View source for Article 6 GDPR

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<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;">
<div style="font-weight:bold;line-height:1.6;">Chapter 1: General provisions</div>
<div class="mw-collapsible-content">
<small>
[[Article 1 GDPR|Article 1: Subject-matter and objectives]]<br />
[[Article 2 GDPR|Article 2: Material scope]]<br />
[[Article 3 GDPR|Article 3: Territorial scope]]<br />
[[Article 4 GDPR|Article 4: Definitions]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible" style="border-width: 0px" overflow:auto;">
<div style="font-weight:bold;line-height:1.6;">Chapter 2: Principles</div>
<div class="mw-collapsible-content">
<small>
[[Article 5 GDPR|Article 5: Principles relating to processing of personal data]]<br />
[[Article 6 GDPR|Article 6: Lawfulness of processing]]<br />
[[Article 7 GDPR|Article 7: Conditions for consent]]<br />
[[Article 8 GDPR|Article 8: Conditions applicable to child’s consent in relation to information society services]]<br />
[[Article 9 GDPR|Article 9: Processing of special categories of personal data]]<br />
[[Article 10 GDPR|Article 10: Processing of personal data relating to criminal convictions and offences]]<br />
[[Article 11 GDPR|Article 11: Processing which does not require identification]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;">
<div style="font-weight:bold;line-height:1.6;">Chapter 3: Rights of the data subject</div>
<div class="mw-collapsible-content">
<small>
[[Article 12 GDPR|Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject]]<br />
[[Article 13 GDPR|Article 13: Information to be provided where personal data are collected from the data subject]]<br />
[[Article 14 GDPR|Article 14: Information to be provided where personal data have not been obtained from the data subject]]<br />
[[Article 15 GDPR|Article 15: Right of access by the data subject]]<br />
[[Article 16 GDPR|Article 16: Right to rectification]]<br />
[[Article 17 GDPR|Article 17: Right to erasure (‘right to be forgotten’)]]<br />
[[Article 18 GDPR|Article 18: Right to restriction of processing]]<br />
[[Article 19 GDPR|Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing]]<br />
[[Article 20 GDPR|Article 20: Right to data portability]]<br />
[[Article 21 GDPR|Article 21: Right to object]]<br />
[[Article 22 GDPR|Article 22: Automated individual decision-making, including profiling]]<br />
[[Article 23 GDPR|Article 23: Restrictions]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;">
<div style="font-weight:bold;line-height:1.6;">Chapter 4: Controller and processor</div>
<div class="mw-collapsible-content">
<small>
[[Article 24 GDPR|Article 24: Responsibility of the controller]]<br />
[[Article 25 GDPR|Article 25: Data protection by design and by default]]<br />
[[Article 26 GDPR|Article 26: Joint controllers]]<br />
[[Article 27 GDPR|Article 27: Representatives of controllers or processors not established in the Union]]<br />
[[Article 28 GDPR|Article 28: Processor]]<br />
[[Article 29 GDPR|Article 29: Processing under the authority of the controller or processor]]<br />
[[Article 30 GDPR|Article 30: Records of processing activities]]<br />
[[Article 31 GDPR|Article 31: Cooperation with the supervisory authority]]<br />
[[Article 32 GDPR|Article 32: Security of processing]]<br />
[[Article 33 GDPR|Article 33: Notification of a personal data breach to the supervisory authority]]<br />
[[Article 34 GDPR|Article 34: Communication of a personal data breach to the data subject]]<br />
[[Article 35 GDPR|Article 35: Data protection impact assessment]]<br />
[[Article 36 GDPR|Article 36: Prior consultation]]<br />
[[Article 37 GDPR|Article 37: Designation of the data protection officer]]<br />
[[Article 38 GDPR|Article 38: Position of the data protection officer]]<br />
[[Article 39 GDPR|Article 39: Tasks of the data protection officer]]<br />
[[Article 40 GDPR|Article 40: Codes of conduct]]<br />
[[Article 41 GDPR|Article 41: Monitoring of approved codes of conduct]]<br />
[[Article 42 GDPR|Article 42: Certification]]<br />
[[Article 43 GDPR|Article 43: Certification bodies]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;">
<div style="font-weight:bold;line-height:1.6;">Chapter 5: Transfers of personal data</div>
<div class="mw-collapsible-content">
<small>
[[Article 44 GDPR|Article 44: General principle for transfers]]<br />
[[Article 45 GDPR|Article 45: Transfers on the basis of an adequacy decision]]<br />
[[Article 46 GDPR|Article 46: Transfers subject to appropriate safeguards]]<br />
[[Article 47 GDPR|Article 47: Binding corporate rules]]<br />
[[Article 48 GDPR|Article 48: Transfers or disclosures not authorised by Union law]]<br />
