How to Demonstrate Compliance With GDPR Article 23

EU GDPR Version

Restrictions

1. Union or Member State law to which the data controller or processor is subject may restrict by way of a legislative measure the scope of the obligations and rights provided for in Articles 12 to 22 and Article 34, as well as Article 5 in so far as its provisions correspond to the rights and obligations provided for in Articles 12 to 22, when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard:
• national security;
• defence;
• public security;
• the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security;
• other important objectives of general public interest 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 a matters, public health and social security;
• the protection of judicial independence and judicial proceedings;
• the prevention, investigation, detection and prosecution of breaches of ethics for regulated professions;
• a monitoring, inspection or regulatory function connected, even occasionally, to the exercise of official authority in the cases referred to in points (a) to (e) and (g);
• the protection of the data subject or the rights and freedoms of others;
• the enforcement of civil law claims.
2. In particular, any legislative measure referred to in paragraph 1 shall contain specific provisions at least, where relevant, as to:
• the purposes of the processing or categories of processing;
• the categories of personal data;
• the scope of the restrictions introduced;
• the safeguards to prevent abuse or unlawful access or transfer;
• the specification of the controller or categories of controllers;
• the storage periods and the applicable safeguards taking into account the nature, scope and purposes of the processing or categories of processing;
• the risks to the rights and freedoms of data subjects; and
• the right of data subjects to be informed about the restriction, unless that may be prejudicial to the purpose of the restriction.

Technical Commentary

The qualifying reasons for restrictions are outlined in paragraph 1:

• national security, defence and public security;
• the prevention, investigation and/or prosecution of criminal offences;
• economic and financial interests;
• judicial independence;
• ethical breaches;
• exercise of official authority;
• protection of individual rights and freedoms;
• the enforcement of civil law;

Any restrictions placed must also fall in line with the following criteria:

• Essence – A general exclusion of data subjects’ rights with regard to all processing operations would not respect the essence.
• Foreseeability – Restrictions must be specified in law.
• Limited in scope.
• Necessity and proportionality – The enactment of measures need to demonstrate an underlying need for doing so.

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