Regulation (EU) 2019/818 of the European Parliament and of the CouncilShow full title

CHAPTER VII U.K. Data protection

Article 40 U.K. Data controller

1. In relation to the processing of data in the shared BMS, the Member State authorities that are controllers for Eurodac, SIS and ECRIS-TCN respectively, shall be controllers in accordance with point (7) of Article 4 of Regulation (EU) 2016/679 or point (8) of Article 3 of Directive (EU) 2016/680 in relation to the biometric templates obtained from the data referred to in Article 13 of this Regulation that they enter into the underlying systems and shall have responsibility for the processing of the biometric templates in the shared BMS.

2. In relation to the processing of data in the CIR, the Member State authorities that are controllers for Eurodac and ECRIS-TCN respectively, shall be controllers in accordance with point (7) of Article 4 of Regulation (EU) 2016/679 or point (8) of Article 3 of Directive (EU) 2016/680 in relation to data referred to in Article 18 of this Regulation that they enter into the underlying systems and shall have responsibility for the processing of those personal data in the CIR.

3. In relation to the processing of data in the MID:

(a) the European Border and Coast Guard Agency shall be a data controller within the meaning of point (8) of Article 3 of Regulation (EU) 2018/1725 in relation to the processing of personal data by the ETIAS Central Unit;

(b) the Member State authorities adding or modifying the data in the identity confirmation file shall be controllers in accordance with point (7) of Article 4 of Regulation (EU) 2016/679 or point (8) of Article 3 of Directive (EU) 2016/680 and shall have responsibility for the processing of the personal data in the MID.

4. For the purposes of data protection monitoring, including checking the admissibility of a query and the lawfulness of data processing, the data controllers shall have access to the logs referred to in Articles 10, 16, 24 and 36 for self-monitoring as referred to in Article 44.

Article 41 U.K. Data processor

In relation to the processing of personal data in the shared BMS, the CIR and the MID, eu-LISA shall be the data processor within the meaning of point (12)(a) of Article 3 of Regulation (EU) 2018/1725.

Article 42 U.K. Security of processing

1. eu-LISA, the ETIAS Central Unit, Europol and the Member State authorities shall ensure the security of the processing of personal data that takes place pursuant to this Regulation. eu-LISA, the ETIAS Central Unit, Europol and the Member State authorities shall cooperate on security-related tasks.

2. Without prejudice to Article 33 of Regulation (EU) 2018/1725, eu-LISA shall take the necessary measures to ensure the security of the interoperability components and their related communication infrastructure.

3. In particular, eu-LISA shall adopt the necessary measures, including a security plan, a business continuity plan and a disaster recovery plan, in order to:

(a) physically protect data, including by making contingency plans for the protection of critical infrastructure;

(b) deny unauthorised persons access to data-processing equipment and installations;

(c) prevent the unauthorised reading, copying, modification or removal of data media;

(d) prevent the unauthorised input of data and the unauthorised inspection, modification or deletion of recorded personal data;

(e) prevent the unauthorised processing of data and any unauthorised copying, modification or deletion of data;

(f) prevent the use of automated data-processing systems by unauthorised persons using data communication equipment;

(g) ensure that persons authorised to access the interoperability components have access only to the data covered by their access authorisation, by means of individual user identities and confidential access modes only;

(h) ensure that it is possible to verify and establish to which bodies personal data may be transmitted using data communication equipment;

(i) ensure that it is possible to verify and establish what data have been processed in the interoperability components, when, by whom and for what purpose;

(j) prevent the unauthorised reading, copying, modification or deletion of personal data during the transmission of personal data to or from the interoperability components or during the transport of data media, in particular by means of appropriate encryption techniques;

(k) ensure that, in the event of interruption, installed systems can be restored to normal operation;

(l) ensure reliability by making sure that any faults in the functioning of the interoperability components are properly reported;

(m) monitor the effectiveness of the security measures referred to in this paragraph and take the necessary organisational measures related to internal monitoring to ensure compliance with this Regulation and to assess those security measures in the light of new technological developments.

4. Member States, Europol and the ETIAS Central Unit shall take measures equivalent to those referred to in paragraph 3 as regards security in respect of the processing of personal data by the authorities having a right to access any of the interoperability components.

Article 43 U.K. Security incidents

1. Any event that has or may have an impact on the security of the interoperability components and may cause damage to or loss of data stored in them shall be considered to be a security incident, in particular where unauthorised access to data may have occurred or where the availability, integrity and confidentiality of data has or may have been compromised.