[[Article 49 GDPR|Article 49: Derogations for specific situations]]<br />
[[Article 50 GDPR|Article 50: International cooperation for the protection of personal data]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;">
<div style="font-weight:bold;line-height:1.6;">Chapter 6: Supervisory authorities</div>
<div class="mw-collapsible-content">
<small>
[[Article 51 GDPR|Article 51: Supervisory authority]]<br />
[[Article 52 GDPR|Article 52: Independence]]<br />
[[Article 53 GDPR|Article 53: General conditions for the members of the supervisory authority]]<br />
[[Article 54 GDPR|Article 54: Rules on the establishment of the supervisory authority]]<br />
[[Article 55 GDPR|Article 55: Competence]]<br />
[[Article 56 GDPR|Article 56: Competence of the lead supervisory authority]]<br />
[[Article 57 GDPR|Article 57: Tasks]]<br />
[[Article 58 GDPR|Article 58: Powers]]<br />
[[Article 59 GDPR|Article 59: Activity reports]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;">
<div style="font-weight:bold;line-height:1.6;">Chapter 7: Cooperation and consistency</div>
<div class="mw-collapsible-content">
<small>
[[Article 60 GDPR|Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned]]<br />
[[Article 61 GDPR|Article 61: Mutual assistance]]<br />
[[Article 62 GDPR|Article 62: Joint operations of supervisory authorities]]<br />
[[Article 63 GDPR|Article 63: Consistency mechanism]]<br />
[[Article 64 GDPR|Article 64: Opinion of the Board]]<br />
[[Article 65 GDPR|Article 65: Dispute resolution by the Board]]<br />
[[Article 66 GDPR|Article 66: Urgency procedure]]<br />
[[Article 67 GDPR|Article 67: Exchange of information]]<br />
[[Article 68 GDPR|Article 68: European Data Protection Board]]<br />
[[Article 69 GDPR|Article 69: Independence]]<br />
[[Article 70 GDPR|Article 70: Tasks of the Board]]<br />
[[Article 71 GDPR|Article 71: Reports]]<br />
[[Article 72 GDPR|Article 72: Procedure]]<br />
[[Article 73 GDPR|Article 73: Chair]]<br />
[[Article 74 GDPR|Article 74: Tasks of the Chair]]<br />
[[Article 75 GDPR|Article 75: Secretariat]]<br />
[[Article 76 GDPR|Article 76: Confidentiality]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;">
<div style="font-weight:bold;line-height:1.6;">Chapter 8: Remedies, liability and penalties</div>
<div class="mw-collapsible-content">
<small>
[[Article 77 GDPR|Article 77: Right to lodge a complaint with a supervisory authority]]<br />
[[Article 78 GDPR|Article 78: Right to an effective judicial remedy against a supervisory authority]]<br />
[[Article 79 GDPR|Article 79: Right to an effective judicial remedy against a controller or processor]]<br />
[[Article 80 GDPR|Article 80: Representation of data subjects]]<br />
[[Article 81 GDPR|Article 81: Suspension of proceedings]]<br />
[[Article 82 GDPR|Article 82: Right to compensation and liability]]<br />
[[Article 83 GDPR|Article 83: General conditions for imposing administrative fines]]<br />
[[Article 84 GDPR|Article 84: Penalties]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;">
<div style="font-weight:bold;line-height:1.6;">Chapter 9: Specific processing situations</div>
<div class="mw-collapsible-content">
<small>
[[Article 85 GDPR|Article 85: Processing and freedom of expression and information]]<br />
[[Article 86 GDPR|Article 86: Processing and public access to official documents]]<br />
[[Article 87 GDPR|Article 87: Processing of the national identification number]]<br />
[[Article 88 GDPR|Article 88: Processing in the context of employment]]<br />
[[Article 89 GDPR|Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes]]<br />
[[Article 90 GDPR|Article 90: Obligations of secrecy]]<br />
[[Article 91 GDPR|Article 91: Existing data protection rules of churches and religious associations]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;">
<div style="font-weight:bold;line-height:1.6;">Chapter 10: Delegated and implementing acts</div>
<div class="mw-collapsible-content">
<small>
[[Article 92 GDPR|Article 92: Exercise of the delegation]]<br />
[[Article 93 GDPR|Article 93: Committee procedure]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;">
<div style="font-weight:bold;line-height:1.6;">Chapter 11: Final provisions</div>
<div class="mw-collapsible-content">
<small>
[[Article 94 GDPR|Article 94: Repeal of Directive 95: /46: /EC]]<br />
[[Article 95 GDPR|Article 95: Relationship with Directive 20: 02: /58: /EC]]<br />
[[Article 96 GDPR|Article 96: Relationship with previously concluded Agreements]]<br />
[[Article 97 GDPR|Article 97: Commission reports]]<br />
[[Article 98 GDPR|Article 98: Review of other Union legal acts on data protection]]<br />
[[Article 99 GDPR|Article 99: Entry into force and application]]<br />
</small>
</div>
</div>
|}

