and 5, the Commission shall request the European Data Protection Board to provide an opinion on the adequacy of the level of protection. To that end, the Commission shall provide the European Data Protection Board with all necessary documentation, including correspondence with the government of the third country, territory or processing sector within that third country or the international organisation.

7.   The Commission shall publish in the Official Journal of the European Union and on its website a list of those third countries, territories and processing sectors within a third country and international organisations where it has decided that an adequate level of protection is or is not ensured.

8.   Decisions adopted by the Commission on the basis of Article 25(6) or Article 26(4) of Directive 95/46/EC shall remain in force, until five years after the entry into force of this Regulation unless amended, replaced or repealed by the Commission before the end of that period . [Am. 137]

Article 42

Transfers by way of appropriate safeguards

1.   Where the Commission has taken no decision pursuant to Article 41, or decides that a third country, or a territory or processing sector within that third country, or an international organisation does not ensure an adequate level of protection in accordance with Article 41(5), a controller or processor may not transfer personal data to a third country or an international organisation only if unless the controller or processor has adduced appropriate safeguards with respect to the protection of personal data in a legally binding instrument.

2.   The appropriate safeguards referred to in paragraph 1 shall be provided for, in particular, by:

(a)   binding corporate rules in accordance with Article 43; or

(aa)   a valid “European Data Protection Seal” for the controller and the recipient in accordance with paragraph 1e of Article 39; or

(b)   standard data protection clauses adopted by the Commission. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2); or

(c)   standard data protection clauses adopted by a supervisory authority in accordance with the consistency mechanism referred to in Article 57 when declared generally valid by the Commission pursuant to point (b) of Article 62(1); or

(d)   contractual clauses between the controller or processor and the recipient of the data authorised by a supervisory authority in accordance with paragraph 4.

3.   A transfer based on standard data protection clauses, a “European Data Protection Seal” or binding corporate rules as referred to in point (a), (b) (aa) or (c) of paragraph 2 shall not require any further specific authorisation.

4.   Where a transfer is based on contractual clauses as referred to in point (d) of paragraph 2 of this Article the controller or processor shall obtain prior authorisation of the contractual clauses according to point (a) of Article 34(1) from the supervisory authority. If the transfer is related to processing activities which concern data subjects in another Member State or other Member States, or substantially affect the free movement of personal data within the Union, the supervisory authority shall apply the consistency mechanism referred to in Article 57.

5.   Where the appropriate safeguards with respect to the protection of personal data are not provided for in a legally binding instrument, the controller or processor shall obtain prior authorisation for the transfer, or a set of transfers, or for provisions to be inserted into administrative arrangements providing the basis for such transfer. Such authorisation by the supervisory authority shall be in accordance with point (a) of Article 34(1). If the transfer is related to processing activities which concern data subjects in another Member State or other Member States, or substantially affect the free movement of personal data within the Union, the supervisory authority shall apply the consistency mechanism referred to in Article 57. Authorisations by a supervisory authority on the basis of Article 26(2) of Directive 95/46/EC shall remain valid, until two years after the entry into force of this Regulation unless amended, replaced or repealed by that supervisory authority before the end of that period . [Am. 138]

Article 43

Transfers by way of binding corporate rules

1.   A The supervisory authority shall in accordance with the consistency mechanism set out in Article 58 approve binding corporate rules, provided that they:

(a)   are legally binding and apply to and are enforced by every member within the controller’s or processor's group of undertakings and those external subcontractors that are covered by the scope of the binding corporate rules , and include their employees;

(b)   expressly confer enforceable rights on data subjects;

(c)   fulfil the requirements laid down in paragraph 2.

1a.   With regard to employment data, the representatives of the employees shall be informed about and, in accordance with Union or Member State law and practice, be involved in the drawing-up of binding corporate rules pursuant to Article 43.

2.   The binding corporate rules shall at least specify:

(a)   the structure and contact details of the group of undertakings and its members and those external subcontractors that are covered by the scope of the binding corporate rules ;

(b)   the data transfers or set of transfers, including the categories of personal data, the type of processing and its purposes, the type of data subjects affected and the identification of the third country or countries in question;

(c)   their legally binding nature, both internally and externally;

(d)   the general data protection principles, in particular purpose limitation, data minimisation, limited retention periods, data quality, data protection by design and by default, legal basis for the processing, processing of sensitive personal data; measures to ensure data security; and the requirements for onward transfers to organisations which are not bound by the policies;

(e)   the rights of data subjects and the means to exercise these rights, including the right not to be subject to a measure based on profiling in accordance with Article 20, the right to lodge a complaint with the competent supervisory authority and before the competent courts of the Member States in accordance with Article 75, and to obtain redress and, where appropriate, compensation for a breach of the binding corporate rules;

(f)   the acceptance by the controller or processor established on the territory of a Member State of liability for any breaches of the binding corporate rules by any member of the group of undertakings not established in the Union; the controller or the processor may only be exempted from this liability, in whole or in part, if he proves that that member is not responsible for the event giving rise to the damage;

(g)   how the information on the binding corporate rules, in particular on the provisions referred to in points (d), (e) and (f) of this paragraph is provided to the data subjects in accordance with Article 11;

(h)   the tasks of the data protection officer designated in accordance with Article 35, including monitoring within the group of undertakings the compliance with the binding corporate rules, as well as monitoring the training and complaint handling;

(i)   the mechanisms within the group of undertakings aiming at ensuring the verification of compliance with the binding corporate rules;

(j)   the mechanisms for reporting and recording changes to the policies and reporting these changes to the supervisory authority;

(k)   the co-operation mechanism with the supervisory authority to ensure compliance by any member of the group of undertakings, in particular by making available to the supervisory authority the results of the verifications of the measures referred to in point (i) of this paragraph.

3.   The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the format, procedures, criteria and requirements for binding corporate rules within the meaning of this Article, in particular as regards the criteria for their approval, including transparency for data subjects, the application of points (b), (d), (e) and (f) of paragraph 2 to binding corporate rules adhered to by processors and on further necessary requirements to ensure the protection of personal data of the data subjects concerned.

4.   The Commission may specify the format and procedures for the exchange of information by electronic means between controllers, processors and supervisory authorities for binding corporate rules within the meaning of this Article. Those implementing acts shall be adopted in accordance with the examination procedure set out in Article 87(2). [Am. 139]

Article 43a

Transfers or disclosures not authorised by Union law

1.   No judgment of a court or tribunal and no decision of an administrative authority of a third country requiring a controller or processor to disclose personal data shall be recognised or be enforceable in any manner, without prejudice to a mutual legal assistance treaty or an international agreement in force between the requesting third country and the Union or a Member State.

2.   Where a judgment of a court or tribunal or a decision of an administrative authority of a third country requests a controller or processor to disclose personal data, the controller or processor and, if any, the controller's representative, shall notify the supervisory authority of the request without undue delay and must obtain prior authorisation for the transfer or disclosure by the supervisory authority.

3.   The supervisory authority shall assess the compliance of the requested disclosure with this Regulation and in particular whether the disclosure is necessary and legally required in accordance with points (d) and (e) of Article 44(1) and Article 44(5). Where data subjects from other Member States are affected, the supervisory authority shall apply the consistency mechanism referred to in Article 57.

4.   The supervisory authority shall inform the competent national authority of the request. Without prejudice to Article 21, the controller or processor shall also inform the data subjects of the request and of the authorisation by the supervisory authority and, where applicable, inform the data subject whether personal data were provided to public authorities during the last consecutive 12-month period, pursuant to point (ha) of Article 14(1). [Am. 140]

Article 44

Derogations

1.   In the absence of an adequacy decision pursuant to Article 41 or of appropriate safeguards pursuant to Article 42, a transfer or a set of transfers of personal data to a third country or an international organisation may take place only on condition that:

(a)   the data subject has consented to the proposed transfer, after having been informed of the risks of such transfers due to the absence of an adequacy decision and appropriate safeguards; or

(b)   the transfer is necessary for the performance of a contract between the data subject and the controller or the implementation of pre-contractual measures taken at the data subject's request; or

(c)   the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the controller and another natural or legal person; or

(d)   the transfer is necessary for important grounds of public interest; or

(e)   the transfer is necessary for the establishment, exercise or defence of legal claims; or

(f)   the transfer is necessary in order to protect the vital interests of the data subject or of another person, where the data subject is physically or legally incapable of giving consent; or

(g)   the transfer is made from a register which according to Union or Member State law is intended to provide information to the public and which is open to consultation either by the public in general or by any person who can demonstrate legitimate interest, to the extent that the conditions laid down in Union or Member State law for consultation are fulfilled in the particular case; or

(h)   the transfer is necessary for the purposes of the legitimate interests pursued by the controller or the processor, which cannot be qualified as frequent or massive, and where the controller or processor has assessed all the circumstances surrounding the data transfer operation or the set of data transfer operations and based on this assessment adduced appropriate safeguards with respect to the protection of personal data, where necessary.

2.   A transfer pursuant to point (g) of paragraph 1 shall not involve the entirety of the personal data or entire categories of the personal data contained in the register. When the register is intended for consultation by persons having a legitimate interest, the transfer shall be made only at the request of those persons or if they are to be the recipients.

3.   Where the processing is based on point (h) of paragraph 1, the controller or processor shall give particular consideration to the nature of the data, the purpose and duration of the proposed processing operation or operations, as well as the situation in the country of origin, the third country and the country of final destination, and adduced appropriate safeguards with respect to the protection of personal data, where necessary.

4.   Points (b), and (c) and (h) of paragraph 1 shall not apply to activities carried out by public authorities in the exercise of their public powers.

5.   The public interest referred to in point (d) of paragraph 1 must be recognised in Union law or in the law of the Member State to which the controller is subject.

6.   The controller or processor shall document the assessment as well as the appropriate safeguards adduced referred to in point (h) of paragraph 1 of this Article in the documentation referred to in Article 28 and shall inform the supervisory authority of the transfer.

7.   The Commission European Data Protection Board shall be empowered to adopt delegated acts in accordance with Article 86 entrusted with the task of issuing guidelines, recommendations and best practices in accordance with point (b) of Article 66(1) for the purpose of further specifying 'important grounds of public interest' within the meaning of point (d) of paragraph 1 as well as the criteria and requirements for appropriate safeguards referred to in point (h) data transfers on the basis of paragraph 1. [Am. 141]

Article 45

International co-operation for the protection of personal data

1.   In relation to third countries and international organisations, the Commission and supervisory authorities shall take appropriate steps to:

(a)   develop effective international co-operation mechanisms to facilitate ensure the enforcement of legislation for the protection of personal data; [Am. 142]

(b)   provide international mutual assistance in the enforcement of legislation for the protection of personal data, including through notification, complaint referral, investigative assistance and information exchange, subject to appropriate safeguards for the protection of personal data and other fundamental rights and freedoms;

(c)   engage relevant stakeholders in discussion and activities aimed at furthering international co-operation in the enforcement of legislation for the protection of personal data;

(d)   promote the exchange and documentation of personal data protection legislation and practice. ;

(da)   clarify and consult on jurisdictional conflicts with third countries. [Am. 143]

2.   For the purposes of paragraph 1, the Commission shall take appropriate steps to advance the relationship with third countries or international organisations, and in particular their supervisory authorities, where the Commission has decided that they ensure an adequate level of protection within the meaning of Article 41(3).

Article 45a

Report by the Commission

The Commission shall submit to the European Parliament and to the Council at regular intervals, starting not later than four years after the date referred to in Article 91(1), a report on the application of Articles 40 to 45. For that purpose, the Commission may request information from the Member States and supervisory authorities, which shall be supplied without undue delay. The report shall be made public. [Am. 144]

CHAPTER VI

INDEPENDENT SUPERVISORY AUTHORITIES

SECTION 1

INDEPENDENT STATUS

Article 46

Supervisory authority

1.   Each Member State shall provide that one or more public authorities are responsible for monitoring the application of this Regulation and for contributing to its consistent application throughout the Union, in order to protect the fundamental rights and freedoms of natural persons in relation to the processing of their personal data and to facilitate the free flow of personal data within the Union. For these purposes, the supervisory authorities shall co-operate with each other and the Commission.

2.   Where in a Member State more than one supervisory authority are established, that Member State shall designate the supervisory authority which functions as a single contact point for the effective participation of those authorities in the European Data Protection Board and shall set out the mechanism to ensure compliance by the other authorities with the rules relating to the consistency mechanism referred to in Article 57.

3.   Each Member State shall notify to the Commission those provisions of its law which it adopts pursuant to this Chapter, by the date specified in Article 91(2) at the latest and, without delay, any subsequent amendment affecting them.

Article 47

Independence

1.   The supervisory authority shall act with complete independence and impartiality in exercising the duties and powers entrusted to it, notwithstanding co-operation and consistency arrangements pursuant to Chapter VII of this Regulation . [Am. 145]

2.   The members of the supervisory authority shall, in the performance of their duties, neither seek nor take instructions from anybody.

3.   Members of the supervisory authority shall refrain from any action incompatible with their duties and shall not, during their term of office, engage in any incompatible occupation, whether gainful or not.

4.   Members of the supervisory authority shall behave, after their term of office, with integrity and discretion as regards the acceptance of appointments and benefits.

5.   Each Member State shall ensure that the supervisory authority is provided with the adequate human, technical and financial resources, premises and infrastructure necessary for the effective performance of its duties and powers, including those to be carried out in the context of mutual assistance, co-operation and participation in the European Data Protection Board.

6.   Each Member State shall ensure that the supervisory authority has its own staff which shall be appointed by and be subject to the direction of the head of the supervisory authority.

7.   Member States shall ensure that the supervisory authority is subject to financial control which shall not affect its independence. Member States shall ensure that the supervisory authority has separate annual budgets. The budgets shall be made public.

7a.   Each Member State shall ensure that the supervisory authority shall be accountable to the national parliament for reasons of budgetary control. [Am. 146]

Article 48

General conditions for the members of the supervisory authority

1.   Member States shall provide that the members of the supervisory authority must be appointed either by the parliament or the government of the Member State concerned.

2.   The members shall be chosen from persons whose independence is beyond doubt and whose experience and skills required to perform their duties notably in the area of protection of personal data are demonstrated.

3.   The duties of a member shall end in the event of the expiry of the term of office, resignation or compulsory retirement in accordance with paragraph 5.

4.   A member may be dismissed or deprived of the right to a pension or other benefits in its stead by the competent national court, if the member no longer fulfils the conditions required for the performance of the duties or is guilty of serious misconduct.

5.   Where the term of office expires or the member resigns, the member shall continue to exercise the duties until a new member is appointed.

Article 49

Rules on the establishment of the supervisory authority

Each Member State shall provide by law within the limits of this Regulation:

(a)   the establishment and status of the supervisory authority;

(b)   the qualifications, experience and skills required to perform the duties of the members of the supervisory authority;

(c)   the rules and procedures for the appointment of the members of the supervisory authority, as well the rules on actions or occupations incompatible with the duties of the office;

(d)   the duration of the term of the members of the supervisory authority which shall be no less than four years, except for the first appointment after entry into force of this Regulation, part of which may take place for a shorter period where this is necessary to protect the independence of the supervisory authority by means of a staggered appointment procedure;

(e)   whether the members of the supervisory authority shall be eligible for reappointment;

(f)   the regulations and common conditions governing the duties of the members and staff of the supervisory authority;

(g)   the rules and procedures on the termination of the duties of the members of the supervisory authority, including in case that they no longer fulfil the conditions required for the performance of their duties or if they are guilty of serious misconduct.

Article 50

Professional secrecy

The members and the staff of the supervisory authority shall be subject, both during and after their term of office and in conformity with national legislation and practice , to a duty of professional secrecy with regard to any confidential information which has come to their knowledge in the course of the performance of their official duties, whilst conducting their duties with independence and transparency as set out in this Regulation . [Am. 147]

SECTION 2

DUTIES AND POWERS

Article 51

Competence

1.   Each supervisory authority shall be competent to perform the duties and to exercise, on the territory of its own Member State, the powers conferred on it in accordance with this Regulation on the territory of its own Member State, without prejudice to Articles 73 and 74 . Data processing by a public authority shall be supervised only by the supervisory authority of that Member State . [Am. 148]

2.   Where the processing of personal data takes place in the context of the activities of an establishment of a controller or a processor in the Union, and the controller or processor is established in more than one Member State, the supervisory authority of the main establishment of the controller or processor shall be competent for the supervision of the processing activities of the controller or the processor in all Member States, without prejudice to the provisions of Chapter VII of this Regulation. [Am. 149]

3.   The supervisory authority shall not be competent to supervise processing operations of courts acting in their judicial capacity.

Article 52

Duties

1.   The supervisory authority shall:

(a)   monitor and ensure the application of this Regulation;

(b)   hear complaints lodged by any data subject, or by an association representing that data subject in accordance with Article 73, investigate, to the extent appropriate, the matter and inform the data subject or the association of the progress and the outcome of the complaint within a reasonable period, in particular if further investigation or coordination with another supervisory authority is necessary; [Am. 150]

(c)   share information with and provide mutual assistance to other supervisory authorities and ensure the consistency of application and enforcement of this Regulation;

(d)   conduct investigations either on its own initiative or on the basis of a complaint or of specific and documented information received alleging unlawful processing or on request of another supervisory authority, and inform the data subject concerned, if the data subject has addressed a complaint to this supervisory authority, of the outcome of the investigations within a reasonable period; [Am. 151]

(e)   monitor relevant developments, insofar as they have an impact on the protection of personal data, in particular the development of information and communication technologies and commercial practices;

(f)   be consulted by Member State institutions and bodies on legislative and administrative measures relating to the protection of individuals' rights and freedoms with regard to the processing of personal data;

(g)   authorise and be consulted on the processing operations referred to in Article 34;

(h)   issue an opinion on the draft codes of conduct pursuant to Article 38(2);

(i)   approve binding corporate rules pursuant to Article 43;

(j)   participate in the activities of the European Data Protection Board. ;

(ja)   certify controllers and processors pursuant to Article 39. [Am. 152]

2.   Each supervisory authority shall promote the awareness of the public on risks, rules, safeguards and rights in relation to the processing of personal data and on appropriate measures for personal data protection . Activities addressed specifically to children shall receive specific attention. [Am. 153]

2a.   Each supervisory authority shall together with the European Data Protection Board promote the awareness for controllers and processors on risks, rules, safeguards and rights in relation to the processing of personal data. This includes keeping a register of sanctions and breaches. The register should enrol both all warnings and sanctions as detailed as possible and the resolving of breaches. Each supervisory authority shall provide micro, small and medium sized enterprise controllers and processors, on request, with general information on their responsibilities and obligations in accordance with this Regulation. [Am. 154]

3.   The supervisory authority shall, upon request, advise any data subject in exercising the rights under this Regulation and, if appropriate, co-operate with the supervisory authorities in other Member States to this end.

4.   For complaints referred to in point (b) of paragraph 1, the supervisory authority shall provide a complaint submission form, which can be completed electronically, without excluding other means of communication.

5.   The performance of the duties of the supervisory authority shall be free of charge for the data subject.

6.   Where requests are manifestly excessive, in particular due to their repetitive character, the supervisory authority may charge a reasonable fee or not take the action requested by the data subject. Such a fee shall not exceed the costs of taking the action requested. The supervisory authority shall bear the burden of proving the manifestly excessive character of the request. [Am. 155]

Article 53

Powers

1.   Each supervisory authority shall, in line with this Regulation, have the power:

(a)   to notify the controller or the processor of an alleged breach of the provisions governing the processing of personal data, and, where appropriate, order the controller or the processor to remedy that breach, in a specific manner, in order to improve the protection of the data subject, or to order the controller to communicate a personal data breach to the data subject ;

(b)   to order the controller or the processor to comply with the data subject's requests to exercise the rights provided by this Regulation;

(c)   to order the controller and the processor, and, where applicable, the representative to provide any information relevant for the performance of its duties;

(d)   to ensure the compliance with prior authorisations and prior consultations referred to in Article 34;

(e)   to warn or admonish the controller or the processor;

(f)   to order the rectification, erasure or destruction of all data when they have been processed in breach of the provisions of this Regulation and the notification of such actions to third parties to whom the data have been disclosed;

(g)   to impose a temporary or definitive ban on processing;

(h)   to suspend data flows to a recipient in a third country or to an international organisation;

(i)   to issue opinions on any issue related to the protection of personal data;

(ia)   to certify controllers and processors pursuant to Article 39;

(j)   to inform the national parliament, the government or other political institutions as well as the public on any issue related to the protection of personal data. ;

(ja)   to put in place effective mechanisms to encourage confidential reporting of breaches of this Regulation, taking into account guidance issued by the European Data Protection Board pursuant to Article 66(4b).

2.   Each supervisory authority shall have the investigative power to obtain from the controller or the processor without prior notice :

(a)   access to all personal data and to all documents and information necessary for the performance of its duties;

(b)   access to any of its premises, including to any data processing equipment and means, where there are reasonable grounds for presuming that an activity in violation of this Regulation is being carried out there .

The powers referred to in point (b) shall be exercised in conformity with Union law and Member State law.

3.   Each supervisory authority shall have the power to bring violations of this Regulation to the attention of the judicial authorities and to engage in legal proceedings, in particular pursuant to Article 74(4) and Article 75(2).

4.   Each supervisory authority shall have the power to sanction administrative offences, in particular those referred to in accordance with Article 79(4), (5) and (6) . This power shall be exercised in an effective, proportionate and dissuasive manner. [Am. 156]

Article 54

Activity report

Each supervisory authority must draw up an annual a report on its activities at least every two years . The report shall be presented to the national respective parliament and shall be made be available to the public, the Commission and the European Data Protection Board. [Am. 157]

Article 54a

Lead Authority

1.   Where the processing of personal data takes place in the context of the activities of an establishment of a controller or a processor in the Union, and the controller or processor is established in more than one Member State, or where personal data of the residents of several Member States are processed, the supervisory authority of the main establishment of the controller or processor shall act as the lead authority responsible for the supervision of the processing activities of the controller or the processor in all Member States, in accordance with the provisions of Chapter VII of this Regulation.

2.   The lead authority shall take appropriate measures for the supervision of the processing activities of the controller or processor for which it is responsible only after consulting all other competent supervisory authorities within the meaning of Article 51(1) in an endeavour to reach a consensus. For that purpose it shall in particular submit any relevant information and consult the other authorities before it adopts a measure intended to produce legal effects vis-à-vis a controller or a processor within the meaning of Article 51(1). The lead authority shall take the utmost account of the opinions of the authorities involved. The lead authority shall be the sole authority empowered to decide on measures intended to produce legal effects as regards the processing activities of the controller or processor for which it is responsible.

3.   The European Data Protection Board shall, at the request of a competent supervisory authority, issue an opinion on the identification of the lead authority responsible for a controller or processor, in cases where:

(a)   it is unclear from the facts of the case where the main establishment of the controller or processor is located; or

(b)   the competent authorities do not agree on which supervisory authority shall act as lead authority; or

(c)   the controller is not established in the Union, and residents of different Member States are affected by processing operations within the scope of this Regulation.

3a.   Where the controller exercises also activities as a processor, the supervisory authority of the main establishment of the controller shall act as lead authority for the supervision of processing activities.

4.   The European Data Protection Board may decide on the identification of the lead authority. [Am. 158]

CHAPTER VII

CO-OPERATION AND CONSISTENCY

Section 1

Co-operation

Article 55

Mutual assistance

1.   Supervisory authorities shall provide each other relevant information and mutual assistance in order to implement and apply this Regulation in a consistent manner, and shall put in place measures for effective co-operation with one another. Mutual assistance shall cover, in particular, information requests and supervisory measures, such as requests to carry out prior authorisations and consultations, inspections and investigations and prompt information on the opening of cases and ensuing developments where the controller or processor has establishments in several Member States or where data subjects in several Member States are likely to be affected by processing operations. The lead authority as defined in Article 54a shall ensure the coordination with involved supervisory authorities and shall act as the single contact point for the controller or processor. [Am. 159]

2.   Each supervisory authority shall take all appropriate measures required to reply to the request of another supervisory authority without delay and no later than one month after having received the request. Such measures may include, in particular, the transmission of relevant information on the course of an investigation or enforcement measures to bring about the cessation or prohibition of processing operations contrary to this Regulation.

3.   The request for assistance shall contain all the necessary information, including the purpose of the request and reasons for the request. Information exchanged shall be used only in respect of the matter for which it was requested.

4.   A supervisory authority to which a request for assistance is addressed may not refuse to comply with it unless:

(a)   it is not competent for the request; or

(b)   compliance with the request would be incompatible with the provisions of this Regulation.

5.   The requested supervisory authority shall inform the requesting supervisory authority of the results or, as the case may be, of the progress or the measures taken in order to meet the request by the requesting supervisory authority.

6.   Supervisory authorities shall supply the information requested by other supervisory authorities by electronic means and within the shortest possible period of time, using a standardised format.

7.   No fee shall be charged to the requesting supervisory authority for any action taken following a request for mutual assistance. [Am. 160]

8.   Where a supervisory authority does not act within one month on request of another supervisory authority, the requesting supervisory authorities shall be competent to take a provisional measure on the territory of its Member State in accordance with Article 51(1) and shall submit the matter to the European Data Protection Board in accordance with the procedure referred to in Article 57. Where no definitive measure is yet possible because the assistance is not yet completed, the requesting supervisory authority may take interim measures under Article 53 in the territory of its Member State. [Am. 161]

9.   The supervisory authority shall specify the period of validity of such provisional measure. This period shall not exceed three months. The supervisory authority shall, without delay, communicate those measures, with full reasons, to the European Data Protection Board and to the Commission in accordance with the procedure referred to in Article 57 . [Am. 162]

10.   The Commission European Data Protection Board may specify the format and procedures for mutual assistance referred to in this article and the arrangements for the exchange of information by electronic means between supervisory authorities, and between supervisory authorities and the European Data Protection Board, in particular the standardised format referred to in paragraph 6. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2). [Am. 163]

Article 56

Joint operations of supervisory authorities

1.   In order to step up co-operation and mutual assistance, the supervisory authorities shall carry out joint investigative tasks, joint enforcement measures and other joint operations, in which designated members or staff from other Member States' supervisory authorities are involved.

2.   In cases where the controller or processor has establishments in several Member States or where data subjects in several Member States are likely to be affected by processing operations, a supervisory authority of each of those Member States shall have the right to participate in the joint investigative tasks or joint operations, as appropriate. The competent supervisory authority lead authority as defined in Article 54a shall invite involve the supervisory authority of each of those Member States to take part in the respective joint investigative tasks or joint operations and respond to the request of a supervisory authority to participate in the operations without delay. The lead authority shall act as the single contact point for the controller or processor. [Am. 164]

3.   Each supervisory authority may, as a host supervisory authority, in compliance with its own national law, and with the seconding supervisory authority’s authorisation, confer executive powers, including investigative tasks on the seconding supervisory authority’s members or staff involved in joint operations or, in so far as the host supervisory authority’s law permits, allow the seconding supervisory authority’s members or staff to exercise their executive powers in accordance with the seconding supervisory authority’s law. Such executive powers may be exercised only under the guidance and, as a rule, in the presence of members or staff from the host supervisory authority. The seconding supervisory authority's members or staff shall be subject to the host supervisory authority's national law. The host supervisory authority shall assume responsibility for their actions.

4.   Supervisory authorities shall lay down the practical aspects of specific co-operation actions.

5.   Where a supervisory authority does not comply within one month with the obligation laid down in paragraph 2, the other supervisory authorities shall be competent to take a provisional measure on the territory of its Member State in accordance with Article 51(1).

6.   The supervisory authority shall specify the period of validity of a provisional measure referred to in paragraph 5. This period shall not exceed three months. The supervisory authority shall, without delay, communicate those measures, with full reasons, to the European Data Protection Board and to the Commission and shall submit the matter in the mechanism referred to in Article 57.

Section 2

Consistency

Article 57

Consistency mechanism

For the purposes set out in Article 46(1), the supervisory authorities shall co-operate with each other and the Commission through the consistency mechanism as set out both on matters of general application and in individual cases in accordance with the provisions of in this section. [Am. 165]

Article 58

Opinion by the European Data Protection Board Consistency on matters of general application

1.   Before a supervisory authority adopts a measure referred to in paragraph 2, this supervisory authority shall communicate the draft measure to the European Data Protection Board and the Commission.

2.   The obligation set out in paragraph 1 shall apply to a measure intended to produce legal effects and which:

(a)   relates to processing activities which are related to the offering of goods or services to data subjects in several Member States, or to the monitoring of their behaviour; or

(b)   may substantially affect the free movement of personal data within the Union; or

(c)   aims at adopting a list of the processing operations subject to prior consultation pursuant to Article 34(5); or

(d)   aims to determine standard data protection clauses referred to in point (c) of Article 42(2); or

(e)   aims to authorise contractual clauses referred to in point (d) of Article 42(2); or

(f)   aims to approve binding corporate rules within the meaning of Article 43.

3.   Any supervisory authority or the European Data Protection Board may request that any matter of general application shall be dealt with in the consistency mechanism, in particular where a supervisory authority does not submit a draft measure referred to in paragraph 2 or does not comply with the obligations for mutual assistance in accordance with Article 55 or for joint operations in accordance with Article 56.

4.   In order to ensure correct and consistent application of this Regulation, the Commission may request that any matter of general application shall be dealt with in the consistency mechanism.

5.   Supervisory authorities and the Commission shall without undue delay electronically communicate any relevant information, including as the case may be a summary of the facts, the draft measure, and the grounds which make the enactment of such measure necessary, using a standardised format.

6.   The chair of the European Data Protection Board shall immediately without undue delay electronically inform the members of the European Data Protection Board and the Commission of any relevant information which has been communicated to it, using a standardised format. The chair secretariat of the European Data Protection Board shall provide translations of relevant information, where necessary.

6a.   The European Data Protection Board shall adopt an opinion on matters referred to it under paragraph 2.

7.   The European Data Protection Board shall issue may decide by simple majority whether to adopt an opinion on the any matter, if the European Data Protection Board so decides by simple majority of its members or any supervisory authority or the Commission so requests within one week after the relevant information has been provided according to paragraph 5. The opinion shall be adopted within one month by simple majority of the members of the European Data Protection Board. The chair of the European Data Protection Board shall inform, without undue delay, the supervisory authority referred to, as the case may be, in paragraphs 1 and 3, the Commission and the supervisory authority competent under Article 51 of the opinion and make it public. submitted under paragraphs 3 and 4 taking into account :

(a)   whether the matter presents elements of novelty, taking account of legal or factual developments, in particular in information technology and in the light of the state of progress in the information society; and

(b)   whether the European Data Protection Board has already issued an opinion on the same matter.

8.   The supervisory authority referred to in paragraph 1 and the supervisory authority competent under Article 51 shall take account of the opinion of the European Data Protection Board and shall within two weeks after the information on the opinion by the chair of the European Data Protection Board, electronically communicate to the chair of the European Data Protection Board and to the Commission whether it maintains or amends its draft measure and, if any, the amended draft measure, using a standardised format The European Data Protection Board shall adopt opinions pursuant to paragraphs 6a and 7 by a simple majority of its members. These opinions shall be made public . [Am. 166]

Article 58a

Consistency in individual cases

1.   Before taking a measure intended to produce legal effects within the meaning of Article 54a, the lead authority shall share all relevant information and submit the draft measure to all other competent authorities. The lead authority shall not adopt the measure if a competent authority has, within a period of three weeks, indicated it has serious objections to the measure.

2.   Where a competent authority has indicated that it has serious objections to a draft measure of the lead authority, or where the lead authority does not submit a draft measure referred to in paragraph 1 or does not comply with the obligations for mutual assistance in accordance with Article 55 or for joint operations in accordance with Article 56, the issue shall be considered by the European Data Protection Board.

3.   The lead authority and/or other competent authorities involved and the Commission shall without undue delay electronically communicate to the European Data Protection Board using a standardised format any relevant information, including as the case may be a summary of the facts, the draft measure, the grounds which make the enactment of such measure necessary, the objections raised against it and the views of other supervisory authorities concerned.

4.   The European Data Protection Board shall consider the issue, taking into account the impact of the draft measure of the lead authority on the fundamental rights and freedoms of data subjects, and shall decide by simple majority of its members whether to issue an opinion on the matter within two weeks after the relevant information has been provided pursuant to paragraph 3.

5.   In case the European Data Protection Board decides to issue an opinion, it shall do so within six weeks and make the opinion public.

6.   The lead authority shall take utmost account of the opinion of the European Data Protection Board and shall, within two weeks after the information on the opinion by the chair of the European Data Protection Board, electronically communicate to the chair of the European Data Protection Board and to the Commission whether it maintains or amends its draft measure and, if any, the amended draft measure, using a standardised format. Where the lead authority intends not to follow the opinion of the European Data Protection Board, it shall provide a reasoned justification.

7.   In case the European Data Protection Board still objects to the measure of the supervisory authority as referred to in paragraph 5, it may within one month adopt by a two thirds majority a measure which shall be binding upon the supervisory authority. [Am. 167]

Article 59

Opinion by the Commission

1.   Within ten weeks after a matter has been raised under Article 58, or at the latest within six weeks in the case of Article 61, the Commission may adopt, in order to ensure correct and consistent application of this Regulation, an opinion in relation to matters raised pursuant to Articles 58 or 61.

2.   Where the Commission has adopted an opinion in accordance with paragraph 1, the supervisory authority concerned shall take utmost account of the Commission’s opinion and inform the Commission and the European Data Protection Board whether it intends to maintain or amend its draft measure.

3.   During the period referred to in paragraph 1, the draft measure shall not be adopted by the supervisory authority.

4.   Where the supervisory authority concerned intends not to follow the opinion of the Commission, it shall inform the Commission and the European Data Protection Board thereof within the period referred to in paragraph 1 and provide a justification. In this case the draft measure shall not be adopted for one further month. [Am. 168]

Article 60

Suspension of a draft measure

1.   Within one month after the communication referred to in Article 59(4), and where the Commission has serious doubts as to whether the draft measure would ensure the correct application of this Regulation or would otherwise result in its inconsistent application, the Commission may adopt a reasoned decision requiring the supervisory authority to suspend the adoption of the draft measure, taking into account the opinion issued by the European Data Protection Board pursuant to Article 58(7) or Article 61(2), where it appears necessary in order to:

(a)   reconcile the diverging positions of the supervisory authority and the European Data Protection Board, if this still appears to be possible; or

(b)   adopt a measure pursuant to point (a) of Article 62(1).

2.   The Commission shall specify the duration of the suspension which shall not exceed 12 months.

3.   During the period referred to in paragraph 2, the supervisory authority may not adopt the draft measure. [Am. 169]

Article 60a

Notification of the European Parliament and of the Council

The Commission shall notify the European Parliament and the Council at regular intervals, at least every six months, on the basis of a report from the Chair of the European Data Protection Board, of the matters dealt with under the consistency mechanism, setting out the conclusions drawn by the Commission and the European Data Protection Board with a view to ensuring the consistent implementation and application of this Regulation. [Am. 170]

Article 61

Urgency procedure

1.   In exceptional circumstances, where a supervisory authority considers that there is an urgent need to act in order to protect the interests of data subjects, in particular when the danger exists that the enforcement of a right of a data subject could be considerably impeded by means of an alteration of the existing state or for averting major disadvantages or for other reasons, by way of derogation from the procedure referred to in Article 58 58a , it may immediately adopt provisional measures with a specified period of validity. The supervisory authority shall, without delay, communicate those measures, with full reasons, to the European Data Protection Board and to the Commission. [Am. 171]

2.   Where a supervisory authority has taken a measure pursuant to paragraph 1 and considers that final measures need urgently be adopted, it may request an urgent opinion of the European Data Protection Board, giving reasons for requesting such opinion, including for the urgency of final measures.

3.   Any supervisory authority may request an urgent opinion where the competent supervisory authority has not taken an appropriate measure in a situation where there is an urgent need to act, in order to protect the interests of data subjects, giving reasons for requesting such opinion, including for the urgent need to act.

