Dutch Data Protection Authority Confirms That Notifications Are No Longer Required
On 6 November 2017, the Dutch Data Protection Authority (‘”DPA”) issued a statement in which it confirms that controllers subject to Dutch data protection law will – in most cases – no longer need to notify their data processing activities to the DPA. The General Data Protection Regulation (“GDPR”), which becomes applicable on 25 May 2018, abolishes the system of DPA notifications and replaces it with the requirement to keep internal records of data processing operations. Until that date, controllers can still submit notifications if they wish to do so, but in general the DPA will no longer enforce compliance with the notification requirement in the law.
By way of exception, controllers will still be required to notify the DPA in the event of high-risk data processing involving, for instance, ID numbers or personal data relating to criminal convictions. In those cases, the DPA will conduct a preliminary investigation into to the data processing, with a view to establishing whether the processing activity complies with Dutch data protection law. Controllers can only engage in the data processing once they have received the green light from the DPA.
To some extent, this consultation requirement will continue to exist after 25 May 2018. Under the GDPR, controllers will be obliged to carry out a data protection impact assessment (“DPIA”) if the processing potentially involves a high risk for the rights and freedoms of individuals. If the DPIA indicates that the processing would result in a high risk that the controller cannot mitigate, the controller will first have to consult the DPA. The Dutch DPA has indicated that it will issue additional guidance on the need for DPIAs and consultation in the near future.
The Dutch DPA’s position on notification requirements is likely to be followed by DPAs in other EU Member States as 25 May 2018 comes nearer. However, those DPAs will expect that controllers who longer notify their data processing activities already comply with the GDPR’s recordkeeping requirements in advance of 25 May 2018.