==Legal Text==
<br /><center>'''Article 6 - Lawfulness of processing'''</center>

<span id="1">1.   Processing shall be lawful only if and to the extent that at least one of the following applies:</span>

::<span id="1a">(a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes;</span>

::<span id="1b">(b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;</span>

::<span id="1c">(c) processing is necessary for compliance with a legal obligation to which the controller is subject;</span>

::<span id="1d">(d) processing is necessary in order to protect the vital interests of the data subject or of another natural person;</span>

::<span id="1e">(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;</span>

::<span id="1f">(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.</span>

Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.


<span id="2"> 2.   Member States may maintain or introduce more specific provisions to adapt the application of the rules of this Regulation with regard to processing for compliance with points (c) and (e) of paragraph 1 by determining more precisely specific requirements for the processing and other measures to ensure lawful and fair processing including for other specific processing situations as provided for in Chapter IX. </span>


<span id="3"> 3.   The basis for the processing referred to in point (c) and (e) of paragraph 1 shall be laid down by:</span>

::<span id="3a"> (a) Union law; or</span>

::<span id="3b"> (b) Member State law to which the controller is subject.</span>

The purpose of the processing shall be determined in that legal basis or, as regards the processing referred to in point (e) of paragraph 1, shall be necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller. That legal basis may contain specific provisions to adapt the application of rules of this Regulation, inter alia: the general conditions governing the lawfulness of processing by the controller; the types of data which are subject to the processing; the data subjects concerned; the entities to, and the purposes for which, the personal data may be disclosed; the purpose limitation; storage periods; and processing operations and processing procedures, including measures to ensure lawful and fair processing such as those for other specific processing situations as provided for in Chapter IX. The Union or the Member State law shall meet an objective of public interest and be proportionate to the legitimate aim pursued.


<span id="4"> 4.   Where the processing for a purpose other than that for which the personal data have been collected is not based on the data subject's consent or on a Union or Member State law which constitutes a necessary and proportionate measure in a democratic society to safeguard the objectives referred to in [[Article 23 GDPR#1|Article 23(1)]], the controller shall, in order to ascertain whether processing for another purpose is compatible with the purpose for which the personal data are initially collected, take into account, inter alia: </span>

::<span id="4a"> (a) any link between the purposes for which the personal data have been collected and the purposes of the intended further processing;</span>

::<span id="4b"> (b) the context in which the personal data have been collected, in particular regarding the relationship between data subjects and the controller;</span>

::<span id="4c"> (c) the nature of the personal data, in particular whether special categories of personal data are processed, pursuant to [[Article 9 GDPR|Article 9]], or whether personal data related to criminal convictions and offences are processed, pursuant to [[Article 10 GDPR|Article 10]];</span>

::<span id="4d"> (d) the possible consequences of the intended further processing for data subjects;</span>

