ARTICLE 29 DATA PROTECTION WORKING PARTY

17/EN
WP 248 rev.01

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

Adopted on 4 April 2017
As last Revised and Adopted on 4 October 2017

This Working Party was set up under Article 29 of Directive 95/46/EC. It is an independent European advisory body on data
protection and privacy. Its tasks are described in Article 30 of Directive 95/46/EC and Article 15 of Directive 2002/58/EC.
The secretariat is provided by Directorate C (Fundamental Rights and Union Citizenship) of the European Commission,
Directorate General Justice, B-1049 Brussels, Belgium, Office No MO-59 03/075.
Website: http://ec.europa.eu/justice/data-protection/index_en.htm

 THE WORKING PARTY ON THE PROTECTION OF INDIVIDUALS WITH REGARD TO THE
PROCESSING OF PERSONAL DATA

set up by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995,

having regard to Articles 29 and 30 thereof,

having regard to its Rules of Procedure,

HAS ADOPTED THE PRESENT GUIDELINES:

2

 Table of content
I.

INTRODUCTION........................................................................................................................................ 4

II.

SCOPE OF THE GUIDELINES ...................................................................................................................... 4

III.

DPIA: THE REGULATION EXPLAINED ......................................................................................................... 6
A.

WHAT DOES A DPIA ADDRESS? A SINGLE PROCESSING OPERATION OR A SET OF SIMILAR PROCESSING OPERATIONS. ....... 7

B.

WHICH PROCESSING OPERATIONS ARE SUBJECT TO A DPIA? APART FROM EXCEPTIONS, WHERE THEY ARE “LIKELY TO

RESULT IN A HIGH RISK”. ............................................................................................................................................ 8

a)

When is a DPIA mandatory? When processing is “likely to result in a high risk”. ................................. 8

b) When isn’t a DPIA required? When the processing is not "likely to result in a high risk", or a similar
DPIA exists, or it has been authorized prior to May 2018, or it has a legal basis, or it is in the list of
processing operations for which a DPIA is not required. .............................................................................. 12
C.

WHAT ABOUT ALREADY EXISTING PROCESSING OPERATIONS? DPIAS ARE REQUIRED IN SOME CIRCUMSTANCES. .......... 13

D.

HOW TO CARRY OUT A DPIA? ..................................................................................................................... 14
a)

At what moment should a DPIA be carried out? Prior to the processing. ........................................... 14

b)

Who is obliged to carry out the DPIA? The controller, with the DPO and processors. ......................... 14

c)

What is the methodology to carry out a DPIA? Different methodologies but common criteria. ......... 15

d) Is there an obligation to publish the DPIA? No, but publishing a summary could foster trust, and the
full DPIA must be communicated to the supervisory authority in case of prior consultation or if requested
by the DPA. ................................................................................................................................................... 18
E.
IV.

WHEN SHALL THE SUPERVISORY AUTHORITY BE CONSULTED? WHEN THE RESIDUAL RISKS ARE HIGH........................... 18
CONCLUSIONS AND RECOMMENDATIONS ............................................................................................. 19

ANNEX 1 – EXAMPLES OF EXISTING EU DPIA FRAMEWORKS .......................................................................... 21
ANNEX 2 – CRITERIA FOR AN ACCEPTABLE DPIA............................................................................................. 22

3

 I.

Introduction

Regulation 2016/6791 (GDPR) will apply from 25 May 2018. Article 35 of the GDPR introduces the
concept of a Data Protection Impact Assessment (DPIA2), as does Directive 2016/6803.
A DPIA is a process designed to describe the processing, assess its necessity and proportionality and
help manage the risks to the rights and freedoms of natural persons resulting from the processing of
personal data4 by assessing them and determining the measures to address them. DPIAs are important
tools for accountability, as they help controllers not only to comply with requirements of the GDPR,
but also to demonstrate that appropriate measures have been taken to ensure compliance with the
Regulation (see also article 24)5. In other words, a DPIA is a process for building and
demonstrating compliance.
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)-(4)), 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 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.
II.

Scope of the Guidelines

1

Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of
natural persons with regard to the processing of personal data and on the free movement of such data, and
repealing Directive 95/46/EC (General Data Protection Regulation).
2
The term “Privacy Impact Assessment” (PIA) is often used in other contexts to refer to the same concept.
3
Article 27 of the Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on
the protection of natural persons with regard to the processing of personal data by competent authorities for the
purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of
criminal penalties, and on the free movement of such data, also states that a privacy impact assessment is needed
for “the processing is likely to result in a high risk to the rights and freedoms of natural persons”.
4
The GDPR does not formally define the concept of a DPIA as such, but
- its minimal content is specified by Article 35(7) as follows:
o “(a) a systematic description of the envisaged processing operations and the purposes of the
processing, including, where applicable, the legitimate interest pursued by the controller;
o (b) an assessment of the necessity and proportionality of the processing operations in relation
to the purposes;
o (c) an assessment of the risks to the rights and freedoms of data subjects referred to in
paragraph 1; and
o (d) the measures envisaged to address the risks, including safeguards, security measures and
mechanisms to ensure the protection of personal data and to demonstrate compliance with this
Regulation taking into account the rights and legitimate interests of data subjects and other
persons concerned”;
- its meaning and role is clarified by recital 84 as follows: “In order to enhance compliance with this
Regulation where processing operations are likely to result in a high risk to the rights and freedoms of
natural persons, the controller should be responsible for the carrying-out of a data protection impact
assessment to evaluate, in particular, the origin, nature, particularity and severity of that risk”.
5
See also recital 84: “The outcome of the assessment should be taken into account when determining the
appropriate measures to be taken in order to demonstrate that the processing of personal data complies with this
Regulation”.

