PERSONAL DATA: Uniform and compulsory rules for the EU member states from May 25th
by Mihaela NITU, Senior Associate, Gruia Dufaut Law Office
As a member State of the European Union, Romania will have to implement, from May 25th, 2018, European Regulation no. 679/2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. This regulation shall repeal former Directive no. 95/46/CE and must provide a uniform regulation for all the EU members and substitute the national laws in this field.
We hereby remind you that the Romanian law in this field is currently represented by Law no. 677/2001 on the protection of personal data, but also by the decisions of the National Authority for the Supervision of Personal Data Processing (“ANSPDCP”).
From the May 25th, 2018, companies from the EU member States will have to comply with the new Regulation and adapt their business strategies, as well as their policies, procedures, logistics and commercial documents. Amongst the novelties:
- All internal procedures must be reassessed, including those regarding the consent of private persons whose personal data will be collected;
- All data processing operations will have to be written down, something which is not done today;
- The introduction of a Data Protection Officer (DPO); the services of the DPO may either be provided by an employee or they may be outsourced;
- The obligation to report any security incident etc.
Hereinafter you will find a brief presentation of the most important changes that will be brought top the current Romanian legislation.
Elimination of the Preliminary Notification to the Authority Regarding Data Processing
The law in force in Romania provides the obligation to notify the ANSPDCP before any processing of personal data. Once the European Regulation will take effect, this obligation of notification will no longer exist. Therefore, the operator will be able to proceed at data processing at any moment, provided that he complies with the applicable legal provisions.
The Legal Basis for Data Processing
From now on, in order to process data, you have to obtain the « consent » of the relevant person. As an exception, it is possible to proceed to data processing without such consent if the operator has a legal obligation to do so under a contract, legitimate interest etc.
The Regulation provides all the legal bases, without stipulating a rule and exceptions, all having the same regime and power. Therefore, companies will be able to process data pursuant to the legal bases hereafter:
- The consent of the relevant person;
- In order to execute a contract;
- If the data operator has a legal obligation to process the aforementioned data;
- If there is a legitimate interest from the operator, unless the fundamental rights and freedom of the relevant person prevail;
- Protection of life and physical integrity;
- Implementing certain measures of public interest.
According to Romanian Law no. 677/2001, consent can be expressed by an action or by inaction.
As per the Regulation, consent is a manifestation of the free will, specific, informed and non-ambiguous of the relevant person, by which he/she accepts, by declaration or unambiguous action, the processing of his/her personal data.
Therefore, the consent must be expressed by an action or a declaration and should concern all activities and the objective of the process. The operator must inform the concerned person of all activities and objectives of the process and must ask for the consent of such person. Moreover, the operator will be compelled to prove the existence of the consent of the person concerned.
The Data Protection Officer (DPO)
Whereas the current Romanian law does not provide such concept, the Regulation expressly provides the companies’ obligation to appoint “data protection officer”. The appointment of a DPO is mandatory if one of the following conditions is complied with:
- The processing is done by a public authority or entity, except for courts of law exercising their jurisdictional function
- The main activities of the operator or of the person authorized by the operator are processing operations which, by their nature, scope of application and/or objectives require a large scale, regular and systematic monitoring of the concerned persons.
- The core activities of the operator or of the person authorized by the operator are the large scale processing of certain special data or personal data concerning criminal charges or offences.
The Data protection Officer can be an employee (member of the staff) of the company or of the person authorized by the operator or he/she may perform his/her tasks pursuant to a service contract.
Likewise, it is possible to appoint only one DPO for a group of companies, provided that such DPO is be easily accessible for each company.
The Data Protection Officer has to fulfil several conditions: have specialized knowledge in the legal field and concerning standard practices applied in the data protection field (the Regulation does not require a specific professional training); be independent (he/she does not receive any instructions on how to perform his/her tasks), but he/she can also cumulate another position within the operator (as long as his/her independence is ensured); cannot be sanctioned or fired in connection with his/her attributions (however, she/he can be sanctioned/fired if he/she fails to comply with such attributions); comply with the obligation of confidentiality/professional secrecy.
The main attributions of the DPO are to inform and provide advice to the operator, as well as to the employees in charge of processing concerning the duties incumbent to them, carry out audits, act as liaison in relation with the authorities/persons concerned.
Records of Processing Operations (inventory)
The Regulation introduces the obligation for the company to keep a record of all data processing operations and submit such records to the ANSPDCP, upon request thereof.
Important: companies with less than 250 employees are not compelled to keep these records, save the following exceptions: the data processing will potentially generate a risk for the rights and freedoms of the concerned persons; the data processing is not occasional; the data processing includes special categories of data or personal data concerning criminal charges and offences.
Evaluation of the Impact of Data Processing
As of the date of entry into force of the Regulation, companies will have to carry out an evaluation of the impact of data processing, if processing operations – especially those using new technologies - are likely to generate a high risk for the rights and freedoms of private individuals.
The evaluation has to be done prior to the data processing operation and has to contain a description of the operations made, the objective/legitimate interest of the operator, the evaluation of the necessity of such processing and its proportionality with its objective, the evaluation of the risks for the rights and freedoms of the concerned persons, as well as the actions taken into account for risk management/mitigation.
Indeed, it will be necessary for each operator to carry out a pre-evaluation of their data processing operations, in order to identify if it would be necessary to carry out an impact evaluation.
Notification of Security Incidents & sanctions
Security incidents in connection with personal data have to be notified to the relevant authority within 72 hours from the moment they were ascertained.
The Regulation provides also a complicated sanctions system, applicable by the relevant authority, that ranges from a simple warning to fines up to 20 million Euros or up to 4% of the company’s annual global turnover.
About GRUIA DUFAUT Law Office
GRUIA DUFAUT is a full-service law firm having two offices in Bucharest and Paris, which cover all business legal areas, with particular emphasis on corporate, M&A, real estate, employment, public procurement transactions, IP and dispute resolution. Present on the Romanian market since 1991, the law office assists investors entering the Romanian market and subsequently in the legal development of their companies on the local market in its areas of expertise. The Law Office also has a team of litigators, who represent and defend clients ‘interests before any national court of ordinary law and in national and international arbitration cases.
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