::<span id="4e"> (e) the existence of appropriate safeguards, which may include encryption or pseudonymisation.</span>

==Relevant Recitals==
{{Recital/39 GDPR}}{{Recital/40 GDPR}}{{Recital/41 GDPR}}{{Recital/42 GDPR}}{{Recital/43 GDPR}}{{Recital/44 GDPR}}{{Recital/45 GDPR}}{{Recital/46 GDPR}}{{Recital/47 GDPR}}{{Recital/48 GDPR}}{{Recital/49 GDPR}}{{Recital/50 GDPR}}{{Recital/171 GDPR}}

==Commentary==

Paragraph 1 of Article 6 GDPR is based on Article 7 of the previous [https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31995L0046 Data Protection Directive 95/46/EC]. As a general rule, personal data may not be processed without complying with on of six exceptions ('legal basis').  

Paragraphs 2 and 3 deal with the options for Member States to implement laws that make processing under 6(1)(c) and (e) necessary. 

Paragraph 4 is actually linked to the 'purpose limitation' principle in [[Article 5 GDPR|Article 5(1)(b) GDPR]] and further expands on what a 'compatible purpose' is. <blockquote><u>EDPB Guidelines</u>: on this Article, please see [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-82020-targeting-social-media-users_en Guidelines 8/2020 on the targeted addressing of users of social media] </blockquote>

=== (1) Legal basis for processing ===

==== Overview ====
===== Prohibition - with six exceptions =====
Article 6(1) GDPR generally prohibits processing operations (<span id="1">"''processing shall be lawful only if''")</span> unless at least one of the six legal basis under (a) to (f) are fulfilled. 

The general prohibition of data processing flows from the fact that under Article 8 of the Charter, the right to data protection is a fundamental rights ('''data must be processed ... on the basis of the consent of the person concerned or some other legitimate basis laid down by law''<nowiki/>'). The system of Article 6(1) as a general prohibition, unless there is a justification is criticized in some Member States,<ref>See an overview on German critizism in ''Buchner/Petri'', in Kühling, Buchner, DS-GVO BDSG, Article 6 GDPR, margin number 14 (C.H. Beck 2020, 3rd Edition).</ref> but not unusual for a fundamental right. Just like other fundamental rights (e.g. the right to property, freedom of expression or the right to physical integrity), the default position is, that others may not interfere with a data subject's right to data protection, unless there is a justification.

===== No hierarchy =====
Given that this is the type of legal basis that the average data subject is confronted with the most consent is usually seen as more prominent than the other five legal basis. In fact, there is no hierarchy between the various legal basis. It is a matter controllers to choose the legal basis they wish to rely on. Each legal basis has specific features, upsides and downsides from the perspective of controllers and data subjects.

===== Multiple legal bases =====
While at least one legal basis has to be fulfilled, it is possible that there are multiple legal basis that a controller can rely at the same time ("<span id="1">''at least one''")</span>. 

Using multiple legal basis may however raise transparency issues under Article 5(1)(a), if a data subject for example thinks that personal data is processed solely based on consent (which can be withdrawn at any time), while in fact the controller also relies on another legal basis like a legal obligation (which does not allow for a withdrawal by the data subject). The data subjects would the be tricked into thinking that they have more agency than they really have.<ref>''Buchner/Petri'', in Kühling, Buchner, DS-GVO BDSG, Article 6 GDPR, margin number 23 (C.H. Beck 2020, 3rd Edition).</ref>

===== Necessity =====
The concept of 'necessity' is used five of the six legal basis (Article 6(1)(b) to (f) GDPR). Only consent does not contain the requirement, as consent must be 'specific' anyways. The concept of 'necessity' must be interpreted in the light of applicable European law and is also known under Article 52(1) of the Charter of Fundamental Rights. 