2. Security incidents shall be managed so as to ensure a quick, effective and proper response.

3. Without prejudice to the notification and communication of a personal data breach pursuant to Article 33 of Regulation (EU) 2016/679, Article 30 of Directive (EU) 2016/680, or both, Member States shall notify the Commission, eu-LISA, the competent supervisory authorities and the European Data Protection Supervisor of any security incidents without delay.

Without prejudice to Articles 34 and 35 of Regulation (EU) 2018/1725 and Article 34 of Regulation (EU) 2016/794, the ETIAS Central Unit and Europol shall notify the Commission, eu-LISA and the European Data Protection Supervisor of any security incidents without delay.

In the event of a security incident in relation to the central infrastructure of the interoperability components, eu-LISA shall notify the Commission and the European Data Protection Supervisor without delay.

4. Information regarding a security incident that has or may have an impact on the operation of the interoperability components or on the availability, integrity and confidentiality of the data shall be provided to the Member States, the ETIAS Central Unit and Europol without delay and reported in compliance with the incident management plan to be provided by eu-LISA.

5. The Member States concerned, the ETIAS Central Unit, Europol and eu-LISA shall cooperate in the event of a security incident. The Commission shall lay down the specifications of this cooperation procedure by means of implementing acts. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 70(2).

Article 44 U.K. Self-monitoring

Member States and the relevant Union agencies shall ensure that each authority entitled to access the interoperability components takes the measures necessary to monitor its compliance with this Regulation and cooperates, where necessary, with the supervisory authority.

The data controllers referred to in Article 40 shall take the necessary measures to monitor the compliance of data processing pursuant to this Regulation, including through frequent verification of the logs referred to in Articles 10, 16, 24 and 36, and cooperate, where necessary, with the supervisory authorities and with the European Data Protection Supervisor.

Article 45 U.K. Penalties

Member States shall ensure that any misuse of data, processing of data or exchange of data contrary to this Regulation is punishable in accordance with national law. The penalties provided shall be effective, proportionate and dissuasive.

Article 46 U.K. Liability

1. Without prejudice to the right to compensation from, and liability of the controller or processor under Regulation (EU) 2016/679, Directive (EU) 2016/680 and Regulation (EU) 2018/1725:

(a) any person or Member State that has suffered material or non-material damage as a result of an unlawful personal data processing operation or any other act incompatible with this Regulation by a Member State shall be entitled to receive compensation from that Member State;

(b) any person or Member State that has suffered material or non-material damage as a result of any act by Europol, the European Border and Coast Guard Agency or eu-LISA incompatible with this Regulation shall be entitled to receive compensation from the agency in question.

The Member State concerned, Europol, the European Border and Coast Guard Agency or eu-LISA shall be exempted from their liability under the first subparagraph, in whole or in part, if they prove that they are not responsible for the event which gave rise to the damage.

2. If any failure of a Member State to comply with its obligations under this Regulation causes damage to the interoperability components, that Member State shall be liable for such damage, unless and insofar as eu-LISA or another Member State bound by this Regulation failed to take reasonable measures to prevent the damage from occurring or to minimise its impact.

3. Claims for compensation against a Member State for the damage referred to in paragraphs 1 and 2 shall be governed by the national law of the defendant Member State. Claims for compensation against the controller or eu-LISA for the damage referred to in paragraphs 1 and 2 shall be subject to the conditions provided for in the Treaties.

Article 47 U.K. Right to information

1. The authority collecting the personal data to be stored in the shared BMS, the CIR or the MID shall provide the persons whose data are collected with the information required under Articles 13 and 14 of Regulation (EU) 2016/679, Articles 12 and 13 of Directive (EU) 2016/680 and Articles 15 and 16 of Regulation (EU) 2018/1725. The authority shall provide the information at the time that such data are collected.

2. All information shall be made available, using clear and plain language, in a linguistic version the person concerned understands or is reasonably expected to understand. This shall include providing information in a manner which is appropriate to the age of the data subjects who are minors.

3. The rules on the right to information contained in the applicable Union data protection rules shall apply to the personal data recorded in ECRIS-TCN and processed for the purposes of this Regulation.

Article 48 U.K. Right of access to, rectification and erasure of personal data stored in the MID and restriction of processing thereof

1. In order to exercise their rights under Articles 15 to 18 of Regulation (EU) 2016/679, Articles 17 to 20 of Regulation (EU) 2018/1725 and Articles 14, 15 and 16 of Directive (EU) 2016/680, any person shall have the right to address himself or herself to the competent authority of any Member State, which shall examine and reply to the request.

