Data Privacy & Transfer in Investigations

Last verified on Monday 2nd November 2020

Data Privacy & Transfer in Investigations: Luxembourg

Catherine Di Lorenzo and Thomas Berger

Allen & Overy LLP

All questions

1. What laws and regulations in your jurisdiction regulate the collection and processing of personal data?

Luxembourg

The EU General Data Protection Regulation (2016/679) (the GDPR) is directly applicable in this jurisdiction.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

2. What other laws and regulations may prevent data sharing in the context of an investigation?

Luxembourg

Banking and insurance secrecy

Under the Luxembourg Act dated 5 April 1993 relating to the financial sector, as amended (known as the Banking Law), those subject to the supervision of the Luxembourg Supervisory authority of the financial sector (the Commission de Surveillance du Secteur Financier, or the CSSF) pursuant to the Banking Law are prohibited from disclosing any information entrusted to them in the course of their professional duties to any third parties. This applies to credit institutions and other professionals in the financial sector (also known as PFS) in addition to members of their management, directors and their employees. Banking secrecy also applies to the Luxembourg branches of overseas banks.

All client data is protected by banking secrecy, irrespective of whether the client is an individual, a company, a government body or otherwise.

There are a number of exceptions to banking secrecy. Exceptions to banking secrecy include when:

  • the disclosure is authorised by law, for example, under the Banking Law (as well as any law that predates the Banking Law); or
  • the disclosure is made with the client’s consent or its specific instruction (in a note dated 1 March 2004 issued by the CSSF’s lawyers committee (the CODEJU) (annexed to the CSSF's 2003 annual report), the CODEJU describes the conditions under which a client’s consent to a transfer of his or her client data may result in such transfer without violating banking secrecy as set out in the Banking Law. Please note that this concept has not yet been tested in court. Since 2018, the Banking law expressly provides for the possibility to rely on client’s consent in an outsourcing context subject to certain conditions (see below). 

In particular, information covered by banking secrecy may be disclosed to:

  • shareholders or partners whose status or capacity is a precondition for authorisation of the financial institution in question, insofar as this is necessary for the proper and prudent management of the institution, the risk assessment on a consolidated basis or the calculation of prudential ratios on a consolidated basis;
  • internal control bodies of companies forming part of the same group of companies as the credit institution or PFS may have access to information regarding specific business relations with clients, to the extent that this is needed for the global management of legal risks and risks to their reputation in connection with money laundering or the financing of terrorism (within the meaning of the law of 12 November 2004 on the fight against money laundering and terrorism financing);
  • companies forming part of the same financial conglomerate as the credit institution or PFS for information that these entities may exchange between them insofar as the information is necessary for the exercise of supplementary supervision of a financial conglomerate under the Banking Law;
  • the CSSF, foreign or European regulators responsible for prudential supervision of the financial sector;
  • any person established in Luxembourg, subject to the prudential supervision of the Commission de Surveillance du Secteur Financier (the CSSF), the European Central Bank (the ECB) or the Commissariat aux Assurances (the CAA) and which is bound by a criminally sanctioned professional secrecy obligation, insofar as the information communicated to those professionals is provided under an agreement for the provision of services; or
  • service providers providing services to the credit institution/PFS in the context of an outsourcing arrangement provided that the client has accepted the outsourcing of services, the type of information to be transmitted in the framework of the outsourcing and the country of establishment of the service provider and provided that the service provider having access to confidential information is subject by law to professional secrecy or bound by a confidentiality agreement.

In accordance with articles 7 and following of the Law of 7 December 2015 on the insurance sector, those subject to the prudential supervision of the CAA or a foreign supervisory authority for the exercise of an activity covered by that law, including insurance and reinsurance undertakings and pension funds, are subject to insurance secrecy.The requirements on insurance secrecy largely mimic those on banking secrecy, including their exceptions (mutatis mutandis).

A breach of banking or insurance secrecy is subject to an imprisonment from eight days to six months and a fine of €500 to €5,000 and may lead to administrative sanctions.