The CJEU generally follows a concept of strict necessity and a narrow interpretation.<blockquote><u>Case Law:</u> In [[CJEU - C-524/06 - Huber|C‑524/06 - ''Huber'']] on a German central register to manage matters in relation to foreign nationals the CJEU held that the “''concept'' [of necessity] ''...has its own independent meaning in Community law and ... must be interpreted in a manner which fully reflects the objective of'' [Directive 95/46/EC]”.<ref>CJEU, Case C‑524/06, ''Huber'', 18 December 2008, margin number 52 (available [https://curia.europa.eu/juris/document/document.jsf?text=&docid=76077&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3377266 here]).</ref> The CJEU held that such a register must not contain any information other than what is necessary for the purpose of implementing specific laws on foreign nationals.</blockquote>From a systematic point of view any legal basis under Article 6(1) GDPR constitutes an exemption to the general prohibition of data processing. As such, the exemption itself and all the wording it carries, including the 'necessity' requirement, must be interpreted narrowly.<blockquote><u>Case Law:</u> In [[CJEU - C‑13/16 - Rīgas satiksme|C‑13/16 - ''Rīgas satiksme'']] on the use of personal data after a traffic accident the CJEU held: “''As regards the condition relating to the necessity of processing personal data, it should be borne in mind that derogations and limitations in relation to the protection of personal data must apply only in so far as is strictly necessary''”.<ref>CJEU, Case C‑13/16, ''Rīgas satiksme'', 4 May 2017, margin number 30 (available [https://curia.europa.eu/juris/document/document.jsf?text=&docid=190322&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3378015 here]).</ref> In joined Cases C‑92/09 and C‑93/09 ''- Volker und Markus Schecke and Eifert'' on a European law requiring the publication of recipients of agricultural subsidies the CJEU held that: '''limitations in relation to the protection of personal data must apply only in so far as is strictly necessary''<nowiki/>'.<ref>CJEU, Joined Cases C‑92/09 and C‑93/09, ''Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen'', paragraph 86, 9. November 2010 (available [https://curia.europa.eu/juris/document/document.jsf?text=&docid=79163&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=3378952 here]).</ref></blockquote>Despite the narrow interpretation of strict necessity, a controller is not prohibited from using personal data, just because there is a theoretical alternative that does not include the use of personal data, only realistic alternative must be considered. Processing that is 'useful' but not objectively 'necessary' is not covered and hence not allowed. 

For example [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-22019-processing-personal-data-under-article-61b_en EDPB Guidelines 2/2019 on Article 6(1)(b)] have clarified that assessing what is 'necessary' involves a factual analysis of the processing operations and their purpose(s) and whether less intrusive alternatives that achieve the same goal exist. If there are realistic, less intrusive processing operations, then the other more intrusive ones must be excluded – i.e. they are not 'necessary' under EU law. Thus, Article 6(1)(b) does not “''cover processing which is useful but not objectively necessary for performing the contractual service''”.<ref>EDPB, ‘Guidelines 2/2019 on the processing of personal data under Article 6(1)(b) GDPR in the context of the provision of online services to data subjects, 8 October 2019’ (Version 2.0), p. 8 (available [https://edpb.europa.eu/sites/default/files/files/file1/edpb_guidelines-art_6-1-b-adopted_after_public_consultation_en.pdf here]).</ref> 

==== (a) Consent ====
Like other rights, the right to data protection can be waived by the data subject, by providing consent to the processing of their personal data. Given that data subjects are usually the weaker party in any transaction,<ref>This includes limited economic powers, the lack of legal or technical training or the lack of alternative providers without similar data practices.</ref> the GDPR foresees a number of conditions that controllers have to comply with to obtain ''valid'' consent. This approach is very similar to other protections when fundamental rights are waived (e.g. gifting real estate may need the involvement of a notary, surgeries require detailed information and consent under Article 3(2) of the Charter). Compared to the waiver of other fundamental rights, consenting to data procession is has however become rather ubiquitous.