4.   By derogation from Article 58(7), a An urgent opinion referred to in paragraphs 2 and 3 of this Article shall be adopted within two weeks by simple majority of the members of the European Data Protection Board. [Am. 172]

Article 62

Implementing acts

1.   The Commission may adopt implementing acts of general application , after requesting an opinion of the European Data Protection Board, for:

(a)   deciding on the correct application of this Regulation in accordance with its objectives and requirements in relation to matters communicated by supervisory authorities pursuant to Article 58 or 61, concerning a matter in relation to which a reasoned decision has been adopted pursuant to Article 60(1), or concerning a matter in relation to which a supervisory authority does not submit a draft measure and that supervisory authority has indicated that it does not intend to follow the opinion of the Commission adopted pursuant to Article 59;

(b)   deciding, within the period referred to in Article 59(1), whether it declares draft standard data protection clauses referred to in point (d) of Article 58 42 (2), as having general validity;

(c)   specifying the format and procedures for the application of the consistency mechanism referred to in this section;

(d)   specifying the arrangements for the exchange of information by electronic means between supervisory authorities, and between supervisory authorities and the European Data Protection Board, in particular the standardised format referred to in Article 58(5), (6) and (8).

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2).

2.   On duly justified imperative grounds of urgency relating to the interests of data subjects in the cases referred to in point (a) of paragraph 1, the Commission shall adopt immediately applicable implementing acts in accordance with the procedure referred to in Article 87(3). Those acts shall remain in force for a period not exceeding 12 months.

3.   The absence or adoption of a measure under this Section does not prejudice any other measure by the Commission under the Treaties. [Am. 173]

Article 63

Enforcement

1.   For the purposes of this Regulation, an enforceable measure of the supervisory authority of one Member State shall be enforced in all Member States concerned.

2.   Where a supervisory authority does not submit a draft measure to the consistency mechanism in breach of Article 58(1) to (5) and (2) or adopts a measure despite an indication of serious objection pursuant to Article 58a(1) , the measure of the supervisory authority shall not be legally valid and enforceable. [Am. 174]

Section 3

European Data Protection Board

Article 64

European Data Protection Board

1.   A European Data Protection Board is hereby set up.

2.   The European Data Protection Board shall be composed of the head of one supervisory authority of each Member State and of the European Data Protection Supervisor.

3.   Where in a Member State more than one supervisory authority is responsible for monitoring the application of the provisions pursuant to this Regulation, they shall nominate the head of one of those supervisory authorities as joint representative.

4.   The Commission shall have the right to participate in the activities and meetings of the European Data Protection Board and shall designate a representative. The chair of the European Data Protection Board shall, without delay, inform the Commission on all activities of the European Data Protection Board.

Article 65

Independence

1.   The European Data Protection Board shall act independently when exercising its tasks pursuant to Articles 66 and 67.

2.   Without prejudice to requests by the Commission referred to in point (b) of paragraph 1 and in paragraph 2 of Article 66, the European Data Protection Board shall, in the performance of its tasks, neither seek nor take instructions from anybody.

Article 66

Tasks of the European Data Protection Board

1.   The European Data Protection Board shall ensure the consistent application of this Regulation. To this effect, the European Data Protection Board shall, on its own initiative or at the request of the European Parliament, the Council or the Commission, in particular:

(a)   advise the Commission European institutions on any issue related to the protection of personal data in the Union, including on any proposed amendment of this Regulation;

(b)   examine, on its own initiative or on request of one of its members or on request of the European Parliament, the Council or the Commission, any question covering the application of this Regulation and issue guidelines, recommendations and best practices addressed to the supervisory authorities in order to encourage consistent application of this Regulation, including on the use of enforcement powers ;

(c)   review the practical application of the guidelines, recommendations and best practices referred to in point (b) and report regularly to the Commission on these;

(d)   issue opinions on draft decisions of supervisory authorities pursuant to the consistency mechanism referred to in Article 57;

(da)   provide an opinion on which authority should be the lead authority pursuant to Article 54a(3);

(e)   promote the co-operation and the effective bilateral and multilateral exchange of information and practices between the supervisory authorities, including the coordination of joint operations and other joint activities, where it so decides at the request of one or several supervisory authorities ;

(f)   promote common training programmes and facilitate personnel exchanges between the supervisory authorities, as well as, where appropriate, with the supervisory authorities of third countries or of international organisations;

(g)   promote the exchange of knowledge and documentation on data protection legislation and practice with data protection supervisory authorities worldwide;

(ga)   give its opinion to the Commission in the preparation of delegated and implementing acts based on this Regulation;

(gb)   give its opinion on codes of conduct drawn up at Union level pursuant to Article 38(4);

(gc)   give its opinion on criteria and requirements for the data protection certification mechanisms pursuant to Article 39(2);

(gd)   maintain a public electronic register on valid and invalid certificates pursuant to Article 39(1h);

(ge)   provide assistance to national supervisory authorities, at their request;

(gf)   establish and make public a list of the processing operations which are subject to prior consultation pursuant to Article 34;

(gg)   maintain a register of sanctions imposed on controllers or processors by the competent supervisory authorities.

2.   Where the European Parliament, the Council or the Commission requests advice from the European Data Protection Board, it may lay out a time limit within which the European Data Protection Board shall provide such advice, taking into account the urgency of the matter.

3.   The European Data Protection Board shall forward its opinions, guidelines, recommendations, and best practices to the European Parliament, the Council and the Commission and to the committee referred to in Article 87 and make them public.

4.   The Commission shall inform the European Data Protection Board of the action it has taken following the opinions, guidelines, recommendations and best practices issued by the European Data Protection Board.

4a.   The European Data Protection Board shall, where appropriate, consult interested parties and give them the opportunity to comment within a reasonable period. The European Data Protection Board shall, without prejudice to Article 72, make the results of the consultation procedure publicly available.

4b.   The European Data Protection Board shall be entrusted with the task of issuing guidelines, recommendations and best practices in accordance with point (b) of paragraph 1 for establishing common procedures for receiving and investigating information concerning allegations of unlawful processing and for safeguarding confidentiality and sources of information received. [Am. 175]

Article 67

Reports

1.   The European Data Protection Board shall regularly and timely inform the European Parliament, the Council and the Commission about the outcome of its activities. It shall draw up an annual a report at least every two years on the situation regarding the protection of natural persons with regard to the processing of personal data in the Union and in third countries.

The report shall include the review of the practical application of the guidelines, recommendations and best practices referred to in point (c) of Article 66(1). [Am. 176]

2.   The report shall be made public and transmitted to the European Parliament, the Council and the Commission.

Article 68

Procedure

1.   The European Data Protection Board shall take decisions by a simple majority of its members, unless otherwise provided in its rules of procedure . [Am. 177]

2.   The European Data Protection Board shall adopt its own rules of procedure and organise its own operational arrangements. In particular, it shall provide for the continuation of exercising duties when a member’s term of office expires or a member resigns, for the establishment of subgroups for specific issues or sectors and for its procedures in relation to the consistency mechanism referred to in Article 57.

Article 69

Chair

1.   The European Data Protection Board shall elect a chair and at least two deputy chairpersons from amongst its members. One deputy chairperson shall be the European Data Protection Supervisor, unless he or she has been elected chair. [Am. 178]

2.   The term of office of the chair and of the deputy chairpersons shall be five years and be renewable.

2a.   The position of the chair shall be a full-time position. [Am. 179]

Article 70

Tasks of the chair

1.   The chair shall have the following tasks:

(a)   to convene the meetings of the European Data Protection Board and prepare its agenda;

(b)   to ensure the timely fulfilment of the tasks of the European Data Protection Board, in particular in relation to the consistency mechanism referred to in Article 57.

2.   The European Data Protection Board shall lay down the attribution of tasks between the chair and the deputy chairpersons in its rules of procedure.

Article 71

Secretariat

1.   The European Data Protection Board shall have a secretariat. The European Data Protection Supervisor shall provide that secretariat.

2.   The secretariat shall provide analytical, legal, administrative and logistical support to the European Data Protection Board under the direction of the chair. [Am. 180]

3.   The secretariat shall be responsible in particular for:

(a)   the day-to-day business of the European Data Protection Board;

(b)   the communication between the members of the European Data Protection Board, its chair and the Commission and for communication with other institutions and the public;

(c)   the use of electronic means for the internal and external communication;

(d)   the translation of relevant information;

(e)   the preparation and follow-up of the meetings of the European Data Protection Board;

(f)   the preparation, drafting and publication of opinions and other texts adopted by the European Data Protection Board.

Article 72

Confidentiality

1.   The discussions of the European Data Protection Board shall may be confidential where necessary, unless otherwise provided in its rules of procedure . The agendas of the meetings of the European Protection Board shall be made public . [Am. 181]

2.   Documents submitted to members of the European Data Protection Board, experts and representatives of third parties shall be confidential, unless access is granted to those documents in accordance with Regulation (EC) No 1049/2001 of the European Parliament and of the Council(20) or the European Data Protection Board otherwise makes them public.

3.   The members of the European Data Protection Board, as well as experts and representatives of third parties, shall be required to respect the confidentiality obligations set out in this Article. The chair shall ensure that experts and representatives of third parties are made aware of the confidentiality requirements imposed upon them.

CHAPTER VIII

REMEDIES, LIABILITY AND SANCTIONS

Article 73

Right to lodge a complaint with a supervisory authority

1.   Without prejudice to any other administrative or judicial remedy and the consistency mechanism , every data subject shall have the right to lodge a complaint with a supervisory authority in any Member State if they consider that the processing of personal data relating to them does not comply with this Regulation.

2.   Any body, organisation or association which aims to protect data subjects’ rights and interests concerning the protection of their personal data acts in the public interest and has been properly constituted according to the law of a Member State shall have the right to lodge a complaint with a supervisory authority in any Member State on behalf of one or more data subjects if it considers that a data subject’s rights under this Regulation have been infringed as a result of the processing of personal data.

3.   Independently of a data subject's complaint, any body, organisation or association referred to in paragraph 2 shall have the right to lodge a complaint with a supervisory authority in any Member State, if it considers that a personal data breach of this Regulation has occurred. [Am. 182]

Article 74

Right to a judicial remedy against a supervisory authority

1.   Without prejudice to any other administrative or non-judicial remedy, E each natural or legal person shall have the right to a judicial remedy against decisions of a supervisory authority concerning them.

2.   Without prejudice to any other administrative or non-judicial remedy, E each data subject shall have the right to a judicial remedy obliging the supervisory authority to act on a complaint in the absence of a decision necessary to protect their rights, or where the supervisory authority does not inform the data subject within three months on the progress or outcome of the complaint pursuant to point (b) of Article 52(1).

3.   Proceedings against a supervisory authority shall be brought before the courts of the Member State where the supervisory authority is established.

4.   Without prejudice to the consistency mechanism A a data subject which is concerned by a decision of a supervisory authority in another Member State than where the data subject has its habitual residence, may request the supervisory authority of the Member State where it has its habitual residence to bring proceedings on its behalf against the competent supervisory authority in the other Member State.

5.   The Member States shall enforce final decisions by the courts referred to in this Article. [Am. 183]

Article 75

Right to a judicial remedy against a controller or processor

1.   Without prejudice to any available administrative remedy, including the right to lodge a complaint with a supervisory authority as referred to in Article 73, every natural person shall have the right to a judicial remedy if they consider that their rights under this Regulation have been infringed as a result of the processing of their personal data in non-compliance with this Regulation.

2.   Proceedings against a controller or a processor shall be brought before the courts of the Member State where the controller or processor has an establishment. Alternatively, such proceedings may be brought before the courts of the Member State where the data subject has its habitual residence, unless the controller is a public authority of the Union or a Member State acting in the exercise of its public powers. [Am. 184]

3.   Where proceedings are pending in the consistency mechanism referred to in Article 58, which concern the same measure, decision or practice, a court may suspend the proceedings brought before it, except where the urgency of the matter for the protection of the data subject's rights does not allow to wait for the outcome of the procedure in the consistency mechanism.

4.   The Member States shall enforce final decisions by the courts referred to in this Article.

Article 76

Common rules for court proceedings

1.   Any body, organisation or association referred to in Article 73(2) shall have the right to exercise the rights referred to in Articles 74 and , 75 on behalf of and 77 if mandated by one or more data subjects. [Am. 185]

2.   Each supervisory authority shall have the right to engage in legal proceedings and bring an action to court, in order to enforce the provisions of this Regulation or to ensure consistency of the protection of personal data within the Union.

3.   Where a competent court of a Member State has reasonable grounds to believe that parallel proceedings are being conducted in another Member State, it shall contact the competent court in the other Member State to confirm the existence of such parallel proceedings.

4.   Where such parallel proceedings in another Member State concern the same measure, decision or practice, the court may suspend the proceedings.

5.   Member States shall ensure that court actions available under national law allow for the rapid adoption of measures including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved.

Article 77

Right to compensation and liability

1.   Any person who has suffered damage, including non-pecuniary damage, as a result of an unlawful processing operation or of an action incompatible with this Regulation shall have the right to receive claim compensation from the controller or the processor for the damage suffered. [Am. 186]

2.   Where more than one controller or processor is involved in the processing, each controller of those controllers or processor processors shall be jointly and severally liable for the entire amount of the damage, unless they have an appropriate written agreement determining the responsibilities pursuant to Article 24 . [Am. 187]

3.   The controller or the processor may be exempted from this liability, in whole or in part, if the controller or the processor proves that they are not responsible for the event giving rise to the damage.

Article 78

Penalties

1.   Member States shall lay down the rules on penalties, applicable to infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented, including where the controller did not comply with the obligation to designate a representative. The penalties provided for must be effective, proportionate and dissuasive.

2.   Where the controller has established a representative, any penalties shall be applied to the representative, without prejudice to any penalties which could be initiated against the controller.

3.   Each Member State shall notify to the Commission those provisions of its law which it adopts pursuant to paragraph 1, by the date specified in Article 91(2) at the latest and, without delay, any subsequent amendment affecting them.

Article 79

Administrative sanctions

1.   Each supervisory authority shall be empowered to impose administrative sanctions in accordance with this Article. The supervisory authorities shall co-operate with each other in accordance with Articles 46 and 57 to guarantee a harmonised level of sanctions within the Union.

2.   The administrative sanction shall be in each individual case effective, proportionate and dissuasive. The amount of the administrative fine shall be fixed with due regard to the nature, gravity and duration of the breach, the intentional or negligent character of the infringement, the degree of responsibility of the natural or legal person and of previous breaches by this person, the technical and organisational measures and procedures implemented pursuant to Article 23 and the degree of co-operation with the supervisory authority in order to remedy the breach.

2a.   To anyone who does not comply with the obligations laid down in this Regulation, the supervisory authority shall impose at least one of the following sanctions:

(a)   a warning in writing in cases of first and non-intentional non-compliance;

(b)   regular periodic data protection audits;

(c)   a fine up to 100 000 000 EUR or up to 5% of the annual worldwide turnover in case of an enterprise, whichever is higher.

2b.   If the controller or the processor is in possession of a valid "European Data Protection Seal" pursuant to Article 39, a fine pursuant to point (c) of paragraph 2a shall only be imposed in cases of intentional or negligent non-compliance.

2c.   The administrative sanction shall take into account the following factors:

(a)   the nature, gravity and duration of the non-compliance,

(b)   the intentional or negligent character of the infringement,

(c)   the degree of responsibility of the natural or legal person and of previous breaches by this person,

(d)   the repetitive nature of the infringement,

(e)   the degree of co-operation with the supervisory authority, in order to remedy the infringement and mitigate the possible adverse effects of the infringement,

(f)   the specific categories of personal data affected by the infringement,

(g)   the level of damage, including non-pecuniary damage, suffered by the data subjects,

(h)   the action taken by the controller or processor to mitigate the damage suffered by data subjects,

(i)   any financial benefits intended or gained, or losses avoided, directly or indirectly from the infringement,

(j)   the degree of technical and organisational measures and procedures implemented pursuant to:

(i)   Article 23 - Data protection by design and by default

(ii)   Article 30 - Security of processing

(iii)   Article 33 - Data protection impact assessment

(iv)   Article 33a - Data protection compliance review

(v)   Article 35 - Designation of the data protection officer

(k)   the refusal to cooperate with or obstruction of inspections, audits and controls carried out by the supervisory authority pursuant to Article 53,

(l)   other aggravating or mitigating factors applicable to the circumstance of the case.

3.   In case of a first and non-intentional non-compliance with this Regulation, a warning in writing may be given and no sanction imposed, where:

(a)   a natural person is processing personal data without a commercial interest; or

(b)   an enterprise or an organisation employing fewer than 250 persons is processing personal data only as an activity ancillary to its main activities.

4.   The supervisory authority shall impose a fine up to 250 000 EUR, or in case of an enterprise up to 0,5 % of its annual worldwide turnover, to anyone who, intentionally or negligently:

(a)   does not provide the mechanisms for requests by data subjects or does not respond promptly or not in the required format to data subjects pursuant to Articles 12(1) and (2);

(b)   charges a fee for the information or for responses to the requests of data subjects in violation of Article 12(4).

5.   The supervisory authority shall impose a fine up to 500 000 EUR, or in case of an enterprise up to 1 % of its annual worldwide turnover, to anyone who, intentionally or negligently:

(a)   does not provide the information, or does provide incomplete information, or does not provide the information in a sufficiently transparent manner, to the data subject pursuant to Article 11, Article 12(3) and Article 14;

(b)   does not provide access for the data subject or does not rectify personal data pursuant to Articles 15 and 16 or does not communicate the relevant information to a recipient pursuant to Article 13;

(c)   does not comply with the right to be forgotten or to erasure, or fails to put mechanisms in place to ensure that the time limits are observed or does not take all necessary steps to inform third parties that a data subjects requests to erase any links to, or copy or replication of the personal data pursuant Article 17;

(d)   does not provide a copy of the personal data in electronic format or hinders the data subject to transmit the personal data to another application in violation of Article 18;

(e)   does not or not sufficiently determine the respective responsibilities with co-controllers pursuant to Article 24;

(f)   does not or not sufficiently maintain the documentation pursuant to Article 28, Article 31(4), and Article 44(3);

(g)   does not comply, in cases where special categories of data are not involved, pursuant to Articles 80, 82 and 83 with rules in relation to freedom of expression or with rules on the processing in the employment context or with the conditions for processing for historical, statistical and scientific research purposes.

6.   The supervisory authority shall impose a fine up to 1 000 000 EUR or, in case of an enterprise up to 2 % of its annual worldwide turnover, to anyone who, intentionally or negligently:

(a)   processes personal data without any or sufficient legal basis for the processing or does not comply with the conditions for consent pursuant to Articles 6, 7 and 8;

(b)   processes special categories of data in violation of Articles 9 and 81;

(c)   does not comply with an objection or the requirement pursuant to Article 19;

(d)   does not comply with the conditions in relation to measures based on profiling pursuant to Article 20;

(e)   does not adopt internal policies or does not implement appropriate measures for ensuring and demonstrating compliance pursuant to Articles 22, 23 and 30;

(f)   does not designate a representative pursuant to Article 25;

(g)   processes or instructs the processing of personal data in violation of the obligations in relation to processing on behalf of a controller pursuant to Articles 26 and 27;

(h)   does not alert on or notify a personal data breach or does not timely or completely notify the data breach to the supervisory authority or to the data subject pursuant to Articles 31 and 32;

(i)   does not carry out a data protection impact assessment pursuant or processes personal data without prior authorisation or prior consultation of the supervisory authority pursuant to Articles 33 and 34;

(j)   does not designate a data protection officer or does not ensure the conditions for fulfilling the tasks pursuant to Articles 35, 36 and 37;

(k)   misuses a data protection seal or mark in the meaning of Article 39;

(l)   carries out or instructs a data transfer to a third country or an international organisation that is not allowed by an adequacy decision or by appropriate safeguards or by a derogation pursuant to Articles 40 to 44;

(m)   does not comply with an order or a temporary or definite ban on processing or the suspension of data flows by the supervisory authority pursuant to Article 53(1);

(n)   does not comply with the obligations to assist or respond or provide relevant information to, or access to premises by, the supervisory authority pursuant to Article 28(3), Article 29, Article 34(6) and Article 53(2);

(o)   does not comply with the rules for safeguarding professional secrecy pursuant to Article 84.

7.   The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of updating the absolute amounts of the administrative fines referred to in paragraphs 4, 5 and 6 paragraph 2a , taking into account the criteria and factors referred to in paragraph paragraphs 2 and 2c . [Am. 188]

CHAPTER IX

PROVISIONS RELATING TO SPECIFIC DATA PROCESSING SITUATIONS

Article 80

Processing of personal data and freedom of expression

1.   Member States shall provide for exemptions or derogations from the provisions on the general principles in Chapter II, the rights of the data subject in Chapter III, on controller and processor in Chapter IV, on the transfer of personal data to third countries and international organisations in Chapter V, the independent supervisory authorities in Chapter VI, and on co-operation and consistency in Chapter VII for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression and specific data processing situations in this Chapter whenever this is necessary in order to reconcile the right to the protection of personal data with the rules governing freedom of expression in accordance with the Charter . [Am. 189]

2.   Each Member State shall notify to the Commission those provisions of its law which it has adopted pursuant to paragraph 1 by the date specified in Article 91(2) at the latest and, without delay, any subsequent amendment law or amendment affecting them.

Article 80a

Access to documents

1.   Personal data in documents held by a public authority or a public body may be disclosed by this authority or body in accordance with Union or Member State legislation regarding public access to official documents, which reconciles the right to the protection of personal data with the principle of public access to official documents.

2.   Each Member State shall notify to the Commission provisions of its law which it adopts pursuant to paragraph 1 by the date specified in Article 91(2) at the latest and, without delay, any subsequent amendment affecting them. [Am. 190]

Article 81

Processing of personal data concerning health

1.   Within the limits of In accordance with the rules set out in this Regulation and in accordance , in particular with point (h) of Article 9(2), processing of personal data concerning health must be on the basis of Union law or Member State law which shall provide for suitable, consistent, and specific measures to safeguard the data subject's legitimate interests, and be fundamental rights, to the extent that these are necessary and proportionate , and of which the effects shall be foreseeable by the data subject, for:

(a)   the purposes of preventive or occupational medicine, medical diagnosis, the provision of care or treatment or the management of health-care services, and where those data are processed by a health professional subject to the obligation of professional secrecy or another person also subject to an equivalent obligation of confidentiality under Member State law or rules established by national competent bodies; or

(b)   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 quality and safety, inter alia for medicinal products or medical devices, and if the processing is carried out by a person bound by a confidentiality obligation ; or

(c)   other reasons of public interest in areas such as social protection, especially in order to ensure the quality and cost-effectiveness of the procedures used for settling claims for benefits and services in the health insurance system and the provision of health services. Such processing of personal data concerning health for reasons of public interest shall not result in data being processed for other purposes, unless with the consent of the data subject or on the basis of Union or Member State law .

1a.   When the purposes referred to in points (a) to (c) of paragraph 1 can be achieved without the use of personal data, such data shall not be used for those purposes, unless based on the consent of the data subject or Member State law.

1b.   Where the data subject's consent is required for the processing of medical data exclusively for public health purposes of scientific research, the consent may be given for one or more specific and similar researches. However, the data subject may withdraw the consent at any time.

1c.   For the purpose of consenting to the participation in scientific research activities in clinical trials, the relevant provisions of Directive 2001/20/EC of the European Parliament and of the Council (21) shall apply.

2.   Processing of personal data concerning health which is necessary for historical, statistical or scientific research purposes, such as patient registries set up for improving diagnoses and differentiating between similar types of diseases and preparing studies for therapies, is shall be permitted only with the consent of the data subject, and shall be subject to the conditions and safeguards referred to in Article 83.

2a.   Member States law may provide for exceptions to the requirement of consent for research, as referred to in paragraph 2, with regard to research that serves a high public interest, if that research cannot possibly be carried out otherwise. The data in question shall be anonymised, or if that is not possible for the research purposes, pseudonymised under the highest technical standards, and all necessary measures shall be taken to prevent unwarranted re-identification of the data subjects. However, the data subject shall have the right to object at any time in accordance with Article 19.

3.   The Commission shall be empowered to adopt, after requesting an opinion of the European Data Protection Board, delegated acts in accordance with Article 86 for the purpose of further specifying other reasons of public interest in the area of public health as referred to in point (b) of paragraph 1, as well as criteria and requirements for the safeguards for the processing of personal data for the purposes referred to in paragraph 1 and high public interest in the area of research as referred to in paragraph 2a .

3a.   Each Member State shall notify to the Commission those provisions of its law which it adopts pursuant to paragraph 1, by the date specified in Article 91(2) at the latest and, without delay, any subsequent amendment affecting them. [Am. 191]

Article 82

Minimum standards for P processing data in the employment context

1.   Within the limits of this Regulation, Member States may, in accordance with the rules set out in this Regulation, and taking into account the principle of proportionality, adopt by law legal provisions specific rules regulating the processing of employees' personal data in the employment context, in particular for but not limited to the purposes of the recruitment and job applications within the group of undertakings , the performance of the contract of employment, including discharge of obligations laid down by law or and by collective agreements, in accordance with national law and practice, management, planning and organisation of work, health and safety at work, and for the purposes of the exercise and enjoyment, on an individual or collective basis, of rights and benefits related to employment, and for the purpose of the termination of the employment relationship. Member States may allow for collective agreements to further specify the provisions set out in this Article.

1a.   The purpose of processing such data must be linked to the reason it was collected for and stay within the context of employment. Profiling or use for secondary purposes shall not be allowed.

1b.   Consent of an employee shall not provide a legal basis for the processing of data by the employer when the consent has not been given freely.

1c.   Notwithstanding the other provisions of this Regulation, the legal provisions of Member States referred to in paragraph 1 shall include at least the following minimum standards:

(a)   the processing of employee data without the employees' knowledge shall not be permitted. Notwithstanding the first sentence, Member States may, by law, provide for the admissibility of this practice, by setting appropriate deadlines for the deletion of data, providing there exists a suspicion based on factual indications that must be documented that the employee has committed a crime or serious dereliction of duty in the employment context, providing also the collection of data is necessary to clarify the matter and providing finally the nature and extent of this data collection are necessary and proportionate to the purpose for which it is intended. The privacy and private lives of employees shall be protected at all times. The investigation shall be carried out by the competent authority;

(b)   the open optical-electronic and/or open acoustic-electronic monitoring of parts of an undertaking which are not accessible to the public and are used primarily by employees for private activities, especially in bathrooms, changing rooms, rest areas, and bedrooms, shall be prohibited. Clandestine surveillance shall be inadmissible under all circumstances;

(c)   where undertakings or authorities collect and process personal data in the context of medical examinations and/or aptitude tests, they must explain to the applicant or employee beforehand the purpose for which those data are being used, and ensure that afterwards they are provided with those data together with the results, and that they receive an explanation of their significance on request. Data collection for the purpose of genetic testing and analyses shall be prohibited as a matter of principle;

(d)   whether and to what extent the use of telephone, e-mail, internet and other telecommunications services shall also be permitted for private use may be regulated by collective agreement. Where there is no regulation by collective agreement, the employer shall reach an agreement on this matter directly with the employee. In so far as private use is permitted, the processing of accumulated traffic data shall be permitted in particular to ensure data security, to ensure the proper operation of telecommunications networks and telecommunications services and for billing purposes.

Notwithstanding the third sentence, Member States may, by law, provide for the admissibility of this practice, by setting appropriate deadlines for the deletion of data, providing there exists a suspicion based on factual indications that must be documented that the employee has committed a crime or serious dereliction of duty in the employment context, providing also the collection of data is necessary to clarify the matter and providing finally the nature and extent of this data collection are necessary and proportionate to the purpose for which it is intended. The privacy and private lives of employees shall be protected at all times. The investigation shall be carried out by the competent authority;

(e)   workers’ personal data, especially sensitive data such as political orientation and membership of and activities in trade unions, may under no circumstances be used to put workers on so-called ‘blacklists’, and to vet or bar them from future employment. The processing, the use in the employment context, the drawing-up and passing-on of blacklists of employees or other forms of discrimination shall be prohibited. Member States shall conduct checks and adopt adequate sanctions in accordance with Article 79(6) to ensure effective implementation of this point.

1d.   Transmission and processing of personal employee data between legally independent undertakings within a group of undertakings and with professionals providing legal and tax advice shall be permitted, providing it is relevant to the operation of the business and is used for the conduct of specific operations or administrative procedures and is not contrary to the interests and fundamental rights of the person concerned which are worthy of protection. Where employee data are transmitted to a third country and/or to an international organisation, Chapter V shall apply.

2.   Each Member State shall notify to the Commission those provisions of its law which it adopts pursuant to paragraph paragraphs 1 and 1b , by the date specified in Article 91(2) at the latest and, without delay, any subsequent amendment affecting them.

3.   The Commission shall be empowered, after requesting an opinion from the European Data Protection Board, to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and requirements for the safeguards for the processing of personal data for the purposes referred to in paragraph 1. [Am. 192]

Article 82a

Processing in the social security context

1.   Member States may, in accordance with the rules set out in this Regulation, adopt specific legislative rules particularising the conditions for the processing of personal data by their public institutions and departments in the social security context if carried out in the public interest.

2.   Each Member State shall notify to the Commission those provisions which it adopts pursuant to paragraph 1, by the date specified in Article 91(2) at the latest and, without delay, any subsequent amendment affecting them. [Am. 193]

Article 83

Processing for historical, statistical and scientific research purposes

1.   Within the limits of In accordance with the rules set out in this Regulation, personal data may be processed for historical, statistical or scientific research purposes only if:

(a)   these purposes cannot be otherwise fulfilled by processing data which does not permit or not any longer permit the identification of the data subject;

(b)   data enabling the attribution of information to an identified or identifiable data subject is kept separately from the other information as long as these purposes can be fulfilled in this manner under the highest technical standards, and all necessary measures are taken to prevent unwarranted re-identification of the data subjects .

2.   Bodies conducting historical, statistical or scientific research may publish or otherwise publicly disclose personal data only if:

(a)   the data subject has given consent, subject to the conditions laid down in Article 7;

(b)   the publication of personal data is necessary to present research findings or to facilitate research insofar as the interests or the fundamental rights or freedoms of the data subject do not override these interests; or

(c)   the data subject has made the data public.

3.   The Commission shall be empowered to adopt delegated acts in accordance with Article 86 for the purpose of further specifying the criteria and requirements for the processing of personal data for the purposes referred to in paragraph 1 and 2 as well as any necessary limitations on the rights of information to and access by the data subject and detailing the conditions and safeguards for the rights of the data subject under these circumstances. [Am. 194]

Article 83a

Processing of personal data by archive services

1.   Once the initial processing for which they were collected has been completed, personal data may be processed by archive services whose main or mandatory task is to collect, conserve, provide information about, exploit and disseminate archives in the public interest, in particular in order to substantiate individuals’ rights or for historical, statistical or scientific research purposes. These tasks shall be carried out in accordance with the rules laid down by Member States concerning access to and the release and dissemination of administrative or archive documents and in accordance with the rules set out in this Regulation, specifically with regard to consent and the right to object.

2.   Each Member State shall notify to the Commission provisions of its law which it adopts pursuant to paragraph 1 by the date specified in Article 91(2) at the latest and, without delay, any subsequent amendment affecting them. [Am. 195]

Article 84

Obligations of secrecy

1.   Within the limits of In accordance with the rules set out in this Regulation, Member States may adopt shall ensure that specific rules to set are in place setting out the investigative powers by the supervisory authorities laid down in Article 53(2) in relation to controllers or processors that are subjects under national law or rules established by national competent bodies to an obligation of professional secrecy or other equivalent obligations of secrecy, where this is necessary and proportionate to reconcile the right of the protection of personal data with the obligation of secrecy. These rules shall only apply with regard to personal data which the controller or processor has received from or has obtained in an activity covered by this obligation of secrecy. [Am. 196]

2.   Each Member State shall notify to the Commission the rules adopted pursuant to paragraph 1, by the date specified in Article 91(2) at the latest and, without delay, any subsequent amendment affecting them.

Article 85

Existing data protection rules of churches and religious associations

1.   Where in a Member State, churches and religious associations or communities apply, at the time of entry into force of this Regulation, comprehensive adequate rules relating to the protection of individuals with regard to the processing of personal data, such rules may continue to apply, provided that they are brought in line with the provisions of this Regulation.

2.   Churches and religious associations which apply comprehensive adequate rules in accordance with paragraph 1 shall provide for the establishment of an independent supervisory authority in accordance with Chapter VI of this Regulation obtain a compliance opinion pursuant to Article 38 . [Am. 197]

Article 85a

Respect of fundamental rights

This Regulation shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the TEU. [Am. 198]

Article 85b

Standard Forms

1.   The Commission may, taking into account the specific features and necessities of various sectors and data processing situations, lay down standard forms for:

(a)   specific methods to obtain verifiable consent referred to in Article 8(1),

(b)   the communication referred to in Article 12(2), including the electronic format,

(c)   providing the information referred to in paragraphs 1 to 3 of Article 14,

(d)   requesting and granting access to the information referred to in Article 15(1), including for communicating the personal data to the data subject,

(e)   documentation referred to in paragraph 1 of Article 28,

(f)   breach notifications pursuant to Article 31 to the supervisory authority and the documentation referred to in Article 31(4),

(g)   prior consultations referred to in Article 34, and for informing the supervisory authorities pursuant to Article 34(6).

2.   In doing so, the Commission shall take the appropriate measures for micro, small and medium-sized enterprises.

3.   Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 87(2). [Am. 199]

CHAPTER X

DELEGATED ACTS AND IMPLEMENTING ACTS

Article 86

Exercise of the delegation

1.   The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2.   The delegation of power power to adopt delegated acts referred to in Article 6(5), Article 8(3), Article 9(3), Article 12(5), Article 14(7), Article 15(3), Article 13a(5), Article 17(9), Article 20(6), Article 22(4), Article 23(3), Article 26(5), Article 28(5), Article 30(3), Article 31(5), Article 32(5), Article 336), Article 34(8), Article 35(11), Article 37(2), Article 38(4), Article 39(2), Article 41(3), Article 41(5), Article 43(3), Article 44(7), Article 79(6) Article 79(7) , Article 81(3), and Article 82(3) and Article 83(3) shall be conferred on the Commission for an indeterminate period of time from the date of entry into force of this Regulation. [Am. 200]

3.   The delegation of power referred to in Article 6(5), Article 8(3), Article 9(3), Article 12(5), Article 14(7), Article 15(3), Article 13a(5), Article 17(9), Article 20(6), Article 22(4), Article 23(3), Article 26(5), Article 28(5), Article 30(3), Article 31(5), Article 32(5), Article 33(6), Article 34(8), Article 35(11), Article 37(2), Article 38(4), Article 39(2), Article 41(3), Article 41(5), Article 43(3), Article 44(7), Article 79(6) Article 79(7) , Article 81(3), and Article 82(3) and Article 83(3) may be revoked at any time by the European Parliament or by the Council. A decision of revocation to revoke shall put an end to the delegation of power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. [Am. 201]

4.   As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5.   A delegated act adopted pursuant to Article 6(5), Article 8(3), Article 9(3), Article 12(5), Article 14(7), Article 15(3), Article 13a(5), Article 17(9), Article 20(6), Article 22(4), Article 23(3), Article 26(5), Article 28(5), Article 30(3), Article 31(5), Article 32(5), Article 33(6), Article 34(8), Article 35(11), Article 37(2), Article 38(4), Article 39(2), Article 41(3), Article 41(5), Article 43(3), Article 44(7), Article 79(6), Article 79(7), Article 81(3), and Article 82(3) and Article 83(3) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two six months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two six months at the initiative of the European Parliament or of the Council. [Am. 202]

Article 87

Committee procedure

1.   The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2.   Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

3.   Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply. [Am. 203]

CHAPTER XI

FINAL PROVISIONS

Article 88

Repeal of Directive 95/46/EC

1.   Directive 95/46/EC is repealed.

2.   References to the repealed Directive shall be construed as references to this Regulation. References to the Working Party on the Protection of Individuals with regard to the Processing of Personal Data established by Article 29 of Directive 95/46/EC shall be construed as references to the European Data Protection Board established by this Regulation.

Article 89

Relationship to and amendment of Directive 2002/58/EC

1.   This Regulation shall not impose additional obligations on natural or legal persons in relation to the processing of personal data in connection with the provision of publicly available electronic communications services in public communication networks in the Union in relation to matters for which they are subject to specific obligations with the same objective set out in Directive 2002/58/EC.

2 Article Articles 1(2), 4 and 15 of Directive 2002/58/EC shall be deleted. [Am. 204]

2a.   The Commission shall present, without delay and by the date referred to in Article 91 (2) at the latest, a proposal for the revision of the legal framework for the processing of personal data and the protection of privacy in electronic communications, in order to align the law with this Regulation and ensure consistent and uniform legal provisions on the fundamental right to protection of personal data in the Union . [Am. 205]

Article 89a

Relationship to and amendment of Regulation (EC) No 45/2001

1.   The rules set out in this Regulation shall apply to the processing of personal data by Union institutions, bodies, offices and agencies in relation to matters for which they are not subject to additional rules set out in Regulation (EC) No 45/2001.