4

 These Guidelines take account of:
- the Article 29 Data Protection Working Party (WP29) Statement 14/EN WP 2186;
- the WP29 Guidelines on Data Protection Officer 16/EN WP 2437;
- the WP29 Opinion on Purpose limitation 13/EN WP 2038;
- international standards9.
In line with the risk-based approach embodied by the GDPR, carrying out 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 present
guidelines firstly aim to clarify this notion and provide criteria for the lists to be adopted by Data
Protection Authorities (DPAs) under Article 35(4).
According to Article 70(1)(e), the European Data Protection Board (EDPB) will be able to issue
guidelines, recommendations and best practices in order to encourage a consistent application of the
GDPR. The purpose of this document is to anticipate such future work of the EDPB and therefore to
clarify the relevant provisions of the GDPR in order to help controllers to comply with the law and to
provide legal certainty for controllers who are required to carry out a DPIA.
These Guidelines also seek to promote 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.

6

WP29 Statement 14/EN WP 218 on the role of a risk-based approach to data protection legal frameworks
adopted on 30 May 2014.
http://ec.europa.eu/justice/data-protection/article-29/documentation/opinionrecommendation/files/2014/wp218_en.pdf?wb48617274=72C54532
7
WP29 Guidelines on Data Protection Officer 16/EN WP 243 Adopted on 13 December 2016.
http://ec.europa.eu/information_society/newsroom/image/document/201651/wp243_en_40855.pdf?wb48617274=CD63BD9A
8
WP29 Opinion 03/2013 on purpose limitation 13/EN WP 203Adopted on 2 April 2013.
http://ec.europa.eu/justice/data-protection/article-29/documentation/opinionrecommendation/files/2013/wp203_en.pdf?wb48617274=39E0E409
9
e.g. ISO 31000:2009, Risk management — Principles and guidelines, International Organization for
Standardization (ISO) ; ISO/IEC 29134 (project), Information technology – Security techniques – Privacy impact
assessment – Guidelines, International Organization for Standardization (ISO).

5

 III.

DPIA: the Regulation explained

The GDPR requires controllers to implement appropriate measures to ensure and be able to
demonstrate compliance with the GDPR, taking into account among others the “the risks of varying
likelihood and severity for the rights and freedoms of natural persons” (article 24 (1)). The obligation
for controllers to conduct a DPIA in certain circumstances should be understood against the
background of their general obligation to appropriately manage risks 10 presented by the processing of
personal data.
A “risk” is a scenario describing an event and its consequences, estimated in terms of severity and
likelihood. “Risk management”, on the other hand, can be defined as the coordinated activities to
direct and control an organization with regard to risk.
Article 35 refers to a likely high risk “to the rights and freedoms of individuals”. As indicated in the
Article 29 Data Protection Working Party Statement on the role of a risk-based approach in data
protection legal frameworks, the reference to “the rights and freedoms” of data subjects primarily
concerns the rights to data protection and privacy but may also involve other fundamental rights such
as freedom of speech, freedom of thought, freedom of movement, prohibition of discrimination, right
to liberty, conscience and religion.
In line with the risk-based approach embodied by the GDPR, carrying out a DPIA is not mandatory for
every processing operation. Instead, a DPIA is only required where a type of processing is “likely to
result in a high risk to the rights and freedoms of natural persons” (Article 35(1)). The mere fact that
the conditions triggering the obligation to carry out DPIA have not been met does not, however,
diminish controllers’ general obligation to implement measures to appropriately manage risks for the
rights and freedoms of data subjects. In practice, this means that controllers must continuously assess
the risks created by their processing activities in order to identify when a type of processing is “likely
to result in a high risk to the rights and freedoms of natural persons”.

10

It has to be stressed that in order to manage the risks to the rights and freedoms of natural persons, the risks
have to identified, analyzed, estimated, evaluated, treated (e.g. mitigated...), and reviewed regularly. Controllers
cannot escape their responsibility by covering risks under insurance policies.

6

 The following figure illustrates the basic principles related to the DPIA in the GDPR:

A.
What does a DPIA address? A single processing operation or a set of similar
processing operations.
A DPIA may concern a single data processing operation. However, Article 35(1) states that “a
single assessment may address a set of similar processing operations that present similar high risks”.
Recital 92 adds that “there are circumstances under which it may be reasonable and economical for
the subject of a data protection impact assessment to be broader than a single project, for example
where public authorities or bodies intend to establish a common application or processing platform or
where several controllers plan to introduce a common application or processing environment across
an industry sector or segment or for a widely used horizontal activity”.
A single DPIA could be used to assess multiple processing operations that are similar in terms of
nature, scope, context, purpose, and risks. Indeed, DPIAs aim at systematically studying new
situations that could lead to high risks on the rights and freedoms of natural persons, and there is no
need to carry out a DPIA in cases (i.e. processing operations performed in a specific context and for a
specific purpose) that have already been studied. This might be the case where similar technology is
used to collect the same sort of data for the same purposes. For example, a group of municipal
authorities that are each setting up a similar CCTV system could carry out a single DPIA covering the
processing by these separate controllers, or a railway operator (single controller) could cover video
surveillance in all its train stations with one DPIA. This may also be applicable to similar processing
operations implemented by various data controllers. In those cases, a reference DPIA should be shared
or made publicly accessible, measures described in the DPIA must be implemented, and a justification
for conducting a single DPIA has to be provided.
When the processing operation involves joint controllers, they need to define their respective
obligations precisely. Their DPIA should set out which party is responsible for the various measures
7