The answers to the questions below are subject to the above developments regarding banking and insurance secrecy and an analysis of whether these secrecy requirements may affect each of the responses must be made.

General professional secrecy

Article 458 of the Luxembourg Criminal Code is the general basis for professional secrecy in Luxembourg. It provides that doctors, surgeons, health officers, pharmacists, midwives and all other persons who are custodians, by state or by profession, of the secrets entrusted to them, and who, except in cases where they are called upon to testify in court and where the law obliges them to make these secrets known, have revealed them, shall be punished by imprisonment from eight days to six months and a fine of between €500 and €5,000.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

3. What can constitute personal data for the purposes of data protection laws?

Luxembourg

The GDPR defines “personal data” as any data relating to a living individual who can be identified directly or indirectly from that data, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that living person.

Data that are truly anonymised will not be “personal data" for the purposes of the GDPR, as they do not identify the individual. Data are not truly anonymised if the data could re-identify the individuals to which the data relates by reasonably available means.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

4. Does personal data protection relate only to natural persons or also legal persons?

Luxembourg

Under the GDPR, personal data protection only extends to natural living persons. It does not cover legal persons or deceased natural persons.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

5. To whom do data protection laws apply?

Luxembourg

The direct obligations under the GDPR apply primarily to controllers. A controller is defined in the GDPR as a person who (either alone or jointly with others) determines the purposes for which and the manner in which any personal data are processed. 

However, the GDPR also imposes certain direct obligations on processors. A processor is defined in the GDPR as a person who processes personal data on behalf of the controller.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

6. What acts or operations on personal data are regulated by data protection laws?

Luxembourg

The GDPR applies to "processing", which is defined broadly and includes any activity in relation to personal data (whether or not by automated means). A number of examples are provided in the GDPR, including the collection, use, disclosure and destruction or erasure of personal data.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

7. What are the principal obligations on data controllers to ensure the proper processing of personal data?

Luxembourg

A privacy notice should be provided to the data subject at the time the personal data is obtained (unless an exemption applies). In all circumstances, this must include (as per articles 13 and 14 of the GDPR):

  • the identity and contact details of the controller;  
  • the contact details of the data protection officer, where applicable; 
  • the purposes and legal basis for the processing (including any legitimate interests relied upon where this is the legal basis for processing);  
  • the categories of personal data concerned;  
  • any recipients or categories of recipients of the personal data; and
  • where applicable, the fact that the controller intends to transfer personal data to a third country, the existence (or absence) of an adequacy decision by the European Commission and, if there is no adequacy decision, the safeguards used for the transfer of that personal data (see question 16).

The controller should also inform the data subject of the period for which their personal data will be stored; the existence of the right to request access, rectification or erasure; the right to restrict the processing; the right to object to the processing; the right to data portability; the existence of automated decision-making (including profiling); and the right to lodge a complaint with a supervisory authority.

If the personal data has been obtained directly from the data subject, article 13 of the GDPR will apply and the controller must also inform the data subject whether the provision of personal data is subject to a statutory or contractual requirement and of any potential consequences of failing to provide that personal data. 

It may be the case in an investigations context that personal data has not been obtained directly from the data subject. If this is the case, article 14 of the GDPR will apply and the fair processing information given to data subject must also include the categories of personal data processed, the source of personal data and details of any personal data obtained from directly accessible sources.

The GDPR sets out a number of data protection principles that controllers must comply with. The first principle is that personal data must be processed "lawfully, fairly and in a transparent manner”. This means that data cannot be processed unless there is a legal basis under Article 6 of the GDPR. The following legal bases are available:

  • the data subject has given his or her consent to the processing for one or more specific purposes;  
  • the processing is necessary for the performance of a contract to which the data subject is a party or for the taking of steps at the request of the data subject with a view to entering into a contract;  
  • the processing is necessary for compliance with a legal obligation to which the controller is subject;  
  • the processing is necessary to protect the vital interests of the data subject or another natural person;  
  • the processing is necessary for performing tasks in the public interest or in the exercise of official functions by the controller; or  
  • the processing is necessary for the purposes of legitimate interests pursued by the controller or by a third party, except where the processing is unwarranted by reason of prejudice to the interests and fundamental rights and freedoms of the data subject.

