[ParlTrack]

Proposal for a regulation
Recital 34

(34) Consent should not provide a valid legal ground for the processing of personal data, where there is a clear imbalance between the data subject and the controller. This is especially the case where the data subject is in a situation of dependence from the controller, among others, where personal data are processed by the employer of employees'‘ personal data in the employment context, unless the processing is intended to have legally or financially advantageous consequences for the data subject. Where the controller is a public authority, there would be an imbalance only in the specific data processing operations where the public authority can impose an obligation by virtue of its relevant public powers and the consent cannot be deemed as freely given, taking into account the interest of the data subject.

2012/12/18
Committee: EMPL

Martin KASTLER

Proposal for a regulation
Recital 124

(124) The general principles on the protection of individuals with regard to the processing of personal data should also be applicable to the employment context. Therefore, in order to regulate the processing of employees' personal data in the employment context, Member States should be able, within the limits of this Regulation, to adopt by law specific rules for the processing of personal data in the employment sector. whilst safeguarding the level of protection laid down by this Regulation. Where a statutory basis exists in the Member State in question for the regulation of employment matters by agreement between employee representatives and the management of the undertaking or the controlling undertaking of a group of undertakings (collective agreement), it should also be possible to regulate the processing of personal data in an employment context by such an agreement. The same applies to agreements under Directive 2009/38/EC of the European Parliament and of the Council of 6 May 2009 on the establishment of a European Works Council or a procedure in Community- scale undertakings and Community-scale groups of undertakings for the purposes of informing and consulting employees. Key basic rules on the personality rights of employees remain inalienable.

2012/12/18
Committee: EMPL

Martin KASTLER

Proposal for a regulation
Article 7 – paragraph 4 a (new)

4a. Paragraph 4 shall not apply where data processing under Article 82 is carried out in the employment context and is intended to have legally or economically advantageous consequences for the employee.

2012/12/18
Committee: EMPL

Martin KASTLER

Proposal for a regulation
Article 82 – paragraph 1

1. ~~Within the limits of this Regulation,~~ Member States may adopt by lawegal provisions specific rules regulating the processing of employees' personal data in the employment context~~, in particular~~ for the purposes of the recruitment, the performance of the contract of employment, including discharge of obligations laid down by law or by collective agreements, collective agreements, management, planning and organisation of work, health and safety at work, and for the purposes of the exercise and enjoyment, on an individual or collective basis, of rights and benefits related to employment, and for the purpose of the termination of the employment relationship. The level of protection afforded by this Regulation may on no account be undercut, especially in the case of collective agreements. The right of Member States to provide employees with more favourable protection provisions in respect of the processing of personal data in the employment context shall remain unaffected.

2012/12/18
Committee: EMPL

Martin KASTLER

Proposal for a regulation
Article 82 – paragraph 1 a (new)

1a. Notwithstanding the other provisions of this Regulation, the legal provisions of Member States referred to in paragraph 1 shall include at least the following minimum standards: - The processing of employee data without the employees' knowledge shall not be permitted. Notwithstanding sentence 1, Member States may, by law, provide for the admissibility of this practice, by setting appropriate deadlines for the deletion of data, providing there exists a suspicion based on factual indications that must be documented that the employee has committed a crime in the employment context, providing also the collection of data is necessary to clarify the matter and providing finally the nature and extent of this data collection are not disproportionate to the purpose for which it is intended. The privacy and private lives of employees shall be protected at all times. - Optical-electronic and acoustic- electronic monitoring in areas of an undertaking which are not accessible to the public and are used primarily by employees for private activities, especially in bathrooms, changing rooms, rest areas, and bedrooms, shall be prohibited. Optical-electronic and open acoustic- electronic monitoring in parts of an undertaking which are not accessible to the public shall be permitted where it is signalled, where it is necessary for the purposes of the legitimate interests pursued by controllers, and where proper account is taken of data subjects' interests and rights. - Where undertakings collect and process personal data in the context of medical examinations or aptitude tests, they must inform the applicant or employee beforehand of the purpose to which these data are restricted, explain them and provide them with the results of any medical examinations or aptitude tests and explain their significance. Data collection for the purpose of genetic testing and analyses shall be prohibited. The collection and processing of personal data in the context of medical examinations or aptitude tests must be necessary for the conduct of the employment relationship. - The use of telephone, e-mail, internet or other telecommunications services for private purposes may be regulated by collective agreement. Where there is no possibility of regulation by collective agreement, the employer may reach an agreement on this matter directly with the employee. In so far as private use is permitted, the processing of this accumulated traffic data shall be permitted solely to ensure data security, to ensure the proper operation of telecommunications networks and telecommunications services and for billing purposes. Notwithstanding sentence 3, Member States may, by law, provide for the admissibility of this practice, by setting appropriate deadlines for the deletion of data, providing there exists a suspicion based on factual indications that must be documented that the employee has committed a crime in the employment context, providing also the collection of data is necessary to clarify the matter and providing finally the nature and extent of this data collection are not disproportionate to the purpose for which it is intended. The private lives of employees shall be protected at all times.

2012/12/18
Committee: EMPL

Martin KASTLER

Proposal for a regulation
Article 82 – paragraph 1 b (new)

1b. In addition to the provisions of Chapter IV, the data protection officer may not be the subject of discrimination.

2012/12/18
Committee: EMPL

Martin KASTLER

Proposal for a regulation
Article 82 – paragraph 1 c (new)

1c. The transmission of personal employee data between legally independent undertakings within a group of undertakings and with professionals providing legal and tax advice shall be permitted, providing it serves a business interest and is used for the conduct of specific operations or administrative procedures and is not contrary to the interests of the person concerned which are worthy of protection. Transmission shall also be permitted provided that it is necessary for the conduct of the recipient's own tasks and the recipient is subject to professional confidentiality. Salaries may be calculated using the services of a tax adviser and, in the event of labour law-related disputes, personal files may be passed on to a lawyer and medical documents passed on to an assessor. Where employee data are transmitted to a third country or to an international organization, Chapter V shall apply.

2012/12/18
Committee: EMPL

Martin KASTLER

Proposal for a regulation
Article 82 – paragraph 1 d (new)

1d. The employee's consent to the processing of personal data shall not provide a legal basis where there is a significant imbalance between the position of the data subject and the controller, or where this imbalance makes it unlikely that consent has been freely given.

2012/12/18
Committee: EMPL

8 Amendments of Martin KASTLER related to 2012/2011(COD)

ParlTrack - 2011-2024