2.   The Commission shall present, without delay and by the date specified in Article 91(2) at the latest, a proposal for the revision of the legal framework applicable to the processing of personal data by the Union institutions, bodies, offices and agencies. [Am. 206]

Article 90

Evaluation

The Commission shall submit reports on the evaluation and review of this Regulation to the European Parliament and the Council at regular intervals. The first report shall be submitted no later than four years after the entry into force of this Regulation. Subsequent reports shall be submitted every four years thereafter. The Commission shall, if necessary, submit appropriate proposals with a view to amending this Regulation, and aligning other legal instruments, in particular taking account of developments in information technology and in the light of the state of progress in the information society. The reports shall be made public.

Article 91

Entry into force and application

1.   This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .

2.   It shall apply from …(22) .

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at …,

For the European Parliament For the Council

The President The President

Annex - Presentation of the particulars referred to in Article 13a

1)   Having regard to the proportions referred to in point 6, particulars shall be provided as follows:

p0000001.png

2)   The following words in the rows in the second column of the table in point 1, entitled "ESSENTIAL INFORMATION", shall be formatted as bold:

a)   the word "collected" in the first row of the second column;

b)   the word "retained" in the second row of the second column;

c)   the word "processed" in the third row of the second column;

d)   the word "disseminated” in the fourth row of the second column;

e)   the word "sold and rented out” in the fifth row of the second column;

f)   the word "unencrypted" in the sixth row of the second column.

3)   Having regard to the proportions referred to in point 6, the rows in the third column of the table in point 1, entitled "FULFILLED", shall be completed with one of the following two graphical forms in accordance with the conditions laid down under point 4:

a)

p0000002.png

b)

p0000003.png

4)  

a)   If no personal data are collected beyond the minimum necessary for each specific purpose of the processing, the first row of the third column of the table in point 1 shall entail the graphical form referred to in point 3a.

b)   If personal data are collected beyond the minimum necessary for each specific purpose of the processing, the first row of the third column of the table in point 1 shall entail the graphical form referred to in point 3b.

c)   If no personal data are retained beyond the minimum necessary for each specific purpose of the processing, the second row of the third column of the table in point 1 shall entail the graphical form referred to in point 3a.

d)   If personal data are retained beyond the minimum necessary for each specific purpose of the processing, the second row of the third column of the table in point 1 shall entail the graphical form referred to in point 3b.

e)   If no personal data are processed for purposes other than the purposes for which they were collected, the third row of the third column of the table in point 1 shall entail the graphical form referred to in point 3a.

f)   If personal data are processed for purposes other than the purposes for which they were collected, the third row of the third column of the table in point 1 shall entail the graphical form referred to in point 3b.

g)   If no personal data are disseminated to commercial third parties, the fourth row of the third column of the table in point 1 shall entail the graphical form referred to in point 3a.

h)   If personal data are disseminated to commercial third parties, the fourth row of the third column of the table in point 1 shall entail the graphical form referred to in point 3b.

i)   If no personal data are sold or rented out, the fifth row of the third column of the table in point 1 shall entail the graphical form referred to in point 3a.

j)   If personal data are sold or rented out, the fifth row of the third column of the table in point 1 shall entail the graphical form referred to in point 3b.

k)   If no personal data are retained in unencrypted form, the sixth row of the third column of the table in point 1 shall entail the graphical form referred to in point 3a.

l)   If personal data are retained in unencrypted form, the sixth row of the third column of the table in point 1 shall entail the graphical form referred to in point 3b.

5)   The reference colours of the graphical forms in point 1 in Pantone are Black Pantone No 7547 and Red Pantone No 485. The reference colour of the graphical form in point 3a in Pantone is Green Pantone No 370. The reference colour of the graphical form in point 3b in Pantone is Red Pantone No 485.

6)   The proportions given in the following graduated drawing shall be respected, even where the table is reduced or enlarged:

p0000004.png

[Am. 207]

(1) OJ C 229, 31.7.2012, p. 90.
(2) OJ C 192, 30.6.2012, p. 7.
(3)OJ C 229, 31.7.2012, p. 90.
(4) OJ C 192, 30.6.2012, p. 7.
(5) Position of the European Parliament of 12 March 2014.
(6)Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31).
(7) Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).
(8) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data ( OJ L 8, 12.1.2001, p. 1) .
(9) Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) (OJ L 178, 17.7.2000, p. 1).
(10) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29).
(11) Regulation (EC) No 1338/2008 of the European Parliament and of the Council of 16 December 2008 on Community statistics on public health and health and safety at work (OJ L 354, 31.12.2008, p. 70).
(12) Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community-scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees (OJ L 122, 16.5.2009, p. 28).
(13)Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).
(14) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37)
(15)OJ L 176, 10.7.1999, p. 36.
(16)OJ L 53, 27.2.2008, p. 52.
(17)OJ L 160, 18.6.2011, p. 21.
(18) Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L 134, 30.4.2004, p. 114).
(19) Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sector (OJ L 134, 30.4.2004, p. 1).
(20) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43).
(21) Directive 2001/20/EC of the European Parliament and of the Council of 4 April 2001 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the implementation of good clinical practices in the conduct of clinical trials on medicinal products for human use (OJ L 121, 1.5.2001, p. 34).
(22) Two years from the date of entry into force of this Regulation.


Protection of the euro against counterfeiting (Pericles 2020) ***
PDF 189k   DOC 34k
European Parliament legislative resolution of 12 March 2014 on the draft Council regulation extending to the non-participating Member States the application of Regulation (EU) No …/2012 establishing an exchange, assistance and training programme for the protection of the euro against counterfeiting (the ‘Pericles 2020’ programme) (16616/2013 – C7-0463/2013 – 2011/0446(APP)) (Special legislative procedure - consent)
P7_TA(2014)0213 A7-0152/2014

The European Parliament,

–   having regard to the draft Council regulation (16616/2013),

–   having regard to the request for consent submitted by the Council in accordance with Article 352 of the Treaty on the Functioning of the European Union (C7‑0463/2013 ),

–   having regard to Rule 81(1), first and third subparagraphs, of its Rules of Procedure,

–   having regard to the recommendation of the Committee on Civil Liberties, Justice and Home Affairs (A7-0152/2014 ),

1.   Consents to the draft Council regulation;

2.   Instructs its President to forward its position to the Council, the Commission and the national parliaments.


EU-Azerbaijan Agreement on the facilitation of the issuance of visas ***
PDF 194k   DOC 34k
European Parliament legislative resolution of 12 March 2014 on the draft Council decision on the conclusion of the Agreement between the European Union and the Republic of Azerbaijan on the facilitation of the issuance of visas (17846/2013 – C7-0078/2014 – 2013/0356(NLE)) (Consent)
P7_TA(2014)0214 A7-0155/2014

The European Parliament,

–   having regard to the draft Council decision (17846/2013),

–   having regard to the draft Agreement between the European Union and the Republic of Azerbaijan on the facilitation of the issuance of visas (15554/2013),

–   having regard to the request for consent submitted by the Council in accordance with Article 77(2)(a) and Article 218(6), second subparagraph, point (a), of the Treaty on the Functioning of the European Union (C7‑0078/2014 ),

–   having regard to Rule 81(1), first and third subparagraphs, Rule 81(2), and Rule 90(7) of its Rules of Procedure,

–   having regard to the recommendation of the Committee on Civil Liberties, Justice and Home Affairs and the opinion of the Committee on Foreign Affairs (A7-0155/2014 ),

1.   Consents to the conclusion of the Agreement;

2.   Instructs its President to forward its position to the Council, the Commission and the governments and parliaments of the Member States and the Republic of Azerbaijan.


EU-Azerbaijan Agreement on the readmission of persons residing without authorisation ***
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European Parliament legislative resolution of 12 March 2014 on the draft Council decision on the conclusion of the Agreement between the European Union and the Republic of Azerbaijan on the readmission of persons residing without authorisation (15596/2013 – C7-0079/2014 – 2013/0358(NLE)) (Consent)
P7_TA(2014)0215 A7-0154/2014

The European Parliament,

–   having regard to the draft Council decision (15596/2013),

–   having regard to the draft Agreement between the European Union and the Republic of Azerbaijan on the readmission of persons residing without authorisation (15594/2013),

–   having regard to the request for consent submitted by the Council in accordance with Article 79(3) and Article 218(6), second subparagraph, point (a), of the Treaty on the Functioning of the European Union (C7‑0079/2014 ),

–   having regard to Rule 81(1), first and third subparagraphs, Rule 81(2), and Rule 90(7) of its Rules of Procedure,

–   having regard to the recommendation of the Committee on Civil Liberties, Justice and Home Affairs and the opinion of the Committee on Foreign Affairs (A7-0154/2014 ),

1.   Consents to the conclusion of the Agreement;

2.   Instructs its President to forward its position to the Council, the Commission and the governments and parliaments of the Member States and of the Republic of Azerbaijan.


Humanitarian engagement of armed non-State actors in child protection
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European Parliament recommendation to the Council of 12 March 2014 on humanitarian engagement of armed non-state actors in child protection (2014/2012(INI) )
P7_TA(2014)0216 A7-0160/2014

The European Parliament,

–   having regard to the proposal for a recommendation to the Council by Catherine Grèze, Eva Joly, Isabella Lövin, Judith Sargentini, Bart Staes and Keith Taylor, on behalf of the Verts/ALE Group, on humanitarian engagement of armed non-state actors in child protection (B7‑0585/2013 ),

–   having regard to the 2013 report of the UN Secretary-General on children and armed conflict and to other reports by relevant actors,

–   having regard to the 2008 EU guidelines on children and armed conflict, the 2010 implementation strategy for the EU guidelines on children and armed conflict and the 2008 Checklist for the Integration of the Protection of Children affected by Armed Conflict into ESDP Operations,

–   having regard to the 2008 Council conclusions on ‘the promotion and protection of the rights of the child in the European Union’s external action – the development and humanitarian dimensions’,

–   having regard to its resolutions of 19 February 2009 on a special place for children in EU external action(1) , of 16 January 2008 entitled ‘Towards an EU strategy on the rights of the child’(2) , of 3 July 2003 on trafficking in children and child soldiers(3) , of 6 July 2000 on the abduction of children by the Lord’s Resistance Army (LRA)(4) and of 17 December 1998 on child soldiers(5) ,

–   having regard to the United Nations resolutions on the rights of the child, especially UN Security Council resolution 1612 (2005),

–   having regard to the 2002 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict,

–   having regard to the Paris Commitments to Protect Children from Unlawful Recruitment or use by Armed Forces or Armed Groups and to the Paris Principles and Guidelines on Children Associated with Armed Forces or Armed Groups, both of which were adopted on 6 February 2007,

–   having regard to Rule 121(3) and Rule 97 of its Rules of Procedure,

–   having regard to the report of the Committee on Development (A7-0160/2014 ),

A.   whereas most contemporary armed conflicts involve one or more armed non-state actors fighting governments or other armed groups, with civilians and in particular children bearing the brunt of these wars;

B.   whereas the spectrum of these non-state actors is very broad and encompasses a wide range of identities and motivations, as well as varying degrees of willingness and ability to observe international humanitarian law and other international law standards, but all require scrutiny in this regard;

C.   whereas in order to improve the protection of civilians, and in particular children, consideration has to be given to all the parties in conflict;

D.   whereas international humanitarian norms apply to and bind all parties in an armed conflict;

E.   whereas armed conflicts have a particularly devastating impact on children’s physical and mental development, with long-term consequences for human security and sustainable development;

F.   whereas the Statute of the International Criminal Court criminalises the act of conscripting or enlisting children under the age of 15 into armed forces or groups, or using them to participate actively in hostilities;

G.   whereas international law prohibits all forms of sexual violence, including against children, and whereas acts of sexual violence may amount to war crimes, crimes against humanity or genocide;

H.   whereas the use of anti-personnel mines has decreased since the adoption of the Mine Ban Convention in 1997, but still poses a threat to children, especially in armed conflicts not of an international character;

I.   whereas the international community has a moral duty to seek commitments from all parties involved in conflicts, including both states and armed non-state actors, in order to protect children;

J.   whereas the demobilisation, rehabilitation and reintegration of child soldiers need to be included in any negotiation process and subsequent peace treaty, in addition to being addressed during the conflict itself;

K.   whereas the successful demobilisation and reintegration of child soldiers can help to end the recurring cycle of violence;

1.  Addresses the following recommendations to the Commissioner for Development and the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy:

   (a) encourage the signing of action plans for the protection of children in armed conflict with the UN Office of the Special Representative of the Secretary-General for Children and Armed Conflict by concerned states and armed non-state actors, while recalling that such engagement with armed non-state actors does not imply support for, or recognition of the legitimacy of, these groups or their activities;
   (b) recognise the efforts made by the UN and international and non-governmental organisations to persuade armed non-state actors to protect children, while reiterating that this does not imply support for, or recognition of, the legitimacy of the activities of those actors;
   (c) include in political dialogues with third countries, for instance within the framework of the Cotonou Agreement, the goal of preventing and stopping the recruitment and forced involvement of children under the age of 18 and ensuring their release and reintegration into society;
   (d) reiterate that states and armed non-state actors must comply with international humanitarian law and international humanitarian customary law, and support them in their efforts to take special measures to protect civilians, in particular children, while recalling that such activity with armed non-state actors does not imply support for, or recognition of the legitimacy of, these groups or their activities;
   (e) recall that international humanitarian law is a legal framework which binds armed non-state groups and that Common Article 3 of the Geneva Conventions and the Second Additional Protocol of 1977 both serve to this end, as do a large number of customary international humanitarian law rules; examine, as a matter of importance, whether existing rules governing international humanitarian law are adequate to deal with non-state actors or whether further regulation is needed;
   (f) engage directly, or indirectly through specialised NGOs and humanitarian organisations, with armed non-state actors on the issue of the protection of girls and boys, with a view to alleviating child suffering in armed conflict and urging armed non-state actors to sign the Deed of Commitment under the Geneva Call for the Protection of Children from the Effects of Armed Conflict;
   (g) support humanitarian organisations that engage in dialogue with armed non-state actors in order to promote respect for international humanitarian norms in armed conflict, in particular the protection of children through political, diplomatic and financial means;
   (h) call on the Member States to join international efforts to prevent attacks against and the military use of schools by armed actors through endorsing the draft Lucens Guidelines for Protecting Schools and Universities from Military Use during Armed Conflict;

2.   Instructs its President to forward this recommendation to the Commissioner for Development, the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy, the Commission, the Council and the European External Action Service.

(1) OJ C 76 E, 25.3.2010, p. 3.
(2) OJ C 41 E, 19.2.2009, p. 24.
(3) OJ C 74 E, 24.3.2004, p. 854.
(4) OJ C 121, 24.4.2001, p. 401.
(5) OJ C 98, 9.4.1999, p. 297.


Number of interparliamentary delegations, delegations to joint interparliamentary committees and delegations to parliamentary cooperation committees and multilateral Parliamentary Assemblies
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European Parliament decision of 12 March 2014 on the number of interparliamentary delegations, delegations to joint parliamentary committees and delegations to parliamentary cooperation committees and to multilateral parliamentary assemblies (2014/2632(RSO) )
P7_TA(2014)0217 B7-0240/2014

The European Parliament,

–   having regard to the proposal by the Conference of Presidents,

–   having regard to the association, cooperation and other agreements concluded by the European Union with third countries,

–   having regard to Rules 198 and 200 of its Rules of Procedure,

A.   anxious to strengthen parliamentary democracy by pursuing continuous interparliamentary dialogue;

1.  Decides on the number of delegations and their regional groupings as follows:

   (a) Europe, Western Balkans and Turkey
   Delegations to the:
   EU-Former Yugoslav Republic of Macedonia Joint Parliamentary Committee
   EU-Turkey Joint Parliamentary Committee
   Delegation for relations with Switzerland and Norway and to the EU-Iceland Joint Parliamentary Committee and the European Economic Area (EEA) Joint Parliamentary Committee
   Delegation to the EU-Serbia SAPC
   Delegation to the EU-Albania SAPC
   Delegation to the EU-Montenegro SAPC
   Delegation for relations with Bosnia and Herzegovina, and Kosovo
   (b) Russia and the Eastern Partnership states
   Delegation to the EU-Russia Parliamentary Cooperation Committee
   Delegation to the EU-Ukraine Parliamentary Cooperation Committee
   Delegation to the EU-Moldova Parliamentary Cooperation Committee
   Delegation for relations with Belarus
   Delegation to the EU-Armenia, EU-Azerbaijan and EU-Georgia Parliamentary Cooperation Committees
   (c) Maghreb, Mashreq, Israel and Palestine
   Delegations for relations with:
   Israel
   the Palestinian Legislative Council
   the Maghreb countries and the Arab Maghreb Union
   the Mashreq countries
   (d) The Arab Peninsula, Iraq and Iran
   Delegations for relations with:
   the Arab Peninsula
   Iraq
   Iran
   (e) The Americas
   Delegations for relations with:
   the United States
   Canada
   the Federative Republic of Brazil
   the countries of Central America
   the countries of the Andean Community
   Mercosur
   Delegation to the EU-Mexico Joint Parliamentary Committee
   Delegation to the EU-Chile Joint Parliamentary Committee
   Delegation to the Cariforum — EU Parliamentary Committee
   (f) Asia/Pacific
   Delegations for relations with:
   Japan
   the People’s Republic of China
   India
   Afghanistan
   the countries of South Asia
   the countries of Southeast Asia and the Association of Southeast Asian Nations (ASEAN)
   the Korean Peninsula
   Australia and New Zealand
   Delegation to the EU-Kazakhstan, EU-Kyrgyzstan, EU-Uzbekistan and EU-Tajikistan Parliamentary Cooperation Committees, and for relations with Turkmenistan and Mongolia
   (g) Africa
   Delegations for relations with:
   South Africa
   the Pan-African Parliament
   (h) Multilateral assemblies
   Delegation to the ACP-EU Joint Parliamentary Assembly
   Delegation to the Parliamentary Assembly of the Union for the Mediterranean
   Delegation to the Euro-Latin American Parliamentary Assembly
   Delegation to the Euronest Parliamentary Assembly
   Delegation for relations with the NATO Parliamentary Assembly;

2.   Decides that the membership of parliamentary committees created on the basis of the Economic Partnership Agreement (EPA) shall be drawn exclusively from the Committee on International Trade and the Committee on Development – ensuring the maintenance of the leading role of the Committee on International Trade as the committee responsible – and that they should actively coordinate their work with the ACP-EU Joint Parliamentary Assembly;

3.   Decides that the membership of the Parliamentary Assembly of the Union for the Mediterranean, the Euro-Latin American Parliamentary Assembly and the Euronest Parliamentary Assembly shall be drawn exclusively from the bilateral or sub-regional delegations covered by each Assembly;

4.   Decides that the membership of the Delegation for relations with the NATO Parliamentary Assembly shall be drawn exclusively from the Subcommittee on Security and Defence;

5.   Decides that the Conference of Delegation Chairs should draw up a draft six-monthly calendar, to be adopted by the Conference of Presidents after consulting the Committee on Foreign Affairs, the Committee on Development and the Committee on International Trade, on the understanding, however, that the Conference of Presidents may modify the calendar in order to respond to political events;

6.   Decides that the political groups and non-attached Members shall appoint permanent substitutes to serve on each type of delegation and that the number of those substitutes may not exceed the number of full members representing the groups or non-attached Members;

7.   Decides to intensify cooperation with and consultation of the committees concerned by delegation work by organising joint meetings between these bodies in its usual places of work;

8.   Will endeavour to ensure in practice that one or more committee rapporteurs or chairs may likewise take part in the proceedings of delegations, joint interparliamentary committees, parliamentary cooperation committees and multilateral parliamentary assemblies; and decides that the President, at the joint request of the chairs of the delegation and committee concerned, shall authorise missions of this type;

9.   Decides that this decision will enter into force at the first part-session of the eighth parliamentary term;

10.   Instructs its President to forward this decision to the Council, the Commission and the European External Action Service.


Provision of food information to consumers as regards the definition of 'engineered nanomaterials'
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European Parliament resolution of 12 March 2014 on the Commission delegated regulation of 12 December 2013 amending Regulation (EU) No 1169/2011 of the European Parliament and of the Council on the provision of food information to consumers as regards the definition of ‘engineered nanomaterials’ (C(2013)08887 - 2013/2997(DEA))
P7_TA(2014)0218 B7-0185/2014

The European Parliament,

–   having regard to the Commission delegated regulation (C(2013)08887),

–   having regard to Article 290 of the Treaty on the Functioning of the European Union,

–   having regard to Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers(1) , and in particular Article 2(2)(t), Article 18(3) and (5) and Article 51(5) thereof,

–   having regard to the Commission proposal for a regulation of the European Parliament and the Council on novel foods (COM(2013)0894 ),

–   having regard to Regulation (EC) No 1333/2008 of the European Parliament and of the Council of 16 December 2008 on food additives(2) ,

–   having regard to the Union lists that were established by Commission Regulation (EU) No 1129/2011 of 11 November 2011 amending Annex II to Regulation (EC) No 1333/2008 of the European Parliament and of the Council by establishing a Union list of food additives(3) and Commission Regulation (EU) No 1130/2011 of 11 November 2011 amending Annex III to Regulation (EC) No 1333/2008 of the European Parliament and of the Council on food additives by establishing a Union list of food additives approved for use in food additives, food enzymes, food flavourings and nutrients(4) ,

–   having regard to Commission Regulation (EU) No 257/2010 of 25 March 2010 setting up a programme for the re-evaluation of approved food additives in accordance with Regulation (EC) No 1333/2008 of the European Parliament and of the Council on food additives(5) ,

–   having regard to the motion for a resolution by the Committee on the Environment, Public Health and Food Safety,

–   having regard to Rule 87a(3) of its Rules of Procedure,

A.   whereas Article 18(3) of Regulation (EU) No 1169/2011 on Food Information to Consumers (‘FIC’) provides that all food ingredients present in the form of engineered nanomaterials must be clearly indicated in the list of food ingredients to ensure consumer information; whereas, accordingly, FIC provides for a definition of ‘engineered nanomaterials’;

B.   whereas Article 18(5) of the FIC Regulation empowers the Commission to adjust and adapt the definition of ‘engineered nanomaterials’ referred therein to technical and scientific progress or to definitions agreed at international level, by means of delegated acts, for the purposes of achieving the objectives of that regulation;

C.   whereas Commission Recommendation 2011/696/EU sets out a general definition of nanomaterials;

D.   whereas comprehensive Union lists were established by Commission Regulations (EU) No 1129/2011 and (EU) No 1130/2011, setting out the food additives that were permitted for use prior to the entry into force of Regulation (EC) No 1333/2008 after a review of their compliance with the provisions thereof;

E.   whereas the Commission delegated regulation excludes all food additives included in the Union lists from the new definition of ‘engineered nanomaterial’ and instead suggests that the need for specific nano-related labelling requirements relating to those additives should be addressed in the context of the re-evaluation programme in accordance with Commission Regulation (EU) No 257/2010, by amending, if necessary, the conditions of use in Annex II to Regulation (EC) No 1333/2008 and the specifications of those food additives, set out in Commission Regulation (EU) No 231/2012(6) ;

F.   whereas currently, it is precisely food additives that may be present as nanomaterials in food;

G.   whereas this blanket exemption annuls the labelling provisions for all food additives that are engineered nanomaterials; whereas this deprives the law of its main ‘effet utile’ and runs contrary to the basic aim of the directive to pursue a high level of protection of consumers’ health and interests by providing a basis for final consumers to make informed choices;

H.   whereas the Commission justifies this blanket exemption for all existing food additives by stating that ‘indicating such food additives in the list of ingredients followed by the word “nano’” in brackets may confuse the consumers as it may suggest that those additives are new while in reality they have been used in foods in that form for decades’;

I.   whereas this justification is erroneous and irrelevant, as the FIC Regulation does not provide for a distinction between existing and new nanomaterials, but explicitly requires labelling of all ingredients present in the form of engineered nanomaterials;

J.   whereas the Commission’s stated intention to address the need for specific nano-related labelling requirements concerning food additives on the Union lists in the context of the re-evaluation programme is inappropriate as it confuses safety issues with general labelling requirements for consumer information purposes; whereas this also suggests that the Commission questions the very need for specific nano‑labelling, which violates the provisions of Article 18(3) of the FIC Regulation; whereas either a food additive is a nanomaterial or it is not, and such labelling requirements are to be implemented for all authorised food additives that are nanomaterials irrespective of the conditions of use or other specifications;

K.   whereas, moreover, it is unacceptable to refer to an unrelated re-evaluation programme that already existed at the time when the legislator decided to introduce explicit labelling requirements into the FIC Regulation in an attempt to undo those labelling requirements three years later;

1.   Objects to the Commission delegated regulation;

2.   Considers that the Commission delegated regulation is not compatible with the aim and content of Regulation (EU) No 1169/2011and that it exceeds the delegated powers conferred on the Commission under the latter;

3.   Calls on the Commission to submit a new delegated act which takes into account the position of Parliament;

4.   Instructs its President to forward this resolution to the Commission and to notify it that the delegated regulation cannot enter into force;

5.   Instructs its President to forward this resolution to the Council and to the governments and parliaments of the Member States.

(1) OJ L 304, 22.11.2011, p. 18.
(2) OJ L 354, 31.12.2008, p. 16.
(3) OJ L 295, 12.11.2011, p. 1.
(4) OJ L 295, 12.11.2011, p. 178.
(5) OJ L 80, 26.3.2010, p. 19.
(6) Commission Regulation (EU) No 231/2012 of 9 March 2012 laying down specifications for food additives listed in Annexes II and III to Regulation (EC) No 1333/2008 of the European Parliament and of the Council (OJ L 83, 22.3.2012, p. 1).


Processing of personal data for the purposes of crime prevention ***I
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Resolution
Consolidated text
European Parliament legislative resolution of 12 March 2014 on the proposal for a directive of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data (COM(2012)0010 – C7-0024/2012 – 2012/0010(COD) ) (Ordinary legislative procedure: first reading)
P7_TA(2014)0219 A7-0403/2013

The European Parliament,

–   having regard to the Commission proposal to Parliament and the Council (COM(2012)0010 ),

–   having regard to Article 294(2) and Article 16(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7‑0024/2012 ),

–   having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–   having regard to the reasoned opinions submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the German Bundesrat and the Swedish Parliament, asserting that the draft legislative act does not comply with the principle of subsidiarity,

–   having regard to the opinion of the European Data Protection Supervisor of 7 March 2012(1) ,

–   having regard to the opinion of the European Union Agency for Fundamental Rights of 1 October 2012,

–   having regard to Rule 55 of its Rules of Procedure,

–   having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinion of the Committee on Legal Affairs (A7-0403/2013 ),

1.   Adopts its position at first reading hereinafter set out;

2.   Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

3.   Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Position of the European Parliament adopted at first reading on 12 March 2014 with a view to the adoption of Directive 2014/.../EU of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data

P7_TC1-COD(2012)0010


THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 16(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Data Protection Supervisor(2) ,

Acting in accordance with the ordinary legislative procedure(3) ,

Whereas:

(1)   The protection of natural persons in relation to the processing of personal data is a fundamental right. Article 8(1) of the Charter of Fundamental Rights of the European Union ('Charter' ) and Article 16(1) of the Treaty of the Functioning of the European Union lay down that everyone has the right to the protection of personal data concerning them. Article 8(2) of the Charter lays down that such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. [Am. 1]

(2)   The processing of personal data is designed to serve man; the principles and rules on the protection of individuals with regard to the processing of their personal data should, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably their right to the protection of personal data. It should contribute to the accomplishment of an area of freedom, security and justice.

(3)   Rapid technological developments and globalisation have brought new challenges for the protection of personal data. The scale of data collection and sharing has increased spectacularly. Technology allows competent authorities to make use of personal data on an unprecedented scale in order to pursue their activities.

(4)   This requires facilitating the free flow of data, when necessary and proportionate, between competent authorities within the Union and the transfer to third countries and international organisations, while ensuring a high level of protection of personal data. These developments require building a strong and more coherent data protection framework in the Union, backed by strong enforcement. [Am. 2]

(5)   Directive 95/46/EC of the European Parliament and of the Council(4) applies to all personal data processing activities in Member States in both the public and the private sectors. However, it does not apply to the processing of personal data in the course of an activity which falls outside the scope of Community law, such as activities in the areas of judicial co-operation in criminal matters and police co-operation.

(6)   Council Framework Decision 2008/977/JHA(5) applies in the areas of judicial co-operation in criminal matters and police co-operation. The scope of application of this Framework Decision is limited to the processing of personal data transmitted or made available between Member States.

(7)   Ensuring a consistent and high level of protection of the personal data of individuals and facilitating the exchange of personal data between competent authorities of Members States is crucial in order to ensure effective judicial co-operation in criminal matters and police cooperation. To that aim, the level of protection of the rights and freedoms of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties must be equivalent in all Member States. Consistent and homogenous application of the rules for the protection of the fundamental rights and freedoms of natural persons with regard to the processing of personal data should be ensured throughout the Union. Effective protection of personal data throughout the Union requires strengthening the rights of data subjects and the obligations of those who process personal data, but also equivalent powers for monitoring and ensuring compliance with the rules for the protection of personal data in the Member States. [Am. 3]

(8)   Article 16(2) of the Treaty on the Functioning of the European Union provides that the European Parliament and the Council should lay down the rules relating to the protection of individuals with regard to the processing of personal data and the rules relating to the free movement of their personal data . [Am. 4]

(9)   On that basis, Regulation (EU) No …/2014 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) lays down general rules to protect of individuals in relation to the processing of personal data and to ensure the free movement of personal data within the Union.

(10)   In Declaration 21 on the protection of personal data in the fields of judicial co-operation in criminal matters and police co-operation, annexed to the final act of the intergovernmental conference which adopted the Treaty of Lisbon, the Conference acknowledged that specific rules on the protection of personal data and the free movement of such data in the fields of judicial co-operation in criminal matters and police co-operation based on Article 16 of the Treaty on the Functioning of the European Union may prove necessary because of the specific nature of these fields.

(11)   Therefore a distinct specific Directive should meet the specific nature of these fields and lay down the rules relating to the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties. [Am. 5]

(12)   In order to ensure the same level of protection for individuals through legally enforceable rights throughout the Union and to prevent divergences hampering the exchange of personal data between competent authorities, this Directive should provide harmonised rules for the protection and the free movement of personal data in the areas of judicial co-operation in criminal matters and police co-operation.

(13)   This Directive allows the principle of public access to official documents to be taken into account when applying the provisions set out in this Directive.

(14)   The protection afforded by this Directive should concern natural persons, whatever their nationality or place of residence, in relation to the processing of personal data.

(15)   The protection of individuals should be technological neutral and not depend on the techniques used; otherwise this would create a serious risk of circumvention. The protection of individuals should apply to processing of personal data by automated means, as well as to manual processing if the data are contained or are intended to be contained in a filing system. Files or sets of files as well as their cover pages, which are not structured according to specific criteria, should not fall within the scope of this Directive. This Directive should not apply to the processing of personal data in the course of an activity which falls outside the scope of Union law, in particular concerning national security, or to data processed by the Union institutions, bodies, offices and agencies, such as Europol or Eurojust . Regulation (EC) No 45/2001 of the European Parliament and of the Council (6) and specific legal instruments applicable to Union agencies, bodies or offices should be brought in line with this Directive and applied in accordance with this Directive. [Am. 6]

(16)   The principles of protection should apply to any information concerning an identified or identifiable natural person. To determine whether a natural person is identifiable, account should be taken of all the means likely reasonably to be used either by the controller or by any other person to identify or single out the individual. The principles of data protection should not apply to data rendered anonymous in such a way that the data subject is no longer identifiable. This Directive should not apply to anonymous data, meaning any data that cannot be related, directly or indirectly, alone or in combination with associated data, to a natural person. Given the importance of the developments under way in the framework of the information society, of the techniques used to capture, transmit, manipulate, record, store or communicate location data relating to natural persons, which may be used for different purposes including surveillance or creating profiles, this Directive should be applicable to processing involving such personal data. [Am. 7]

(16a)   Any processing of personal data must be lawful, fair and transparent in relation to the individuals concerned. In particular, the specific purposes for which the data are processed should be explicit and legitimate and determined at the time of the collection of the personal data. The personal data should be adequate, relevant and limited to the minimum necessary for the purposes for which the personal data are processed. This requires in particular limiting the data collected and the period for which the data are stored to a strict minimum. Personal data should only be processed if the purpose of the processing could not be fulfilled by other means. Every reasonable step should be taken to ensure that personal data which are inaccurate should be rectified or deleted. In order to ensure that the data are kept no longer than necessary, time limits should be established by the controller for erasure or periodic review. [Am. 8]

(17)   Personal data relating to health should include in particular all data pertaining to the health status of a data subject, information about the registration of the individual for the provision of health services; information about payments or eligibility for healthcare with respect to the individual; a number, symbol or particular assigned to an individual to uniquely identify the individual for health purposes; any information about the individual collected in the course of the provision of health services to the individual; information derived from the testing or examination of a body part or bodily substance, including biological samples; identification of a person as provider of healthcare to the individual; or any information on, for example; a disease, disability, disease risk, medical history, clinical treatment, or the actual physiological or biomedical state of the data subject independent of its source, e.g. from a physician or other health professional, a hospital, a medical device, or an in vitro diagnostic test.

(18)   Any processing of personal data must be fair and lawful in relation to the individuals concerned. In particular, the specific purposes for which the data are processed should be explicit. [Am. 9]

(19)   For the prevention, investigation and prosecution of criminal offences, it is necessary for competent authorities to retain and process personal data, collected in the context of the prevention, investigation, detection or prosecution of specific criminal offences beyond that context to develop an understanding of criminal phenomena and trends, to gather intelligence about organised criminal networks, and to make links between different offences detected. [Am. 10]

(20)   Personal data should not be processed for purposes incompatible with the purpose for which it was collected. Personal data should be adequate, relevant and not excessive for the purposes for which the personal data are processed. Every reasonable step should be taken to ensure that personal data which are inaccurate should be rectified or erased. [Am. 11]

(20a)   The simple fact that two purposes both relate to the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties does not necessarily mean that they are compatible. However, there are cases in which further processing for incompatible purposes should be possible if necessary to comply with a legal obligation to which the controller is subject, in order to protect the vital interests of the data subject or another person, or for the prevention of an immediate and serious threat to public security. Member States should therefore be able to adopt national laws providing for such derogations to the extent strictly necessary. Such national laws should contain adequate safeguards. [Am. 12]

(21)   The principle of accuracy of data should be applied taking account of the nature and purpose of the processing concerned. In particular in judicial proceedings, statements containing personal data are based on the subjective perception of individuals and are in some cases not always verifiable. Consequently, the requirement of accuracy should not appertain to the accuracy of a statement but merely to the fact that a specific statement has been made.

(22)   In the interpretation and application of the general principles relating to personal data processing by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, account should be taken of the specificities of the sector, including the specific objectives pursued. [Am. 13]

(23)   It is inherent to the processing of personal data in the areas of judicial co-operation in criminal matters and police co-operation that personal data relating to different categories of data subjects are processed. Therefore a clear distinction should as far as possible be made between personal data of different categories of data subjects such as suspects, persons convicted of a criminal offence, victims and third parties, such as witnesses, persons possessing relevant information or contacts and associates of suspects and convicted criminals. Specific rules on the consequences of this categorisation should be provided by the Member States, taking into account the different purposes for which data are collected and providing specific safeguards for persons who are not suspected of having committed, or have not been convicted of, a criminal offence. [Am. 14]

(24)   As far as possible personal data should be distinguished according to the degree of their accuracy and reliability. Facts should be distinguished from personal assessments, in order to ensure both the protection of individuals and the quality and reliability of the information processed by the competent authorities.