Consent is the most prominent legal basis, as it is the only one that data subjects are regularly confronted with. However, it is not the prime or even the most desirable legal basis. Typically consent is the 'last option', as Article 6(1)(b) to (e) GDPR provide for a legal basis for most daily processing operations, without the need to seek consent.<blockquote><u>Example:</u> Josephine is the new data protection officer for an online shop. She realizes that the check-out page requires consent under Article 6(1)(a) to the processing of personal data for processing the payment and for delivering the products. As this is already covered by 'necessary for the performance of a contract' under Article 6(1)(b), she removes this consent clause. This is not just more transparent for data subjects, as they are not tricked to believe that they can withdraw the consent, but it also makes the online form quicker to click through.</blockquote>Consent is regularly criticized in the legal literature and by the public. Criticism seems to be largely fed by bad consent ''practices'', but not necessarily by shortcomings of the letter of the law. If the conditions for consent are properly applied, it allows data subjects to exercise their right to informational self-determination. While it is correct that data subjects can be overwhelmed with these decisions, a liberal legal order requires that data subjects have agency over their rights, which includes waiving them. Given that Article 8(2) of the Charta explicitly foresees consent as one of the legal bases for data processing, consent is here to stay.<blockquote><u>EDPB Guidelines</u>: [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-052020-consent-under-regulation-2016679_en Guidelines 5/2020 on consent under the GDPR] with detailed analysis by the authorities, see also [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-032022-deceptive-design-patterns-social-media_en Guidelines 03/2022 on deceptive design patterns in social media platform interfaces: how to recognise and avoid them] </blockquote>

===== Joint reading of provisions =====
To ensure that consent is not only a legal fiction ("click fatigue"), the GDPR introduces a number of conditions that are meant to ensure that data subjects have a genuine choice when it comes to the processing of their data. Unfortunately the relevant elements are spread over different Articles of the GDPR:
* According to the available definition provided in [[Article 4 GDPR|Article 4(11) GDPR]], consent must be freely given, specific, informed, and unambiguous.

* Furthermore, under [[Article 7 GDPR]], a controller must be able to demonstrate that consent was given, consent must be distinguishable from other matters in any written declaration, can be withdrawn at any time and the provision of a contract may not be made conditional on consent.

* Finally, [[Article 8 GDPR]] stipulates that specific requirements must be respected when consent is given by children.

Consequently, the conditions for valid consent are split between [[Article 4 GDPR|Articles 4(11)]], 6(1)(a), [[Article 7 GDPR|7]] and [[Article 8 GDPR|8]] GDPR and require a joint reading of the different articles. See the commentary on [[Article 7 GDPR|Articles 7]] and [[Article 8 GDPR|8]] GDPR for further details. 

There is a slightly different concept of "''explicit consent''" in [[Article 9 GDPR|Articles 9(1)(a)]], [[Article 22 GDPR|22(2)(c)]] and [[Article 49 GDPR|49(1)(a)]] GDPR. See the commentary on [[Article 9 GDPR|Article 9(1)(a) GDPR]] for explicit consent.
=====Capacity=====
Generally, consent must be given directly by the data subject or a nominated representative.<ref>''Ernst'', in Paal, Pauly, DS-GVO BDSG, Article 4 GDPR, margin number 65 (C.H. Beck 2018).</ref> National law determines if a data subject lacks the legal capacity to make legally binding declarations. 

In the case of minors acting in the context of an 'information society service', [[Article 8 GDPR|Article 8(1) GDPR]] provides a minimum age of 16 while Member States may not reduce that age limit to below 13. There is currently no rule in the GDPR about the age for consent if no 'information society service' is involved, including any offline context.
=====Freely given=====
Consent has to be freely given, which means that the data subjects must have the option to freely and genuinely choose to say 'yes' to the processing of their personal data. Just like other legally relevant declaration, consent is void if the data subject was for example physically forced to consent. However, the notion of 'freely given' is much broader under Article 6(1)(4) GDPR, as illustrated by the rules in [[Article 4 GDPR|Articles 4(11)]], [[Article 7 GDPR|7]] or [[Article 8 GDPR|8]] GDPR, as well as Recital 43. If consent is 'freely given' under the GDPR requires a wholistic and also economic analysis of the options for a data subject. The wholistic approach should lead to better results than previous approaches, but also uses vaguer concepts. 

