GDPR Exemptions

The General Data Protection Regulation will apply to EU-based companies and companies across the world with EU citizens as customers. It has a wide extraterritorial reach and potential fines of up to €20 million or 4% of annual turnover, whichever is greater. The fines will be decided on a case by case basis, taking many factors into consideration.

The GDPR does include derogations and special conditions, similar to the Data Protection Directive. Member States can introduce some derogations, for example for the prevention and detection of crime or for national security. Although the GDPR will be harmonising Data Protection laws across the EU, Member States will have the ability to introduce some supplemental laws for special purposes that will be specific to the country.

The derogations and exemptions are in two main areas regarding restrictions and specific processing situations. Article 23 of the GDPR allows Member States to introduce derogations on topics including national security, public security, the protection of judicial independence and proceedings, and the enforcement of civil law matters. Derogations must respect the right to data protection and be a necessary and proportionate measure.

Articles 85 to 91 contains specific data processing situations and the associated derogations, exemptions and powers to impose additional requirements. The specific data processing situations include:

  • Freedom of expression and information
  • Public access to official documents
  • National identification numbers
  • Employee data
  • Scientific and historical research purposes or statistical purposes
  • Archiving in the public interest
  • Obligations of secrecy
  • Churches and religious associations

The provisions allow Member States to introduce exemptions to the GDPR where necessary, set their own conditions or establish more specific rules. This recognises that some countries already have specific systems in place, such as national identification numbers, that do not need to be overhauled in order to comply with the GDPR. It also allows some flexibility in how the requirements are met. Some of the laws that are introduced by Member States, such as those under Article 88 regarding employee data, must be provided to the Commission before the GDPR comes into force.

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