In respect of sensitive data (or “special categories of personal data”), the processing must also comply with one of the stricter legal bases set out in article 9 of the GDPR. Sensitive data is defined as information relating to: racial or ethnic origin; political opinions; religious and philosophical beliefs; trade union membership; genetic data and biometric data for the purpose of uniquely identifying a natural person; data concerning health; and sex life and sexual orientation. In an investigations context, relevant conditions for the processing of sensitive data may include where:

  • the individual has given their explicit consent to the processing for one or more specified purposes;
  • the processing is necessary for the establishment, exercise or defence of legal claims or whenever courts are acting in their judicial capacity; or
  • the processing is necessary for reasons of substantial public interest, on the basis of Union or member state law, where this is proportionate to the relevant aim and safeguards the rights and interests of data subjects.

The processing of data about criminal convictions and offences is dealt with separately to sensitive data, under article 10 of the GDPR. This provides that such data can only be processed where authorised under national law.

Controllers must comply with the following data protection principles:

  • Principle 1: personal data must be processed lawfully, fairly and in a transparent manner in relation to the data subject (“lawfulness, fairness and transparency”, see above for further details on transparency requirements);
  • Principle 2: personal data should be obtained only for specified, explicit and legitimate purposes and should not be further processed in any manner incompatible with those purposes (“purpose limitation”);  
  • Principle 3: personal data should be adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (“data minimisation”);  
  • Principle 4: personal data should be accurate and, where necessary, kept up to date (“accuracy”);  
  • Principle 5: personal data should be kept in a form that permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed (“storage limitation”);  
  • Principle 6: personal data should be processed in a manner that ensures appropriate security of that personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (“integrity and confidentiality”); and
  • The controller must also be able to demonstrate compliance with each of these principles (“accountability”). 

In addition, under Chapter V of the GDPR personal data may not be transferred to a country or territory outside the EEA unless the European Commission has decided that the third country or territory ensures an adequate level of protection or if the controller or processor has provided appropriate safeguards and on condition that enforceable data subject rights and effective legal remedies for data subjects are available.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

DATA EXTRACTION BY THIRD PARTIES FOR DATA COLLECTION PURPOSES

8. Before data extraction by third parties commences, should steps be taken to ascertain whether non-locally generated data was lawfully transferred to, or within, your jurisdiction in the first instance?

Luxembourg

Although there are no specific steps required under the GDPR, it is advisable to check that non-locally generated data was transferred to, or within, the jurisdiction in compliance with relevant data protection laws and regulations. This may include: 

  • ascertaining what data has been transferred to, or within, the jurisdiction and the natural and/or legal persons to which that data relates;  
  • reviewing the privacy notice provided to data subjects;  
  • ascertaining the legal basis for the processing (see question 7); and/or  
  • determining whether a contract or other safeguard applies to the transfer of that data (eg, a data processing agreement, data transfer agreement or binding corporate rules, as appropriate).

In particular, the above may inform whether certain restrictions may apply to further processing of that data.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

9. Are there additional requirements where third parties process the data on behalf of the entity to which data protection laws primarily apply?

Luxembourg

Additional provisions of the GDPR apply where the data are processed by a processor on behalf of the controller. The primary factor considered is control of the data rather than its possession, so the controller must ensure that the third-party processor is complying with the requirements on the security of data set out in the GDPR. A written contract to this effect must be entered into between the processor and controller (article 28 of the GDPR). This contract must include a description of the data processing activities and require the processor, among other things, to:

  • act only on the documented instructions of the controller (including with regard to international transfers of data to a third country);  
  • ensure that persons who process the data have committed to confidentiality or are under a statutory duty of confidentiality;  
  • implement appropriate security measures in accordance with the GDPR;  
  • engage a sub-processor only with the prior authorisation of the controller;  
  • assist the controller in carrying out its obligations to respond to requests by data subjects to exercise their rights under the GDPR; and  
  • assist the controller in ensuring its compliance with its data security obligations.