 designed to treat risks and to protect the rights and freedoms of the data subjects. Each data controller
should express his needs and share useful information without either compromising secrets (e.g.:
protection of trade secrets, intellectual property, confidential business information) or disclosing
vulnerabilities.
A DPIA can also be useful for assessing the data protection impact of a technology product, for
example a piece of hardware or software, where this is likely to be used by different data controllers to
carry out different processing operations. Of course, the data controller deploying the product remains
obliged to carry out its own DPIA with regard to the specific implementation, but this can be informed
by a DPIA prepared by the product provider, if appropriate. An example could be the relationship
between manufacturers of smart meters and utility companies. Each product provider or processor
should share useful information without neither compromising secrets nor leading to security risks by
disclosing vulnerabilities.
B.
Which processing operations are subject to a DPIA? Apart from exceptions, where
they are “likely to result in a high risk”.
This section describes when a DPIA is mandatory, and when it is not necessary to carry out a DPIA.
Unless the processing operation meets an exception (III.B.a), a DPIA has to be carried out where
a processing operation is “likely to result in a high risk” (III.B.b).
a) When is a DPIA mandatory? When processing is “likely to result in a high risk”.
The GDPR does not require a DPIA to be carried out for every processing operation which may result
in risks for the rights and freedoms of natural persons. The carrying out of a DPIA is only mandatory
where processing is “likely to result in a high risk to the rights and freedoms of natural persons”
(Article 35(1), illustrated by Article 35(3) and complemented by Article 35(4)). It is particularly
relevant when a new data processing technology is being introduced11.
In cases where it is not clear whether a DPIA is required, the WP29 recommends that a DPIA is
carried out nonetheless as a DPIA is a useful tool to help controllers comply with data protection law.
Even though a DPIA could be required in other circumstances, Article 35(3) provides some examples
when a processing operation is “likely to result in high risks”:
- “(a) a systematic and extensive evaluation of personal aspects relating to natural persons
which is based on automated processing, including profiling, and on which decisions are
based that produce legal effects concerning the natural person or similarly significantly affect
the natural person12;
- (b) processing on a large scale of special categories of data referred to in Article 9(1), or of
personal data relating to criminal convictions and offences referred to in Article 1013; or
- (c) a systematic monitoring of a publicly accessible area on a large scale”.
11

See recitals 89, 91 and Article 35(1) and (3) for further examples.
See recital 71: “in particular analysing or predicting aspects concerning performance at work, economic
situation, health, personal preferences or interests, reliability or behaviour, location or movements, in order to
create or use personal profiles”.
13
See recital 75: “where personal data are processed which reveal racial or ethnic origin, political opinions,
religion or philosophical beliefs, trade union membership, and the processing of genetic data, data concerning
health or data concerning sex life or criminal convictions and offences or related security measures”.
12

8

 As the words “in particular” in the introductory sentence of Article 35(3) GDPR indicate, this is
meant as a non-exhaustive list. There may be “high risk” processing operations that are not captured
by this list, but yet pose similarly high risks. Those processing operations should also be subject to
DPIAs. For this reason, the criteria developed below sometimes go beyond a simple explanation of
what should be understood by the three examples given in Article 35(3) GDPR.
In order to provide a more concrete set of processing operations that require a DPIA due to their
inherent high risk, taking into account the particular elements of Articles 35(1) and 35(3)(a) to (c), the
list to be adopted at the national level under article 35(4) and recitals 71, 75 and 91, and other GDPR
references to “likely to result in a high risk” processing operations14, the following nine criteria should
be considered.
1. Evaluation or scoring, including profiling and predicting, especially from “aspects concerning
the data subject's performance at work, economic situation, health, personal preferences or
interests, reliability or behavior, location or movements” (recitals 71 and 91). Examples of
this could include a financial institution that screens its customers against a credit reference
database or against an anti-money laundering and counter-terrorist financing (AML/CTF) or
fraud database, or a biotechnology company offering genetic tests directly to consumers in
order to assess and predict the disease/health risks, or a company building behavioural or
marketing profiles based on usage or navigation on its website.
2. Automated-decision making with legal or similar significant effect: processing that aims at
taking decisions on data subjects producing “legal effects concerning the natural person” or
which “similarly significantly affects the natural person” (Article 35(3)(a)). For example, the
processing may lead to the exclusion or discrimination against individuals. Processing with
little or no effect on individuals does not match this specific criterion. Further explanations on
these notions will be provided in the upcoming WP29 Guidelines on Profiling.
3. Systematic monitoring: processing used to observe, monitor or control data subjects, including
data collected through networks or “a systematic monitoring of a publicly accessible area”
(Article 35(3)(c))15. This type of monitoring is a criterion because the personal data may be
collected in circumstances where data subjects may not be aware of who is collecting their
data and how they will be used. Additionally, it may be impossible for individuals to avoid
being subject to such processing in public (or publicly accessible) space(s).
4. Sensitive data or data of a highly personal nature: this includes special categories of personal
data as defined in Article 9 (for example information about individuals’ political opinions), as
well as personal data relating to criminal convictions or offences as defined in Article 10. An
example would be a general hospital keeping patients’ medical records or a private
investigator keeping offenders’ details. Beyond these provisions of the GDPR, some
categories of data can be considered as increasing the possible risk to the rights and freedoms
14

See e.g. recitals 75, 76, 92, 116.
The WP29 interprets “systematic” as meaning one or more of the following (see the WP29 Guidelines on Data
Protection Officer 16/EN WP 243):
- occurring according to a system;
- pre-arranged, organised or methodical;
- taking place as part of a general plan for data collection;
- carried out as part of a strategy.
The WP29 interprets “publicly accessible area” as being any place open to any member of the public, for
example a piazza, a shopping centre, a street, a market place, a train station or a public library.
15

9

 5.

6.

7.

8.