(25)   In order to be lawful, the processing of personal data should be only allowed when necessary for compliance with a legal obligation to which the controller is subject, for the performance of a task carried out in the public interest by a competent authority based on Union or Member State law or in order to protect the vital interests of the data subject or of another person, or for the prevention of an immediate and serious threat to public security which should contain explicit and detailed provisions at least as to the objectives, the personal data, the specific purposes and means, designate or allow to designate the controller, the procedures to be followed, the use and limitations of the scope of any discretion conferred to the competent authorities in relation to the processing activities . [Am. 15]

(25a)   Personal data should not be processed for purposes incompatible with the purpose for which they were collected. Further processing by competent authorities for a purpose falling within the scope of this Directive which is not compatible with the initial purpose should only be authorised in specific cases where such processing is necessary for compliance with a legal obligation, based on Union or Member State law, to which the controller is subject, or in order to protect the vital interests of the data subject or of another person or for the prevention of an immediate and serious threat to public security. The fact that data are processed for a law enforcement purpose does not necessarily imply that this purpose is compatible with the initial purpose. The concept of compatible use is to be interpreted restrictively. [Am. 16]

(25b)   Personal data processed in breach of the national provisions adopted pursuant to this Directive should not be further processed. [Am. 17]

(26)   Personal data which are, by their nature, particularly sensitive and vulnerable in relation to fundamental rights or privacy, including genetic data, deserve specific protection. Such data should not be processed, unless processing is specifically authorised by a necessary for the performance of a task carried out in the public interest, on the basis of Union or Member State law which provides for suitable measures to safeguard the data subject's fundamental rights and legitimate interests; or processing is necessary to protect the vital interests of the data subject or of another person; or the processing relates to data which are manifestly made public by the data subject. Sensitive personal data should be processed only if they supplement other personal data already processed for law enforcement purposes. Any derogation to the prohibition of processing of sensitive data should be interpreted restrictively and not lead to frequent, massive or structural processing of sensitive personal data. [Am. 18]

(26a)   The processing of genetic data should only be allowed if there is a genetic link which appears in the course of a criminal investigation or a judicial procedure. Genetic data should only be stored as long as strictly necessary for the purpose of such investigations and procedures, while Member States can provide for longer storage under the conditions set out in this Directive. [Am. 19]

(27)   Every natural person should have the right not to be subject to a measure which is based solely on partially or fully profiling by means of automated processing if it . Such processing which produces an adverse a legal effect for that person, or significantly affects him or her should be prohibited, unless authorised by law and subject to suitable measures to safeguard the data subject’s fundamental rights and legitimate interests, including the right to be provided with meaningful information about the logic used in the profiling. Such processing should in no circumstances contain, generate, or discriminate based on special categories of data . [Am. 20]

(28)   In order to exercise his or her rights, any information to the data subject should be easily accessible and easy to understand, including the use of clear and plain language. This information should be adapted to the needs of the data subject in particular when information is addressed specifically to a child. [Am. 21]

(29)   Modalities should be provided for facilitating the data subject’s exercise of his or her rights under this Directive, including mechanisms to request, free of charge, in particular access to data, rectification and erasure. The controller should be obliged to respond to requests of the data subject without undue delay and within one month of receipt of the request. Where personal data are processed by automated means the controller should provide means for requests to be made electronically . [Am. 22]

(30)   The principle of fair and transparent processing requires that the data subjects should be informed in particular of the existence of the processing operation and its purposes, its legal basis, how long the data will be stored, on the existence of the right of access, rectification or erasure and on the right to lodge a complaint. Furthermore the data subject should be informed if profiling takes place and its intended consequences. Where the data are collected from the data subject, the data subject should also be informed whether he or she is obliged to provide the data and of the consequences, in cases he or she does not provide such data. [Am. 23]

(31)   The information in relation to the processing of personal data relating to the data subject should be given to him or her at the time of collection, or, where the data are not obtained from the data subject, at the time of the recording or within a reasonable period after the collection having regard to the specific circumstances in which the data are processed.

(32)   Any person should have the right of access to data which have been collected concerning them, and to exercise this right easily, in order to be aware of and verify the lawfulness of the processing. Every data subject should therefore have the right to know about, and obtain communication in particular of, the purposes for which the data are processed, the legal basis, for what period, which recipients receive the data, including in third countries, the intelligible information about the logic involved in any automated processing and its significant and envisaged consequences if applicable, and the right to lodge a complaint with the supervisory authority and its contact details. Data subjects should be allowed to receive a copy of their personal data which are being processed. [Am. 24]

(33)   Member States should be allowed to adopt legislative measures delaying or restricting or omitting the information of data subjects or the access to their personal data to the extent that and as long as such partial or complete restriction constitutes a necessary and proportionate measure in a democratic society with due regard for the fundamental rights and the legitimate interests of the person concerned, to avoid obstructing official or legal inquiries, investigations or procedures, to avoid prejudicing the prevention, detection, investigation and prosecution of criminal offences or for the execution of criminal penalties, to protect public security or national security, or, to protect the data subject or the rights and freedoms of others. The controller should assess by way of concrete and individual examination of each case if partial or complete restriction of the right of access should apply. [Am. 25]

(34)   Any refusal or restriction of access should be set out in writing to the data subject including the factual or legal reasons on which the decision is based.

(34a)   Any restriction of the data subject's rights must be in compliance with the Charter and with the European Convention on Human Rights, as clarified by the case law of the Court of Justice of the European Union and the European Court of Human Rights, and in particular respect the essence of the rights and freedoms. [Am. 26]

(35)   Where Member States have adopted legislative measures restricting wholly or partly the right to access, the data subject should have the right to request that the competent national supervisory authority checks the lawfulness of the processing. The data subject should be informed of this right. When access is exercised by the supervisory authority on behalf of the data subject, the data subject should be informed by the supervisory authority at least that all necessary verifications by the supervisory authority have taken place and of the result as regards to the lawfulness of the processing in question. The supervisory authority should also inform the data subject of the right to seek a judicial remedy. [Am. 27]

(36)   Any person should have the right to have inaccurate or unlawfully processed personal data concerning them rectified and the right of erasure where the processing of such data is not in compliance with the main principles provisions laid down in this Directive. Such rectification, completion or erasure should be communicated to recipients to whom the data have been disclosed and to the third parties from which the inaccurate data originated. The controllers should also abstain from further dissemination of such data. Where the personal data are processed in the course of a criminal investigation and proceedings, rectification, the rights of information, access, erasure and restriction of processing may be carried out in accordance with national rules on judicial proceedings. [Am. 28]

(37)   Comprehensive responsibility and liability of the controller for any processing of personal data carried out by the controller or on the controller's behalf should be established. In particular, the controller should ensure the and be obliged to be able to demonstrate compliance of each processing operations operation with the rules adopted pursuant to this Directive. [Am. 29]

(38)   The protection of the rights and freedoms of data subjects with regard to the processing of personal data requires that appropriate technical and organisational measures be taken to ensure that the requirements of this Directive are met. In order to ensure compliance with the provisions adopted pursuant to this Directive, the controller should adopt policies and implement appropriate measures, which meet in particular the principles of data protection by design and data protection by default.

(39)   The protection of the rights and freedoms of data subjects as well as the responsibility and liability of controllers and processors requires a clear attribution of the responsibilities under this Directive, including where a controller determines the purposes, conditions and means of the processing jointly with other controllers or where a processing operation is carried out on behalf of a controller. The data subject should have the right to exercise his or her rights under this Directive in respect of and against each of the joint controllers. [Am. 30]

(40)   Processing activities should be documented by the controller or processor, in order to monitor compliance with this Directive. Each controller and processor should be obliged to co-operate with the supervisory authority and make this documentation available upon request, so that it might serve for monitoring processing operations.

(40a)   Every processing operation of personal data should be recorded in order to enable the verification of the lawfulness of the data processing, self-monitoring and ensuring proper data integrity and security. This record should be made available upon request to the supervisory authority for the purpose of monitoring compliance with the rules laid down in this Directive. [Am. 31]

(40b)   A data protection impact assessment should be carried out by the controller or processor, where the processing operations are likely to present specific risks to the rights and freedoms of data subjects by virtue of their nature, their scope or their purposes, which should include in particular the envisaged measures, safeguards and mechanisms to ensure the protection of personal data and for demonstrating compliance with this Directive. Impact assessments should concern relevant systems and processes of personal data processing operations, but not individual cases. [Am. 32]

(41)   In order to ensure effective protection of the rights and freedoms of data subjects by way of preventive actions, the controller or processor should consult with the supervisory authority in certain cases prior to the processing. Moreover, where a data protection impact assessment indicates that processing operations are likely to present a high degree of specific risks to the rights and freedoms of data subjects, the supervisory authority should be in a position to prevent, prior to the start of operations, a risky processing which is not in compliance with this Directive, and to make proposals to remedy such situation. Such consultation may equally take place in the course of the preparation either of a measure of the national parliament or of a measure based on such legislative measure which defines the nature of the processing and lays down appropriate safeguards. [Am. 33]

(41a)   In order to maintain security and to prevent processing in breach of this Directive, the controller or processor should evaluate the risks inherent to the processing and implement measures to mitigate those risks. Those measures should ensure an appropriate level of security, taking into account the state of the art and the costs of their implementation in relation to the risks and the nature of the personal data to be protected. When establishing technical standards and organisational measures to ensure security of processing, technological neutrality should be promoted. [Am. 34]

(42)   A personal data breach may, if not addressed in an adequate and timely manner, result in a substantial economic loss and social harm, including reputational damage identity fraud, to the individual concerned. Therefore, as soon as the controller becomes aware that such a breach has occurred, it should notify the breach to the competent national authority. The individuals whose personal data or privacy could be adversely affected by the breach should be notified without undue delay in order to allow them to take the necessary precautions. A breach should be considered as adversely affecting the personal data or privacy of an individual where it could result in, for example, identity theft or fraud, physical harm, significant humiliation or damage to reputation in connection with the processing of personal data. The notification should include information about measures taken by the provider to address the breach, as well as recommendations for the subscriber or individual concerned. Notifications to data subjects should be made as soon as feasible and in close cooperation with the supervisory authority and respecting guidance provided by it. [Am. 35]

(43)   In setting detailed rules concerning the format and procedures applicable to the notification of personal data breaches, due consideration should be given to the circumstances of the breach, including whether or not personal data had been protected by appropriate technical protection measures, effectively limiting the likelihood of misuse. Moreover, such rules and procedures should take into account the legitimate interests of competent authorities in cases where early disclosure could unnecessarily hamper the investigation of the circumstances of a breach.

(44)   The controller or the processor should designate a person who would assist the controller or processor to monitor and demonstrate compliance with the provisions adopted pursuant to this Directive. A data protection officer may be appointed jointly by Where several entities of the competent authority. competent authorities are acting under the supervision of a central authority, at least this central authority should designate such data protection officer. The data protection officers must be in a position to perform their duties and tasks independently and effectively, in particular by establishing rules that avoid conflicts of interests with other tasks performed by the data protection officer . [Am. 36]

(45)   Member States should ensure that a transfer to a third country only takes place if it that specific transfer is necessary for the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the controller in the third country or international organisation is an a public authority competent within the meaning of this Directive. A transfer may take place in cases where the Commission has decided that the third country or international organisation in question ensures an adequate level or protection, or when appropriate safeguards have been adduced, or where appropriate safeguards have been adduced by way of a legally binding instrument . Data transferred to competent public authorities in third countries should not be further processed for purposes other than the one they were transferred for . [Am. 37]

(45a)   Further onward transfers from competent authorities in third countries or international organisations to which personal data have been transferred should only be allowed if the onward transfer is necessary for the same specific purpose as the original transfer and the second recipient is also a competent public authority. Further onward transfers should not be allowed for general law-enforcement purposes. The competent authority that carried out the original transfer should have agreed to the onward transfer. [Am. 38]

(46)   The Commission may decide with effect for the entire Union that certain third countries, or a territory or a processing sector within a third country, or an international organisation, offer an adequate level of data protection, thus providing legal certainty and uniformity throughout the Union as regards the third countries or international organisations which are considered to provide such level of protection. In these cases, transfers of personal data to these countries may take place without needing to obtain any further authorisation.

(47)   In line with the fundamental values on which the Union is founded, in particular the protection of human rights, the Commission should take into account how the rule of law, access to justice, as well as international human rights norms and standards, in that third country are respected.

(48)   The Commission should equally be able to recognise that a third country, or a territory or a processing sector within a third country, or an international organisation, does not offer an adequate level of data protection. Consequently the transfer of personal data to that third country should be prohibited except when they are based on an international agreement, appropriate safeguards or a derogation. Provision should be made for procedures for consultations between the Commission and such third countries or international organisations. However, such a Commission decision shall be without prejudice to the possibility to undertake transfers on the basis of appropriate safeguards by means of legally binding instruments or on the basis of a derogation laid down in this Directive. [Am. 39]

(49)   Transfers not based on such an adequacy decision should only be allowed where appropriate safeguards have been adduced in a legally binding instrument, which ensure the protection of the personal data or where the controller or processor has assessed all the circumstances surrounding the data transfer operation or the set of data transfer operations and, based on this assessment, considers that appropriate safeguards with respect to the protection of personal data exist. In cases where no grounds for allowing a transfer exist, derogations should be allowed if necessary in order to protect the vital interests of the data subject or another person, or to safeguard legitimate interests of the data subject where the law of the Member State transferring the personal data so provides, or where it is essential for the prevention of an immediate and serious threat to the public security of a Member State or a third country, or in individual cases for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, or in individual cases for the establishment, exercise or defence of legal claims . [Am. 40]

(49a)   In cases where no grounds for allowing a transfer exist, derogations should be allowed if necessary in order to protect the vital interests of the data subject or another person, or to safeguard legitimate interests of the data subject where the law of the Member State transferring the personal data so provides, or where it is essential for the prevention of an immediate and serious threat to the public security of a Member State or a third country, or in individual cases for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, or in individual cases for the establishment, exercise or defence of legal claims. Those derogations should be interpreted restrictively and should not allow frequent, massive and structural transfer of personal data and should not allow wholesale transfer of data which should be limited to data strictly necessary. Moreover, the decision for transfer should be made by a duly authorised person and that transfer must be documented and should be made available to the supervisory authority on request in order to monitor the lawfulness of the transfer. [Am. 41]

(50)   When personal data move across borders it may put at increased risk the ability of individuals to exercise data protection rights to protect themselves from the unlawful use or disclosure of that data. At the same time, supervisory authorities may find that they are unable to pursue complaints or conduct investigations relating to the activities outside their borders. Their efforts to work together in the cross-border context may also be hampered by insufficient preventative or remedial powers, inconsistent legal regimes. Therefore, there is a need to promote closer co-operation among data protection supervisory authorities to help them exchange information with their foreign counterparts.

(51)   The establishment of supervisory authorities in Member States, exercising their functions with complete independence, is an essential component of the protection of individuals with regard to the processing of their personal data. The supervisory authorities should monitor the application of the provisions pursuant to this Directive and contribute to its consistent application throughout the Union, in order to protect natural persons in relation to the processing of their personal data. For that purpose, the supervisory authorities should co-operate with each other and the Commission . [Am. 42]

(52)   Member States may entrust a supervisory authority already established in Member States under Regulation (EU) …/2014 with the responsibility for the tasks to be performed by the national supervisory authorities to be established under this Directive.

(53)   Member States should be allowed to establish more than one supervisory authority to reflect their constitutional, organisational and administrative structure. Each supervisory authority should be provided with adequate financial and human resources, premises and infrastructure, including technical capabilities, experience and skills, which are necessary for the effective performance of their tasks, including for the tasks related to mutual assistance and co-operation with other supervisory authorities throughout the Union. [Am. 43]

(54)   The general conditions for the members of the supervisory authority should be laid down by law in each Member State and should in particular provide that those members should be either appointed by the parliament or the government, on the basis of the consultation of the parliament, of the Member State, and include rules on the personal qualification of the members and the position of those members. [Am. 44]

(55)   While this Directive applies also to the activities of national courts, the competence of the supervisory authorities should not cover the processing of personal data when they are acting in their judicial capacity, in order to safeguard the independence of judges in the performance of their judicial tasks. However, this exemption should be limited to genuine judicial activities in court cases and not apply to other activities where judges might be involved in accordance with national law.

(56)   In order to ensure consistent monitoring and enforcement of this Directive throughout the Union, the supervisory authorities should have the same duties and effective powers in each Member State, including effective powers of investigation, power to access all personal data and all information necessary for the performance of each supervisory function, power to access any of the premises of the data controller or the processor including data processing equipment, and legally binding intervention, decisions and sanctions, particularly in cases of complaints from individuals, and to engage in legal proceedings. [Am. 45]

(57)   Each supervisory authority should hear complaints lodged by any data subject and should investigate the matter. The investigation following a complaint should be carried out, subject to judicial review, to the extent that is appropriate in the specific case. The supervisory authority should inform the data subject of the progress and the outcome of the complaint within a reasonable period. If the case requires further investigation or coordination with another supervisory authority, intermediate information should be given to the data subject.

(58)   The supervisory authorities should assist one another in performing their duties and provide mutual assistance, so as to ensure the consistent application and enforcement of the provisions adopted pursuant to this Directive. Each supervisory authority should be ready to participate in joint operations. The requested supervisory authority should be obliged to respond in a defined time period to the request. [Am. 46]

(59)   The European Data Protection Board established by Regulation (EU) …/2012 2014 should contribute to the consistent application of this Directive throughout the Union, including advising the Commission and Union institutions, promoting the co-operation of the supervisory authorities throughout the Union, and give its opinion to the Commission in the preparation of delegated and implementing acts based on this Directive . [Am. 47]

(60)   Every data subject should have the right to lodge a complaint with a supervisory authority in any Member State and have the right to a judicial remedy if they consider that their rights under this Directive are infringed or where the supervisory authority does not act on a complaint or does not act where such action is necessary to protect the rights of the data subject.

(61)   Any body, organisation or association which aims to protects the rights and interests of data subjects in relation to the protection of their data which acts in the public interest and is constituted according to the law of a Member State should have the right to lodge a complaint or exercise the right to a judicial remedy on behalf of data subjects if duly mandated by them, or to lodge, independently of a data subject's complaint, its own complaint where it considers that a personal data breach has occurred. [Am. 48]

(62)   Each natural or legal person should have the right to a judicial remedy against decisions of a supervisory authority concerning them. Proceedings against a supervisory authority should be brought before the courts of the Member State where the supervisory authority is established.

(63)   Member States should ensure that court actions, in order to be effective, allow the rapid adoption of measures to remedy or prevent an infringement of this Directive.

(64)   Any damage, including non pecuniary damage, which a person may suffer as a result of unlawful processing should be compensated by the controller or processor, who may be exempted from liability if they prove that they are not responsible for the damage, in particular where they establish fault on the part of the data subject or in case of force majeure. [Am. 49]

(65)   Penalties should be imposed on any natural or legal person, whether governed by private or public law, that fails to comply with this Directive. Member States should ensure that the penalties are effective, proportionate and dissuasive and must take all measures to implement the penalties.

(65a)   Transmission of personal data to other authorities or private parties in the Union is prohibited unless the transmission is in compliance with law, and the recipient is established in a Member State, and no legitimate specific interests of the data subject prevent transmission, and the transmission is necessary in a specific case for the controller transmitting the data for either the performance of a task lawfully assigned to it, or the prevention of an immediate and serious danger to public security, or the prevention of serious harm to the rights of individuals. The controller should inform the recipient of the purpose of the processing and the supervisory authority of the transmission. The recipient should also be informed of processing restrictions and ensure that they are met. [Am. 50]

(66)   In order to fulfil the objectives of this Directive, namely to protect the fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data and to ensure the free exchange of personal data by competent authorities within the Union, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission. In particular, delegated acts should be adopted in respect of notifications of to further specify the criteria and conditions for processing operations requiring a data protection impact assessment; the criteria and requirements of a personal data breach to the supervisory authority and as regards the adequate level of protection afforded by a third country, or a territory or a processing sector within that third country, or an international organisation . It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, in particular with the European Data Protection Board . The Commission, when preparing and drawing-up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council. [Am. 51]

(67)   In order to ensure uniform conditions for the implementation of this Directive as regards documentation by controllers and processors, security of processing, notably in relation to encryption standards, and notification of a personal data breach to the supervisory authority, and the adequate level of protection afforded by a third country or a territory or a processing sector within that third country or an international organisation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers (7) . [Am. 52]

(68)   The examination procedure should be used for the adoption of measures as regards documentation by controllers and processors, security of processing, and notification of a personal data breach to the supervisory authority, and the adequate level of protection afforded by a third country or a territory or a processing sector within that third country or an international organisation, given that those acts are of general scope. [Am. 53]

(69)   The Commission should adopt immediately applicable implementing acts where, in duly justified cases relating to a third country or a territory or a processing sector within that third country or an international organisation which does not ensure an adequate level of protection, imperative grounds of urgency so require. [Am. 54]

(70)   Since the objectives of this Directive, namely to protect the fundamental rights and freedoms of natural persons and in particular their right to the protection of their personal data and to ensure the free exchange of personal data by competent authorities within the Union, cannot be sufficiently achieved by the Member States and can therefore but can rather , by reason of the scale or effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective those objectives. Member States may provide for higher standards than those established in this Directive . [Am. 55]

(71)   Framework Decision 2008/977/JHA should be repealed by this Directive.

(72)   Specific provisions with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties in acts of the Union which were adopted prior to the date of the adoption of this Directive, regulating the processing of personal data between Member States or the access of designated authorities of Member States to information systems established pursuant to the Treaties, should remain unaffected. Since Article 8 of the Charter and Article 16 TFEU imply that the fundamental right to the protection of personal data should be ensured in a consistent and homogeneous manner through the Union, The the Commission should, within two years after the entry into force of this Directive, evaluate the situation with regard to the relation between this Directive and the acts adopted prior to the date of adoption of this Directive regulating the processing of personal data between Member States or the access of designated authorities of Member States to information systems established pursuant to the Treaties, in order to assess the need for alignment of these specific provisions with and should present appropriate proposals with a view to ensuring consistent and homogeneous legal rules relating to the processing of personal data by competent authorities or the access of designated authorities of Member States to information systems established pursuant to the Treaties as well as the processing of personal data by Union institutions, bodies, offices and agencies for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties within the scope of this Directive. [Am. 56]

(73)   In order to ensure a comprehensive and coherent protection of personal data in the Union, international agreements concluded by the Union or by the Member States prior to the entry force of this Directive should be amended in line with this Directive. [Am. 57]

(74)   This Directive is without prejudice to the rules on combating the sexual abuse and sexual exploitation of children and child pornography as laid down in Directive 2011/93/EU of the European Parliament and of the Council(8) .

(75)   In accordance with Article 6a of the Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, the United Kingdom and Ireland shall not be bound by the rules laid down in this Directive where the United Kingdom and Ireland are not bound by the rules governing the forms of judicial co-operation in criminal matters or police co-operation which require compliance with the provisions laid down on the basis of Article 16 of the Treaty on the Functioning of the European Union.

(76)   In accordance with Articles 2 and 2a of the Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not bound by this Directive or subject to its application. Given that this Directive builds upon the Schengen acquis, under Title V of Part Three of the Treaty on the Functioning of the European Union, Denmark shall, in accordance with Article 4 of that Protocol, decide within six months after adoption of this Directive whether it will implement it in its national law. [Am. 58]

(77)   As regards Iceland and Norway, this Directive constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis (9) .

(78)   As regards Switzerland, this Directive constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (10) .

(79)   As regards Liechtenstein, this Directive constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (11) .

(80)   This Directive respects the fundamental rights and observes the principles recognised in the Charter as enshrined in the Treaty, notably the right to respect for private and family life, the right to the protection of personal data, the right to an effective remedy and to a fair trial. Limitations placed on these rights are in accordance with Article 52(1) of the Charter as they are necessary to meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.

(81)   In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents(12) , Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.

(82)   This Directive should not preclude Member States from implementing the exercise of the rights of data subjects on information, access, rectification, erasure and restriction of their personal data processed in the course of criminal proceedings, and their possible restrictions thereto, in national rules on criminal procedure,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter and objectives

1.   This Directive lays down the rules relating to the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or and the execution of criminal penalties and conditions for the free movement of such personal data .

2.   In accordance with this Directive, Member States shall:

(a)   protect the fundamental rights and freedoms of natural persons and in particular their right to the protection of their personal data and privacy ; and

(b)   ensure that the exchange of personal data by competent authorities within the Union is neither restricted nor prohibited for reasons connected with the protection of individuals with regard to the processing of personal data.

2a.   This Directive shall not preclude Member States from providing higher safeguards than those established in this Directive. [Am. 59]

Article 2

Scope

1.   This Directive applies to the processing of personal data by competent authorities for the purposes referred to in Article 1(1).

2.   This Directive applies to the processing of personal data wholly or partly by automated means, and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.

3.   This Directive shall not apply to the processing of personal data:

(a)   in the course of an activity which falls outside the scope of Union law, in particular concerning national security;

(b)   by the Union institutions, bodies, offices and agencies. [Am. 60]

Article 3

Definitions

For the purposes of this Directive:

(1)   'data subject' means an identified natural person or a natural person who can be identified, directly or indirectly, by means reasonably likely to be used by the controller or by any other natural or legal person, in particular by reference to an identification number, location data, online identifiers or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person;

(2)   'personal data' means any information relating to a an identified or identifiable natural person (‘ data subject’) ; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, unique identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social or gender identity of that person;

(2a)   'pseudonymous data' means personal data that cannot be attributed to a specific data subject without the use of additional information, as long as such additional information is kept separately and subject to technical and organisational measures to ensure non-attribution;

(3)   'processing' means any operation or set of operations which is performed upon personal data or sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;

(3a)   'profiling' means any form of automated processing of personal data intended to evaluate certain personal aspects relating to a natural person or to analyse or predict in particular that natural person’s performance at work, economic situation, location, health, personal preferences, reliability or behaviour;

(4)   'restriction of processing' means the marking of stored personal data with the aim of limiting their processing in the future;

(5)   'filing system' means any structured set of personal data which are accessible according to specific criteria, whether centralized, decentralized or dispersed on a functional or geographical basis;

(6)   'controller' means the competent public authority which alone or jointly with others determines the purposes, conditions and means of the processing of personal data; where the purposes, conditions and means of processing are determined by Union law or Member State law, the controller or the specific criteria for his nomination may be designated by Union law or by Member State law;

(7)   'processor' means a natural or legal person, public authority, agency or any other body which processes personal data on behalf of the controller;

(8)   'recipient' means a natural or legal person, public authority, agency or any other body to which the personal data are disclosed;

(9)   'personal data breach' means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed;

(10)   'genetic data' means all data, of whatever type, concerning the characteristics of an individual which are inherited or acquired during early prenatal development;

(11)   'biometric data' means any personal data relating to the physical, physiological or behavioural characteristics of an individual which allow his or her unique identification, such as facial images, or dactyloscopic data;

(12)   ‘data concerning health’ means any information personal data which relate to the physical or mental health of an individual, or to the provision of health services to the individual;

(13)   'child' means any person below the age of 18 years;

(14)   'competent authorities’ means any public authority competent for the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties;

(15)   'supervisory authority' means a public authority which is established by a Member State in accordance with Article 39. [Am. 61]

CHAPTER II

PRINCIPLES

Article 4

Principles relating to personal data processing

Member States shall provide that personal data must be:

(a)   processed fairly and lawfully, fairly and in a transparent and verifiable manner in relation to the data subject ;

(b)   collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes;

(c)   adequate, relevant, and not excessive limited to the minimum necessary in relation to the purposes for which they are processed; they shall only be processed if, and as long as, the purposes could not be fulfilled by processing information that does not involve personal data;

(d)   accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay;

(e)   kept in a form which permits identification of data subjects for no longer than it is necessary for the purposes for which the personal data are processed;

(f)   processed under the responsibility and liability of the controller, who shall ensure and be able to demonstrate compliance with the provisions adopted pursuant to this Directive;

(fa)   processed in a way that effectively allows the data subject to exercise his or her rights as described in Articles 10 to 17;

(fb)   processed in a way that protects against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures;

(fc)   processed by only those duly authorised staff of the competent authorities who need them for the performance of their tasks. [Am. 62]

Article 4a

Access to data initially processed for purposes other than those referred to in Article 1(1)

1.   Member States shall provide that competent authorities may only have access to personal data initially processed for purposes other than those referred to in Article 1(1) if they are specifically authorised by Union or Member State law which must meet the requirements set out in Article 7(1a) and must provide that:

(a)   access is allowed only to duly authorised staff of the competent authorities in the performance of their tasks where, in a specific case, reasonable grounds give reason to believe that the processing of the personal data will substantially contribute to the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties;

(b)   requests for access must be in writing and refer to the legal ground for the request;

(c)   the written request must be documented; and

(d)   appropriate safeguards are implemented to ensure the protection of fundamental rights and freedoms in relation to the processing of personal data. Those safeguards shall be without prejudice to and complementary to specific conditions of access to personal data such as judicial authorisation in accordance with Member State law.

2.   Personal data held by private parties or other public authorities shall only be accessed to investigate or prosecute criminal offences in accordance with necessity and proportionality requirements to be defined by Union law or Member State law, in full compliance with Article 7a. [Am. 63]

Article 4b

Time limits of storage and review

1.   Member States shall provide that personal data processed pursuant to this Directive shall be deleted by the competent authorities where they are no longer necessary for the purposes for which they were processed.

2.   Member States shall provide that the competent authorities put mechanisms in place to ensure that time-limits, pursuant to Article 4, are established for the erasure of personal data and for a periodic review of the need for the storage of the data, including fixing storage periods for the different categories of personal data. Procedural measures shall be established to ensure that those time-limits or the periodic review intervals are observed. [Am. 64]

Article 5

Distinction between different Different categories of data subjects

1.   Member States shall provide that, as far as possible, the controller makes the competent authorities, for the purposes referred to in Article 1(1), may process personal data of the following different categories of data subjects, and the controller shall make a clear distinction between personal data of different categories of data subjects, such as such categories :

(a)   persons with regard to whom there are serious reasonable grounds for believing that they have committed or are about to commit a criminal offence;

(b)   persons convicted of a criminal offence crime ;

(c)   victims of a criminal offence, or persons with regard to whom certain facts give reasons for believing that he or she could be the victim of a criminal offence; and

(d)   third parties to the criminal offence, such as persons who might be called on to testify in investigations in connection with criminal offences or subsequent criminal proceedings, or a person who can provide information on criminal offences, or a contact or associate to one of the persons mentioned in (a) and (b); and .

(e)   persons who do not fall within any of the categories referred to above.

2.   Personal data of data subjects other than those referred to under paragraph 1 may only be processed:

(a)   as long as necessary for the investigation or prosecution of a specific criminal offence in order to assess the relevance of the data for one of the categories indicated in paragraph 1; or

(b)   when such processing is indispensable for targeted, preventive purposes or for the purposes of criminal analysis, if and as long as this purpose is legitimate, well-defined and specific and the processing is strictly limited to assess the relevance of the data for one of the categories indicated in paragraph 1. This is subject to regular review at least every six months. Any further use is prohibited.

3.   Member States shall provide that additional limitations and safeguards, according to Member State law, apply to the further processing of personal data relating to data subjects referred to in points (c) and (d) of paragraph 1. [Am. 65]

Article 6

Different degrees of accuracy and reliability of personal data

1.   Member States shall ensure provide that, as far as possible, the different categories accuracy and reliability of personal data undergoing processing are distinguished in accordance with their degree of accuracy and reliability ensured .

2.   Member States shall ensure that, as far as possible, personal data based on facts are distinguished from personal data based on personal assessments, in accordance with their degree of accuracy and reliability .

2a.   Member States shall ensure that personal data which are inaccurate, incomplete or no longer up to date are not transmitted or made available. To this end, the competent authorities shall assess the quality of personal data before they are transmitted or made available. As far as possible, in all transmissions of data, available information shall be added which enables the receiving Member State to assess the degree of accuracy, completeness, and reliability of the data, and the extent to which they are up-to-date. Personal data shall not be transmitted without request from a competent authority, in particular data originally held by private parties.

2b.   If it emerges that incorrect data have been transmitted or data have been transmitted unlawfully, the recipient must be notified without delay. The recipient shall be obliged to rectify the data without delay in accordance with paragraph 1 and Article 15 or to erase them in accordance with Article 16. [Am. 66]

Article 7

Lawfulness of processing

1.   Member States shall provide that the processing of personal data is lawful only if and to the extent that processing is based on Union or Member State law for the purposes set out in Article 1(1) and it is necessary:

(a)   for the performance of a task carried out by a competent authority, based on law for the purposes set out in Article 1(1) ; or

(b)   for compliance with a legal obligation to which the controller is subject; or

(c)   in order to protect the vital interests of the data subject or of another person; or

(d)   for the prevention of an immediate and serious threat to public security.

1a.   Member State law regulating the processing of personal data within the scope of this Directive shall contain explicit and detailed provisions specifying at least:

(a)   the objectives of the processing;

(b)   the personal data to be processed;

(c)   the specific purposes and means of processing;

(d)   the appointment of the controller, or of the specific criteria for the appointment of the controller;

(e)   the categories of duly authorised staff of the competent authorities for the processing of personal data;

(f)   the procedure to be followed for the processing;

(g)   the use that may be made of the personal data obtained;

(h)   limitations on the scope of any discretion conferred on the competent authorities in relation to the processing activities. [Am. 67]

Article 7a

Further processing for incompatible purposes

1.   Member States shall provide that personal data may only be further processed for another purpose set out in Article 1(1) which is not compatible with the purposes for which the data were initially collected if and to the extent that:

(a)   the purpose is strictly necessary and proportionate in a democratic society and required by Union or Member State law for a legitimate, well-defined and specific purpose;

(b)   the processing is strictly limited to a period not exceeding the time needed for the specific data processing operation;

(c)   any further use for other purposes is prohibited.

Prior to any processing, the Member State shall consult the competent national supervisory authority and conduct a data protection impact assessment.

2.   In addition to the requirements set out in Article 7(1a), Member State law authorising further processing as referred to in paragraph 1 shall contain explicit and detailed provisions specifying at least:

(a)   the specific purposes and means of that particular processing;

(b)   that access is allowed only by the duly authorised staff of the competent authorities in the performance of their tasks where in a specific case there are reasonable grounds for believing that the processing of the personal data will contribute substantially to the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties; and

(c)   that appropriate safeguards are established to ensure the protection of fundamental rights and freedoms in relation to the processing of personal data.

Member States may require that access to the personal data is subject to additional conditions such as judicial authorisation, in accordance with their national law.

3.   Member States may also allow further processing of personal data for historical, statistical or scientific purposes provided that they establish appropriate safeguards, such as making the data anonymous. [Am. 68]

Article 8

Processing of special categories of personal data

1.   Member States shall prohibit the processing of personal data revealing race or ethnic origin, political opinions, religion or philosophical beliefs, sexual orientation or gender identity, trade-union membership, of genetic and activities, and the processing of biometric data or of data concerning health or sex life.

2.   Paragraph 1 shall not apply where:

(a)   the processing is authorised by a law providing appropriate safeguards strictly necessary and proportionate for the performance of a task carried out by the competent authorities for the purposes set out in Article 1(1), on the basis of Union or Member State law which shall provide for specific and suitable measures to safeguard the data subject's legitimate interests, including specific authorisation from a judicial authority, if required by national law ; or

(b)   the processing is necessary to protect the vital interests of the data subject or of another person; or

(c)   the processing relates to data which are manifestly made public by the data subject, provided that they are relevant and strictly necessary for the purpose pursued in a specific case . [Am. 69]

Article 8a

Processing of genetic data for the purpose of a criminal investigation or a judicial procedure

1.   Member States shall ensure that genetic data may only be used to establish a genetic link within the framework of adducing evidence, preventing a threat to public security or preventing the commission of a specific criminal offence. Genetic data may not be used to determine other characteristics which may be linked genetically.

2.   Member States shall provide that genetic data or information derived from their analysis may only be retained as long as necessary for the purposes for which data are processed and where the individual concerned has been convicted of serious offences against the life, integrity or security of persons, subject to strict storage periods to be determined by Member State law.

3.   Member States shall ensure that genetic data or information derived from their analysis is only stored for longer periods when the genetic data cannot be attributed to an individual, in particular when it is found at the scene of a crime. [Am. 70]

Article 9

Measures based on profiling and automated processing

1.   Member States shall provide that measures which produce an adverse a legal effect for the data subject or significantly affect him or her and which are partially or fully based solely on automated processing of personal data intended to evaluate certain personal aspects relating to the data subject shall be prohibited unless authorised by a law which also lays down measures to safeguard the data subject’s legitimate interests.