Where a processor engages a sub-processor, the contract between them must reflect the same data protection obligations as set out in the contract between the controller and the processor.

These provisions of the GDPR apply to processors within the same corporate group in the same way as to other third-party processors.

The GDPR also imposes certain direct obligations on processors. These include an obligation to: (i) maintain a written record of processing activities carried out on behalf of each controller; (ii) designate a data protection officer where required; (iii) appoint a representative (when not established in the EU) in certain circumstances; and (iv) notify the controller without undue delay on becoming aware of a personal data breach.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

10. Is the consent of the data subject mandatory for the processing of personal data as part of an investigation? And how can consent be given by a data subject?

Luxembourg

The consent of the data subject is one legal basis for processing of personal data under the GDPR. Data subject consent is therefore not mandatory for the processing of personal data, but consent must be obtained if no other legal basis exists.

There is no prescribed form for the consent, but it should be freely given, specific, informed and unambiguous. In addition, to the extent relied upon as a basis for international transfers, consent must also be explicit (see question 16). Consent can also be withdrawn at any time and must be as easy to withdraw as to give.

In the case of sensitive data, where consent is relied on to provide a legal basis under article 9 GDPR, it must also be explicit. A controller may therefore wish to obtain consent by means of an additional formality to demonstrate “explicit” consent (eg, a wet ink signature or a tick box that expressly uses the word “consent”).

Consent can be obtained through a website or other electronic means.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

11. If not mandatory, should consent still be considered when planning and carrying out an investigation?

Luxembourg

Consent may be considered as an enabling action when planning an investigation. However, obtaining consent to the processing of personal data can be practically challenging, and proceeding with processing of personal data in reliance solely on this ground is rarely appropriate. One reason is that consent must be capable of being withdrawn at any time (a right that it is not possible to contract out of, which would be difficult to manage in the context of the investigation).

Answer contributed by Catherine Di Lorenzo and Thomas Berger

12. Is it possible for data subjects to give their consent to such processing in advance?

Luxembourg

Whether consent given in advance, such as through general terms and conditions or account opening information, is sufficient for the purposes of the GDPR depends, among other things, on the balance of power between the controller and data subject. Consent is not freely given (and so is invalid) if a data subject has no genuine or free choice or cannot refuse or withdraw consent without detriment, or there is a clear imbalance between the parties. Consent included within an employment contract, or obtained generally by an employer from an employee, is unlikely to be valid for this reason.

Written requests for consent must be clearly distinguishable from other matters, be intelligible, be easily accessible and use clear and plain language. This means that consent should not be hidden among other terms and conditions. In any event, there is a risk that a generic consent provided through general terms and conditions is not specific and informed, and so not validly given by the data subject.

The controller should also consider the requirement for consent to the processing for sensitive data to be explicit (see question 7).

Answer contributed by Catherine Di Lorenzo and Thomas Berger

13. What rights do data subjects have to access or verify their personal data, or to influence or resist the processing of their personal data, as part of an investigation?

Luxembourg

A data subject has a right to request information regarding whether their personal data is being processed, known as a data subject access request (DSAR). The information that can be requested includes a description of the data, the purpose for which it is being processed and to whom it may be disclosed. The controller must also provide a copy of the personal data to the data subject.

A controller is not required to provide personal data in response to a “manifestly unfounded or excessive” request from a data subject (article 12(5) of the GDPR). If relying on this exemption, a controller should retain evidence to demonstrate why it considers the request to be unfounded or excessive. If a controller refuses to act on a request, they must also inform the data subject of the reason why and tell the data subject that they can complain to their relevant supervisory authority and enforce their right through judicial remedy.