16
17

of individuals. These personal data are considered as sensitive (as this term is commonly
understood) because they are linked to household and private activities (such as electronic
communications whose confidentiality should be protected), or because they impact the
exercise of a fundamental right (such as location data whose collection questions the freedom
of movement) or because their violation clearly involves serious impacts in the data subject’s
daily life (such as financial data that might be used for payment fraud). In this regard, whether
the data has already been made publicly available by the data subject or by third parties may
be relevant. The fact that personal data is publicly available may be considered as a factor in
the assessment if the data was expected to be further used for certain purposes. This criterion
may also include data such as personal documents, emails, diaries, notes from e-readers
equipped with note-taking features, and very personal information contained in life-logging
applications.
Data processed on a large scale: the GDPR does not define what constitutes large-scale,
though recital 91 provides some guidance. In any event, the WP29 recommends that the
following factors, in particular, be considered when determining whether the processing is
carried out on a large scale16:
a. the number of data subjects concerned, either as a specific number or as a proportion
of the relevant population;
b. the volume of data and/or the range of different data items being processed;
c. the duration, or permanence, of the data processing activity;
d. the geographical extent of the processing activity.
Matching or combining datasets, for example originating from two or more data processing
operations performed for different purposes and/or by different data controllers in a way that
would exceed the reasonable expectations of the data subject17.
Data concerning vulnerable data subjects (recital 75): the processing of this type of data is a
criterion because of the increased power imbalance between the data subjects and the data
controller, meaning the individuals may be unable to easily consent to, or oppose, the
processing of their data, or exercise their rights. Vulnerable data subjects may include children
(they can be considered as not able to knowingly and thoughtfully oppose or consent to the
processing of their data), employees , more vulnerable segments of the population requiring
special protection (mentally ill persons, asylum seekers, or the elderly, patients, etc.), and in
any case where an imbalance in the relationship between the position of the data subject and
the controller can be identified.
Innovative use or applying new technological or organisational solutions, like combining use
of finger print and face recognition for improved physical access control, etc. The GDPR
makes it clear (Article 35(1) and recitals 89 and 91) that the use of a new technology, defined
in “accordance with the achieved state of technological knowledge” (recital 91), can trigger
the need to carry out a DPIA. This is because the use of such technology can involve novel
forms of data collection and usage, possibly with a high risk to individuals’ rights and
freedoms. Indeed, the personal and social consequences of the deployment of a new
technology may be unknown. A DPIA will help the data controller to understand and to treat
such risks. For example, certain “Internet of Things” applications could have a significant
impact on individuals’ daily lives and privacy; and therefore require a DPIA.

See the WP29 Guidelines on Data Protection Officer 16/EN WP 243.
See explanation in the WP29 Opinion on Purpose limitation 13/EN WP 203, p.24.

10

 9. When the processing in itself “prevents data subjects from exercising a right or using a
service or a contract” (Article 22 and recital 91). This includes processing operations that
aims at allowing, modifying or refusing data subjects’ access to a service or entry into a
contract. An example of this is where a bank screens its customers against a credit reference
database in order to decide whether to offer them a loan.
In most cases, a data controller can consider that a processing meeting two criteria would require a
DPIA to be carried out. In general, the WP29 considers that the more criteria are met by the
processing, the more likely it is to present a high risk to the rights and freedoms of data subjects, and
therefore to require a DPIA, regardless of the measures which the controller envisages to adopt.
However, in some cases, a data controller can consider that a processing meeting only one of
these criteria requires a DPIA.
The following examples illustrate how the criteria should be used to assess whether a particular
processing operation requires a DPIA:

Examples of processing

Possible Relevant criteria
-

A hospital processing its patients’ genetic and
health data (hospital information system).
The use of a camera system to monitor driving
behavior on highways. The controller envisages to
use an intelligent video analysis system to single
out cars and automatically recognize license plates.
A company systematically monitoring its
employees’ activities, including the monitoring of
the employees’ work station, internet activity, etc.
The gathering of public social media data for
generating profiles.

-

An institution creating a national level credit rating
or fraud database.

Systematic monitoring.
Innovative use or applying technological
or organisational solutions.

-

Systematic monitoring.
Data concerning vulnerable data subjects.

-

Evaluation or scoring.
Data processed on a large scale.
Matching or combining of datasets.
Sensitive data or data of a highly personal
nature:
Evaluation or scoring.
Automated decision making with legal or
similar significant effect.
Prevents data subject from exercising a
right or using a service or a contract.
Sensitive data or data of a highly personal
nature:
Sensitive data.
Data concerning vulnerable data subjects.
Prevents data subjects from exercising a
right or using a service or a contract.

-

Storage for archiving purpose of pseudonymised
personal sensitive data concerning vulnerable data
subjects of research projects or clinical trials

Sensitive data or data of a highly personal
nature.
Data concerning vulnerable data subjects.
Data processed on a large-scale.

-

-

-

DPIA
likely to be
required?

Yes

11

 Examples of processing
A processing of “personal data from patients or
clients by an individual physician, other health care
professional or lawyer” (Recital 91).
An online magazine using a mailing list to send a
generic daily digest to its subscribers.
An e-commerce website displaying adverts for
vintage car parts involving limited profiling based
on items viewed or purchased on its own website.

Possible Relevant criteria
-

Sensitive data or data of a highly personal
nature.
Data concerning vulnerable data subjects.

-

Data processed on a large scale.

-

Evaluation or scoring.

DPIA
likely to be
required?

No

Conversely, a processing operation may correspond to the above mentioned cases and still be
considered by the controller not to be “likely to result in a high risk”. In such cases the
controller should justify and document the reasons for not carrying out a DPIA, and
include/record the views of the data protection officer.
In addition, as part of the accountability principle, every data controller “shall maintain a record of
processing activities under its responsibility” including inter alia the purposes of processing, a
description of the categories of data and recipients of the data and “where possible, a general
description of the technical and organisational security measures referred to in Article 32(1)” (Article
30(1)) and must assess whether a high risk is likely, even if they ultimately decide not to carry out a
DPIA.
Note: supervisory authorities are required to establish, make public and communicate a list of the
processing operations that require a DPIA to the European Data Protection Board (EDPB) (Article
35(4))18. The criteria set out above can help supervisory authorities to constitute such a list, with more
specific content added in time if appropriate. For example, the processing of any type of biometric
data or that of children could also be considered as relevant for the development of a list pursuant to
article 35(4).
b) When isn’t a DPIA required? When the processing is not "likely to result in a high
risk", or a similar DPIA exists, or it has been authorized prior to May 2018, or it has a
legal basis, or it is in the list of processing operations for which a DPIA is not
required.
WP29 considers that a DPIA is not required in the following cases:
- where the processing is not "likely to result in a high risk to the rights and freedoms of
natural persons" (Article 35(1));
- when the nature, scope, context and purposes of the processing are very similar to the
processing for which DPIA have been carried out. In such cases, results of DPIA for
similar processing can be used (Article 35(1)19);
18

In that context, “the competent supervisory authority shall apply the consistency mechanism referred to in
Article 63 where such lists involve processing activities which are related to the offering of goods or services to
data subjects or to the monitoring of their behaviour in several Member States, or may substantially affect the
free movement of personal data within the Union” (Article 35(6)).
19
”A single assessment may address a set of similar processing operations that present similar high risks”.

