On April 4, 2017, the Working Party on the protection of individuals with regard to the processing of personal data (WP29) issued Guidelines on Data Protection Impact Assessment (DPIA) and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679 (GDPR).
Under article no. 35 of GDPR, Data Protection Impact Assessment (DPIA) is a process designed to describe the processing, assess the necessity and proportionality of a processing and to help manage the risks to the rights and freedoms of natural persons resulting from the processing of personal data3 (by assessing them and determining the measures to address them). Under the GDPR, non-compliance with DPIA requirements can lead to fines imposed by the competent supervisory authority. Failure to carry out a DPIA when the processing is subject to a DPIA (Article 35(1) and (3)), carrying out a DPIA in an incorrect way (Article 35(2) and (7) to (9)), or failing to consult the competent supervisory authority where required (Article 36(3)(e)), can each result in an administrative fine of up to 10M€, or in the case of an undertaking, up to 2 % of the total worldwide annual turnover of the preceding financial year, whichever is higher.
However, a DPIA is not mandatory for every processing operation. A DPIA is only required when the processing is “likely to result in a high risk to the rights and freedoms of natural persons” (Article 35(1)).
In order to ensure a consistent interpretation of the circumstances in which a DPIA is mandatory (Article 35(3)), the WP29 adopted the Guideline, mentioned above, which aims at promoting the development of:
- a common European Union list of processing operations for which a DPIA is mandatory (Article 35(4));
- a common EU list of processing operations for which a DPIA is not necessary (Article 35(5));
- common criteria on the methodology for carrying out a DPIA (Article 35(5));
- common criteria for specifying when the supervisory authority shall be consulted (Article 36(1));
- recommendations, where possible building on the experience gained in EU Member States.