2. The Member State which examines such a request shall reply without undue delay and in any event within 45 days of receipt of the request. That period may be extended by 15 further days where necessary, taking into account the complexity and number of the requests. The Member State which examines the request shall inform the data subject of any such extension within 45 days of receipt of the request, together with the reasons for the delay. Member States may decide that replies are to be given by central offices.

3. If a request for rectification or erasure of personal data is made to a Member State other than the Member State responsible for the manual verification of different identities, the Member State to which the request has been made shall contact the authorities of the Member State responsible for the manual verification of different identities within seven days. The Member State responsible for the manual verification of different identities shall check the accuracy of the data and the lawfulness of the data processing without undue delay and in any event within 30 days of such contact. That period may be extended by 15 further days where necessary, taking into account the complexity and number of the requests. The Member State responsible for the manual verification of different identities shall inform the Member State which contacted it of any such extension together with the reasons for the delay. The person concerned shall be informed by the Member State which contacted the authority of the Member State responsible for the manual verification of different identities about the further procedure.

4. If a request for rectification or erasure of personal data is made to a Member State where the ETIAS Central Unit was responsible for the manual verification of different identities, the Member State to which the request has been made shall contact the ETIAS Central Unit within seven days to ask for its opinion. The ETIAS Central Unit shall give its opinion without undue delay and in any event within 30 days of being contacted. That period may be extended by 15 further days where necessary, taking into account the complexity and number of the requests. The person concerned shall be informed by the Member State which contacted the ETIAS Central Unit about the further procedure.

5. Where, following an examination, it is found that the data stored in the MID are inaccurate or have been recorded unlawfully, the Member State responsible for the manual verification of different identities or, where there was no Member State responsible for the manual verification of different identities or where the ETIAS Central Unit was responsible for the manual verification of different identities, the Member State to which the request has been made shall rectify or erase those data without any undue delay. The person concerned shall be informed in writing that his or her data have been rectified or erased.

6. Where data stored in the MID are amended by a Member State during their retention period, that Member State shall carry out the processing laid down in Article 27 and, where relevant, Article 29 to determine whether the amended data are to be linked. Where the processing does not report any match, that Member State shall erase the data from the identity confirmation file. Where the automated processing reports one or several matches, that Member State shall create or update the relevant link in accordance with the relevant provisions of this Regulation.

7. Where the Member State responsible for the manual verification of different identities or, where applicable, the Member State to which the request has been made does not agree that data stored in the MID are inaccurate or have been recorded unlawfully, that Member State shall adopt an administrative decision explaining in writing to the person concerned without delay why it is not prepared to rectify or erase data relating to him or her.

8. The decision referred to in paragraph 7 shall also provide the person concerned with information explaining the possibility to challenge the decision taken in respect of the request for access to, rectification, erasure or restriction of processing of personal data and, where relevant, information on how to bring an action or a complaint before the competent authorities or courts, and any assistance, including from the supervisory authorities.

9. Any request for access to, rectification, erasure or restriction of processing of personal data shall contain the necessary information to identify the person concerned. That information shall be used exclusively to enable the exercise of the rights referred to in this Article and shall be erased immediately afterwards.

10. The Member State responsible for the manual verification of different identities or, where applicable, the Member State to which the request has been made shall keep a written record that a request for access to, rectification, erasure or restriction of processing of personal data was made and how it was addressed, and shall make that record available to supervisory authorities without delay.

11. This Article is without prejudice to any limitations and restrictions to the rights set out in this Article pursuant to Regulation (EU) 2016/679 and Directive (EU) 2016/680.

Article 49 U.K. Web portal

1. A web portal is established for the purpose of facilitating the exercise of the rights of access to, rectification, erasure or restriction of processing of personal data.

2. The web portal shall contain information on the rights and procedures referred to in Articles 47 and 48 and a user interface enabling persons whose data are processed in the MID and who have been informed of the presence of a red link in accordance with Article 32(4) to receive the contact information of the competent authority of the Member State responsible for the manual verification of different identities.

3. In order to obtain the contact information of the competent authority of the Member State responsible for the manual verification of different identities, the person whose data are processed in the MID should enter the reference to the authority responsible for the manual verification of different identities referred to in Article 34(d). The web portal shall use this reference in order to retrieve the contact information of the competent authority of the Member State responsible for the manual verification of different identities. The web portal shall also include a template e-mail to facilitate communication between the portal user and the competent authority of the Member State responsible for the manual verification of different identities. Such e-mail shall include a field for the single identification number referred to in Article 34(c) in order to allow the competent authority of the Member State responsible for the manual verification of different identities to identify the data concerned.