12

 -

-

when the processing operations have been checked by a supervisory authority before May
2018 in specific conditions that have not changed20 (see III.C);
where a processing operation, pursuant to point (c) or (e) of article 6(1), has a legal basis in
EU or Member State law, where the law regulates the specific processing operation and
where a DPIA has already been carried out as part of the establishment of that legal basis
(Article 35(10))21, except if a Member state has stated it to be necessary to carry out a DPIA
prior processing activities;
where the processing is included on the optional list (established by the supervisory
authority) of processing operations for which no DPIA is required (Article 35(5)). Such a
list may contain processing activities that comply with the conditions specified by this
authority, in particular through guidelines, specific decisions or authorizations, compliance
rules, etc. (e.g. in France, authorizations, exemptions, simplified rules, compliance packs…).
In such cases, and subject to re-assessment by the competent supervisory authority, a DPIA is
not required, but only if the processing falls strictly within the scope of the relevant procedure
mentioned in the list and continues to comply fully with all the relevant requirements of the
GDPR.
C.
What about already existing processing operations? DPIAs are required in some
circumstances.

The requirement to carry out a DPIA applies to existing processing operations likely to result in
a high risk to the rights and freedoms of natural persons and for which there has been a change
of the risks, taking into account the nature, scope, context and purposes of the processing.
A DPIA is not needed for processing operations that have been checked by a supervisory authority or
the data protection official, in accordance with Article 20 of Directive 95/46/EC, and that are
performed in a way that has not changed since the prior checking. Indeed, "Commission decisions
adopted and authorisations by supervisory authorities based on Directive 95/46/EC remain in force
until amended, replaced or repealed" (recital 171).
Conversely, this means that any data processing whose conditions of implementation (scope, purpose,
personal data collected, identity of the data controllers or recipients, data retention period, technical
and organisational measures, etc.) have changed since the prior checking performed by the supervisory
authority or the data protection official and which are likely to result in a high risk should be subject to
a DPIA.
Moreover, a DPIA could be required after a change of the risks resulting from the processing
operations22, for example because a new technology has come into use or because personal data is
20

"Commission decisions adopted and authorisations by supervisory authorities based on Directive 95/46/EC
remain in force until amended, replaced or repealed" (recital 171).
21
When a DPIA is carried out at the stage of the elaboration of the legislation providing a legal basis for a
processing, it is likely to require a review before entry into operations, as the adopted legislation may differ from
the proposal in ways that affect privacy and data protection issues. Moreover, there may not be sufficient
technical details available regarding the actual processing at the time of adoption of the legislation, even if it was
accompanied by a DPIA. In such cases, it may still be necessary to carry out a specific DPIA prior to carrying
out the actual processing activities.
22
In terms of the context, the data collected, purposes, functionalities, personal data processed, recipients, data
combinations, risks (supporting assets, risk sources, potential impacts, threats, etc.), security measures and
international transfers.

13

 being used for a different purpose. Data processing operations can evolve quickly and new
vulnerabilities can arise. Therefore, it should be noted that the revision of a DPIA is not only useful for
continuous improvement, but also critical to maintain the level of data protection in a changing
environment over time. A DPIA may also become necessary because the organisational or societal
context for the processing activity has changed, for example because the effects of certain automated
decisions have become more significant, or new categories of data subjects become vulnerable to
discrimination. Each of these examples could be an element that leads to a change of the risk resulting
from processing activity concerned.
Conversely, certain changes could lower the risk as well. For example, a processing operation could
evolve so that decisions are no longer automated or if a monitoring activity is no longer systematic. In
that case, the review of the risk analysis made can show that the performance of a DPIA is no longer
required.
As a matter of good practice, a DPIA should be continuously reviewed and regularly re-assessed.
Therefore, even if a DPIA is not required on 25 May 2018, it will be necessary, at the appropriate
time, for the controller to conduct such a DPIA as part of its general accountability obligations.
D.

How to carry out a DPIA?
a) At what moment should a DPIA be carried out? Prior to the processing.

The DPIA should be carried out “prior to the processing” (Articles 35(1) and 35(10), recitals 90
and 93)23. This is consistent with data protection by design and by default principles (Article 25
and recital 78). The DPIA should be seen as a tool for helping decision-making concerning the
processing.
The DPIA should be started as early as is practicable in the design of the processing operation even if
some of the processing operations are still unknown. Updating the DPIA throughout the lifecycle
project will ensure that data protection and privacy are considered and will encourage the creation of
solutions which promote compliance. It can also be necessary to repeat individual steps of the
assessment as the development process progresses because the selection of certain technical or
organizational measures may affect the severity or likelihood of the risks posed by the processing.
The fact that the DPIA may need to be updated once the processing has actually started is not a valid
reason for postponing or not carrying out a DPIA. The DPIA is an on-going process, especially where
a processing operation is dynamic and subject to ongoing change. Carrying out a DPIA is a
continual process, not a one-time exercise.
b) Who is obliged to carry out the DPIA? The controller, with the DPO and processors.
The controller is responsible for ensuring that the DPIA is carried out (Article 35(2)). Carrying
out the DPIA may be done by someone else, inside or outside the organization, but the controller
remains ultimately accountable for that task.

23

Except when it is an already existing processing that has been prior checked by the Supervisory Authority, in
which case the DPIA should be carried out before undergoing significant changes.