2.   Automated processing of personal data intended to evaluate certain personal aspects relating to the data subject shall not be based solely on special categories of personal data referred to in Article 8.

2a.   Automated processing of personal data intended to single out a data subject without an initial suspicion that the data subject might have committed or will be committing a criminal offence shall only be lawful if and to the extent that it is strictly necessary for the investigation of a serious criminal offence or the prevention of a clear and imminent danger, established on factual indications, to public security, the existence of the State, or the life of persons.

2b.   Profiling that, whether intentionally or otherwise, has the effect of discriminating against individuals on the basis of race or ethnic origin, political opinions, religion or beliefs, trade union membership, gender or sexual orientation, or that, whether intentionally or otherwise, results in measures which have such effect, shall be prohibited in all cases. [Am. 71]

Article 9a

General principles for the rights of the data subject

1.   Member States shall ensure that the basis of data protection is clear and with unambiguous rights for the data subject which shall be respected by the data controller. The provisions of this Directive aim to strengthen, clarify, guarantee and where appropriate, codify those rights.

2.   Member States shall ensure that such rights include, inter alia, the provision of clear and easily understandable information regarding the processing of the data subject’s personal data, the right of access, rectification and erasure of his or her data, the right to obtain data, the right to lodge a complaint with the competent data protection authority and to bring legal proceedings as well as the right to compensation and damages resulting from an unlawful processing operation. Such rights shall in general be exercised free of charge. The data controller shall respond to requests from the data subject within a reasonable period of time. [Am. 72]

CHAPTER III

RIGHTS OF THE DATA SUBJECT

Article 10

Modalities for exercising the rights of the data subject

1.   Member States shall provide that the controller takes all reasonable steps to have has concise, transparent, clear and easily accessible policies with regard to the processing of personal data and for the exercise of the data subjects' subject's rights.

2.   Member States shall provide that any information and any communication relating to the processing of personal data are to be provided by the controller to the data subject in an intelligible form, using clear and plain language, in particular where that information is addressed specifically to a child .

3.   Member States shall provide that the controller takes all reasonable steps to establish establishes procedures for providing the information referred to in Article 11 and for the exercise of the rights of the data subjects subject referred to in Articles 12 to 17. Where personal data are processed by automated means, the controller shall provide means for requests to be made electronically.

4.   Member States shall provide that the controller informs the data subject about the follow-up given to their his or her request without undue delay, and in any event at the latest within one month of receipt of the request . The information shall be given in writing. Where the data subject makes the request in electronic form, the information shall be provided in electronic form .

5.   Member States shall provide that the information and any action taken by the controller following a request referred to in paragraphs 3 and 4 are free of charge. Where requests are vexatious manifestly excessive , in particular because of their repetitive character, or the size or volume of the request, the controller may charge a reasonable fee, taking into account the administrative costs, for providing the information or taking the action requested, or the controller may not take the action requested . In that case, the controller shall bear the burden of proving the vexatious manifestly excessive character of the request.

5a.   Member States may provide that the data subject may assert his or her rights directly against the controller or through the intermediary of the competent national supervisory authority. Where the supervisory authority has acted at the request of the data subject, the supervisory authority shall inform the data subject of the verifications carried out. [Am. 73]

Article 11

Information to the data subject

1.   Where personal data relating to a data subject are collected, Member States shall ensure that the controller takes all appropriate measures to provide provides the data subject with at least the following information:

(a)   the identity and the contact details of the controller and of the data protection officer;

(b)   the legal basis and the purposes of the processing for which the personal data are intended;

(c)   the period for which the personal data will be stored;

(d)   the existence of the right to request from the controller access to and rectification, erasure or restriction of processing of the personal data concerning the data subject;

(e)   the right to lodge a complaint with the supervisory authority referred to in Article 39 and its contact details;

(f)   the recipients or categories of recipients of the personal data, including in third countries or international organisations, and who is authorised to access this data under the laws of that third country or the rules of that international organisation, the existence or absence of an adequacy decision by the Commission or in case of transfers referred to in Article 35 or 36, the means to obtain a copy of the appropriate safeguards used for the transfer ;

(fa)   where the controller processes personal data as described in Article 9(1), information about the existence of processing for a measure of the kind referred to in Article 9(1) and the intended effects of such processing on the data subject, information about the logic used in the profiling and the right to obtain human assessment;

(fb)   information regarding security measures taken to protect personal data;

(g)   any further information in so far as such further information is necessary to guarantee fair processing in respect of the data subject, having regard to the specific circumstances in which the personal data are processed.

2.   Where the personal data are collected from the data subject, the controller shall inform the data subject, in addition to the information referred to in paragraph 1, whether the provision of personal data is mandatory or optional, as well as the possible consequences of failure to provide such data.

3.   The controller shall provide the information referred to in paragraph 1:

(a)   at the time when the personal data are obtained from the data subject, or

(b)   where the personal data are not collected from the data subject, at the time of the recording or within a reasonable period after the collection having regard to the specific circumstances in which the data are processed.

4.   Member States may adopt legislative measures delaying, or restricting or omitting the provision of the information to the data subject, in a specific case, to the extent that, and as long as, such partial or complete restriction constitutes a necessary and proportionate measure in a democratic society with due regard for the fundamental rights and the legitimate interests of the person concerned:

(a)   to avoid obstructing official or legal inquiries, investigations or procedures ;

(b)   to avoid prejudicing the prevention, detection, investigation and prosecution of criminal offences or for the execution of criminal penalties;

(c)   to protect public security;

(d)   to protect national security;

(e)   to protect the rights and freedoms of others.

5.   Member States shall provide that the controller shall assess, in each specific case, by means of a concrete and individual examination, whether a partial or complete restriction for one of the reasons referred to in paragraph 4 applies. Member States may by law also determine categories of data processing which may wholly or partly fall under the exemptions under points (a), (b), (c) and (d) of paragraph 4. [Am. 74]

Article 12

Right of access for the data subject

1.   Member States shall provide for the right of the data subject to obtain from the controller confirmation as to whether or not personal data relating to them him or her are being processed. Where such personal data are being processed, the controller shall provide the following information, if it has not already been provided :

(-a)   communication of the personal data undergoing processing and of any available information as to their source, and if applicable, intelligible information about the logic involved in any automated processing;

(-aa)   the significance and envisaged consequences of such processing, at least in the case of the measures referred to in Article 9;

(a)   the purposes of the processing as well as the legal basis for the processing ;

(b)   the categories of personal data concerned;

(c)   the recipients or categories of recipients to whom the personal data have been disclosed, in particular the recipients in third countries;

(d)   the period for which the personal data will be stored;

(e)   the existence of the right to request from the controller rectification, erasure or restriction of processing of personal data concerning the data subject;

(f)   the right to lodge a complaint with the supervisory authority and the contact details of the supervisory authority;

(g)   communication of the personal data undergoing processing and of any available information as to their source.

2.   Member States shall provide for the right of the data subject to obtain from the controller a copy of the personal data undergoing processing. Where the data subject makes the request in electronic form, the information shall be provided in electronic form, unless otherwise requested by the data subject. [Am. 75]

Article 13

Limitations to the right of access

1.   Member States may adopt legislative measures restricting, wholly or partly, depending on the specific case, the data subject's right of access to the extent and for the period that such partial or complete restriction constitutes a strictly necessary and proportionate measure in a democratic society with due regard for the fundamental rights and the legitimate interests of the person concerned:

(a)   to avoid obstructing official or legal inquiries, investigations or procedures;

(b)   to avoid prejudicing the prevention, detection, investigation and prosecution of criminal offences or the execution of criminal penalties;

(c)   to protect public security;

(d)   to protect national security;

(e)   to protect the rights and freedoms of others.

2.   Member States shall provide that the controller assesses, in each specific case by means of a concrete and individual examination whether a partial or complete restriction for one of the reasons referred to in paragraph 1 applies. Member States may also determine by law categories of data processing which may wholly or partly fall under the exemptions under points (a) to (d) of paragraph 1.

3.   In cases referred to in paragraphs 1 and 2, Member States shall provide that the controller informs the data subject, without undue delay, in writing on any refusal or restriction of access, on the reasons reasoned justification for the refusal and on the possibilities of lodging a complaint with the supervisory authority and seeking a judicial remedy. The information on factual or legal reasons on which the decision is based may be omitted where the provision of such information would undermine a purpose under paragraph 1.

4.   Member States shall ensure that the controller documents the assessment referred to in paragraph 2 as well as the grounds for omitting restricting the communication of the factual or legal reasons on which the decision is based. That information shall be made available to the national supervisory authorities. [Am. 76]

Article 14

Modalities for exercising the right of access

1.   Member States shall provide for the right of the data subject to request, at all times, in particular in cases referred to in Article 13 Articles 12 and 13 , that the supervisory authority checks the lawfulness of the processing.

2.   Member State States shall provide that the controller informs the data subject of the right to request the intervention of the supervisory authority pursuant to paragraph 1.

3.   When the right referred to in paragraph 1 is exercised, the supervisory authority shall inform the data subject at least that all necessary verifications by the supervisory authority have taken place, and of the result as regards the lawfulness of the processing in question. The supervisory authority shall also inform the data subject of his or her right to seek a judicial remedy.

3a.   Member States may provide that the data subject may assert this right directly against the controller or through the intermediary of the competent national supervisory authority.

3b.   Member States shall ensure that there are reasonable time limits for the controller to respond to requests of the data subject regarding the exercise of his or her right of access. [Am. 77]

Article 15

Right to rectification and completion

1.   Member States shall provide for the right of the data subject to obtain from the controller the rectification or the completion of personal data relating to them him or her which are inaccurate. The data subject shall have the right to obtain completion of incomplete personal data or incomplete , in particular by way of a completing or corrective statement.

2.   Member States shall provide that the controller informs the data subject in writing, on , with a reasoned justification, of any refusal of rectification or completion , on the reasons for the refusal and on the possibilities of lodging a complaint with the supervisory authority and seeking a judicial remedy.

2a.   Member States shall provide that the controller shall communicate any rectification carried out to each recipient to whom the data have been disclosed, unless to do so proves impossible or involves a disproportionate effort.

2b.   Member States shall provide that the controller communicates the rectification of inaccurate personal data to the third party from which the inaccurate personal data originate.

2c.   Member States shall provide that the data subject may assert this right also through the intermediary of the competent national supervisory authority. [Am. 78]

Article 16

Right to erasure

1.   Member States shall provide for the right of the data subject to obtain from the controller the erasure of personal data relating to them him or her where the processing does not comply with the provisions adopted pursuant to Articles 4 (a) to (e) , 7 and 8 , 6 and 7 to 8 of this Directive.

2.   The controller shall carry out the erasure without delay. The controller shall also abstain from further dissemination of such data.

3.   Instead of erasure, the controller shall mark restrict the processing of the personal data where:

(a)   their accuracy is contested by the data subject, for a period enabling the controller to verify the accuracy of the data;

(b)   the personal data have to be maintained for purposes of proof; or for the protection of vital interests of the data subject or another person.

(c)   the data subject opposes their erasure and requests the restriction of their use instead.

3a.   Where processing of personal data is restricted pursuant to paragraph 3, the controller shall inform the data subject before lifting the restriction on processing.

4.   Member States shall provide that the controller informs the data subject in writing, with a reasoned justification, of any refusal of erasure or marking restriction of the processing, the on reasons for the refusal and on the possibilities of lodging a complaint with the supervisory authority and seeking a judicial remedy.

4a.   Member States shall provide that the controller notifies recipients to whom those data have been sent of any erasure or restriction made pursuant to paragraph 1, unless to do so proves impossible or involves a disproportionate effort. The controller shall inform the data subject about those third parties.

4b.   Member States may provide that the data subject may assert this right directly against the controller or through the intermediary of the competent national supervisory authority. [Am. 79]

Article 17

Rights of the data subject in criminal investigations and proceedings

Member States may provide that the rights of information, access, rectification, erasure and restriction of processing referred to in Articles 11 to 16 are carried out in accordance with national rules on judicial proceedings where the personal data are contained in a judicial decision or record processed in the course of criminal investigations and proceedings.

CHAPTER IV

CONTROLLER AND PROCESSOR

SECTION 1

GENERAL OBLIGATIONS

Article 18

Responsibility of the controller

1.   Member States shall provide that the controller adopts policies and implements appropriate measures to ensure and be able to demonstrate, in a transparent manner, for each processing operation, that the processing of personal data is performed in compliance with the provisions adopted pursuant to this Directive, both at the time of the determination of the means for processing and at the time of the processing itself .

2.   The measures referred to in paragraph 1 shall in particular include:

(a)   keeping the documentation referred to in Article 23;

(aa)   performing a data protection impact assessment pursuant to Article 25a;

(b)   complying with the requirements for prior consultation pursuant to Article 26;

(c)   implementing the data security requirements laid down in Article 27;

(d)   designating a data protection officer pursuant to Article 30. ;

(da)   drawing up and implementing specific safeguards in respect of the treatment of personal data relating to children, where appropriate.

3.   The controller shall implement mechanisms to ensure the verification of the adequacy and effectiveness of the measures referred to in paragraph 1 of this Article. If proportionate, this verification shall be carried out by independent internal or external auditors. [Am. 80]

Article 19

Data protection by design and by default

1.   Member States shall provide that, having regard to the state of the art and the cost of implementation , current technical knowledge, international best practices and the risks represented by the data processing, the controller and the processor if any shall, both at the time of the determination of the purposes and means for processing and at the time of the processing itself, implement appropriate and proportionate technical and organisational measures and procedures in such a way that the processing will meet the requirements of provisions adopted pursuant to this Directive and ensure the protection of the rights of the data subject, in particular with regard to the principles laid down in Article 4. Data protection by design shall have particular regard to the entire lifecycle management of personal data from collection to processing to deletion, systematically focusing on comprehensive procedural safeguards regarding the accuracy, confidentiality, integrity, physical security and deletion of personal data. Where the controller has carried out a data protection impact assessment pursuant to Article 25a, the results shall be taken into account when developing those measures and procedures .

2.   The controller shall implement mechanisms for ensuring ensure that, by default, only those personal data which are necessary for the purposes of the processing are processed for each specific purpose of the processing and are especially not collected, retained or disseminated beyond the minimum necessary for those purposes, both in terms of the amount of the data and the time of their storage. In particular, those mechanisms shall ensure that by default personal data are not made accessible to an indefinite number of individuals and that data subjects are able to control the distribution of their personal data . [Am. 81]

Article 20

Joint controllers

1.   Member States shall provide that where a controller determines the purposes, conditions and means of the processing of personal data jointly with others, the joint controllers shall determine the respective responsibilities for compliance with the provisions adopted pursuant to this Directive, in particular as regards the procedures and mechanisms for exercising the rights of the data subject, by means of an a legally binding arrangement between them.

2.   Unless the data subject has been informed which of the joint controllers is responsible pursuant to paragraph 1, the data subject may exercise his or her rights under this Directive in respect of and against each of any two or more joint controllers. [Am. 82]

Article 21

Processor

1.   Member States shall provide that where a processing is carried out on behalf of a controller, the controller must shall choose a processor providing sufficient guarantees to implement appropriate technical and organisational measures and procedures in such a way that the processing will meet the requirements of the provisions adopted pursuant to this Directive and ensure the protection of the rights of the data subject, in particular in respect of the technical security measures and organisational measures governing the processing to be carried out and to ensure compliance with those measures .

2.   Member States shall provide that the carrying out of processing by means of a processor must be governed by a contract or legal act binding the processor to the controller and stipulating in particular that the processor shall act only on instructions from the controller, in particular, where the transfer of the personal data used is prohibited. :

(a)   act only on instructions from the controller;

(b)   employ only staff who have agreed to be bound by an obligation of confidentiality or are under a statutory obligation of confidentiality;

(c)   take all required measures pursuant to Article 27;

(d)   engage another processor only with the permission of the controller and therefore inform the controller of the intention to engage another processor in such a timely fashion that the controller has the possibility to object;

(e)   insofar as it is possible given the nature of the processing, adopt in agreement with controller the necessary technical and organisational requirements for the fulfilment of the controller's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III;

(f)   assist the controller in ensuring compliance with the obligations pursuant to Articles 25a to 29;

(g)   return all results to the controller after the end of the processing and not otherwise process the personal data and delete existing copies unless Union or Member State law requires its storage;

(h)   make available to the controller and the supervisory authority all the information necessary to verify compliance with the obligations laid down in this Article;

(i)   take into account the principle of data protection by design and default.

2a.   The controller and the processor shall document in writing the controller's instructions and the processor's obligation referred to in paragraph 2.

3.   If a processor processes personal data other than as instructed by the controller, the processor shall be considered to be a controller in respect of that processing and shall be subject to the rules on joint controllers laid down in Article 20. [Am. 83]

Article 22

Processing under the authority of the controller and processor

1.   Member States shall provide that the processor and any person acting under the authority of the controller or of the processor, who has access to personal data, may only process them on instructions from the controller or where required by Union or Member State law.

1a.   Where the processor is or becomes the determining party in relation to the purposes, means, or methods of data processing or does not act exclusively on the instructions of the controller, it shall be considered a joint controller pursuant to Article 20. [Am. 84]

Article 23

Documentation

1.   Member States shall provide that each controller and processor maintains documentation of all processing systems and procedures under their responsibility.

2.   The documentation shall contain at least the following information:

(a)   the name and contact details of the controller, or any joint controller or processor;

(aa)   a legally binding agreement, where there are joint controllers; a list of processors and activities carried out by processors;

(b)   the purposes of the processing;

(ba)   an indication of the parts of the controller's or processor's organisation entrusted with the processing of personal data for a particular purpose;

(bb)   a description of the category or categories of data subjects and of the data or categories of data relating to them;

(c)   the recipients or categories of recipients of the personal data;

(ca)   where applicable, information about the existence of profiling, of measures based on profiling, and of mechanisms to object to profiling;

(cb)   intelligible information about the logic involved in any automated processing;

(d)   transfers of data to a third country or an international organisation, including the identification of that third country or international organisation. and the legal grounds on which the data are transferred; a substantive explanation shall be given when a transfer is based on Articles 35 or 36 of this Directive;

(da)   the time limits for erasure of the different categories of data;

(db)   the results of the verifications of the measures referred to in Article 18(1);

(dc)   an indication of the legal basis of the processing operation for which the data are intended.

3.   The controller and the processor shall make the all documentation available, on request, to the supervisory authority. [Am. 85]

Article 24

Keeping of records

1.   Member States shall ensure that records are kept of at least the following processing operations: collection, alteration, consultation, disclosure, combination or erasure. The records of consultation and disclosure shall show in particular the purpose, date and time of such operations and as far as possible the identification of the person who consulted or disclosed personal data, and the identity of the recipients of such data .

2.   The records shall be used solely for the purposes of verification of the lawfulness of the data processing, self-monitoring and for ensuring data integrity and data security, or for purposes of auditing, either by the data protection officer or by the data protection authority .

2a.   The controller and the processor shall make the records available, on request, to the supervisory authority. [Am. 86]

Article 25

Cooperation with the supervisory authority

1.   Member States shall provide that the controller and the processor shall co-operate, on request, with the supervisory authority in the performance of its duties, in particular by providing all the information necessary for the supervisory authority to perform its duties referred to in point (a) of Article 46(2) and by granting access as provided in point (b) of Article 46(2) .

2.   In response to the supervisory authority's exercise of its powers under points (a) and (b) of Article 46(1) , the controller and the processor shall reply to the supervisory authority within a reasonable period to be specified by the supervisory authority . The reply shall include a description of the measures taken and the results achieved, in response to the remarks of the supervisory authority. [Am. 87]

Article 25a

Data Protection impact assessment

1.   Member States shall provide that the controller or the processor, acting on the controller’s behalf, shall carry out an assessment of the impact of the envisaged processing systems and procedures on the protection of personal data, where the processing operations are likely to present specific risks to the rights and freedoms of data subjects by virtue of their nature, their scope or their purposes, prior to new processing operations or the earliest as possible in case of existing processing operations.

2.   In particular the following processing operations are likely to present such specific risks as referred to in paragraph 1:

(a)   processing of personal data in large scale filing systems for the purposes of the prevention, detection, investigation or prosecution of criminal offences and the execution of criminal penalties;

(b)   processing of special categories of personal data as referred to in Article 8, of personal data related to children and of biometric and location data for the purposes of the prevention, detection, investigation or prosecution of criminal offences and the execution of criminal penalties;

(c)   an evaluation of personal aspects relating to a natural person or for analysing or predicting in particular the natural person's behaviour, which is based on automated processing and likely to result in measures that produces legal effects concerning the individual or significantly affects the individual;

(d)   monitoring publicly accessible areas, especially when using optic-electronic devices (video surveillance); or

(e)   other processing operations for which the consultation of the supervisory authority is required pursuant to Article 26(1).

3.   The assessment shall contain at least:

(a)   a systematic description of the envisaged processing operations,

(b)   an assessment of the necessity and proportionality of the processing operations in relation to the purposes;

(c)   an assessment of the risks to the rights and freedoms of data subjects and the measures envisaged to address those risks and minimise the volume of personal data which is processed;

(d)   security measures and mechanisms to ensure the protection of personal data and to demonstrate the compliance with the provisions adopted pursuant to this Directive, taking into account the rights and legitimate interests of the data subjects and other persons concerned;

(e)   a general indication of the time limits for erasure of the different categories of data;

(f)   where applicable, a list of the intended transfers of data to a third country or an international organisation, including the identification of that third country or international organisation and, in case of transfers referred to in Article 36(2), the documentation of appropriate safeguards.

4.   If the controller or the processor has designated a data protection officer, he or she shall be involved in the impact assessment proceeding.

5.   Member States shall provide that the controller consults the public on the intended processing, without prejudice to the protection of the public interest or the security of the processing operations.

6.   Without prejudice to the protection of the public interest or the security of the processing operations, the assessment shall be made easily accessible to the public.

7.   The Commission shall be empowered to adopt, after requesting an opinion of the European Data Protection Board, delegated acts in accordance with Article 56 for the purpose of specifying further the criteria and conditions for the processing operations likely to present specific risks referred to in paragraphs 1 and 2 and the requirements for the assessment referred to in paragraph 3, including conditions for scalability, verification and auditability. [Am. 88]

Article 26

Prior consultation of the supervisory authority

1.   Member States shall ensure that the controller or the processor consults the supervisory authority prior to the processing of personal data which will form part of a new filing system to be created in order to ensure the compliance of the intended processing with the provisions adopted pursuant to this Directive and in particular to mitigate the risks involved for the data subjects where:

(a)   special categories of data referred to in Article 8 are to be processed a data protection impact assessment as provided for in Article 25a indicates that processing operations by virtue of their nature, their scope and/or their purposes, are likely to present a high degree of specific risks ; or

(b)   the type of processing, in particular using new technologies, mechanisms or procedures, holds otherwise specific risks for the fundamental rights and freedoms, and in particular the protection of personal data, of data subjects the supervisory authority deems it necessary to carry out a prior consultation on specified processing operations which are likely to present specific risks to the rights and freedoms of data subjects by virtue of their nature, their scope or their purposes .

1a.   Where the supervisory authority determines in accordance with its power that the intended processing does not comply with the provisions adopted pursuant to this Directive, in particular where risks are insufficiently identified or mitigated, it shall prohibit the intended processing and make appropriate proposals to remedy such non-compliance.

2.   Member States may shall provide that the supervisory authority establishes, after consulting the European Data Protection Board, shall establish a list of the processing operations which are subject to prior consultation pursuant to point (b) of paragraph 1.

2a.   Member States shall provide that the controller or processor shall provide the supervisory authority with the data protection impact assessment pursuant to Article 25a and, on request, with any other information to allow the supervisory authority to make an assessment of the compliance of the processing and in particular of the risks for the protection of personal data of the data subject and of the related safeguards.

2b.   If the supervisory authority is of the opinion that the intended processing does not comply with the provisions adopted pursuant to this Directive or that the risks are insufficiently identified or mitigated, it shall make appropriate proposals to remedy such non-compliance.

2c.   Member States may consult the supervisory authority in the preparation of a legislative measure to be adopted by the national parliament or of a measure based on such a legislative measure, which defines the nature of the processing, in order to ensure the compliance of the intended processing under this Directive, and in particular to mitigate the risks involved for the data subjects. [Am. 89]

SECTION 2

data DATA SECURITY

Article 27

Security of processing

1.   Member States shall provide that the controller and the processor implements implement appropriate technical and organisational measures and procedures to ensure a level of security appropriate to the risks represented by the processing and the nature of the data to be protected, having regard to the state of the art and the cost of their implementation.

2.   In respect of automated data processing, each Member State shall provide that the controller or processor, following an evaluation of the risks, implements measures designed to:

(a)   deny unauthorised persons access to data-processing equipment used for processing personal data (equipment access control);

(b)   prevent the unauthorised reading, copying, modification or removal of data media (data media control);

(c)   prevent the unauthorised input of data and the unauthorised inspection, modification or deletion of stored personal data (storage control);

(d)   prevent the use of automated data-processing systems by unauthorised persons using data communication equipment (user control);

(e)   ensure that persons authorised to use an automated data-processing system only have access to the data covered by their access authorisation (data access control);

(f)   ensure that it is possible to verify and establish to which bodies personal data have been or may be transmitted or made available using data communication equipment (communication control);

(g)   ensure that it is subsequently possible to verify and establish which personal data have been input into automated data-processing systems and when and by whom the data were input (input control);

(h)   prevent the unauthorised reading, copying, modification or deletion of personal data during transfers of personal data or during transportation of data media (transport control);

(i)   ensure that installed systems may, in case of interruption, be restored (recovery);

(j)   ensure that the functions of the system perform, that the appearance of faults in the functions is reported (reliability) and that stored personal data cannot be corrupted by means of a malfunctioning of the system (integrity).

(ja)   ensure that in case of sensitive personal data processing according to Article 8, additional security measures have to be in place, in order to guarantee situation awareness of risks and the ability to take preventive, corrective and mitigating action in near real time against vulnerabilities or incidents detected that could pose a risk to the data.

2a.   Member States shall provide that processors may be appointed only if they guarantee that they observe the requisite technical and organisational measures under paragraph 1 and comply with the instructions under point (a) of Article 21(2). The competent authority shall monitor the processor in those respects.

3.   The Commission may adopt, where necessary, implementing acts for specifying the requirements laid down in paragraphs 1 and 2 to various situations, notably encryption standards. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 57(2). [Am. 90]

Article 28

Notification of a personal data breach to the supervisory authority

1.   Member States shall provide that in the case of a personal data breach, the controller notifies, without undue delay and, where feasible, not later than 24 hours after having become aware of it , the personal data breach to the supervisory authority. The controller shall provide, on request, to the supervisory authority a reasoned justification in cases where the notification is not made within 24 hours of any delay .

2.   The processor shall alert and inform the controller immediately without undue delay after having become aware the establishment of a personal data breach.

3.   The notification referred to in paragraph 1 shall at least:

(a)   describe the nature of the personal data breach including the categories and number of data subjects concerned and the categories and number of data records concerned;

(b)   communicate the identity and contact details of the data protection officer referred to in Article 30 or other contact point where more information can be obtained;

(c)   recommend measures to mitigate the possible adverse effects of the personal data breach;

(d)   describe the possible consequences of the personal data breach;

(e)   describe the measures proposed or taken by the controller to address the personal data breach and mitigate its effects .

In case all information cannot be provided without undue delay, the controller can complete the notification in a second phase.

4.   Member States shall provide that the controller documents any personal data breaches, comprising the facts surrounding the breach, its effects and the remedial action taken. This documentation must be sufficient to enable the supervisory authority to verify compliance with this Article. The documentation shall only include the information necessary for that purpose.

4a.   The supervisory authority shall keep a public register of the types of breaches notified.

5.   The Commission shall be empowered to adopt, after requesting an opinion of the European Data Protection Board, delegated acts in accordance with Article 56 for the purpose of specifying further the criteria and requirements for establishing the data breach referred to in paragraphs 1 and 2 and for the particular circumstances in which a controller and a processor is are required to notify the personal data breach.

6.   The Commission may lay down the standard format of such notification to the supervisory authority, the procedures applicable to the notification requirement and the form and the modalities for the documentation referred to in paragraph 4, including the time limits for erasure of the information contained therein. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 57(2). [Am. 91]

Article 29

Communication of a personal data breach to the data subject

1.   Member States shall provide that when the personal data breach is likely to adversely affect the protection of the personal data or , the privacy, the rights or the legitimate interests of the data subject, the controller shall, after the notification referred to in Article 28, communicate the personal data breach to the data subject without undue delay.

2.   The communication to the data subject referred to in paragraph 1 shall be comprehensive and use clear and plain language. It shall describe the nature of the personal data breach and contain at least the information and the recommendations provided for in points (b), and (c) and (d) of Article 28(3) and information about the rights of the data subject, including redress .

3.   The communication of a personal data breach to the data subject shall not be required if the controller demonstrates to the satisfaction of the supervisory authority that it has implemented appropriate technological protection measures, and that those measures were applied to the personal data concerned by the personal data breach. Such technological protection measures shall render the data unintelligible to any person who is not authorised to access it.

3a.   Without prejudice to the controller's obligation to notify the personal data breach to the data subject, if the controller has not already communicated the personal data breach to the data subject, the supervisory authority, having considered the likely adverse effects of the breach, may require it to do so.

4.   The communication to the data subject may be delayed, or restricted or omitted on the grounds referred to in Article 11(4). [Am. 92]

SECTION 3

DATA PROTECTION OFFICER

Article 30

Designation of the data protection officer

1.   Member States shall provide that the controller or the processor designates a data protection officer.

2.   The data protection officer shall be designated on the basis of professional qualities and, in particular, expert knowledge of data protection law and practices and ability to fulfil the tasks referred to in Article 32. The necessary level of expert knowledge shall be determined, in particular, according to the data processing carried out and the protection required for the personal data processed by the controller or the processor.

2a.   Member States shall provide that the controller or the processor ensures that any other professional duties of the data protection officer are compatible with that person's tasks and duties as data protection officer and do not result in a conflict of interests.

2b.   The data protection officer shall be appointed for a period of at least four years. The data protection officer may be reappointed for further terms. During the term of office, the data protection officer may only be dismissed from that function, if he or she no longer fulfils the conditions required for the performance of his or her duties.

2c.   Member States shall provide the data subject with the right to contact the data protection officer on all issues related to the processing of his or her personal data.

3.   The data protection officer may be designated for several entities, taking account of the organisational structure of the competent authority.

3a.   Member States shall provide that the controller or the processor shall communicate the name and contact details of the data protection officer to the supervisory authority and to the public. [Am. 93]

Article 31

Position of the data protection officer

1.   Member States shall provide that the controller or the processor ensures that the data protection officer is properly and in a timely manner involved in all issues which relate to the protection of personal data.

2.   The controller or processor shall ensure that the data protection officer is provided with the means to perform duties and tasks referred to under Article 32 effectively and independently, and does not receive any instructions as regards the exercise of the function.

2a.   The controller or the processor shall support the data protection officer in performing his or her tasks and shall provide all the means, including staff, premises, equipment, continuous professional training and any other resources necessary to carry out the duties and tasks referred to in Article 32, and to maintain his or her professional knowledge. [Am. 94]

Article 32

Tasks of the data protection officer

Member States shall provide that the controller or the processor entrusts the data protection officer at least with the following tasks:

(a)   to raise awareness, to inform and advise the controller or the processor of their obligations in accordance with the provisions adopted pursuant to this Directive, in particular with regard to technical and organisational measures and procedures, and to document this activity and the responses received;

(b)   to monitor the implementation and application of the policies in relation to the protection of personal data, including the assignment of responsibilities, the training of staff involved in the processing operations and the related audits;

(c)   to monitor the implementation and application of the provisions adopted pursuant to this Directive, in particular as to the requirements related to data protection by design, data protection by default and data security and to the information of data subjects and their requests in exercising their rights under the provisions adopted pursuant to this Directive;

(d)   to ensure that the documentation referred to in Article 23 is maintained;

(e)   to monitor the documentation, notification and communication of personal data breaches pursuant to Articles 28 and 29;

(f)   to monitor the application of the data protection impact assessment by the controller or processor and the application for prior consultation to the supervisory authority, if required pursuant to Article 26(1) ;

(g)   to monitor the response to requests from the supervisory authority, and, within the sphere of the data protection officer's competence, co-operating with the supervisory authority at the latter's request or on his own initiative;

(h)   to act as the contact point for the supervisory authority on issues related to the processing and consult with the supervisory authority, if appropriate, on the data protection officer's own initiative. [Am. 95]

CHAPTER V

TRANSFER OF PERSONAL DATA TO THIRD COUNTRIES OR INTERNATIONAL ORGANISATIONS

Article 33

General principles for transfers of personal data

1.   Member States shall provide that any transfer of personal data by competent authorities that are undergoing processing or are intended for processing after transfer to a third country, or to an international organisation, including further onward transfer to another third country or international organisation, may take place only if:

(a)   the specific transfer is necessary for the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties; and

(aa)   the data are transferred to a controller in a third country or international organisation that is a public authority competent for the purposes referred to in Article 1(1); and

(ab)   the conditions laid down in this Chapter are complied with by the controller and the processor, including for onward transfers of personal data from a third country or an international organisation to another third country or to another international organisation; and

(b)   the conditions laid down in this Chapter other provisions adopted pursuant to this Directive are complied with by the controller and processor. ; and

(ba)   the level of protection of the personal data individuals guaranteed in the Union by this Directive is not undermined; and

(bb)   the Commission has decided under the conditions and procedure referred to in Article 34 that the third country or international organisation in question ensures an adequate level of protection; or

(bc)   appropriate safeguards with respect to the protection of personal data have been adduced in a legally binding instrument as referred to in Article 35.

2.   Member States shall provide that further onward transfers referred to in paragraph 1 of this Article may only take place if, in addition to the conditions laid down in that paragraph:

(a)   the onward transfer is necessary for the same specific purpose as the original transfer; and

(b)   the competent authority that carried out the original transfer authorises the onward transfer. [Am. 96]

Article 34

Transfers with an adequacy decision

1.   Member States shall provide that a transfer of personal data to a third country or an international organisation may take place where the Commission has decided in accordance with Article 41 of Regulation (EU) …./2012 or in accordance with paragraph 3 of this Article that the third country or a territory or a processing sector within that third country, or the international organisation in question ensures an adequate level of protection. Such transfer shall not require any further specific authorisation.

2.   Where no decision adopted in accordance with Article 41 of Regulation (EU) …./2012 exists When assessing the adequacy of the level of protection , the Commission shall assess the adequacy of the level of protection, giving give consideration to the following elements:

(a)   the rule of law, relevant legislation in force, both general and sectoral, including concerning public security, defence, national security and criminal law as well as the implementation of this legislation and the security measures which are complied with in that country or by that international organisation; jurisprudential precedents as well as effective and enforceable rights including effective administrative and judicial redress for data subjects, in particular for those data subjects residing in the Union whose personal data are being transferred;

(b)   the existence and effective functioning of one or more independent supervisory authorities in the third country or international organisation in question responsible for ensuring compliance with the data protection rules, including sufficient sanctioning powers, for assisting and advising the data subject in exercising his or her rights and for co-operation with the supervisory authorities of the Union and of Member States; and

(c)   the international commitments the third country or international organisation in question has entered into, in particular any legally binding conventions or instruments with respect to the protection of personal data .

3.   The Commission may shall be empowered to adopt, after requesting an opinion of the European Data Protection Board, delegated acts in accordance with Article 56 to decide, within the scope of this Directive, that a third country or a territory or a processing sector within that third country or an international organisation ensures an adequate level of protection within the meaning of paragraph 2. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 57(2).

4.   The implementing delegated act shall specify its geographical and sectoral application, and, where applicable, identify the supervisory authority mentioned in point (b) of paragraph 2.

4a.   The Commission shall, on an on-going basis, monitor developments that could affect the fulfilment of the elements listed in paragraph 2 in third countries and international organisations in relation to which a delegated act pursuant to paragraph 3 has been adopted.

5.   The Commission may shall be empowered to adopt delegated acts in accordance with Article 56 to decide within the scope of this Directive that a third country or a territory or a processing sector within that third country or an international organisation does not ensure an adequate level of protection within the meaning of paragraph 2, in particular in cases where the relevant legislation, both general and sectoral, in force in the third country or international organisation, does not guarantee effective and enforceable rights, including effective administrative and judicial redress for data subjects, in particular for those data subjects whose personal data are being transferred. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 57(2), or, in cases of extreme urgency for individuals with respect to their right to personal data protection, in accordance with the procedure referred to in Article 57(3).