Data subjects have the right to request rectification of any personal data relating to them that is inaccurate, and completion of any incomplete data, including by way of a supplementary statement. There is an obligation on a controller under the GDPR to ensure the personal data it keeps is accurate (see question 7).

Data subjects have the right to obtain from the controller the erasure of their personal data without undue delay if one of the specified grounds applies. This includes where the data is no longer necessary in relation to the purposes for which it was collected or otherwise processed, or where the data subject has withdrawn consent (and there is no other legal ground for the processing).

In certain circumstances, such as when a controller is relying upon their legitimate interests (or those of a third party) or the processing is necessary for performing tasks in the public interest or in the exercise of official functions (see question 7), data subjects have a right to object to the processing of personal data concerning them at any time. A controller must adhere to this objection unless it can demonstrate a legitimate basis for the processing that overrides the interests of the data subject, or if the processing is necessary within legal proceedings. A data subject also has a right to obtain a restriction of processing from the controller where it believes the relevant personal data is inaccurate, the processing is unlawful or the controller no longer needs the data for the purposes of the processing. If the latter is the case, the data subject can require the controller to limit the processing to that required in the context of legal proceedings.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

TRANSFER FOR LEGAL REVIEW AND ANALYSIS

14. How are law firms, and legal process outsourcing firms, generally characterised in your jurisdiction?

Luxembourg

Although it is not considered a special category of data under the DP Act, personal data collected by any activity that, carried out using technical means, consists of observing, collecting or recording the personal data of one or more individuals concerning their behaviour, movements, communications or the use of electronic equipment is subject to heightened restrictions. Personal data collected on employees in the course of their employment, such as e-mails, internet usage, log files on systems and documents accessed, access badges and CCTV data, could be considered monitoring data.

Specifically, in the employment context, the processing of such data is subject to additional compliance steps.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

15. Are there any additional requirements, beyond those specified above, that regulate the disclosure of data to third parties within your jurisdiction for the purpose of reviewing the content of documents, etc?

Luxembourg

No.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

16. What rules regulate the transfer of data held in your jurisdiction to a third party in another country for the purpose of reviewing the content of documents, etc?

Luxembourg

The GDPR distinguishes between transfers to other jurisdictions within the EEA and transfers of data to jurisdictions outside the EEA.

Within the EEA

A transfer of personal data from this jurisdiction to a processor or controller in another EEA member state must comply with the same requirements as if the transfer was made within the jurisdiction (see question 7).

Outside the EEA

Personal data subject to the GDPR cannot be transferred to a country or territory outside the EEA unless that third country or territory provides an adequate level of protection for personal data.

The European Commission has determined that certain non-EEA countries and recipients ensure an adequate level of protection for personal data and so a transfer can be made to such countries in compliance with the rules that provide restrictions on transfers outside the EEA. Currently, these countries are Andorra, Argentina, Canada (commercial organisations), Faeroe Islands, Guernsey, Israel, Isle of Man, Japan, Jersey, New Zealand, Switzerland and Uruguay.  

Alternatively, the controller as transferor could ensure an adequate level of protection through:

  • entering into standard contractual clauses approved by the European Commission for both controller-to-processor and controller-to-controller transfers; or  
  • for transfers within the same group, adoption of binding corporate rules.

In a judgment issued on 16 July 2020, the CJEU held that the standard contractual clauses should be viewed as offering only the basic level of protection and they may only be used where the protection provided by the contract is not undermined in the particular circumstances. This means that controllers exporting personal data and looking to rely on standard contractual clauses approved by the European Commission must assess on a case-by-case basis whether additional safeguards are needed to remedy any identified deficiency and ensure adequate data protection. 

The European Commission had issued an adequacy decision for recipients registered under the EU-US Privacy Shield framework in respect of their handling of personal data. However, in the judgment dated 16 July 2020, the CJEU held the European Commission’s adequacy decision to be invalid and so data transfers cannot currently be made to the US on the basis of the EU-US Privacy Shield.