14

 The controller must also seek the advice of the Data Protection Officer (DPO), where designated
(Article 35(2)) and this advice, and the decisions taken by the controller, should be documented within
the DPIA. The DPO should also monitor the performance of the DPIA (Article 39(1)(c)). Further
guidance is provided in the WP29 Guidelines on Data Protection Officer 16/EN WP 243.
If the processing is wholly or partly performed by a data processor, the processor should assist the
controller in carrying out the DPIA and provide any necessary information (in line with Article
28(3)(f)).
The controller must “seek the views of data subjects or their representatives” (Article 35(9)),
“where appropriate”. The WP29 considers that:
- those views could be sought through a variety of means, depending on the context (e.g. a
generic study related to the purpose and means of the processing operation, a question to the
staff representatives, or usual surveys sent to the data controller’s future customers) ensuring
that the controller has a lawful basis for processing any personal data involved in seeking such
views. Although it should be noted that consent to processing is obviously not a way for
seeking the views of the data subjects;
- if the data controller’s final decision differs from the views of the data subjects, its reasons for
going ahead or not should be documented;
- the controller should also document its justification for not seeking the views of data subjects,
if it decides that this is not appropriate, for example if doing so would compromise the
confidentiality of companies’ business plans, or would be disproportionate or impracticable.
Finally, it is good practice to define and document other specific roles and responsibilities, depending
on internal policy, processes and rules, e.g.:
- where specific business units may propose to carry out a DPIA, those units should then
provide input to the DPIA and should be involved in the DPIA validation process;
- where appropriate, it is recommended to seek the advice from independent experts of different
professions24 (lawyers, IT experts, security experts, sociologists, ethics, etc.).
- the roles and responsibilities of the processors must be contractually defined; and the DPIA
must be carried out with the processor’s help, taking into account the nature of the processing
and the information available to the processor (Article 28(3)(f));
- the Chief Information Security Officer (CISO), if appointed, as well as the DPO, could
suggest that the controller carries out a DPIA on a specific processing operation, and should
help the stakeholders on the methodology, help to evaluate the quality of the risk assessment
and whether the residual risk is acceptable, and to develop knowledge specific to the data
controller context;
- the Chief Information Security Officer (CISO), if appointed, and/or the IT department, should
provide assistance to the controller, and could propose to carry out a DPIA on a specific
processing operation, depending on security or operational needs.
c) What is the methodology to carry out a DPIA? Different methodologies but common
criteria.

24

Recommendations for a privacy impact assessment framework for the European Union, Deliverable D3:
http://www.piafproject.eu/ref/PIAF_D3_final.pdf.

15

 The GDPR sets out the minimum features of a DPIA (Article 35(7), and recitals 84 and 90):
- “a description of the envisaged processing operations and the purposes of the processing”;
- “an assessment of the necessity and proportionality of the processing”;
- “an assessment of the risks to the rights and freedoms of data subjects”;
- “the measures envisaged to:
o “address the risks”;
o “demonstrate compliance with this Regulation”.
The following figure illustrates the generic iterative process for carrying out a DPIA 25:

Compliance with a code of conduct (Article 40) has to be taken into account (Article 35(8)) when
assessing the impact of a data processing operation. This can be useful to demonstrate that adequate
measures have been chosen or put in place, provided that the code of conduct is appropriate to the
processing operation. Certifications, seals and marks for the purpose of demonstrating compliance
with the GDPR of processing operations by controllers and processors (Article 42), as well as Binding
Corporate Rules (BCR), should be taken into account as well.
25

It should be underlined that the process depicted here is iterative: in practice, it is likely that each of the stages
is revisited multiple times before the DPIA can be completed.

16

 All the relevant requirements set out in the GDPR provide a broad, generic framework for designing
and carrying out a DPIA. The practical implementation of a DPIA will depend on the requirements set
out in the GDPR which may be supplemented with more detailed practical guidance. The DPIA
implementation is therefore scalable. This means that even a small data controller can design and
implement a DPIA that is suitable for their processing operations.
Recital 90 of the GDPR outlines a number of components of the DPIA which overlap with welldefined components of risk management (e.g. ISO 3100026). In risk management terms, a DPIA aims
at “managing risks” to the rights and freedoms of natural persons, using the following processes, by:
- establishing the context: “taking into account the nature, scope, context and purposes of the
processing and the sources of the risk”;
- assessing the risks: “assess the particular likelihood and severity of the high risk”;
- treating the risks: “mitigating that risk” and “ensuring the protection of personal data”, and
“demonstrating compliance with this Regulation”.
Note: the DPIA under the GDPR is a tool for managing risks to the rights of the data subjects, and thus
takes their perspective, as is the case in certain fields (e.g. societal security). Conversely, risk
management in other fields (e.g. information security) is focused on the organization.
The GDPR provides data controllers with flexibility to determine the precise structure and form of the
DPIA in order to allow for this to fit with existing working practices. There are a number of different
established processes within the EU and worldwide which take account of the components described
in recital 90. However, whatever its form, a DPIA must be a genuine assessment of risks, allowing
controllers to take measures to address them.
Different methodologies (see Annex 1 for examples of data protection and privacy impact assessment
methodologies) could be used to assist in the implementation of the basic requirements set out in the
GDPR. In order to allow these different approaches to exist, whilst allowing controllers to comply
with the GDPR, common criteria have been identified (see Annex 2). They clarify the basic
requirements of the Regulation, but provide enough scope for different forms of implementation.
These criteria can be used to show that a particular DPIA methodology meets the standards required
by the GDPR. It is up to the data controller to choose a methodology, but this methodology
should be compliant with the criteria provided in Annex 2.
The WP29 encourages the development of sector-specific DPIA frameworks. This is because they can
draw on specific sectorial knowledge, meaning the DPIA can address the specifics of a particular type
of processing operation (e.g.: particular types of data, corporate assets, potential impacts, threats,
measures). This means the DPIA can address the issues that arise in a particular economic sector, or
when using particular technologies or carrying out particular types of processing operation.
Finally, where necessary, “the controller shall carry out a review to assess if processing is performed
in accordance with the data protection impact assessment at least when there is a change of the risk
represented by processing operation” (Article 35(11)27).
26

Risk management processes: communication and consultation, establishing the context, risk assessment, risk
treatment, monitoring and review (see terms and definitions, and table of content, in the ISO 31000 preview:
https://www.iso.org/obp/ui/#iso:std:iso:31000:ed-1:v1:en).
27
Article 35(10) explicitly excludes only the application of article 35 paragraphs 1 to 7.