6.   Member States shall ensure that where the Commission decides pursuant to paragraph 5, that any transfer of personal data to the third country or a territory or a processing sector within that third country, or the international organisation in question shall be prohibited, this decision shall be without prejudice to transfers under Article 35(1) or in accordance with Article 36 . At the appropriate time, the Commission shall enter into consultations with the third country or international organisation with a view to remedying the situation resulting from the Decision made pursuant to paragraph 5 of this Article.

7.   The Commission shall publish in the Official Journal of the European Union a list of those third countries, territories and processing sectors within a third country or an international organisation where it has decided that an adequate level of protection is or is not ensured.

8.   The Commission shall monitor the application of the implementing delegated acts referred to in paragraphs 3 and 5. [Am. 97]

Article 35

Transfers by way of appropriate safeguards

1.   Where the Commission has taken no decision pursuant to Article 34, Member States shall provide that a or decides that a third country, or a territory within that third country, or an international organisation does not ensure an adequate level of protection in accordance with Article 34(5), a controller or processor may not transfer of personal data to a recipient in a third country, or a territory within that third country, or an international organisation may take place where: unless the controller or processor has adduced appropriate safeguards with respect to the protection of personal data in a legally binding instrument.

(a)   appropriate safeguards with respect to the protection of personal data have been adduced in a legally binding instrument; or

(b)   the controller or processor has assessed all the circumstances surrounding the transfer of personal data and concludes that appropriate safeguards exist with respect to the protection of personal data.

2.   The decision for transfers under paragraph 1 (b) must be made by duly authorised staff. Those transfers must be documented and the documentation must be made available to the supervisory authority on request authorised by the supervisory authority prior to the transfer . [Am. 98]

Article 36

Derogations

1.   Where the Commission decides pursuant to Article 34(5) that an adequate level of protection does not exist, personal data may not be transferred to the third country or to the international organisation in question if, in the case in question, the legitimate interests of the data subject in preventing any such transfer outweigh the public interest in transferring such data.

2.   By way of derogation from Articles 34 and 35, Member States shall provide that a transfer of personal data to a third country or an international organisation may take place only on condition that:

(a)   the transfer is necessary in order to protect the vital interests of the data subject or another person; or

(b)   the transfer is necessary to safeguard legitimate interests of the data subject where the law of the Member State transferring the personal data so provides; or

(c)   the transfer of the data is essential for the prevention of an immediate and serious threat to public security of a Member State or a third country; or

(d)   the transfer is necessary in individual cases for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties; or

(e)   the transfer is necessary in individual cases for the establishment, exercise or defence of legal claims relating to the prevention, investigation, detection or prosecution of a specific criminal offence or the execution of a specific criminal penalty.

2a.   Processing based on paragraph 2 must have a legal basis in Union law, or the law of the Member State to which the controller is subject; that law must meet public interest objective or the need to protect the rights and freedoms of others, respects the essence of the right to the protection of personal data and be proportionate to the legitimate aim pursued.

2b.   All transfers of personal data decided on the basis of derogations shall be duly justified and shall be limited to what is strictly necessary, and frequent massive transfers of data shall not be allowed.

2c.   The decision for transfers under paragraph 2 must be made by duly authorised staff. Those transfers must be documented and the documentation must be made available to the supervisory authority on request, including the date and time of the transfer, information about the recipient authority, the justification for the transfer and the data transferred. [Am. 99]

Article 37

Specific conditions for the transfer of personal data

Member States shall provide that the controller informs the recipient of the personal data of any processing restrictions and takes all reasonable steps to ensure that these restrictions are met. The controller shall also notify the recipient of the personal data of any update, rectification or erasure of data, and the recipient shall in turn make the corresponding notification in the event that the data have subsequently been transferred. [Am. 100]

Article 38

International co-operation for the protection of personal data

1.   In relation to third countries and international organisations, the Commission and Member States shall take appropriate steps to:

(a)   develop effective international co-operation mechanisms to facilitate ensure the enforcement of legislation for the protection of personal data; [Am. 101]

(b)   provide international mutual assistance in the enforcement of legislation for the protection of personal data, including through notification, complaint referral, investigative assistance and information exchange, subject to appropriate safeguards for the protection of personal data and other fundamental rights and freedoms;

(c)   engage relevant stakeholders in discussion and activities aimed at furthering international co-operation in the enforcement of legislation for the protection of personal data;

(d)   promote the exchange and documentation of personal data protection legislation and practice. ;

(da)   clarify and consult on jurisdictional conflicts with third countries . [Am. 102]

2.   For the purposes of paragraph 1, the Commission shall take appropriate steps to advance the relationship with third countries or with international organisations, and in particular their supervisory authorities, where the Commission has decided that they ensure an adequate level of protection within the meaning of Article 34(3).

Article 38a

Report by the Commission

The Commission shall submit a report on the application of Articles 33 to 38 to the European Parliament and to the Council at regular intervals. The first report shall be submitted not later than four years after the entry into force of this Directive. For that purpose, the Commission may request information from the Member States and supervisory authorities, which shall supply that information without undue delay. The report shall be made public. [Am. 103]

CHAPTER VI

INDEPENDENT SUPERVISORY AUTHORITIES

SECTION 1

INDEPENDENT STATUS

Article 39

Supervisory authority

1.   Each Member State shall provide that one or more public authorities are responsible for monitoring the application of the provisions adopted pursuant to this Directive and for contributing to its consistent application throughout the Union, in order to protect the fundamental rights and freedoms of natural persons in relation to the processing of their personal data and to facilitate the free flow of personal data within the Union. For this purpose, the supervisory authorities shall co-operate with each other and the Commission.

2.   Member States may provide that the supervisory authority established in Member States pursuant to Regulation (EU)…./2014 assumes responsibility for the tasks of the supervisory authority to be established pursuant to paragraph 1 of this Article.

3.   Where more than one supervisory authority is established in a Member State, that Member State shall designate the supervisory authority which functions as a single contact point for the effective participation of those authorities in the European Data Protection Board.

Article 40

Independence

1.   Member States shall ensure that the supervisory authority acts with complete independence in exercising the duties and powers entrusted to it, notwithstanding co-operation arrangements pursuant to Chapter VII of this Directive . [Am. 104]

2.   Each Member State shall provide that the members of the supervisory authority, in the performance of their duties, neither seek nor take instructions from anybody, and maintain complete independence and impartiality . [Am. 105]

3.   Members of the supervisory authority shall refrain from any action incompatible with their duties and shall not, during their term of office, engage in any incompatible occupation, whether gainful or not.

4.   Members of the supervisory authority shall behave, after their term of office, with integrity and discretion as regards the acceptance of appointments and benefits.

5.   Each Member State shall ensure that the supervisory authority is provided with the adequate human, technical and financial resources, premises and infrastructure necessary for the effective performance of its duties and powers including those to be carried out in the context of mutual assistance, co-operation and active participation in the European Data Protection Board.

6.   Each Member State shall ensure that the supervisory authority must have its own staff which shall be appointed by and subject to the direction of the head of the supervisory authority.

7.   Member States shall ensure that the supervisory authority is subject to financial control which shall not affect its independence. Member States shall ensure that the supervisory authority has separate annual budgets. The budgets shall be made public.

Article 41

General conditions for the members of the supervisory authority

1.   Member States shall provide that the members of the supervisory authority must be appointed either by the parliament or the government of the Member State concerned.

2.   The members shall be chosen from persons whose independence is beyond doubt and whose experience and skills required to perform their duties are demonstrated.

3.   The duties of a member shall end in the event of the expiry of the term of office, resignation or compulsory retirement in accordance with paragraph 5.

4.   A member may be dismissed or deprived of the right to a pension or other benefits in its stead by the competent national court, if the member no longer fulfils the conditions required for the performance of the duties or is guilty of serious misconduct.

5.   Where the term of office expires or the member resigns, the member shall continue to exercise his or her duties until a new member is appointed.

Article 42

Rules on the establishment of the supervisory authority

Each Member State shall provide by law:

(a)   the establishment and status of the supervisory authority in accordance with Articles 39 and 40;

(b)   the qualifications, experience and skills required to perform the duties of the members of the supervisory authority;

(c)   the rules and procedures for the appointment of the members of the supervisory authority, as well as the rules on actions or occupations incompatible with the duties of the office;

(d)   the duration of the term of the members of the supervisory authority, which shall be no less than four years, except for the first appointment after entry into force of this Directive, part of which may take place for a shorter period;

(e)   whether the members of the supervisory authority shall be eligible for reappointment;

(f)   the regulations and common conditions governing the duties of the members and staff of the supervisory authority;

(g)   the rules and procedures on the termination of the duties of the members of the supervisory authority, including where they no longer fulfil the conditions required for the performance of their duties or if they are guilty of serious misconduct.

Article 43

Professional secrecy

Member States shall provide that the members and the staff of the supervisory authority are subject, both during and after their term of office and in conformity with national legislation and practice , to a duty of professional secrecy with regard to any confidential information which has come to their knowledge in the course of the performance of their official duties, whilst conducting their duties with independence and transparency as set out in this Directive . [Am. 106]

SECTION 2

DUTIES AND POWERS

Article 44

Competence

1.   Member States shall provide that each supervisory authority exercises is competent to perform the duties and to exercise , on the territory of its own Member State, the powers conferred on it in accordance with this Directive. [Am. 107]

2.   Member States shall provide that the supervisory authority is not competent to supervise processing operations of courts when acting in their judicial capacity.

Article 45

Duties

1.   Member States shall provide that the supervisory authority:

(a)   monitors and ensures the application of the provisions adopted pursuant to this Directive and its implementing measures;

(b)   hears complaints lodged by any data subject, or by an association representing and duly mandated by that data subject in accordance with Article 50, investigates, to the extent appropriate, the matter and informs the data subject or the association of the progress and the outcome of the complaint within a reasonable period, in particular where further investigation or coordination with another supervisory authority is necessary;

(c)   checks the lawfulness of data processing pursuant to Article 14, and informs the data subject within a reasonable period on the outcome of the check or on the reasons why the check has not been carried out;

(d)   provides mutual assistance to other supervisory authorities and ensures the consistency of application and enforcement of the provisions adopted pursuant to this Directive;

(e)   conducts investigations, inspections and audits, either on its own initiative or on the basis of a complaint, or at the request of another supervisory authority, and informs the data subject concerned, if the data subject has addressed a complaint, of the outcome of the investigations within a reasonable period;

(f)   monitors relevant developments, insofar as they have an impact on the protection of personal data, in particular the development of information and communication technologies;

(g)   is consulted by Member State institutions and bodies on legislative and administrative measures relating to the protection of individuals' rights and freedoms with regard to the processing of personal data;

(h)   is consulted on processing operations pursuant to Article 26;

(i)   participates in the activities of the European Data Protection Board.

2.   Each supervisory authority shall promote the awareness of the public on risks, rules, safeguards and rights in relation to the processing of personal data. Activities addressed specifically to children shall receive specific attention.

3.   The supervisory authority shall, upon request, advise any data subject in exercising the rights laid down in provisions adopted pursuant to this Directive, and, if appropriate, co-operate with the supervisory authorities in other Member States to this end.

4.   For complaints referred to in point (b) of paragraph 1, the supervisory authority shall provide a complaint submission form, which can be completed electronically, without excluding other means of communication.

5.   Member States shall provide that the performance of the duties of the supervisory authority shall be free of charge for the data subject.

6.   Where requests are vexatious manifestly excessive , in particular due to their repetitive character, the supervisory authority may charge a reasonable fee or not take the action required by the data subject . Such a fee shall not exceed the costs of taking the action requested. The supervisory authority shall bear the burden of proving the vexatious manifestly excessive character of the request. [Am. 108]

Article 46

Powers

1.   Member States shall provide that each supervisory authority must in particular be endowed with has the power :

(a)   investigative powers, such as powers of access to data forming the subject matter of processing operations and powers to collect all the information necessary for the performance of its supervisory duties to notify the controller or the processor of an alleged breach of the provisions governing the processing of personal data and, where appropriate, order the controller or the processor to remedy that breach, in a specific manner, in order to improve the protection of the data subject; ;

(b)   effective powers of intervention, such as the delivering of opinions before processing is carried out, and ensuring appropriate publication of such opinions, ordering the restriction, erasure or destruction of data, imposing a temporary or definitive ban on processing, warning or admonishing the controller, or referring the matter to national parliaments or other political institutions to order the controller to comply with the data subject's requests to exercise his or her rights under this Directive, including those provided by Articles 12 to 17 where such requests have been refused in breach of those provisions;

(c)   the power to engage in legal proceedings where the provisions adopted pursuant to this Directive have been infringed or to bring this infringement to the attention of the judicial authorities. to order the controller or the processor to provide information pursuant to Article 10(1) and (2) and Articles 11, 28 and 29;

(d)   to ensure compliance with opinions on prior consultations referred to in Article 26;

(e)   to warn or admonish the controller or the processor;

(f)   to order the rectification, erasure or destruction of all data when they have been processed in breach of the provisions adopted pursuant to this Directive and the notification of such actions to third parties to whom the data have been disclosed;

(g)   to impose a temporary or definitive ban on processing;

(h)   to suspend data flows to a recipient in a third country or to an international organisation;

(i)   to inform national parliaments, the government or other public institutions as well as the public on the matter.

2.   Each supervisory authority shall have the investigative power to obtain from the controller or the processor:

(a)   access to all personal data and to all information necessary for the performance of its supervisory duties,

(b)   access to any of its premises, including to any data processing equipment and means, in accordance with national law, where there are reasonable grounds for presuming that an activity in violation of the provisions adopted pursuant to this Directive is being carried out there, without prejudice to a judicial authorisation if required by national law.

3.   Without prejudice to Article 43, Member States shall provide that no additional secrecy requirements shall be issued at the request of supervisory authorities.

4.   Member States may provide that additional security screening in line with national law is required for access to information classified at a level similar to EU CONFIDENTIAL or higher. If no additional security screening is required under the law of the Member State of the relevant supervisory authority, this must be recognised by all other Member States.

5.   Each supervisory authority shall have the power to bring breaches of the provisions adopted pursuant to this Directive to the attention of the judicial authorities and to engage in legal proceedings and bring an action to the competent court pursuant to Article 53(2).

6.   Each supervisory authority shall have the power to impose penalties in respect of administrative offences. [Am. 109]

Article 46a

Reporting of breaches

1.   Member States shall provide that the supervisory authorities take into account guidance issued by the European Data Protection Board pursuant to Article 66(4b) of Regulation (EU) ..../2014 and shall put in place effective mechanisms to encourage confidential reporting of breaches of this Directive.

2.   Member States shall provide that the competent authorities shall put in place effective mechanisms to encourage confidential reporting of breaches of this Directive. [Am. 110]

Article 47

Activities report

Member States shall provide that each supervisory authority draws up an annual a report on its activities, at least every two years . The report shall be made available to the public, the respective Parliament, the Commission and the European Data Protection Board. It shall include information on the extent to which competent authorities in their jurisdiction have accessed data held by private parties to investigate or prosecute criminal offences . [Am. 111]

CHAPTER VII

CO-OPERATION

Article 48

Mutual assistance

1.   Member States shall provide that supervisory authorities provide each other with mutual assistance in order to implement and apply the provisions pursuant to this Directive in a consistent manner, and shall put in place measures for effective co-operation with one another. Mutual assistance shall cover, in particular, information requests and supervisory measures, such as requests to carry out prior consultations, inspections and investigations.

2.   Member States shall provide that a supervisory authority takes all appropriate measures required to reply to the request of another supervisory authority. Such measures may include, in particular, the transmission of relevant information or enforcement measures to bring about the cessation or prohibition of processing operations contrary to this Directive without delay and not later than one month after having received the request.

2a.   The request for assistance shall contain all the necessary information, including the purpose of the request, and reasons for the request. Information exchanged shall be used only in respect of the matter for which it was requested.

2b.   A supervisory authority to which a request for assistance is addressed may not refuse to comply with it unless:

(a)   it is not competent to deal with the request; or

(b)   compliance with the request would be incompatible with the provisions adopted pursuant to this Directive.

3.   The requested supervisory authority shall inform the requesting supervisory authority of the results or, as the case may be, of the progress or the measures taken in order to meet the request by the requesting supervisory authority.

3a.   Supervisory authorities shall supply the information requested by other supervisory authorities by electronic means and within the shortest possible period of time, using a standardised format.

3b.   No fee shall be charged for any action taken following a request for mutual assistance. [Am. 112]

Article 48a

Joint operations

1.   Member States shall provide that, in order to step up cooperation and mutual assistance, the supervisory authorities may carry out joint enforcement measures and other joint operations in which designated members or staff from supervisory authorities of other Member States participate in operations within a Member State's territory.

2.   Member States shall provide that in cases where data subjects in another Member State or other Member States are likely to be affected by processing operations, the competent supervisory authority may be invited to participate in the joint operations. The competent supervisory authority may invite the supervisory authority of each of those Member States to take part in the respective operation and in case where it is invited, respond to the request of a supervisory authority to participate in the operations without delay.

3.   Member States shall lay down the practical aspects of specific co-operation actions. [Am. 113]

Article 49

Tasks of the European Data Protection Board

1.   The European Data Protection Board established by Regulation (EU)…./2012 2014 shall exercise the following tasks in relation to processing within the scope of this Directive:

(a)   advise the Commission Union institutions on any issue related to the protection of personal data in the Union, including on any proposed amendment of this Directive;

(b)   examine, on at the request of the Commission, the European Parliament or the Council or on its own initiative or of one of its members, any question covering the application of the provisions adopted pursuant to this Directive and issue guidelines, recommendations and best practices addressed to the supervisory authorities in order to encourage consistent application of those provisions, including on the use of enforcement powers ;

(c)   review the practical application of guidelines, recommendations and best practices referred to in point (b) and report regularly to the Commission on these;

(d)   give the Commission an opinion on the level of protection in third countries or international organisations;

(e)   promote the co-operation and the effective bilateral and multilateral exchange of information and practices between the supervisory authorities, including the coordination of joint operations and other joint activities where it so decides at the request of one or more supervisory authorities ;

(f)   promote common training programmes and facilitate personnel exchanges between the supervisory authorities, as well as, where appropriate, with the supervisory authorities of third countries or of international organisations;

(g)   promote the exchange of knowledge and documentation with data protection supervisory authorities worldwide, including data protection legislation and practice. ;

(ga)   give its opinion to the Commission in the preparation of delegated and implementing acts under this Directive.

2.   Where the European Parliament, the Council or the Commission requests advice from the European Data Protection Board, it may lay out a time limit within which the European Data Protection Board shall provide such advice, taking into account the urgency of the matter.

3.   The European Data Protection Board shall forward its opinions, guidelines, recommendations, and best practices to the Commission and to the committee referred to in Article 57(1) and make them public.

4.   The Commission shall inform the European Data Protection Board of the action it has taken following opinions, guidelines, recommendations and best practices issued by the European Data Protection Board. [Am. 114]

CHAPTER VIII

REMEDIES, LIABILITY AND SANCTIONS

Article 50

Right to lodge a complaint with a supervisory authority

1.   Without prejudice to any other administrative or judicial remedy, Member States shall provide for the right of every data subject to lodge a complaint with a supervisory authority in any Member State, if they consider that the processing of personal data relating to them does not comply with provisions adopted pursuant to this Directive.

2.   Member States shall provide for the right of any body, organisation or association acting in the public interest which aims to protect data subjects’ rights and interests concerning the protection of their personal data and is being which has been properly constituted according to the law of a Member State to lodge a complaint with a supervisory authority in any Member State on behalf of one or more data subjects, if it considers that a data subject’s rights under this Directive have been infringed as a result of the processing of personal data. The organisation or association must be duly mandated by the data subject(s). [Am. 115]

3.   Member States shall provide for the right of any body, organisation or association referred to in paragraph 2, independently of a data subject's complaint, to lodge a complaint with a supervisory authority in any Member State, if it considers that a personal data breach has occurred.

Article 51

Right to a judicial remedy against a supervisory authority

1.   Member States shall provide for the right for each natural or legal person to a judicial remedy against decisions of a supervisory authority concerning them .

2.   Member States shall provide that Each each data subject shall have the right to a judicial remedy for obliging the supervisory authority to act on a complaint, in the absence of a decision which is necessary to protect their rights, or where the supervisory authority does not inform the data subject within three months on the progress or outcome of the complaint pursuant to point (b) of Article 45(1).

3.   Member States shall provide that proceedings against a supervisory authority shall be brought before the courts of the Member State where the supervisory authority is established.

3a.   Member States shall ensure that final decisions by the court referred to in this Article will be enforced. [Am. 116]

Article 52

Right to a judicial remedy against a controller or processor

1.   Without prejudice to any available administrative remedy, including the right to lodge a complaint with a supervisory authority, Member States shall provide for the right of every natural person to a judicial remedy if they consider that that their rights laid down in provisions adopted pursuant to this Directive have been infringed as a result of the processing of their personal data in non-compliance with these provisions.

1a.   Member States shall ensure that final decisions by the court referred to in this Article will be enforced. [Am. 117]

Article 53

Common rules for court proceedings

1.   Member States shall provide for the right of any body, organisation or association referred to in Article 50(2) to exercise the rights referred to in Articles 51, and 52 on behalf of and 54 when mandated by one or more data subjects. [Am. 118]

2.   Member States shall provide that Each each supervisory authority shall have the right to engage in legal proceedings and bring an action to court, in order to enforce the provisions adopted pursuant to this Directive or to ensure consistency of the protection of personal data within the Union. [Am. 119]

3.   Member States shall ensure that court actions available under national law allow for the rapid adoption of measures including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved.

Article 54

Liability and the right to compensation

1.   Member States shall provide that any person who has suffered damage, including non pecuniary damage, as a result of an unlawful processing operation or of an action incompatible with the provisions adopted pursuant to this Directive shall have the right to receive claim compensation from the controller or the processor for the damage suffered. [Am. 120]

2.   Where more than one controller or processor is involved in the processing, each controller or processor shall be jointly and severally liable for the entire amount of the damage.

3.   The controller or the processor may be exempted from this liability, in whole or in part, if the controller or processor proves that he or she is not responsible for the event giving rise to the damage.

Article 55

Penalties

Member States shall lay down the rules on penalties, applicable to infringements of the provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.

Chapter VIII a

Transmission of personal data to other parties

Article 55a

Transmission of personal data to other authorities or private parties in the Union

1.   Member States shall ensure that the controller does not transmit or instruct the processor to transmit personal data to a natural or legal person not subject to the provisions adopted pursuant to this Directive, unless:

(a)   the transmission complies with Union or Member State law; and

(b)   the recipient is established in a Member State of the European Union; and

(c)   no legitimate specific interests of the data subject prevent transmission; and

(d)   the transmission is necessary in a specific case for the controller transmitting the personal data for:

(i)   the performance of a task lawfully assigned to it; or

(ii)   the prevention of an immediate and serious danger to public security; or

(iii)   the prevention of serious harm to the rights of individuals.

2.   The controller shall inform the recipient of the purpose for which the personal data may exclusively be processed.

3.   The controller shall inform the supervisory authority of such transmissions.

4.   The controller shall inform the recipient of processing restrictions and ensure that those restrictions are met. [Am. 121]

CHAPTER IX

DELEGATED ACTS AND IMPLEMENTING ACTS

Article 56

Exercise of the delegation

1.   The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2.   The delegation of power power to adopt delegated acts referred to in Article 25a(7), Article 28(5), Article 34(3) and Article 34(5) shall be conferred on the Commission for an indeterminate period of time from the date of entry into force of this Directive.

3.   The delegation of power referred to in Article 25a(7), Article 28(5), Article 34(3) and Article 34(5) may be revoked at any time by the European Parliament or by the Council. A decision of revocation to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4.   As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5.   A delegated act adopted pursuant to Article 25a(7), Article 28(5), Article 34(3) and Article 34(5) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of 2 six months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by 2 six months at the initiative of the European Parliament or of the Council. [Am. 122]

Article 56a

Deadline for the adoption of delegated acts

The Commission shall adopt the delegated acts under Article 25a(7) and Article 28(5) by [six months before the date referred to in Article 62(1)]. The Commission may extend the deadline referred to in this paragraph by six months. [Am. 123]

Article 57

Committee procedure

1.   The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2.   Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

3.   Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply. [Am. 124]

CHAPTER X

FINAL PROVISIONS

Article 58

Repeals

1.   Framework Decision 2008/977/JHA is repealed.

2.   References to the repealed Framework Decision referred to in paragraph 1 shall be construed as references to this Directive.

Article 59

Relation with previously adopted acts of the Union for judicial co-operation in criminal matters and police co-operation

The specific provisions for the protection of personal data with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties in acts of the Union adopted prior to the date of adoption of this Directive regulating the processing of personal data between Member States and the access of designated authorities of Member States to information systems established pursuant to the Treaties within the scope of this Directive remain unaffected.

Article 60

Relationship with previously concluded international agreements in the field of judicial co-operation in criminal matters and police co-operation

International agreements concluded by Member States prior to the entry force of this Directive shall be amended, where necessary, within five years after the entry into force of this Directive.

Article 61

Evaluation

1.   The Commission shall, after requesting an opinion of the European Data Protection Board, evaluate the application and implementation of this Directive. . It shall coordinate in close cooperation with the Member States and shall include announced and unannounced visits. The European Parliament and the Council shall be kept informed throughout the process and shall have access to the relevant documents.

2.   The Commission shall review within three two years after the entry into force of this Directive other acts adopted by the European Union which regulate the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, in particular those acts adopted by the Union referred to in Article 59, in order to assess the need to align them with this Directive and make, where appropriate, the necessary proposals to amend these acts to ensure a consistent approach on the protection of personal data and shall make appropriate proposals with a view to ensuring consistent and homogeneous legal rules relating to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties within the scope of this Directive.

2a.   The Commission shall present within two years of the entry into force of this Directive appropriate proposals for the revision of the legal framework applicable to the processing of personal data by Union institutions, bodies, offices and agencies, for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties with a view to ensuring consistent and homogeneous legal rules relating to the fundamental right to the protection of personal data in the Union.

3.   The Commission shall submit reports on the evaluation and review of this Directive pursuant to paragraph 1 to the European Parliament and to the Council at regular intervals. The first reports shall be submitted not later than four years after the entry into force of this Directive. Subsequent reports shall be submitted every four years thereafter. The Commission shall submit, if necessary, appropriate proposals with a view to amending this Directive and aligning other legal instruments. The report shall be made public. [Am. 125]

Article 62

Implementation

1.   Member States shall adopt and publish, by …(13) at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith notify to the Commission the text of those provisions.

They shall apply those provisions from …* .

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 63

Entry into force and application

This Directive shall enter into force on the first day following that of its publication in the Official Journal of the European Union .

Article 64

Addressees

This Directive is addressed to the Member States.

Done at …,

For the European Parliament For the Council

The President The President

(1) OJ C 192, 30.6.2012, p. 7.
(2) OJ C 192, 30.6.2012, p.7.
(3)Position of the European Parliament of 12 March 2014.
(4)Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31).
(5)Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters (OJ L 350, 30.12.2008, p. 60).
(6) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1).
(7)Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers ( OJ L 55, 28.2.2011, p. 13) .
(8)Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, p. 1).
(9)OJ L 176, 10.7.1999, p. 36.
(10)OJ L 53, 27.2.2008, p. 52.
(11) OJ L 160 of 18.6.2011, p. 21.
(12) OJ C 369, 17.12.2011, p. 14.
(13) Two years after the date of entry into force of this Directive.


Implementation of the Single European Sky ***I
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Resolution
Consolidated text
European Parliament legislative resolution of 12 March 2014 on the proposal for a regulation of the European Parliament and of the Council on the implementation of the Single European Sky (recast) (COM(2013)0410 – C7-0171/2013 – 2013/0186(COD) ) (Ordinary legislative procedure – recast)
P7_TA(2014)0220 A7-0095/2014

The European Parliament,

–   having regard to the Commission proposal to Parliament and the Council (COM(2013)0410 ),

–   having regard to Article 294(2) and Article 100(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7‑0171/2013 ),

–   having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–   having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Maltese House of Representatives, asserting that the draft legislative act does not comply with the principle of subsidiarity,

–   having regard to the opinion of the European Economic and Social Committee of 11 December 2013(1) ,

–   after consulting the Committee of the Regions,

–   having regard to the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts(2) ,

–   having regard to the letter of 28 November 2013 from the Committee on Legal Affairs to the Committee on Transport and Tourism in accordance with Rule 87(3) of its Rules of Procedure,

–   having regard to Rules 87 and 55 of its Rules of Procedure,

–   having regard to the report of the Committee on Transport and Tourism (A7-0095/2014 ),

A.   whereas, according to the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission, the proposal in question does not include any substantive amendments other than those identified as such in the proposal and whereas, as regards the codification of the unchanged provisions of the earlier acts together with those amendments, the proposal contains a straightforward codification of the existing texts, without any change in their substance;

1.   Adopts its position at first reading hereinafter set out, taking into account the recommendations of the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission;

2.   Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

3.   Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Position of the European Parliament adopted at first reading on 12 March 2014 with a view to the adoption of Regulation (EU) No .../2014 of the European Parliament and of the Council on the implementation of the Single European Sky (recast)
(Text with EEA relevance)

P7_TC1-COD(2013)0186


THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national Parliaments,

Having regard to the opinion of the European Economic and Social Committee(3) ,

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure(4) ,

Whereas:

(1)   Regulation (EC) No 549/2004 of 10 March 2004 laying down the framework for the creation of the single European sky (the framework Regulation)(5) , Regulation (EC) No 550/2004 of 10 March 2004 on the provision of air navigation services in the single European sky (the service provision Regulation)(6) , Regulation (EC) No 551/2004 of 10 March 2004 on the organisation and use of the airspace in the single European sky (the airspace Regulation)(7) and Regulation (EC) No 552/2004 of 10 March 2004 on the interoperability of the European air traffic management network (the interoperability Regulation)(8) have been substantially amended. Since further amendments are to be made, they should be recast in the interests of clarity.

(2)   Implementation of the common transport policy requires an efficient air transport system allowing safe and regular operation of air transport services, thus facilitating the free movement of goods, persons and services. [Am. 1]

(3)   The adoption by the European Parliament and the Council of the first package of the single European sky legislation, namely, Regulation (EC) No 549/2004, Regulation (EC) No 550/2004, Regulation (EC) No 551/2004, and Regulation (EC) No 552/2004, laid down a firm legal basis for a seamless, interoperable and safe air traffic management (ATM) system. The adoption of the second package, namely, Regulation (EC) No 1070/2009, further strengthened the Single European Sky initiative by introducing the performance scheme and the Network Manager concepts to further improve the performance of the European Air Traffic Management system

(4)   In Article 1 of the 1944 Chicago Convention on Civil Aviation, the Contracting States recognise that ‘every State has complete and exclusive sovereignty over the airspace above its territory’. It is within the framework of such sovereignty that the Member States of the Union, subject to applicable international conventions, exercise the powers of a public authority when controlling air traffic.

(5)   Implementation of the common transport policy requires an efficient air transport system allowing the safe, regular and sustainable operation of air transport services, optimising capacity and facilitating the free movement of goods, persons and services.

(5a)   In order to ensure that the expected increase in air traffic does not cause or exacerbate congestion in European airspace, with all the economic, environmental and security costs that that would entail, fragmentation of that airspace should be remedied and this Regulation should be implemented as swiftly as possible. [Am. 2]

(5b)   The implementation of the Single European Sky should have a positive impact in terms of growth, employment and competitiveness in Europe, in particular by increasing demand for jobs requiring advanced qualifications. [Am. 3]

(6)   The simultaneous pursuit of the goals of augmentation of air traffic safety standards and improvement of the overall performance of ATM and ANS for general air traffic in Europe require that the human factor be taken into account. Therefore the Member States should consider , in addition to the introduction of ‘just culture’ principles, relevant performance indicators should be built into the performance scheme of the Single European Sky . [Am. 4]

(7)   The Member States have adopted a general statement on military issues related to the Single European Sky(9) . According to this statement, Member States should, in particular, enhance civil-military cooperation and, if and to the extent deemed necessary by all Member States concerned, facilitate cooperation between their armed forces in all matters of air traffic management in order to facilitate flexible use of airspace . [Am. 5]

(8)   Decisions relating to the content, scope or carrying out of military operations and training do not fall within the sphere of competence of the Union under Article 100(2) of the Treaty on the Functioning of the European Union.

(9)   Member States have restructured, to varying degrees, their national air navigation service providers by increasing their level of autonomy and freedom to provide services. It is necessary to ensure that a well-functioning common market exists for those services that can be provided under market conditions and minimum public-interest requirements are satisfied for those services that are considered natural monopolies under current technological conditions.

(10)   To ensure the consistent and , sound and independent oversight of service provision across Europe, the national supervisory aviation authorities should be guaranteed sufficient independence financial and human resources. This independence should not prevent those authorities from exercising their tasks within an administrative framework. [Am. 6]

(11)   National supervisory aviation authorities have a key role to play in the implementation of the Single European Sky. The Commission and the Commission European Agency for Aviation (EAA) should therefore facilitate cooperation among them in order to enable the exchange of best practices and to develop a common approach, including through enhanced cooperation at regional level, by providing a platform for such exchanges . This cooperation should take place on a regular basis. [Am. 7

(12)   For the implementation of the Single European Sky, the social partners should be better informed and consulted on all measures having significant social implications. At Union level, the Sectoral Dialogue Committee set up under Commission Decision 98/500/EC(10) should also be consulted. [Am. 8]

(13)   The provision of communication, navigation and surveillance services, as well as meteorological, airspace design and aeronautical information services, should together with services formatting and delivering data to general air traffic, could be organised under market conditions whilst taking into account the special features of such services and maintaining ,ensuring a high level of safety and reducing climate impact . [Am. 9]

(14)   There should be no discrimination between airspace users as to the provision of equivalent air navigation services.

(15)   The concept of common projects, aimed at assisting airspace users and/or air navigation service providers to improve collective air navigation infrastructure, the provision of air navigation services and the use of airspace, in particular those that may be required for the implementation of the ATM Master Plan as endorsed by Council Decision 2009/320/EC(11) , in accordance with Article 1(2) of Council Regulation (EC) No 219/2007, should not prejudice pre-existing projects decided by one or several Member States with similar objectives. The provisions on financing of the deployment of common projects should not prejudge the manner in which these common projects are set up. The Commission may propose that funding, such as Trans-European Network Connecting Europe Facility, Horizon 2020 or European Investment Bank funding, may be used in support of common projects, in particular to speed up the deployment of the SESAR programme, within the multiannual financial framework. Without prejudice to access to that funding, Member States should be free to decide how revenues generated by the auctioning of aviation sector allowances under the Emissions Trading Scheme are to be used and to consider in this context whether a share of such revenues might be used to finance common projects at the level of functional airspace blocks. Where applicable, common projects should aim to enable a set of basic interoperable capabilities to exist in all Member States. [Am. 10]

(15a)   Unless specific mechanisms are put in place, air-based and ground-based investment projects relating to the ATM Master Plan may take place in an uncoordinated manner, which could delay the effective deployment of SESAR technologies. [Am. 11]

(16)   The concept of a Network Manager entity is central to improving the performance of Air Traffic Management at network level, by centralising the provision of certain services, which are best performed at network level. In order to facilitate dealing with an aviation crisis, a coordination of the measures to be adopted to prevent and respond to such a crisis should be ensured by the Network Manager. In this context, the Commission should be responsible for ensuring that no conflict of interest arises between the provision of centralised services and the role of the performance review body. [Am. 12]

(17)   The Commission is convinced that the safe and efficient use of airspace can only be achieved through close cooperation between civil and military users of airspace, mainly based on the concept of flexible use of airspace and effective civil-military coordination as established by ICAO, it stresses the importance of enhancing civil military cooperation between civil and military users of airspace with a view to facilitating flexible use of airspace . [Am. 13]

(18)   Accuracy of information on airspace status and on specific air traffic situations and timely distribution of this information to civil and military controllers has a direct impact on the safety and efficiency of operations and should improve their predictability . Timely access to up-to-date information on airspace status is essential for all parties wishing to take advantage of airspace structures made available when filing or re-filing their flight plans. [Am. 14]

(19)   The provision of modern, complete, high-quality and timely aeronautical information has a significant impact on safety and on facilitating access to Union airspace and freedom of movement within it. Taking account of the ATM Master Plan, the Union should take the initiative to modernise this sector in cooperation with the Network Manager and ensure that users are able to access those data through a single public point of access, providing a modern, user-friendly and validated integrated briefing.