4. Member States shall provide eu-LISA with the contact details of all authorities that are competent to examine and reply to any request referred to in Articles 47 and 48 and shall regularly review whether those contact details are up to date.

5. eu-LISA shall develop the web portal and ensure its technical management.

6. The Commission shall adopt a delegated act in accordance with Article 69 laying down detailed rules on the operation of the web portal, including the user interface, the languages in which the web portal shall be available and the template e-mail.

Article 50 U.K. Communication of personal data to third countries, international organisations and private parties

Without prejudice to Article 31 of Regulation (EC) No 767/2008, Articles 25 and 26 of Regulation (EU) 2016/794, Article 41 of Regulation (EU) 2017/2226, Article 65 of Regulation (EU) 2018/1240 and the querying of Interpol databases through the ESP in accordance with Article 9(5) of this Regulation which comply with the provisions of Chapter V of Regulation (EU) 2018/1725 and Chapter V of Regulation (EU) 2016/679, personal data stored in, processed or accessed by the interoperability components shall not be transferred or made available to any third country, to any international organisation or to any private party.

Article 51 U.K. Supervision by the supervisory authorities

1. Each Member State shall ensure that the supervisory authorities independently monitor the lawfulness of the processing of personal data under this Regulation by the Member State concerned, including their transmission to and from the interoperability components.

2. Each Member State shall ensure that the national laws, regulations and administrative provisions adopted pursuant to Directive (EU) 2016/680 are also applicable, where relevant, to access to the interoperability components by police authorities and designated authorities, including in relation to the rights of the persons whose data are so accessed.

3. The supervisory authorities shall ensure that an audit of the personal data processing operations by the responsible national authorities for the purposes of this Regulation is carried out in accordance with relevant international auditing standards at least every four years.

The supervisory authorities shall publish annually the number of requests for rectification, erasure or restriction of processing of personal data, the action subsequently taken and the number of rectifications, erasures and restrictions of processing made in response to requests by the persons concerned.

4. Member States shall ensure that their supervisory authorities have sufficient resources and expertise to fulfil the tasks entrusted to them under this Regulation.

5. Member States shall supply any information requested by a supervisory authority referred to in Article 51(1) of Regulation (EU) 2016/679 and shall, in particular, provide it with information on the activities carried out in accordance with their responsibilities under this Regulation. Member States shall grant the supervisory authorities referred to in Article 51(1) of Regulation (EU) 2016/679 access to their logs referred to in Articles 10, 16, 24 and 36 of this Regulation, to the justifications referred to in Article 22(2) of this Regulation and allow them to access all their premises used for interoperability purposes at all times.

Article 52 U.K. Audits by the European Data Protection Supervisor

The European Data Protection Supervisor shall ensure that an audit of personal data processing operations by eu-LISA, the ETIAS Central Unit and Europol for the purposes of this Regulation is carried out in accordance with relevant international auditing standards at least every four years. A report of that audit shall be sent to the European Parliament, to the Council, to eu-LISA, to the Commission, to the Member States and to the Union agency concerned. eu-LISA, the ETIAS Central Unit and Europol shall be given an opportunity to make comments before the reports are adopted.

eu-LISA, the ETIAS Central Unit and Europol shall supply information requested by the European Data Protection Supervisor to it, grant the European Data Protection Supervisor access to all the documents it requests and to their logs referred to in Articles 10, 16, 24 and 36 and allow the European Data Protection Supervisor access to all their premises at any time.

Article 53 U.K. Cooperation between supervisory authorities and the European Data Protection Supervisor

1. The supervisory authorities and the European Data Protection Supervisor shall, each acting within the scope of their respective competences, cooperate actively within the framework of their respective responsibilities and ensure coordinated supervision of the use of the interoperability components and the application of other provisions of this Regulation, in particular if the European Data Protection Supervisor or a supervisory authority finds major discrepancies between practices of Member States or finds potentially unlawful transfers using the communication channels of the interoperability components.

2. In the cases referred to in paragraph 1 of this Article, coordinated supervision shall be ensured in accordance with Article 62 of Regulation (EU) 2018/1725.

3. The European Data Protection Board shall send a joint report of its activities under this Article to the European Parliament, to the Council, to the Commission, to Europol, to the European Border and Coast Guard Agency and to eu-LISA by 12 June 2021 and every two years thereafter. That report shall include a chapter on each Member State prepared by the supervisory authority of the Member State concerned.