17

 d) Is there an obligation to publish the DPIA? No, but publishing a summary could foster
trust, and the full DPIA must be communicated to the supervisory authority in case of
prior consultation or if requested by the DPA.
Publishing a DPIA is not a legal requirement of the GDPR, it is the controller´s decision to do so.
However, controllers should consider publishing at least parts, such as a summary or a
conclusion of their DPIA.
The purpose of such a process would be to help foster trust in the controller’s processing operations,
and demonstrate accountability and transparency. It is particularly good practice to publish a DPIA
where members of the public are affected by the processing operation. This could particularly be the
case where a public authority carries out a DPIA.
The published DPIA does not need to contain the whole assessment, especially when the DPIA could
present specific information concerning security risks for the data controller or give away trade secrets
or commercially sensitive information. In these circumstances, the published version could consist of
just a summary of the DPIA’s main findings, or even just a statement that a DPIA has been carried
out.
Moreover, where a DPIA reveals high residual risks, the data controller will be required to seek prior
consultation for the processing from the supervisory authority (Article 36(1)). As part of this, the
DPIA must be fully provided (Article 36(3)(e)). The supervisory authority may provide its advice28,
and will not compromise trade secrets or reveal security vulnerabilities, subject to the principles
applicable in each Member State on public access to official documents.
E.

When shall the supervisory authority be consulted? When the residual risks are high.

As explained above:
- a DPIA is required when a processing operation “is likely to result in a high risk to the rights
and freedoms of natural person” (Article 35(1), see III.B.a). As an example, the processing of
health data on a large scale is considered as likely to result in a high risk, and requires a DPIA;
- then, it is the responsibility of the data controller to assess the risks to the rights and freedoms
of data subjects and to identify the measures29 envisaged to reduce those risks to an acceptable
level and to demonstrate compliance with the GDPR (Article 35(7), see III.C.c). An example
could be for the storage of personal data on laptop computers the use of appropriate technical
and organisational security measures (effective full disk encryption, robust key management,
appropriate access control, secured backups, etc.) in addition to existing policies (notice,
consent, right of access, right to object, etc.).
In the laptop example above, if the risks have been considered as sufficiently reduced by the data
controller and following the reading of Article 36(1) and recitals 84 and 94, the processing can
proceed without consultation with the supervisory authority. It is in cases where the identified risks
cannot be sufficiently addressed by the data controller (i.e. the residual risks remains high) that the
data controller must consult the supervisory authority.
28

Written advice to the controller is only necessary when the supervisory authority is of the opinion that the
intended processing is not in line with the regulation as per Article 36(2).
29
Including taking account of existing guidance from EDPB and supervisory authorities and taking account of
the state of the art and the costs of implementation as prescribed by Article 35(1).

18

 An example of an unacceptable high residual risk includes instances where the data subjects may
encounter significant, or even irreversible, consequences, which they may not overcome (e.g.: an
illegitimate access to data leading to a threat on the life of the data subjects, a layoff, a financial
jeopardy) and/or when it seems obvious that the risk will occur (e.g.: by not being able to reduce the
number of people accessing the data because of its sharing, use or distribution modes, or when a wellknown vulnerability is not patched).
Whenever the data controller cannot find sufficient measures to reduce the risks to an
acceptable level (i.e. the residual risks are still high), consultation with the supervisory authority
is required30.
Moreover, the controller will have to consult the supervisory authority whenever Member State law
requires controllers to consult with, and/or obtain prior authorisation from, the supervisory authority in
relation to processing by a controller for the performance of a task carried out by the controller in the
public interest, including processing in relation to social protection and public health (Article 36(5)).
It should however be stated that regardless of whether or not consultation with the supervisory is
required based on the level of residual risk then the obligations of retaining a record of the DPIA and
updating the DPIA in due course remain.
IV.

Conclusions and recommendations

DPIAs are a useful way for data controllers to implement data processing systems that comply with
the GDPR and can be mandatory for some types of processing operations. They are scalable and can
take different forms, but the GDPR sets out the basic requirements of an effective DPIA. Data
controllers should see the carrying out of a DPIA as a useful and positive activity that aids legal
compliance.
Article 24(1) sets out the basic responsibility of the controller in terms of complying with the GDPR:
“taking into account the nature, scope, context and purposes of processing as well as the risks of
varying likelihood and severity for the rights and freedoms of natural persons, the controller shall
implement appropriate technical and organisational measures to ensure and to be able to demonstrate
that processing is performed in accordance with this Regulation. Those measures shall be reviewed
and updated where necessary”.
The DPIA is a key part of complying with the Regulation where high risk data processing is planned
or is taking place. This means that data controllers should use the criteria set out in this document to
determine whether or not a DPIA has to be carried out. Internal data controller policy could extend this
list beyond the GDPR’s legal requirements. This should result in greater trust and confidence of data
subjects and other data controllers.
Where a likely high risk processing is planned, the data controller must:
- choose a DPIA methodology (examples given in Annex 1) that satisfies the criteria in Annex
2, or specify and implement a systematic DPIA process that:
30

Note: “pseudonymization and encryption of personal data” (as well as data minimization, oversight
mechanisms, etc.) are not necessarily appropriate measures. They are only examples. Appropriate measures
depend on the context and the risks, specific to the processing operations.