(20)   In order to take into account the changes introduced in Regulations (EC) No 1108/2009 and (EC) No 1070/2009, it is necessary, in accordance with Article 65a of Regulation (EC) No 216/2008 of the European Parliament and of the Council of 20 February 2008 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency(12) , to align the content of this Regulation with that of Regulation (EC) No 216/2008.

(21)   Furthermore, the technical details of Regulations (EC) No 549/2004, (EC) No 550/2004, (EC) No 551/2004 and (EC) No 552/2004, agreed in 2004 and 2009, should be brought up-to date as well as technical corrections made to take account of progress.

(22)   The geographical scope of this Regulation over the ICAO NAT region should be amended to take account of the existing and planned service provision arrangements and the need to ensure consistency in application of rules to the air navigation service providers and airspace users operating in that area. [Am. 15]

(23)   In line with its roles as an operational organisation and the continuing reform of Eurocontrol, the function of the Network Manager should be further developed towards an industry-led partnership.

(24)   The concept of functional airspace blocks designed to improve the cooperation between air traffic service providers, is an important tool for improving the performance of the European ATM system. To further enhance complement this tool, the functional airspace blocks should be made more performance focused, based on air navigation service providers should be freely able to enter into performance-based industrial partnerships and industry should be given more freedom to modify them in order to reach and, where possible exceed, the performance targets that may overlap with the established functional airspace blocks . [Am. 16]

(25)   The functional airspace blocks should operate in a flexible manner, bringing together service providers across Europe to capitalise on each other's strengths. This flexibility should allow for seeking synergies between providers regardless of their geographical location or nationality and allow for variable formats of service provision to emerge in the search for performance improvements.

(26)   To enhance the customer-focus of air navigation service providers and to increase the possibility of airspace users to influence decisions, which affect them, the consultation and participation of stakeholders in major operational decisions of the air navigation service providers should be made more effective. [Am. 17]

(27)   The performance scheme is a central tool for economic regulation of ATM and the quality and independence of its decisions should be maintained and where possible improved.

(28)   In order to take into account technical or operational developments, in particular by amending annexes, or by supplementing the provisions on network management and performance scheme , performance scheme, selecting the entity responsible for implementation of the ATM Master Plan (deployment manager) and defining the responsibilities thereof , the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission. The content and scope of each delegation is set out in detail in the relevant Articles. It is of particular importance that the Commission carries out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing-up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and Council. [Am. 18]

(29)   When adding to the list of network management services, the Commission should conduct a proper consultation of industry stakeholders and social partners . [Am. 19]

(30)   In order to ensure uniform conditions for the implementation of this Regulation, in particular with regard to the exercise of their powers by national supervisory aviation authorities, provision of support services on an exclusive basis by a service provider or groupings thereof, corrective measures to ensure compliance with the Union-wide and associated local performance targets, review of compliance in relation to the charging scheme, governance and adoption of common projects for network related functions, functional airspace blocks, modalities of participation of stakeholders in major operational decisions of the air navigation service providers, access to and protection of data, electronic aeronautical information and technological development and interoperability of air traffic management, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers(13) . [Am. 20]

(31)   In accordance with Regulation (EU) No 182/2011, for the implementing acts adopted under this Regulation, the examination procedure should be used for the adoption of implementing acts of general.

(32)   The advisory procedure should be used for the adoption of implementing acts of individual scope.

(33)   The penalties provided for with respect to infringements of this Regulation should be effective, proportional and dissuasive, without reducing safety.

(34)   Where relevant, the procurement of support services should be carried out, as applicable, in accordance with Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts(14) and Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors(15) . Account should also be taken of the guidelines set out in the Commission interpretative communication on the Community law applicable to contract awards not or not fully subject to the provisions of the Public Procurement Directives(16) , as appropriate. [Am. 21]

(35)   The Ministerial Statement on Gibraltar Airport, agreed in Córdoba on 18 September 2006 (the Ministerial Statement), during the first Ministerial meeting of the Forum of Dialogue on Gibraltar, will replace the Arrangements for closer cooperation over the use of Gibraltar airport were agreed in London on 2 December 1987 by the Kingdom of Spain and the United Kingdom in a joint declaration on the Airport made in London on 2 December 1987, and the full compliance with that Statement will be deemed to constitute compliance with the 1987 Declaration by the Ministers of Foreign Affairs of those two countries. The arrangements have not yet been applied . [Am. 22]

(36)   This Regulation applies in full to Gibraltar Airport in the context and by virtue of the Ministerial Statement. Without prejudice to the Ministerial Statement, the application to Gibraltar Airport and all the measures related to its implementation shall conform fully with that Statement and all the arrangements contained therein. [Am. 23]

(37)   Since the objective of this Regulation, namely the implementation of the Single European Sky, cannot be sufficiently achieved by the Member States, by reason of the transnational scale of the action, and can therefore be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity, as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve this objective,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter and scope

1.   This Regulation lays down rules for the creation and proper functioning of the Single European Sky in order to ensure current air traffic safety standards, to contribute to the sustainable development of the air transport system, such as reducing climate impact, and to improve the overall performance of air traffic management (ATM) and air navigation services (ANS) for general air traffic in Europe, with a view to meeting the requirements of all airspace users. The Single European Sky shall comprise a coherent pan-European and, subject to specific arrangements with the neighbouring countries, third-country network of routes, an integrated operating airspace, network management and air traffic management systems based only on safety, efficiency and interoperability, for the benefit of all airspace users. [Am. 24]

2.   The application of this Regulation shall be without prejudice to Member States' sovereignty over their airspace and to the requirements of the Member States relating to public order, public security and defence matters, as set out in Article 38. This Regulation does not cover military operations and training.

3.   The application of this Regulation shall be without prejudice to the rights and duties of Member States under the 1944 Chicago Convention on International Civil Aviation (the Chicago Convention). In this context, this Regulation seeks to assist, in the fields it covers, Member States in fulfilling their obligations under the Chicago Convention, by providing a basis for a common interpretation and uniform implementation of its provisions, and by ensuring that these provisions are duly taken into account in this Regulation and in the rules drawn up for its implementation.

4.   This Regulation shall apply to the airspace within the ICAO EUR and AFI and NAT regions where Member States are responsible for the provision of air traffic services in accordance with the this Regulation. Member States may also apply this Regulation to airspace under their responsibility within other ICAO regions, on condition that they inform the Commission and the other Member States thereof. [Am. 25]

5.   The application of this Regulation to the airport of Gibraltar is understood to be without prejudice to the respective legal positions of the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland with regard to the dispute controversy over sovereignty over the territory in which the airport is situated. [Am. 26]

5a.   The application of this Regulation to Gibraltar airport shall be suspended until the arrangements set out in the Joint Declaration made by the Foreign Ministers of the Kingdom of Spain and the United Kingdom on 2 December 1987 are applied. The Governments of Spain and the United Kingdom shall inform the Council of the date from which they will apply. [Am. 27]

Article 2

Definitions

For the purpose of this Regulation, the following definitions shall apply:

1.   ‘air traffic control (ATC) service’ means a service provided for the purpose of:

(a)   preventing collisions;

–   between aircraft, and

–   in the manoeuvring area between aircraft and obstructions; and

(b)   expediting and maintaining an orderly flow of air traffic;

2.   ‘aerodrome control service’ means an ATC service for aerodrome traffic;

3.   ‘aeronautical information service’ means a service established within the defined area of coverage responsible for the provision of aeronautical information and data necessary for the safety, regularity, and efficiency of air navigation;

4.   ‘air navigation services’ means air traffic services; communication, navigation and surveillance services; meteorological services for air navigation; and aeronautical information services;

5.   ‘air navigation service providers’ means any public or private entity providing air navigation services for general air traffic;

6.   ‘airspace block’ means an airspace of defined dimensions, in space and time, within which air navigation services are provided;

7.   ‘airspace management’ means a planning service with the primary objective of maximising the utilisation of available airspace by dynamic time-sharing and, at times, the segregation of airspace among various categories of airspace users on the basis of short-term needs and a strategic function associated with airspace design ; [Am. 28]

8.   ‘airspace users’ means operators of aircraft operated as general air traffic;

9.   ‘air traffic flow management’ means a service established with the objective of contributing to a safe, orderly and expeditious flow of air traffic by ensuring that ATC capacity is utilised to the maximum extent possible, and that the traffic volume is compatible with the capacities declared by the appropriate air traffic service providers;

10.   ‘air traffic management (ATM)’ means the aggregation of the airborne and ground-based services (air traffic services, airspace management and air traffic flow management) required to ensure the safe and efficient movement of aircraft during all phases of operations;

11.   ‘air traffic services’ means the various flight information services, alerting services, air traffic advisory services and ATC services (area, approach and aerodrome control services);

12.   ‘area control service’ means an ATC service for controlled flights in a block of airspace control area ; [Am. 29]

13.   ‘approach control service’ means an ATC service for arriving or departing controlled flights;

14.   ‘ATM Master Plan’ means the plan endorsed by Council Decision 2009/320/EC(17) , in accordance with Article 1(2) of Council Regulation (EC) No 219/2007 of 27 February 2007 on the establishment of a Joint Undertaking to develop the new generation European air traffic management system (SESAR)(18) ;

15.   ‘aviation crisis’ means circumstances under which airspace capacity is abnormally reduced as a result of major adverse weather circumstances or the unavailability of large airspace parts either through on account of natural, medical, security, military or political reasons; [Am. 30]

16.   ‘bundle of services’ means two or more air navigation services provided by the same entity ; [Am. 31]

17.   ‘certificate’ means a document issued by the European Agency for Aviation (EAA) or by a national supervisory aviation authority in any form complying with national relevant law, which confirms that an air navigation service provider meets the requirements for providing a specific service activity ; [Am. 32]

18.   ‘communication services’ means aeronautical fixed and mobile services to enable ground-to-ground, air-to-ground and air-to-air communications for ATC purposes;

18a.   'European air traffic management network' (EATMN) means a pan-European network of systems and constituents, as well as the roadmaps for the essential operational and technological changes described in the ATM Master Plan, making it possible to provide fully interoperable air navigation services in the Union, including the interfaces at the borders with third countries, with a view to attaining the performance objectives set by this Regulation; [Am. 33]

19.   ‘constituents’ means tangible objects such as hardware and intangible objects such as software upon which the interoperability of the European Air Traffic management Network ( EATMN) depends; [Am. 34]

19a.   ´Deployment Manager' means a group of operational stakeholders selected by the Commission, through a call for proposals responsible for the management level of ATM Master Plan deployment governance; [Am. 35]

20.   ‘declaration’ means for purposes of ATM/ANS, any written statement:

–   on the conformity or suitability for use of systems and constituents issued by an organisation engaged in the design, manufacture and maintenance of ATM/ANS systems and constituents,

–   on the compliance with applicable requirements of a service or a system to be put into operation issued by a service provider,

–   on the capability and means of discharging the responsibilities associated with certain flight information services;

21.   ‘flexible use of airspace’ means an airspace management concept applied in the European Civil Aviation Conference area on the basis of the ‘Airspace management handbook for the application of the concept of the flexible use of airspace’ issued by the European Organisation for the Safety of Air Navigation (Eurocontrol)(19) ;

22.   ‘flight information service’ means a service provided for the purpose of giving advice and information useful for the safe and efficient conduct of flights;

23.   ‘alerting service’ means a service provided to notify relevant organisations regarding aircraft in need of search and rescue aid, and to assist such organisations as required;

24.   ‘functional airspace block’ means an airspace block based on operational requirements and established regardless of State boundaries, where the provision of air navigation services and related functions are performance-driven and optimised with a view to introducing, in each functional airspace block, through enhanced cooperation among air navigation service providers or, where appropriate, an integrated provider; [Am. 36]

25.   ‘general air traffic’ means all movements of civil aircraft, as well as all movements of State aircraft (including military, customs and police aircraft) when these movements are carried out in conformity with the procedures of the International Civil Aviation Organisation (ICAO), as established by the 1944 Chicago Convention on International Civil Aviation;

25a.   ‘human factor’ means the social, cultural and staffing conditions in the ATM sector; [Am. 37]

26.   ‘interoperability’ means a set of functional, technical and operational properties required of the systems and constituents of the EATMN and of the procedures for its operation, in order to enable its safe, seamless and efficient operation. Interoperability is achieved by making the systems and constituents compliant with the essential requirements;

27.   ‘meteorological services’ means those facilities and services that provide aircraft with meteorological forecasts, briefs and observations as well as any other meteorological information and data provided by States for aeronautical use;

28.   ‘navigation services’ means those facilities and services that provide aircraft with positioning and timing information;

29.   operational data’ means information concerning all phases of flight that are required to take operational decisions by air navigation service providers, airspace users, airport operators and other actors involved;

30.   ‘putting into service’ means the first operational use after the initial installation or an upgrade of a system;

31.   ‘route network’ means a network of specified routes for channelling the flow of general air traffic as necessary for the most efficient provision of ATC services; [Am. 38]

32.   surveillance services’ means those facilities and services used to determine the respective positions of aircraft to allow safe separation;

33.   ‘system’ means the aggregation of airborne and/or ground-based constituents, as well as and/or space-based equipment, that provides support for air navigation services for all phases of flight; [Am. 39]

34.   ‘upgrade’ means any modification that changes the operational characteristics of a system;

35.   ‘cross-border services’ means any situation where air navigation services are provided in one Member State by a service provider certified in another Member State;

36.   ' national supervisory aviation authority ' means the a national body or bodies entrusted by a Member State with the tasks of supervision in accordance with this Regulation and the national competent authorities entrusted and accredited by the EAA with the tasks provided for in Article 8b of this Regulation and in Regulation (EC) No 216/2008; [Am. 40]

37.   ' ' support services ' means air CNS (communication, navigation services other than air traffic and surveillance), MET (meteorological) and AIS (aeronautical information) services as well as other services and activities, which are linked to, and support the provision of air navigation services; [Am. 41]

38.   'local performance targets' means performance targets set by the Member States at local level, namely functional airspace block, national, charging zone or airport level;

38a.   'industrial partnership' means cooperative arrangements under a contract set up for the purpose of improving air traffic management between various air navigation service providers, including the Network Manager, airspace users, airports or other comparable economic actors; [Am. 42]

38b.   'integrated operational airspace' means the controlled airspace with defined dimensions encompassing the European and, subject to appropriate arrangements, neighbouring third countries' airspace where dynamic allocation structure and time-sharing, performance-enhanced controller resources, fully interoperable air navigation services and combined solutions are employed in order to address the optimal, predictable and safe use of the airspace for the accomplishment of the Single European Sky; [Am. 43]

38c.   'local performance plans' means plans set by one or more national aviation authorities at local level, namely at the functional airspace block, regional or national level; [Am. 44]

38d.   'qualified entity' means a body which may be assigned specific certification or oversight tasks by, and under the control and responsibility of, the Agency or a national aviation authority. [Am. 45]

CHAPTER II

national authorities

Article 3

National supervisory aviation authorities [Am. 46]

1.   Member States shall, jointly or individually, either nominate or establish a body or bodies as their national supervisory aviation authority in order to assume the tasks assigned to such authority under this Regulation and Regulation (EC) No 216/2008 . [Am. 47]

2.   The national supervisory aviation authorities shall be legally distinct and independent in particular in organisational, hierarchical and decision-making terms, including separate annual budget allocation, from any air navigation service providers or any private or public entity company, organisation, public or private entity or personnel falling within the scope of authority activity as provided for in this Regulation and in Article 1 of Regulation (EC) No 216/2008 or having an interest in the activities of such providers entitites . [Am. 48]

3.   Without prejudice to paragraph 2, the national supervisory aviation authorities may be joined in organisational terms with other regulatory bodies and/or safety authorities. [Am. 49]

4.   The national supervisory aviation authorities that are not legally distinct from any air navigation service providers or any private or public entity having an interest in the activities of such providers, as provided for in paragraph 2, shall ensure compliance with the provisions laid down in this Article on the date of entry into force of this Regulation shall meet this requirement by 1 January 2020 or at the latest by 1 January 2017 . [Am. 50]

5.   The national supervisory aviation authorities shall exercise their powers impartially, independently and transparently. In particular, they shall be organised, staffed, managed and financed so as to allow them to exercise their powers in that manner. [Am. 51]

6.   Staff of the national supervisory aviation authorities shall: [Am. 52]

(a)   be recruited under clear and transparent rules and criteria which guarantee their independence and as regards persons in charge of strategic decisions, be appointed by the national cabinet or council of ministers or another public authority which does not directly control, or benefit from the air navigation service providers ; [Am. 53]

(b)   be selected in a transparent procedure on the basis of their specific qualifications, including appropriate competence competencies and relevant experience inter alia in the field of auditing, air navigation services and systems ; [Am. 54]

(ba)   not be seconded from air navigation service providers (ANSPs) or companies under the control of ANSPs; [Am. 55]

(c)   act independently in particular from any interest related to air navigation service providers and shall not seek or take instructions from any government or other public or private entity when carrying out the functions of the national supervisory aviation authority, without prejudice to close cooperation with other relevant national authorities ; [Am. 56]

(d)   as regards persons in charge of strategic decisions, make an annual declaration of commitment and declaration of interests indicating any direct or indirect interests that may be considered prejudicial to their independence and which may influence the performance of their functions; and

(e)   as regards persons who have been in charge of strategic decisions, audits or other functions directly linked to oversight or performance targets of air navigation service providers for more than six months , have no professional position or responsibility with any of the air navigation service providers after their term in the national supervisory aviation authority, for a period of at least one year . [Am. 57]

(i)   at least 12 months for staff in managerial positions; [Am. 58]

(ii)   at least six months for staff in non-managerial positions. [Am. 59]

(ea)   the authority's top management shall be appointed for a fixed term of between three and seven years, renewable once, and may be relieved from office during their term only if they no longer fulfil the conditions set out in this Article or have been guilty of misconduct under national law. [Am. 60]

7.   Member States shall ensure that national supervisory aviation authorities have the necessary resources and capabilities to carry out the tasks assigned to them under this Regulation in an efficient and timely manner. The national supervisory aviation authorities shall have full authority over the recruitment and management of their staff based on their own appropriations stemming from inter alia route charges to be set in proportion to the tasks to be fulfilled by the authority in accordance with Article 4. [Am. 61]

8.   Member States shall notify the Commission of the names and addresses of the national supervisory aviation authorities, as well as changes thereto, and of the measures taken to ensure compliance with this Article. [Am. 62]

9.   The Commission shall establish detailed rules laying down the modalities of the recruitment and selection procedures for the application of paragraphs 6(a) and (b). Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27(3), and shall specify: [Am. 63]

(a)   the level of separation required by the appointing authority from any company, organisation, public or private entity or staff falling within the scope of authority activity as provided for in Article 1 of Regulation (EC) No 216/2008 or having an interest in the activities of such entities, with a view to maintaining a balance between avoiding conflicts of interest and administrative efficiency; [Am. 64]

(b)   relevant technical qualifications required of staff involved in audits. [Am. 65]

Article 4

Tasks of the national supervisory aviation authorities [Am. 66]

1.   The national supervisory aviation authorities referred to in Article 3 shall be entrusted in particular with the following tasks: [Am. 67]

(a)   ensuring the supervision of the application of this Regulation and of Regulation (EC) No 216/2008 , in particular with regard to the safe and efficient operation of air navigation service providers which provide services relating to the airspace falling under the responsibility of the Member State which nominated or established the relevant authority; [Am. 68]

(b)   granting of certificates to air navigation services providers in accordance with Article 8b the performance or delegation, wholly or in part, of the tasks listed in Articles 8b, 8c and 10 of Regulation (EC) No 216/2008 and overseeing performance of the task of ensuring supervision of the application of the conditions under which they have been granted this Regulation, in particular with regard to the safe and efficient operation of providers of air navigation services relating to the airspace falling within the responsibility of the Member States ; [Am. 69]

(c)   issuing licenses, ratings, endorsements and certificates for air traffic controllers in accordance with Article 8c of Regulation (EC) No 216/2008 and overseeing the application of the conditions under which they have been issued; [Am. 70]

(d)   drawing up performance plans and monitoring their implementation in accordance with Article 11;

(e)   monitoring the implementation of the charging scheme in accordance with Articles 12 and 13, including the provisions on cross-subsidisation referred to in Article 13(7) ; [Am. 71]

(f)   approving the conditions of access to operational data in accordance with Article 22; and

(g)   supervising declarations and the putting into service of systems;

(ga)   reporting annually on its activity and the fulfilment of its tasks to the relevant authorities of the Member State, the EAA and the Commission. Such reports shall cover the steps taken and the results obtained as regards each of the tasks listed in this Article. [Am. 72]

2.   Each national supervisory aviation authority shall organise proper inspections and surveys to verify compliance with the requirements of this Regulation. The air navigation service provider concerned shall facilitate such work and the relevant Member State shall offer all necessary assistance to ensure the effectiveness of compliance monitoring . [Am. 73]

Article 5

Co-operation Cooperation between national supervisory aviation authorities [Am. 74]

1.   The national supervisory aviation authorities shall exchange information about their work and decision‑making principles, practices and procedures as well as implementation of Union law. They shall cooperate for the purpose of coordinating their decision-making across the Union. The national supervisory aviation authorities shall participate and work together in a network that convenes at regular intervals and at least once a year . The Commission and the European Union Agency for Aviation ( hereafter "EAA") shall be members, coordinate and support the work of the network and make recommendations to the network, as appropriate. The Commission and the EAA shall facilitate active cooperation of the national supervisory aviation authorities and exchanges and use of staff between the national supervisory aviation authorities based on a pool of experts to be set up by EAA in accordance with Article 17(2)(f) of Regulation (EC) No 216/2008 .

That network may, inter alia:

(a)   produce and disseminate streamlined methodologies and guidelines for implementation of the authority tasks listed in Article 4;

(b)   provide assistance to individual national aviation authorities on regulatory issues;

(c)   provide opinions to the Commission and the EAA on rule-making and certification;

(d)   provide opinions, guidelines and recommendations designed to facilitate the provision of cross-border services;

(e)   develop common solutions to be implemented across two or more States to meet the aims of the ATM Master Plan or the Chicago Convention. [Am. 75]

Subject to the rules on data protection provided for in Article 22 of this Regulation and in Regulation (EC) No 45/2001, the Commission shall support provide a platform for the exchange of the information referred to in the first and second subparagraph of this paragraph among the members of the network, possibly through electronic tools, respecting the confidentiality of business secrets of air navigation service providers companies, organisations or entities involved . [Am. 76]

2.   The national supervisory aviation authorities shall cooperate closely, including through working arrangements, for the purposes of mutual assistance in their monitoring tasks and handling of investigations and surveys. [Am. 77]

3.   In respect of functional airspace blocks that extend across the airspace falling under the responsibility of more than one Member State , the Member States concerned shall conclude an agreement on the supervision provided for in this Article Article 4 with regard to the air navigation service providers providing services relating to those blocks. The national supervisory aviation authorities concerned shall establish a plan specifying the modalities of their co-operation cooperation with a view to giving effect to that agreement. [Am. 78]

4.   National supervisory aviation authorities shall cooperate closely to ensure adequate supervision of air navigation service providers holding a valid certificate from one Member State that also provide services relating to the airspace falling under the responsibility of another Member State. Such cooperation shall include arrangements for the handling of cases involving non-compliance with this Regulation and with the applicable common requirements adopted in accordance with Article 8b(1) of Regulation (EC) No 216/2008. [Am. 79]

5.   In the case of provision of air navigation services in an airspace falling under the responsibility of another Member State, the arrangements referred to in paragraphs 2, 3 and 4 shall include an agreement on the mutual recognition of the supervisory tasks set out in Article 4(1) and (2) and of the results of these tasks. This mutual recognition shall apply also where arrangements for recognition between national supervisory authorities are made for the certification process of service providers. [Am. 80]

6.   If permitted by national law and with a view to regional cooperation, national supervisory aviation authorities may also conclude agreements regarding the division of responsibilities regarding supervisory tasks. [Am. 81]

Article 6

Qualified entities

1.   The EEA and national aviation authorities may decide to delegate in full , wholly or in part, the inspections and surveys referred to in Article 4 (2) , surveys and other tasks provided for by this Regulation to qualified entities that fulfil the requirements set out in Annex I. [Am. 82]

2.   Such a delegation granted by a national supervisory authority shall be valid within the Union for a renewable period of three years. The EEA and national supervisory aviation authorities may instruct any of the qualified entities located in the Union to undertake these inspections and surveys. [Am. 83]

3.   Member States The EAA and the national aviation authorities shall notify the Commission, EAA and the other Member States and, if applicable, the EAA, of the qualified entities to which they have delegated tasks in accordance with paragraph 1 indicating each entity's area of responsibility and its identification number and of any changes in this respect. The Commission shall publish in the Official Journal of the European Union the list of qualified entities, their identification numbers and their areas of responsibility, and shall keep the list updated. [Am. 84]

4.   Member States The EAA and the national aviation authorities shall withdraw the delegation of a qualified entity which no longer meets the requirements set out in Annex I. It shall forthwith inform the Commission, EAA and the other Member States thereof. [Am. 85]

5.   Bodies nominated before the entry into force of this Regulation as notified bodies in accordance with Article 8 of Regulation (EC) No 552/2004, shall be considered to be qualified entities for the purposes of this Article.

Article 7

Consultation of stakeholders

1.   National supervisory aviation authorities, acting in accordance with their national legislation, shall establish consultation mechanisms for appropriate involvement of stakeholders, including professional staff representative bodies for the exercise of their tasks, in the implementation of the Single European Sky. [Am. 86]

2.   The stakeholders may include:

–   air navigation service providers,

–   airport operators,

–   relevant airspace users or relevant groups representing airspace users,

–   military authorities,

–   manufacturing industry,

–   professional staff representative bodies.

CHAPTER III

SERVICE PROVISION

Article 8

Certification of air navigation service providers

1.   The provision of all air navigation services within the Union shall be subject to certification by or declaration to, national supervisory aviation authorities or the EAA in accordance with Article 8b of Regulation (EC) No 216/2008. [Am. 87]

2.   The certification process shall also ensure that the applicants can demonstrate sufficient financial strength and have obtained liability and insurance cover, where this is not guaranteed by the Member State concerned.

3.   The certificate shall provide for non-discriminatory access to services for airspace users, with particular regard to safety. Certification shall be subject to the conditions set out in Annex II.

4.   The issue of certificates shall confer on air navigation service providers the possibility of offering their services to any Member States State , other air navigation service providers, airspace users and airports within the Union. With regard to support services this possibility shall be subject to the compliance with Article 10(2). and neighbouring third countries, if appropriate, within a functional airspace block, subject to mutual agreement between the relevant parties. [Am. 88]

Article 9

Designation of air traffic service providers

1.   Member States shall ensure the provision of air traffic services on an exclusive basis within specific airspace blocks in respect of the airspace under their responsibility. For this purpose, Member States shall designate an air traffic service provider holding a valid certificate or declaration in the Union.

2.   For the provision of cross-border services, Member States shall ensure that compliance with this Article and Article 18 (3) is not prevented by their national legal system requiring that air traffic service providers providing services in the airspace under the responsibility of that Member State fulfil one of the following conditions:

(a)   be owned directly or through a majority holding by that Member State or its nationals;

(b)   have their principal place of operation or registered office in the territory of that Member State;

(c)   use only facilities in that Member State.

3.   Member States shall define the rights and obligations to be met by the designated air traffic service providers. The obligations may include conditions for the timely supply of relevant information enabling all aircraft movements in the airspace under their responsibility to be identified.

4.   Member States shall have discretionary powers in choosing an air traffic service provider, on condition that the latter is certified or declared in accordance with Regulation (EC) No 216/2008.

5.   In respect of functional airspace blocks established in accordance with Article 16 that extend across the airspace under the responsibility of more than one Member State , the Member States concerned shall jointly designate, in accordance with paragraph 1 of this Article, one or more air traffic service providers, at least one month before implementation of the airspace block. [Am. 89]

6.   Member States shall inform the Commission and other Member States immediately of any decision within the framework of this Article regarding the designation of air traffic service providers within specific airspace blocks in respect of the airspace under their responsibility.

Article 10

Provision of support services

1.   Member States shall take all necessary measures to ensure that, in accordance with this Article, there are no statutory impediments to providers of support services can that would prevent their ability to compete within the Union on the basis of equitable, non-discriminatory and transparent conditions for the purpose of providing these services.

The requirement set out in this Article shall be met at the latest by 1 January 2020.

2.   Member States shall take all necessary measures to ensure that the provision of air traffic services is separated from the provision of air navigation service providers, when drawing up their business plans, call for offers from different support services providers . This separation shall include the requirement that air traffic services and support services are , with a view to choosing the financially and qualitatively most beneficial provider. The performance review body provided by separate undertakings for by Article 11(2) shall monitor compliance with the provisions of this paragraph when evaluating the performance plans .

3.   In choosing the choice of an external provider of support services, the provisions of Directive 2004/18/EC shall be complied with. In particular, cost and energy efficiency, overall service quality, interoperability and safety of services, as well as transparency of the procurement process, shall be taken into account by binding selection criteria for the entity procuring those services.

4.   A provider of support services may only be chosen to provide services in the airspace of a Member State, when:

(a)   it is certified in accordance with Article 8b of Regulation (EC) No 216/2008;

(b)   its principal place of business is located in the territory of a Member State;

(c)   Member States and/or nationals of Member States own more than 50 % of the service provider and effectively control it, whether directly or indirectly through one or more intermediate undertakings, except as provided for in an agreement with a third country to which the Union is a party; and

(d)   the service provider fulfils national security and defence requirements.

5.   Support services related to the operations of the EATMN may be provided in a centralised manner by the Network Manager by adding those services to the services referred to in Article 17(2), in accordance with Article 17(3). They may also be provided on an exclusive basis by an air navigation service provider or groupings thereof, in particular those related to the provision of the ATM infrastructures. The Commission shall specify the modalities for the selection of providers or groupings thereof, based on the professional capacity and ability to provide services in an impartial and cost-effective manner, and establish an overall assessment of the estimated costs and benefits of the provision of the support services in a centralised manner. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27(3). The Commission shall designate providers or groupings thereof in accordance with those implementing acts.

5a.   The Commission shall establish detailed rules laying down the modalities for the selection of services covered by this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27(3).

5b.   The Commission shall conduct a comprehensive study on the operational, economic, safety and social impacts of the introduction of market principles to the provision of support services, and shall submit that study to the European Parliament and the Council by 1 January 2016. The study shall take into account the implementation of the ATM Master Plan and the impact of SESAR technologies on the support services sector. [Am. 90]

Article 11

Performance scheme

1.   To improve the performance of air navigation services and network services in the Single European Sky, a performance scheme for air navigation services and network services shall be set up. It shall include:

(a)   Union -wide and associated local performance targets on the key performance areas of safety, the environment, capacity and cost-efficiency in accordance with the high-level goals of the ATM Master Plan fixed for an entire reference period ; [Am. 91]

(b)   national plans or local performance plans for functional airspace blocks , including performance targets, ensuring compliance with the Union -wide and associated local performance targets; and [Am. 92]

(c)   periodic review, monitoring and benchmarking of the performance of air navigation services and network services.

2.   The Commission shall designate an independent, impartial and competent body to act as a ‘performance review body’ (PRB) . The PRB shall be established as a European economic regulator under the supervision of the Commission, with effect from 1 July 2015. The role of the performance review body PRB shall be to assist the Commission, in coordination with the national supervisory aviation authorities, and to assist and monitor the national supervisory aviation authorities on request in the implementation of the performance scheme referred to in paragraph 1. The PRB shall be functionally and legally separate from any service provider, whether at national or pan-European level. Technical assistance to the performance review body PRB may be provided by the EAA and , the Network Manager, Eurocontrol or another competent entity. [Am. 93]

3.   The national or functional airspace block local performance plans referred to in point (b) of paragraph 1(b), shall be drawn up by the national supervisory aviation authorities and adopted by the Member State(s). These plans shall include binding local targets and an appropriate incentive scheme as adopted by the Member State(s). Drafting of the plans shall be subject to consultation with the Commission, the PRB, air navigation service providers, airspace users' representatives, and, where relevant, airport operators and airport coordinators. [Am. 94]

4.   The compliance of the national or functional airspace block local performance plans and local targets with the Union -wide performance targets shall be assessed by the Commission in co-operation cooperation with the performance review body PRB . [Am. 95]

In the event that the Commission identifies determines that the national or functional airspace block local performance plans or the local targets do not comply with the Union-wide targets, it may require the Member States concerned to take the necessary corrective measures. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 27(2). [Am. 96]

5.   The reference period for the performance scheme, referred to in paragraph 1, shall cover a minimum of three years and a maximum of five years. During this period, in the event that the local targets are not met, the Member States concerned shall define and apply measures designed to rectify the situation. Where the Commission finds that these measures are not sufficient to rectify the situation, it may decide, that the Member States concerned shall take necessary corrective measures or sanctions. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 27 (2).

6.   The Commission and the EAA, together with the PRB, shall carry out regular assessments of the achievement of the Union-wide and associated local performance targets. [Am. 97]

7.   The performance scheme referred to in paragraph 1 shall be based on:

(a)   collection, validation, examination, evaluation and dissemination of relevant data related to the performance of air navigation services and network services from all relevant parties, including air navigation service providers, airspace users, airport operators, the EAA, national supervisory aviation authorities, Member States and Eurocontrol; [Am. 98]

(b)   selection of appropriate key performance areas on the basis of ICAO Document No 9854 ‘Global air traffic management operational concept’, and consistent with those identified in the Performance Framework of the ATM Master Plan, including safety, the environment, capacity, cost-effectiveness and human factor and cost-efficiency areas, adapted where necessary in order to take into account the specific needs of the Single European Sky and relevant objectives for these areas and definition of a limited set of key performance indicators for measuring performance. Special attention shall be paid to the safety performance indicators ; [Am. 99]

(c)   establishment and revision of Union-wide and associated local performance targets that shall be defined taking into consideration inputs identified at national level or at the level of functional airspace blocks. Union-wide performance targets shall be set with a view to ensuring that each functional airspace block retains sufficient flexibility to achieve the best results ; [Am. 100]

(d)   criteria for the setting up by the national supervisory aviation authorities of the national or functional airspace block local performance plans, containing the local performance targets and the incentive scheme. The performance plans shall: [Am. 101]

(i)   be based on the business plans of the air navigation service providers, which should in turn take into account the implementation of the ATM Master Plan ; [Am. 102]

(ii)   address all cost components of the national or functional airspace block cost base;

(iii)   include binding local performance targets compliant with the Union -wide performance targets;

(e)   assessment of the local performance targets on the basis of the national or functional airspace block local performance plan; [Am. 103 ]

(f)   monitoring of the national or functional airspace block local performance plans, including appropriate alert mechanisms; [Am. 104]

(g)   criteria to impose sanctions and compensation mechanisms for non-compliance with the Union -wide and associated local performance targets during the reference period and to support alert mechanisms; [Am. 105]

(h)   general principles for the setting up by Member States of the incentive scheme;

(i)   principles for the application of a transitional mechanism necessary for the adaptation to the functioning of the performance scheme not exceeding 12 months following the adoption of the delegated act referred to in this paragraph;

(j)   appropriate reference periods and intervals for the assessment of the achievement of performance targets and the setting of new targets;

(k)   the necessary related timetables;

The Commission shall be empowered to adopt delegated acts in accordance with Article 26 in order to adopt the Union-wide performance targets and lay down detailed rules for the proper functioning of the performance scheme in accordance with the points listed in this paragraph. [Am. 106]

8.   The establishment of the performance scheme shall take into account that en route services, terminal services and network services are different and should be treated accordingly, if necessary also for performance-measuring purposes.

8a.   The Commission shall conduct a study into the impact which the behaviour of non-ANSP actors within the ATM system, for instance airport operators, airport coordinators and air transport operators, may have on the efficient functioning of the European ATM network.

The scope of the study shall cover but shall not be limited in scope to:

(a)   identification of non-ANSP actors in the ATM system who are able to influence network performance;

(b)   the effect that such actors' behaviour has on ANS performance in relation to the key performance areas (KPAs) of safety, environment and capacity;

(c)   the feasibility of developing performance indicators and key performance indicators for those actors;

(d)   any benefits to the European ATM network that might accrue from the implementation of additional performance indicators and key performance indicators; and any barriers to achieving optimum performance.

