Article 26*

Article 26 – Prior consultation of the supervisory authority

Commission proposal

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 where:

(a) special categories of data referred to in Article 8 are to be processed;

(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.

2. Member States may provide that the supervisory authority establishes a list of the processing operations which are subject to prior consultation pursuant to paragraph 1.

EDRi’s proposed amendment

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 where:

(a) special categories of data referred to in Article 8 are to be processed;

(aa) measures referred to in Article 9 are taken;

(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.;

(ba) a data protection impact assessment pursuant to Article 29a has been carried out.

2. Member States may provide that the supervisory authority establishes a list of the processing operations which are subject to prior consultation pursuant to paragraph 1.

Justification

This amendment clarifies that profiling measures and all measures which are subject to a data protection impact assessment should be subject to prior consultation.

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