19

 o
o

-

is compliant with the criteria in Annex 2;
is integrated into existing design, development, change, risk and operational review
processes in accordance with internal processes, context and culture;
o involves the appropriate interested parties and clearly define their responsibilities
(controller, DPO, data subjects or their representatives, business, technical services,
processors, information security officer, etc.);
provide the DPIA report to the competent supervisory authority when required to do so;
consult the supervisory authority when they have failed to determine sufficient measures to
mitigate the high risks;
periodically review the DPIA and the processing it assesses, at least when there is a change of
the risk posed by processing the operation;
document the decisions taken.

20

 Annex 1 – Examples of existing EU DPIA frameworks
The GDPR does not specify which DPIA process must be followed but instead allows for data
controllers to introduce a framework which complements their existing working practices provided it
takes account of the components described in Article 35(7). Such a framework can be bespoke to the
data controller or common across a particular industry. Previously published frameworks developed
by EU DPAs and EU sector-specific frameworks include (but are not limited to):
Examples of EU generic frameworks:
- DE: Standard Data Protection Model, V.1.0 – Trial version, 201631.
https://www.datenschutzzentrum.de/uploads/SDM-Methodology_V1_EN1.pdf
- ES: Guía para una Evaluación de Impacto en la Protección de Datos Personales (EIPD),
Agencia española de protección de datos (AGPD), 2014.
https://www.agpd.es/portalwebAGPD/canaldocumentacion/publicaciones/common/Guias/Gui
a_EIPD.pdf
- FR: Privacy Impact Assessment (PIA), Commission nationale de l’informatique et des libertés
(CNIL), 2015.
https://www.cnil.fr/fr/node/15798
- UK: Conducting privacy impact assessments code of practice, Information Commissioner’s
Office (ICO), 2014.
https://ico.org.uk/media/for-organisations/documents/1595/pia-code-of-practice.pdf
Examples of EU sector-specific frameworks:
- Privacy and Data Protection Impact Assessment Framework for RFID Applications32.
http://ec.europa.eu/justice/data-protection/article-29/documentation/opinionrecommendation/files/2011/wp180_annex_en.pdf
- Data Protection Impact Assessment Template for Smart Grid and Smart Metering systems33
http://ec.europa.eu/energy/sites/ener/files/documents/2014_dpia_smart_grids_forces.pdf
An international standard will also provide guidelines for methodologies used for carrying out a DPIA
(ISO/IEC 2913434).
31

Unanimously and affirmatively acknowledged (under abstention of Bavaria) by the 92. Conference of the
Independent Data Protection Authorities of the Bund and the Länder in Kühlungsborn on 9-10 November 2016.
32
See also :
- Commission Recommendation of 12 May 2009 on the implementation of privacy and data protection
principles in applications supported by radio- frequency identification.
https://ec.europa.eu/digital-single-market/en/news/commission-recommendation-12-may-2009implementation-privacy-and-data-protection-principles
- Opinion 9/2011 on the revised Industry Proposal for a Privacy and Data Protection Impact Assessment
Framework for RFID Applications.
http://ec.europa.eu/justice/data-protection/article-29/documentation/opinionrecommendation/files/2011/wp180_en.pdf
33
See also the Opinion 07/2013 on the Data Protection Impact Assessment Template for Smart Grid and Smart
Metering Systems (‘DPIA Template’) prepared by Expert Group 2 of the Commission’s Smart Grid Task Force.
http://ec.europa.eu/justice/data-protection/article-29/documentation/opinionrecommendation/files/2013/wp209_en.pdf
34
ISO/IEC 29134 (project), Information technology – Security techniques – Privacy impact assessment –
Guidelines, International Organization for Standardization (ISO).

21

 Annex 2 – Criteria for an acceptable DPIA
The WP29 proposes the following criteria which data controllers can use to assess whether or not a
DPIA, or a methodology to carry out a DPIA, is sufficiently comprehensive to comply with the
GDPR:
 a systematic description of the processing is provided (Article 35(7)(a)):
 nature, scope, context and purposes of the processing are taken into account (recital
90);
 personal data, recipients and period for which the personal data will be stored are
recorded;
 a functional description of the processing operation is provided;
 the assets on which personal data rely (hardware, software, networks, people, paper or
paper transmission channels) are identified;
 compliance with approved codes of conduct is taken into account (Article 35(8));
 necessity and proportionality are assessed (Article 35(7)(b)):
 measures envisaged to comply with the Regulation are determined (Article 35(7)(d)
and recital 90), taking into account:
 measures contributing to the proportionality and the necessity of the
processing on the basis of:
 specified, explicit and legitimate purpose(s) (Article 5(1)(b));
 lawfulness of processing (Article 6);
 adequate, relevant and limited to what is necessary data (Article
5(1)(c));
 limited storage duration (Article 5(1)(e));
 measures contributing to the rights of the data subjects:
 information provided to the data subject (Articles 12, 13 and 14);
 right of access and to data portability (Articles 15 and 20);
 right to rectification and to erasure (Articles 16, 17 and 19);
 right to object and to restriction of processing (Article 18, 19 and 21);
 relationships with processors (Article 28);
 safeguards surrounding international transfer(s) (Chapter V);
 prior consultation (Article 36).
 risks to the rights and freedoms of data subjects are managed (Article 35(7)(c)):
 origin, nature, particularity and severity of the risks are appreciated (cf. recital 84) or,
more specifically, for each risk (illegitimate access, undesired modification, and
disappearance of data) from the perspective of the data subjects:
 risks sources are taken into account (recital 90);
 potential impacts to the rights and freedoms of data subjects are identified in
case of events including illegitimate access, undesired modification and
disappearance of data;
 threats that could lead to illegitimate access, undesired modification and
disappearance of data are identified;
 likelihood and severity are estimated (recital 90);
 measures envisaged to treat those risks are determined (Article 35(7)(d) and recital
90);
 interested parties are involved:
 the advice of the DPO is sought (Article 35(2));
 the views of data subjects or their representatives are sought, where appropriate
(Article 35(9)).

22