Data can otherwise be transferred if one of the following derogations, among others, applies:

  • the data subject has consented to the transfer (as noted above, this consent should be explicit as well as freely given, specific, informed and unambiguous);  
  • the transfer is necessary for the performance of a contract between the data subject and controller or the implementation of pre-contractual measures taken at the data subject’s request;  
  • the transfer is necessary for the conclusion of a contract between the controller and a person other than the data subject, which is entered into in the data subject’s interests;  
  • the transfer is necessary for important reasons of public interest;  
  • the transfer is necessary for the establishment, exercise or defence of legal claims; or  
  • the transfer is necessary to protect the vital interests of the data subject.

Where none of the above derogations is available, a transfer to a third country may take place if the transfer is not repetitive, concerns only a limited number of data subjects, is necessary for the purposes of compelling legitimate interests of the controller (which are not overridden by the interests or rights and freedoms of the data subject), and the controller has assessed all the circumstances surrounding the transfer and has, on the basis of that assessment, provided suitable safeguards with regard to protection of personal data. This ground for processing may only be relied upon where no other legal basis is available. The controller shall inform the supervisory authority of the transfer and, in addition to providing the information referred to in articles 13 and 14, shall inform the data subject of the transfer and on the compelling legitimate interests pursued. As such, this derogation is unlikely to be of practical application in the context of an investigation. 

Answer contributed by Catherine Di Lorenzo and Thomas Berger

TRANSFER TO REGULATORS OR ENFORCEMENT AUTHORITIES

17. Under what circumstances is the transfer of personal data to regulators or enforcement authorities within your jurisdiction permissible?

Luxembourg

The transfer of personal data to regulators and enforcement authorities within the jurisdiction must comply with the GDPR in the same way as any other processing (see question 7). In particular, a legal basis must be established under article 6 GDPR. 

Answer contributed by Catherine Di Lorenzo and Thomas Berger

18. Under what circumstances is the transfer of personal data held within your jurisdiction to regulators or enforcement authorities in another country permissible?

Luxembourg

The provisions applying to cross-border data transfer generally (see question 16) also apply to the transfer of data to regulators and law enforcement authorities out of the jurisdiction. Any transfer to an overseas regulator would have to comply with the GDPR in the same way as any other processing.

Any disclosure of personal data to an overseas regulator or law enforcement authority would engage the first data protection principle (including the requirement to establish a legal basis under article 6 GDPR) and prohibitions on cross-border transfers of personal data. In particular, the first principle provides that processing of personal data must be fair, lawful and transparent.

Any transfer of personal data to an overseas regulator or law enforcement authority may breach this principle on the basis that this is not a purpose about which the data subjects will have been sufficiently informed. The GDPR sets out exemptions to providing a privacy notice where this is impossible or would involve disproportionate effort on the part of the controller, but these exemptions are interpreted narrowly.

The cross-border transfer of personal data would additionally require safeguards for the relevant transfer and a legal basis for processing. There is no clear exemption or derogation from either the first principle, the requirement for a legal basis for processing, or the prohibition on cross-border transfers that will routinely cover requests for data by a foreign regulator or law enforcement authority.

The transfer may lack a legal basis, depending on the circumstances of the processing. The possible legal bases that a controller may rely on in this context include:

  • the consent of each affected data subject to the disclosure and transfer. However, as noted above, this can be problematic to obtain, can be withdrawn at any time and (in the case of sensitive data) consent must be explicit;
  • that the processing is necessary for the establishment, exercise or defence of legal claims, depending on the circumstances;
  • that the processing is in the legitimate interests of the controller (see question 16 for further details); or
  • that the processing is necessary for the performance of a task carried out in the public interests (see question 7 for further details on the application of this basis to the processing of sensitive data).