The study should be commenced not later than 12 months following the publication of this Regulation and completed not later than 12 months thereafter; its results shall then be considered by the Commission and the Member States with a view to expanding the scope of the performance scheme to include any additional performance indicators and key performance indicators for future reference periods, in accordance with the provisions of this Article. [Am. 107]

Article 12

General provisions for the charging scheme

In accordance with the requirements of Articles 13 and 14, the charging scheme for air navigation services shall contribute to greater transparency in the determination, imposition and enforcement of charges to airspace users and shall contribute to the cost efficiency of providing air navigation services and to efficiency of flights, while maintaining an optimum safety level. The scheme shall also be consistent with Article 15 of the 1944 Chicago Convention on International Civil Aviation and with Eurocontrol's charging system for en-route charges.

Article 13

Principles for the charging scheme

1.   The charging scheme shall be based on the account of costs for air navigation services incurred by service providers for the benefit of airspace users. The scheme shall allocate these costs among categories of users.

2.   The principles set out in paragraphs 3 to 8 shall be applied when establishing the cost-base for charges.

3.   The cost to be shared among airspace users shall be the determined cost of providing air navigation services, including appropriate amounts for interest on capital investment and depreciation of assets, as well as the costs of maintenance, operation, management and administration, including the costs incurred by EAA for relevant authority tasks. Determined costs shall be the costs determined by the Member State at national level or at the level of functional airspace blocks either at the beginning of the reference period for each calendar year of the reference period referred to in Article 11(5), or during the reference period, following appropriate adjustments applying the alert mechanisms set out in Article 11.

4.   The costs to be taken into account in this context shall be those assessed in relation to the facilities and services provided for and implemented under the ICAO Regional Air Navigation Plan, European Region. They shall also include costs incurred by national supervisory aviation authorities and/or qualified entities, as well as other costs incurred by the relevant Member State and service provider in relation to the provision of air navigation services. They shall not include the costs of penalties imposed by Member States referred to Article 33 nor or the costs of any corrective measures or sanctions referred to in Article 11 (5). [Am. 108]

5.   In respect of the functional airspace blocks and as part of their respective framework agreements, Member States shall make reasonable efforts to agree on common principles for charging policy, with a view to arriving at a single charge, in accordance with their respective performance plans . [Am. 109]

6.   The cost of different air navigation services shall be identified separately, as provided for in Article 21(3).

7.   Cross-subsidy shall not be allowed between en-route services and terminal services. Costs that pertain to both terminal services and en-route services shall be allocated in a proportional way between en-route services and terminal services on the basis of a transparent methodology. Cross-subsidy shall be allowed between different air traffic services in either one of those two categories only when justified for objective reasons, subject to clear identification. Cross-subsidy shall not be allowed between air traffic services and support services.

8.   Transparency of the cost-base for charges shall be guaranteed. Implementing rules for the provision of information by the service providers shall be adopted in order to permit reviews of the provider's forecasts, actual costs and revenues. Information shall be regularly exchanged between the national supervisory authorities, service providers, airspace users, the Commission and Eurocontrol.

9.   Member States shall comply with the following principles when setting charges in accordance with paragraphs 3 to 8:

(a)   charges shall be set for the availability of air navigation services under non-discriminatory conditions when imposing charges on different airspace users for the use of the same service, no distinction shall be made in relation to the nationality or category of the user;

(b)   exemption of certain users, especially light aircraft and State aircraft, may be permitted, provided that the cost of such exemption is not passed on to other users;

(c)   charges shall be set per calendar year on the basis of the determined costs;

(d)   air navigation services may produce sufficient revenues to provide for a reasonable return on assets to contribute towards necessary capital improvements;

(e)   charges shall reflect the cost of air navigation services and facilities made available to airspace users, including costs incurred by EAA for relevant authority tasks, taking into account the relative productive capacities of the different aircraft types concerned;

(f)   charges shall encourage the safe, efficient, effective and sustainable provision of air navigation services with a view to achieving a high level of safety and cost-efficiency and meeting the performance targets and they shall stimulate integrated service provision, whilst reducing the environmental impact of aviation. For the purposes of this point (f) and in relation to the national or functional airspace block local performance plans, the national supervisory authorities aviation authority may set up mechanisms, including incentives consisting of financial advantages and disadvantages, to encourage air navigation service providers and/or airspace users to support improvements in the provision of air navigation services such as increased capacity, reduced delays and sustainable development, while maintaining an optimum safety level. [Am. 110]

10.   The Commission shall adopt measures setting out the details of the procedure to be followed for the application of paragraphs 1 to 9. The Commission may propose financial mechanisms to improve the synchronisation of air-based and ground-based capital expenditure related to the deployment of SESAR technologies. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27 (3). [Am. 111]

Article 14

Review of compliance with Articles 12 and 13

1.   The Commission shall provide for the ongoing review of compliance with the principles and rules referred to in Articles 12 and 13, acting in cooperation with the Member States. The Commission shall endeavour to establish the necessary mechanisms for making use of Eurocontrol expertise and shall share the results of the review with the Member States, Eurocontrol and the airspace users' representatives.

2.   At the request of one or more Member States or on its own initiative, the Commission shall examine specific measures adopted by national authorities in relation to the application of Articles 12 and 13, concerning the determination of costs and charges. Without prejudice to Article 32(1), the Commission shall share the results of the investigation with the Member States, Eurocontrol and the airspace users’ representatives. Within two months of receipt of a request, after having heard the Member State concerned, the Commission shall decide whether Articles 12 and 13 have been complied with and the measure may thus continue to be applied. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 27(2).

Article 14a

Implementation of the ATM Master Plan

Implementation of the ATM Master Plan shall be coordinated by the Commission. The Network Manager, the PRB and the Deployment Manager shall contribute to the implementation of the ATM Master Plan in accordance with the provisions of this Regulation. [Am. 112]

Article 14b

The Commission shall adopt measures establishing the governance of implementation of the ATM Master Plan, including defining and selecting the body responsible at management level (Deployment Manager). Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27(3). [Am. 113]

Article 14c

The Deployment Manager shall recommend to the Commission binding deadlines for deployment and appropriate corrective actions concerning delayed implementation. [Am. 114]

Article 15

Common projects

1.   The implementation of the ATM Master Plan may be supported by common projects. These projects shall support the objectives of this Regulation to improve the performance of the European aviation system in key areas such as capacity, flight and cost efficiency as well as environmental sustainability, within the overriding safety objectives. The common projects shall aim to deploy ATM functionalities in a timely, coordinated and synchronised manner ATM functionalities , with a view to achieve bringing about the essential operational changes identified in the ATM Master Plan, including identification of the most appropriate geographical dimension, performance-driven project architecture and service delivery approach to be applied by the Deployment Manager . Where applicable, the design and execution of common projects shall aim to enable a set of basic interoperable capabilities to exist in all Member States . [Am. 115]

2.   The Commission may adopt measures establishing the governance of common projects and identifying incentives for their deployment. The body governing the deployment of the common projects shall be the same body as that which is in charge of the implementation of the ATM Master Plan baseline. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27(3). These measures shall complement the mechanisms for the deployment of the projects concerning functional airspace blocks as agreed upon by the parties of those blocks. [Am. 116]

3.   The Commission may adopt common projects for network-related functions which are of particular importance for the improvement of the overall performance of air traffic management and air navigation services in Europe identifying ATM functionalities that are mature for deployment, together with the timetable and geographical scope of the deployment. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27(3). The common projects may be considered eligible for Union funding within the multiannual financial framework. To this end, and without prejudice to Member States' competence to decide on the use of their financial resources, the Commission shall carry out an independent cost-benefit analysis and appropriate consultations with Member States and with relevant stakeholders in accordance with Article 28, exploring all appropriate means for financing the deployment thereof. The eligible costs of deployment of common projects shall be recovered in accordance with the principles of transparency and non-discrimination.

3a.   Common projects shall be the means of implementing the operational improvements developed by the SESAR project in a coordinated and timely manner. They shall thus make a decisive contribution to attainment of the Union-wide targets. [Am. 117]

Article 16

Functional airspace blocks

1.   Member States shall take all necessary measures in order to ensure the establishment and implementation of operational functional airspace blocks based on integrated provision of air traffic navigation services with a view to achieving the required capacity and efficiency of the air traffic management network within the Single European Sky and maintaining a high level of safety and contributing to the overall performance of the air transport system and reduced environmental impact. [Am. 118]

2.   The functional airspace blocks shall, wherever possible, be set-up based on co-operative industrial partnerships between air navigation service providers, in particular relating to the provision of support services in accordance with Article 10. The industrial partnerships may support one or more functional airspace block, or part thereof to maximise performance. [Am. 119]

3.   Member States, as well as national aviation authorities and air traffic navigation service providers shall cooperate to the fullest extent possible with each other in order to ensure compliance with this Article. Where relevant, cooperation may also include national aviation authorities and air traffic navigation service providers from third countries taking part in functional airspace blocks. [Am. 120]

4.   Functional airspace blocks shall, in particular:

(a)   be supported by a safety case;

(b)   be designed to seek maximum synergies from industrial partnerships in order to meet and where possible exceed the performance targets set in accordance with Article 11; [Am. 121]

(c)   enable optimum and flexible use of airspace, taking into account air traffic flows; [Am. 122]

(d)   ensure consistency with the European route network established in accordance with Article 17;

(e)   be justified by their overall added value, including optimal use of technical and human resources, on the basis of cost-benefit analyses;

(f)   where applicable, ensure a smooth and flexible transfer of responsibility for air traffic control between air traffic service units;

(g)   ensure compatibility between the different airspace configurations;

(h)   comply with conditions stemming from regional agreements concluded within the ICAO;

(i)   respect regional agreements in existence on the date of entry into force of this Regulation, in particular those involving European third countries;

(ia)   consolidate the procurement of ATM instrastructure and aim at increasing the interoperability of existing equipment; [Am. 123]

(ib)   facilitate consistency with the Union-wide performance targets. [Am. 124]

The requirements of paragraphs 4(c), (d) and (g) shall be met in accordance with the optimisation of airspace design carried out by the Network Manager as specified in Article 17.

5.   The requirements set out in this Article may be met through participation of air navigation service providers in one or more functional airspace block blocks . [Am. not concerning all languages]

6.   An operational functional airspace block that extend across the airspace under the responsibility of more than one Member State shall be established by joint designation between all the Member States,as well as, where appropriate, third countries that have responsibility for any part of the airspace included in the functional airspace block. [Am. 126]

The joint designation by which the functional airspace block is established shall contain the necessary provisions concerning the manner in which the block can be modified and the manner in which a Member State or, where appropriate, a third country, can withdraw from the block, including transitional arrangements.

7.   Member States shall notify the establishment of functional airspace blocks to the Commission. Before notifying the Commission of the establishment of a functional airspace block, the Member State(s) concerned shall provide the Commission, the other Member States and other interested parties with adequate information and give them an opportunity to submit their observations.

8.   Where difficulties arise between two or more Member States with regard to a cross-border functional airspace block that concerns airspace under their responsibility, the Member States concerned may jointly bring the matter to the Single Sky Committee for an opinion. The opinion shall be addressed to the Member States concerned. Without prejudice to paragraph 6, the Member States shall take that opinion into account in order to find a solution.

9.   After having received the notifications by Member States referred to in paragraphs 6 and 7 the Commission shall assess the fulfilment by each functional airspace block of the requirements set out in paragraph 4 and present the results to the Member States for discussion. If the Commission finds that one or more functional airspace blocks do not fulfil the requirements it shall engage in a dialogue with the Member States concerned with the aim of reaching a consensus on the measures necessary to rectify the situation.

10.   The Commission may adopt detailed measures concerning the joint designation of the air traffic service provider(s) referred to in paragraph 6, specifying the modalities for the selection of the service provider(s), the period of designation, supervision arrangements, the availability of services to be provided and liability arrangements. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27(3).

11.   The Commission may adopt measures regarding the information to be provided by the Member State(s) referred to in paragraph 6. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 27(3). The provisions of this paragraph shall be without prejudice to any FAB arrangements existing on the date of entry into force of this Regulation, in so far as those arrangements meet and, where possible, exceed the performance targets set in accordance with Article 11. [Am. 127]

Article 16a

Industrial partnerships

1.   Air navigation service providers may cooperate to set up industrial partnerships, in particular relating to the provision of support services in accordance with Article 10. The industrial partnerships may support one or more functional airspace blocks, or any part thereof, in order to maximise performance.

2.   The Commission and Member States shall make every effort to ensure that any barriers to partnerships between ANSPs are eliminated, taking into account, in particular, liability issues, charging models and interoperability obstacles. [Am. 128]

Article 17

Network management and design

1.   The air traffic management (ATM) network services shall allow optimum and flexible use of airspace and ensure that airspace users can operate preferred trajectories, while allowing maximum access to airspace and air navigation services. These network services shall be aimed at supporting initiatives at national level and at the level of functional airspace blocks and shall be executed in a manner which respects the separation of regulatory and operational tasks. [Am. 129]

2.   In order to achieve the objectives referred to in paragraph 1 and without prejudice to the responsibilities of the Member States with regard to national routes and airspace structures, the Commission shall ensure that the following functions and services are carried out under the responsibility of coordinated by a Network Manager: [Am. 130]

(a)   design of the European route network;

(b)   coordination of scarce resources within aviation frequency bands used by general air traffic, in particular radio frequencies as well as coordination of radar transponder codes;

(c)   central function for air traffic flow management;

(d)   provision of an aeronautical information portal in accordance with Article 23;

(e)   optimisation of airspace design, including airspace sectors and airspace structures in the en-route and terminal areas, in cooperation with the air navigation service providers and functional airspace blocks referred to in Article 16; [Am. 131]

(f)   central function for coordination of aviation crisis.

The functions and services listed in this paragraph shall not involve the adoption of binding measures of a general scope or the exercise of political discretion. They shall take into account proposals established at national level and at the level of functional airspace blocks. They shall be performed in coordination with military authorities in accordance with agreed procedures concerning the flexible use of airspace. [Am. 132]

The Commission may, and in conformity with the implementing rules referred to in paragraph 4, appoint Eurocontrol, or another impartial and competent body, to carry out the tasks of the Network Manager. These tasks shall be executed in an impartial and cost-effective manner and shall be performed on behalf of the Union, Member States and stakeholders. They shall be subject to appropriate governance, which recognises the separate accountabilities for service provision and regulation, taking into consideration the needs of the whole ATM network and with the full involvement of the airspace users and air navigation service providers. By 1 January 2020 2016 , the Commission shall designate the Network Manager as a self-standing service provider where possible set up as an industrial partnership. [Am. 133]

3.   The Commission shall be empowered to adopt delegated acts in accordance with Article 26 to add to the list of the services set out in paragraph 2 in order to adapt it to technical and operational progress with regard to the provision of support services in a centralised manner.

4.   The Commission shall adopt detailed rules concerning:

(a)   the coordination and harmonisation of processes and procedures to enhance the efficiency of aeronautical frequency management including the development of principles and criteria;

(b)   the central function to coordinate the early identification and resolution of frequency needs in the bands allocated to European general air traffic to support the design and operation of European aviation network;

(c)   additional network services as defined in the ATM Master Plan;

(d)   detailed arrangements for cooperative decision-making between the Member States, the air navigation service providers and the network management function for the tasks referred to in paragraph 2;

(e)   detailed arrangements for the governance of the Network Manager involving all operational stakeholders concerned;

(f)   arrangements for consultation of the relevant stakeholders in the decision-making process both at national and European levels; and

(g)   within the radio spectrum allocated to general air traffic by the International Telecommunication Union, a division of tasks and responsibilities between the network management function and national frequency managers, ensuring that the national frequency management services continue to perform those frequency assignments that have no impact on the network. For those cases which do have an impact on the network, the national frequency managers shall cooperate with those responsible for the network management function to optimise the use of frequencies.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27(3).

5.   Aspects of airspace design other than those referred to in paragraphs  paragraph 2 and 4 (c) point (c) of paragraph 4 shall be dealt with at national level or at the level of functional airspace blocks. This design process shall take into account traffic demands and complexity, national or functional airspace block and local performance plans and shall include full consultation of relevant airspace users or relevant groups representing airspace users and military authorities as appropriate. [Am. 134]

Article 18

Relations between service providers

1.   Air navigation service providers may avail themselves of the services of other service providers that have been certified or declared in the Union.

2.   Air navigation service providers shall formalise their working relationships by means of written agreements or equivalent legal arrangements, setting out the specific duties and functions assumed by each provider and allowing for the exchange of operational data between all service providers in so far as general air traffic is concerned. Those arrangements shall be notified to the national supervisory authority concerned.

3.   In cases involving the provision of air traffic services, the approval of the Member States concerned shall be required.

Article 19

Relations with stakeholders

The air navigation service providers shall establish consultation mechanisms to consult the relevant groups of airspace users and aerodrome operators on all major issues related to services provided, and strategic investment plans, especially as regards aspects requiring synchronisation between air and ground equipment deployment or relevant changes to airspace configurations. The airspace users shall also be involved in the process of approving strategic investment plans. The Commission shall adopt measures detailing the modalities of the consultation and of the involvement of airspace users in approving the drafting of strategic investment plans with a view to ensuring their consistency with the ATM Master Plan and common projects as referred to in Article 15 . Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27 (3). [Am. 135]

Without prejudice to the role of the Single Sky Committee, the Commission shall establish a consultative expert group on the human factor, to which European ATM social partners and other experts from professional staff representative bodies shall belong. The role of that group shall be to advise the Commission on the interplay between operations and the human factor in the ATM sector. [Am. 136]

Article 20

Relations with military authorities

Member States shall, within the context of the common transport policy, take the necessary steps to ensure that written agreements between the competent civil and military authorities or equivalent legal arrangements are established or renewed in respect of the management of specific airspace blocks.

Article 21

Transparency of accounts

1.   Air navigation service providers, whatever their system of ownership or legal form, shall draw up, submit to audit and publish their financial accounts. These accounts shall comply with the international accounting standards adopted by the Union. Where, owing to the legal status of the service provider, full compliance with the international accounting standards is not possible, the provider shall endeavour to achieve such compliance to the maximum possible extent.

Member States shall take all necessary measures to ensure that ANSPs comply with this Article by 1 July 2017 . [Am. 137]

2.   In all cases, air navigation service providers shall publish an annual report and regularly undergo an independent audit.

3.   When providing a bundle of services, air navigation service providers shall identify and disclose the costs and income deriving from air navigation services, broken down in accordance with the charging scheme for air navigation services referred to in Article 12 and, where appropriate, shall keep consolidated accounts for other, non-air-navigation services, as they would be required to do if the services in question were provided by separate undertakings.

4.   Member States shall designate the competent authorities that shall have a right of access to the accounts of service providers that provide services within the airspace under their responsibility.

5.   Member States may apply the transitional provisions of Article 9 of Regulation (EC) No 1606/2002 of the European Parliament and of the Council of 19 July 2002 on the application of international accounting standards (20) to air navigation service providers that fall within the scope of that regulation. [Am. 138]

Article 22

Access to and protection of data

1.   In so far as general air traffic is concerned, relevant operational data shall be exchanged in real-time between all air navigation service providers, airspace users and airports, to facilitate their operational needs. The data shall be used only for operational purposes.

2.   Access to relevant operational data shall be granted to appropriate authorities, certified or declared air navigation service providers, airspace users and airports on a non-discriminatory basis.

3.   Certified or declared service providers, airspace users and airports shall establish standard conditions of access to their relevant operational data other than those referred to in paragraph 1. National supervisory authorities shall approve such standard conditions. The Commission may lay down measures concerning the procedures to be followed for data exchange and the type of data concerned in relation to these conditions of access and their approval. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27(3).

CHAPTER IV

AIRSPACE

Article 23

Electronic aeronautical information

1.   Without prejudice to the publication by Member States of aeronautical information and in a manner consistent with that publication, the Commission, working in cooperation with the Network Manager, shall ensure the availability of electronic aeronautical information of high quality, presented in a harmonised way and serving the requirements of all relevant users in terms of data quality and timeliness.

2.   For the purpose of paragraph 1, the Commission shall ensure the development of a Union -wide aeronautical information infrastructure in the form of an electronic integrated briefing portal with unrestricted access to interested stakeholders. That infrastructure shall integrate access to and provision of required data elements such as, but not limited to aeronautical information, air traffic services reporting office (ARO) information, meteorological information and flow management information.

3.   The Commission shall adopt measures for the establishment and implementation of an electronic integrated briefing portal. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27(3).

Article 24

Technological development and interoperability of air traffic management

1.   The Commission shall adopt detailed rules concerning the promotion of the technological development and interoperability of air traffic management related to the development and deployment of the ATM Master Plan. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27(3).

2.   In respect of the rules referred to in paragraph 1, Article 17(2)(b) of Regulation (EC) No 216/2008 shall apply. Where appropriate, the Commission shall request EAA to include these rules in the annual work programme referred to in Article 56 of that Regulation.

CHAPTER V

final provisions

Article 25

Adaptation of the Annexes

The Commission shall be empowered to adopt delegated acts in accordance with Article 26 in order to supplement or amend the requirements for qualified entities listed in Annex I and the conditions to be attached to certificates to be awarded to air navigation service providers listed in Annex II in order to take account of experience gained by national supervisory authorities in applying these requirements and conditions or of the evolution of air traffic management system in terms of interoperability and integrated provision of air navigation services.

Article 26

Exercise of the delegation

1.   The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2.   The delegation of power referred to in Article 11(7), Article 17(3) and Article 25 shall be conferred on the Commission for an indeterminate a period of time seven years .

The Commission shall draw up a report in respect of the delegated power no later than nine months before the end of the seven-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period. [Am. 139]

3.   The delegation of power referred to in Article 11(7), Article 17(3) and Article 25 may be revoked at any time by the European Parliament or by the Council. A decision of revocation shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4.   As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5.   A delegated act adopted pursuant to Article 11(7), Article 17(3) and Article 25shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of 2 months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by 2 months at the initiative of the European Parliament or the Council.

Article 27

Committee procedure

1.   The Commission shall be assisted by the Single Sky Committee, hereinafter referred to as ‘the Committee’ The Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2.   Where reference is made to this paragraph, Article 4 of Regulation (EU) No 182/2011 shall apply.

3.   Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

Article 28

Consultation of stakeholders by the Commission

1.   The Commission shall establish a consultation mechanism at Union level to consult on matters related to the implementation of this Regulation where appropriate. The specific Sectoral Dialogue Committee set up under Commission Decision 98/500/EC shall be involved in the consultation.

2.   The stakeholders may include:

–   air navigation service providers,

–   airport operators,

–   relevant airspace users or relevant groups representing airspace users,

–   military authorities,

–   manufacturing industry, and,

–   professional staff representative bodies.

Article 29

Industry consultation body

Without prejudice to the role of the Committee and of Eurocontrol, the Commission shall establish an ‘industry consultation body’, to which air navigation service providers, associations of airspace users, airport operators, the manufacturing industry and professional staff representative bodies shall belong. The role of this body shall solely be to advise the Commission on the implementation of the Single European Sky.

Article 30

Relations with third countries

The Union and its Member States shall aim at and support the extension of the Single European Sky.to countries which are not members of the European Union. To that end, they shall endeavour, either in the framework of agreements concluded with neighbouring third countries or in the context of joint designations of functional airspace blocks or agreements on network functions, to further the objectives of this Regulation to those countries.

Article 31

Support by outside bodies

The Commission may request support from an outside body for the fulfilment of its tasks under this Regulation.

Article 32

Confidentiality

1.   Neither the national supervisory aviation authorities, acting in accordance with their national legislation, nor the Commission shall disclose information of a confidential nature, in particular information about air navigation service providers ANSPs , their business relations or their cost components. [Am. 140]

2.   Paragraph 1 shall be without prejudice to the right of disclosure by national supervisory aviation authorities or the Commission where this is essential for the fulfilment of their duties, in which case such disclosure shall be proportionate and shall have regard to the legitimate interests of air navigation service providers ANSPs , airspace users, airports or other relevant stakeholders in the protection of their business secrets. [Am. 141]

3.   Information and data provided pursuant to the charging scheme referred to in Article 12 shall be publicly disclosed.

Article 33

Penalties

Member States shall lay down rules on penalties and compensation mechanisms applicable to infringements of this Regulation, in particular by airspace users and service providers, and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. [Am. 142]

Article 34

Review and methods of impact assessment

1.   The Commission shall periodically review the application of this Regulation shall report to the European Parliament and to the Council at the end of each reference period referred to in Article 11(5)(d). When justified for this purpose, the Commission may request from the Member States information relevant to the application of this Regulation.

2.   The reports shall contain an evaluation of the results achieved by the actions taken pursuant to this Regulation including appropriate information about developments in the sector, in particular concerning economic, social, environmental, employment and technological aspects, as well as about quality of service, in the light of the original objectives and with a view to future needs.

Article 35

Safeguards

This Regulation shall not prevent the application of measures by a Member State to the extent that these are needed to safeguard essential security or defence policy interests. Such measures are in particular those which are imperative:

(a)   for the surveillance of airspace that is under its responsibility in accordance with ICAO Regional Air Navigation agreements, including the capability to detect, identify and evaluate all aircraft using such airspace, with a view to seeking to safeguard safety of flights and to take action to ensure security and defence needs;

(b)   in the event of serious internal disturbances affecting the maintenance of law and order;

(c)   in the event of war or serious international tension constituting a threat of war;

(d)   for the fulfilment of a Member State's international obligations in relation to the maintenance of peace and international security;

(e)   in order to conduct military operations and training, including the necessary possibilities for exercises.

Article 36

European Union Agency for Aviation (EAA)

When implementing this Regulation Member States and the Commission, in accordance with their respective roles as provided for by this Regulation, shall coordinate as appropriate with EAA.

Article 37

Repeal

Regulations (EC) Nos 549/2004, 550/2004, 551/2004 and 552/2004 are repealed.

References to the repealed Regulations shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex III.

Article 38

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at …,

For the European Parliament For the Council

The President The President

ANNEX I

REQUIREMENTS FOR QUALIFIED ENTITIES

1.   The qualified entities must:

–   be able to document extensive experience in assessing public and private entities in the air transport sectors, in particular air navigation service providers, and in other similar sectors in one or more of the fields covered by this Regulation,

–   have comprehensive rules and regulations for the periodic survey of the abovementioned entities, published and continually upgraded and improved through research and development programmes,

–   not be controlled by air navigation service providers, by airport management authorities or by others engaged commercially in the provision of air navigation services or in air transport services,

–   be established with significant technical, managerial, support and research staff commensurate with the tasks to be carried out,

–   take out liability insurance unless its liability is assumed by the Member State in accordance with national law, or the Member State itself is directly responsible for the inspections.

The qualified entity, its Director and the staff responsible for carrying out the checks may not be involved, either directly or as authorised representatives, in the design, manufacture, marketing or maintenance of the constituents or systems or in their use. This does not exclude the possibility of an exchange of technical information between the manufacturer or constructor.

The qualified entity must carry out the checks with the greatest possible professional integrity and the greatest possible technical competence and must be free of any pressure and incentive, in particular of a financial type, which could affect its judgment or the results of its inspection, in particular from persons or groups of persons affected by the results of the checks.

2.   The staff of the qualified entity must have:

–   sound technical and vocational training,

–   satisfactory knowledge of the requirements of the inspections they carry out and adequate experience of such operations,

–   the ability required to draw up the declarations, records and reports to demonstrate that the inspections have been carried out,

–   guaranteed impartiality. The staff's remuneration must not depend on the number of inspections carried out or on the results of such inspections.

ANNEX II

CONDITIONS TO BE ATTACHED TO CERTIFICATES

1.   Certificates shall specify:

(a)   the national supervisory aviation authority issuing the certificate; [Am. 143]

(b)   the applicant (name and address);

(c)   the services which are certified;

(d)   a statement of the applicant's conformity with the common requirements, as defined in Article 8b of Regulation (EC) No 216/2008;

(e)   the date of issue and the period of validity of the certificate.

2.   Additional conditions attached to certificates may, as appropriate, be related to:

(a)   non-discriminatory access to services for airspace users and the required level of performance of such services, including safety and interoperability levels;

(b)   the operational specifications for the particular services;

(c)   the time by which the services should be provided;

(d)   the various operating equipment to be used within the particular services;

(e)   ring-fencing or restriction of operations of services other than those related to the provision of air navigation services;

(f)   contracts, agreements or other arrangements between the service provider and a third party and which concern the service(s);

(g)   provision of information reasonably required for the verification of compliance of the services with the common requirements, including plans, financial and operational data, and major changes in the type and/or scope of air navigation services provided;

(h)   any other legal conditions which are not specific to air navigation services, such as conditions relating to the suspension or revocation of the certificate.

ANNEX III

CORRELATION TABLE

Regulation (EC) No 549/2004

Regulation (EC) No 550/2004

Regulation (EC) No 551/2004

Regulation (EC) No 552/2004

This Regulation

Article 1(1) to (3)

Article 1(1) to (3)

Article 1(3)

Article 1(4)

Article 1(4)

Article 1(5)

Article 1

--------------

Article 1(1), (2) and (4)

--------------

Article 1

--------------

Article 2 Nos (1) to (35)

Article 2 Nos (1) to (35)

Article 2 Nos (36) to (38)

Article 2 Nos 17, 18, 23, 24, 32, 35, 36

---------------

Article 3

---------------

Article 4(1) and (2)

Article 3(1) and (2)

Article 3(3) and (4)

Article 4(3)

Article 3(5)

Article 3(6)

Article 3(4) to (5)

Article 3(7) and (8)

Article 3(9)

Article 2(1)

Article 4(1a)

Article 4(1b) to (1g)

Article 2(2)

Article 4(2)

Article 5(1) and (2)

Article 2(3) to (6)

Article 5(3) to (6)

Article 3(1) and (2)

Article 6(1) and (2)

Article 8(1) and (3)

Article 6(3) and (4)

Article 6(5)

Article 8(2) and (4)

-------------

Article 6

----------- -

Article 10(1)

Article 7(1)

Article 7(2)

Article 7(1)

Article 8(1)

Article 8(2)

Article 7(4) and (6)

Article 8(3) and (4)

Article 7(2), (3), (5), (7) to (9)

-------------

Article 8

Article 9

Article 10

Article 9

-------------

Article 11

Article 11

Article 14

Article 12

Article 15

Article 13

Article 16

Article 14

Article 15a

Article 15

Article 9a(1)

Article 16(1) and (3)

Article 16(2)

Article 9a(2) point (i)

------------

Article 9a(2)

Article 16(4)

Article 16(5)

Article 9a(3) to (9)

Article 16(6) to (12)

Article 9b

--------------

Article 6(1) to (2b)

Article 17(1) and (2b)

Article 17(2c) to (2e)

Article 6(3) –(4d)

Article 17(3) to (4d)

Article 17(4e)

Article 6(4e) to (4f)

Article 17(4f) and (4g)

Article 6(5) and (7)

Article 17(5) and (6)

Article 6(8) and (9)

-------------

Article 10

Article 18

Article 19

Article 11

Article 20

Article 12

Article 21

Article 13

Article 22

Article 3

---------------

Article 3a

Article 23

Article 4

---------- ----

Article 7

---------- ----

Article 8

---------- ----

Article 24(1) and (2)

Article 3(3)

---------- ----

Article 2 to 3(2)

-------------

Article 3(4) to 7

-------------

Article 17(1)

Article 25

Article 26

Article 5(1) to (3)

Article 27(1) to (3)

Article 5(4) and (5)

-------------

Article 10(2) and (3)

Article 28(1) and (2)

Article 6

Article 29

Article 7

Article 30

Article 8

Article 31

Article 4

-------------

Article 9

-------------

Article 18

Article 32

Article 9

Article 33

Article 12(2) to (4)

Article 34(1) to (3)

Article 12(1)

-------------

Article 18a

---- --------

Article 10

----- -------

Article 13

Article 35

Article 13a

Article 36

Article 10

-------------

Article 11

Article 37

Article 19(1)

Article 38

Article 19(2)

-------------

Annex I

Annex V

Annex I

Annex I

-----------

Annex II

Annex II

Annex II

----------

Annex III

Annex III

----------

Annex IV

-----------

(1) Not yet published in the Official Journal.
(2) OJ C 77, 28.3.2002, p. 1.
(3)Not yet published in the Official Journal.
(4) Position of the European Parliament of 12 March 2014.
(5)OJ L 96, 31.3.2004, p. 1.
(6)OJ L 96, 31.3.2004, p. 10.
(7)OJ L 96, 31.3.2004, p. 20.
(8)OJ L 96, 31.3.2004, p. 26.
(9)OJ L 96, 31.3.2004, p. 9.
(10)OJ L 225, 12.8.1998, p. 27.
(11)OJ L 95, 9.4.2009, p. 41.
(12)OJ L 79, 19.3.2008, p.1.
(13)OJ L 55, 28.2.2011, p.13.
(14)OJ L 134, 30.4.2004, p.114.
(15)OJ L 134, 30.4.2004, p. 1
(16)OJ C 179, 1.8.2006, p. 2.
(17)OJ L 95, 9.4.2009, p. 41.
(18)OJ L 64, 2.3.2007, p. 1.
(19)Eurocontrol has been set up by the International Convention of 13 December 1960 relating to Cooperation for the Safety of Air Navigation, as modified by the protocol of 12 February 1981 and revised by the protocol of 27 June 1997.
(20)OJ L 243, 11.9.2002, p. 1.


Aerodromes, air traffic management and air navigation services ***I
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Resolution
Consolidated text
European Parliament legislative resolution of 12 March 2014 on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EC) No 216/2008 in the field of aerodromes, air traffic management and air navigation services (COM(2013)0409 – C7-0169/2013 – 2013/0187(COD) ) (Ordinary legislative procedure: first reading)
P7_TA(2014)0221 A7-0098/2014

The European Parliament,

–   having regard to the Commission proposal to Parliament and the Council (COM(2013)0409 ),

–   having regard to Article 294(2) and Article 100(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7‑0169/2013 ),

–   having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–   having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Maltese House of Representatives, asserting that the draft legislative act does not comply with the principle of subsidiarity,

–   having regard to the opinion of the European Economic and Social Committee of 11 December 2013(1) ,

–   after consulting the Committee of the Regions,

–   having regard to Rule 55 of its Rules of Procedure,

–   having regard to the report of the Committee on Transport and Tourism (A7-0098/2014 ),

1.   Adopts its position at first reading hereinafter set out;

2.   Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

3.   Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Position of the European Parliament adopted at first reading on 12 March 2014 with a view to the adoption of Regulation (EU) No .../2014 of the European Parliament and of the Council amending Regulation (EC) No 216/2008 in the field of aerodromes, air traffic management and air navigation services
(Text with EEA relevance)

P7_TC1-COD(2013)0187


THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 100(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national Parliaments,

Having regard to the opinion of the European Economic and Social Committee(2) ,

Having regard to the opinion of the Committee of Regions,

Acting in accordance with the ordinary legislative procedure(3) ,

Whereas:

(1)   In order to take into account the changes introduced in Regulation (EC) No 1108/2009 of the European Parliament and of the Council(4) and in Regulation (EC) No 1070/2009 of the European Parliament and of the Council(5) , it is necessary to align the content of Regulation (EC) No 216/2008 of the European Parliament and of the Council(6) with Regulation (EC) No 549/2004 of the European Parliament and of the Council(7) , Regulation (EC) No 550/2004 of the European Parliament and of the Council(8) , Regulation (EC) No 551/2004 of the European Parliament and of the Council(9) and Regulation (EC) No 552/2004 of the European Parliament and of the Council(10) .

(2)   The development and implementation of the ATM master plan requires regulatory actions in a wide variety of aviation subjects. The Agency should, in supporting the Commission for drafting technical rules, adopt a balanced approach, avoiding conflicts of interest, to regulating different activities based on their specificities, acceptable levels of safety, climate and environmental sustainability, and an identified risk hierarchy of users to ensure a comprehensive and co-ordinated development of aviation. [Am. 1]

(3)   In order to take into account technical, scientific, operational or safety needs, by amending or supplementing the provisions on airworthiness, environmental protection, pilots, air operations, aerodromes, ATM/ANS, air traffic controllers, third-country operators, oversight and enforcement, flexibility provisions, fines and periodic penalty payments and fees and charges, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission. It is of particular importance that the Commission carries out appropriate con