The prohibition on cross-border transfers provides that personal data should not be transferred to a country outside the EEA that does not provide an adequate level of protection, unless an exemption applies or safeguards for the personal data are in place. Article 49 of the GDPR provides for derogations to the requirement for an adequacy decision or implementing safeguards in certain circumstances, including where the transfer is necessary for important reasons of public interest or for the establishment, exercise or defence of legal claims.

This article provides that, without prejudice to other grounds for international transfers, a decision from a third-country authority, court or tribunal does not in itself justify the transfer of personal data to a non-EEA country. This is the case unless the transfer is based on an international agreement, such as a mutual legal assistance treaty. The European Data Protection Board guidelines state, in relation to article 48: "In situations where there is an international agreement, such as a mutual legal assistance treaty (MLAT), EU companies should generally refuse direct requests and refer the requesting third country authority to existing MLAT or agreement."

Answer contributed by Catherine Di Lorenzo and Thomas Berger

19. What are some recommended steps to take on receipt of a request from a regulator for disclosure of personal data?

Luxembourg

The recipient of such a request may consider taking the following steps, amongst others:

  • Consider if there is a legal obligation to respond to the request and, if so, to what extent.  
  • Seek further information in writing from the requesting regulator to evaluate the purpose of the request.  
  • If possible, negotiate the scope of the request: for example, to target the specific information required for the purposes of the regulatory investigation.  
  • In accordance with principles of data minimisation and anonymisation, limit the scope of any data disclosed and transferred to that necessary for the purpose.  
  • Consider whether it is practicable to obtain data subject consent and/or give a further privacy notice.
  • Put in place a data processing agreement if data will be transferred to an affiliate or third party (acting as a processor).
  • Consider transfer via an MLAT as, in some cases, it may be possible to request that the requesting court or regulator requests data via an MLAT or other international agreement.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

20. What are the sanctions and penalties for non-compliance with data protection laws?

Luxembourg

There is a tiered approach to penalties for breaches of the GDPR. This permits data protection authorities to impose fines for some infringements of up to the higher of 4 per cent of annual worldwide turnover and €20 million (eg, for breach of requirements relating to cross-border transfers or the principles for processing, such as conditions for consent). Other specified infringements attract a fine of up to the higher of 2 per cent of annual worldwide turnover and €10 million.

The GDPR contains a list of points to consider when imposing fines, such as the nature, gravity and duration of the infringement. 

A data subject who suffers material or non-material damage as a result of a breach of the GDPR by a controller may bring a civil claim for compensation.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

CONTINUING OBLIGATIONS ON ORIGINAL AND INTERVENING DATA CONTROLLERS

21. What are the continuing obligations on the original data controller that apply in an investigation?

Luxembourg

A controller’s obligations under the GDPR are continuing for as long as it remains a controller. As a result, it should ensure compliance with the GDPR, where applicable, at all stages of the investigation.

Practical steps that a controller should follow include:

  • ensuring that any third-party processing data on behalf of the controller signs a data processing agreement and/or data transfer agreement, as applicable;  
  • ensuring that all personal data processed is accurate and, where applicable, that the consent of data subjects remains valid;
  • complying with the restrictions on the transfer of data to third parties set out at question 16 (whether within or outside the EEA), including any transfer to a regulator or law enforcement authority; and
  • maintaining a record of processing and responding to data subject requests.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

22. What are the continuing obligations on any intervening data controller that apply in an investigation?

Luxembourg

The original and intervening controllers should ensure that a written agreement is in place between them and follow the steps to address their continuing obligations set out at question 21.

Answer contributed by Catherine Di Lorenzo and Thomas Berger

RELEVANT MATERIALS

23. Provide a list of relevant materials, including any decisions or guidance of the data protection authority in your jurisdiction regarding internal and external investigations, and transfers to regulators or enforcement authorities within and outside your jurisdiction.

Luxembourg

EU General Data Protection Regulation (2016/679)

https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R0679&from=EN

Answer contributed by Catherine Di Lorenzo and Thomas Berger

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