====== Power imbalance ======
Whether the option to refuse is genuinely given depends on the processing operation and service as well as the respective roles of the controller and the data subject in a given transaction. Not every abstract power imbalance makes consent invalid, however typical examples can be derived:
*Relationships with public authorities<ref>Recital 43 sentence 1 GDPR, and ''Eßer'', in Auernhammer, DSGVO BDSG, Article 4 GDPR, margin number 98 (Carl Heymanns Verlag 2018).</ref>
*Employer-employee-relationships<ref>''Ernst'', in Paal, Pauly, DS-GVO BDSG, Article 4 GDPR, margin number 71 (C.H. Beck 2018).</ref>
*Use of major digital services with limited alternatives<ref>''Ernst'', in Paal, Pauly, DS-GVO BDSG, Article 4 GDPR, margin number 73, 76 (C.H. Beck 2018).</ref>, for example because of a 'network effect'.<ref>Communication networks often require all parties to use the same system - making a switch very difficult for single users. See ''Bucher/Kühling'', in Kühling, Buchner, DS-GVO BDSG, Article 7 GDPR, margin number 53a (C.H. Beck 2020).</ref>
In other words, employers, governments or companies (especially those with a dominant market position) will typically be able to force data subjects to consent against their true wishes. In this perspective, Recital 43 GDPR highlights that if there is a "''clear imbalance between the data subject and the controller''" consent should not be considered a valid legal basis for the processing.<ref>Recital 43 sentence 1 GDPR.</ref><blockquote><u>Example:</u> A sales representative has to 'consent' that his mobile phone is tracked to ensure that he does not cheat on his time sheet and does not use the company car for private trips. Obviously the employee will be able to challenge the consent, if he only agreed to keep his job.</blockquote>

====== Conditional consent ======
Recital 43 and [[Article 7 GDPR|Article 7(4) GDPR]] further deal with the situation of 'bundled consent', i.e. when the performance of a contract is made conditional on consent. While such bundled consent is not automatically void, the law requires that '''utmost account shall be taken''<nowiki/>' if the provision of a contract is made conditional on consent.<blockquote><u>Example:</u> An app that costs € 1,99 per month requires that any new users agree to the terms and conditions when singing up. On the next screen the users must also consent to the sharing of their personal data with third parties for advertisement reasons. The use of personal data is not necessary for using the app. Necessary processing to use the core functions of the app can however be based on Article 6(1)(b) GDPR. </blockquote>For further indications on the issue of bundled consent and the criteria to assess the freely given requirement, see [[Article 7 GDPR|Article 7(4) GDPR]].
=====Informed=====
Consent must be informed. This is especially challenging in highly complex technological environments. Aa controller may have the technical, practical and legal knowledge to understand the relevant processing information and take months or years to develop this understanding, while an average data subject may not have any relevant education or knowledge but most make a choice within seconds or at best minutes. Under the GDPR, the controller must overcome this information asymmetry to get valid consent. 

====== Content of information ======
Beyond the specific purpose, [[Article 4 GDPR|Articles 4(11)]] and 6(1)(a) GDPR do not specify which exact information must be provided to the data subject when asking for consent. [[Article 7 GDPR|Article 7(3) GDPR]] requires to inform the data subject about their right to withdraw consent prior to giving consent. Recital 42 adds the identity of the controller, but also clarifies that this is a minimum standard: "''For consent to be informed, the data subject should be aware at least of the identity of the controller and the purposes of the processing for which the personal data are intended''." 

Further information may depend on the specific purpose and processing operations that consent is sought for. [[Article 13 GDPR|Articles 13]] and [[Article 14 GDPR|14]] GDPR can be seen as instructive, insofar as relevant for the processing operation. When personal data is shared, it may be necessary to inform about the individual recipients.<ref>''Bucher/Kühling'', in Kühling, Buchner, DS-GVO BDSG, Article 7 GDPR, margin number 59 (C.H. Beck 2020).</ref> Overall data subjects must be able to understand the circumstances of the processing of their personal data to estimate the consequences and implications of giving their consent.<ref>''Bucher, Kühling'', in Kühling, Buchner, DS-GVO BDSG, Article 4 11 GDPR, margin numbers 2, 5 (C.H. Beck 2020).</ref>

====== Form of information ======

Consent should be sought using clear and plain language and be provided in an intelligible and easily accessible form.<ref>See Articles 5(1)(a) and 7(2) GDPR and Recital 42.</ref> Especially euphemisms and wording that is more inspired by marketing than the facts is not clear. Equally, overly legal and technical descriptions are not clear and plain either.

Under [[Article 7 GDPR|Article 7(2) GDPR]] information to the data subject in the moment of consent under Article 6(1)(a) must be distinguished from any other matter. Just adding a link to the very broad information that needs to be provided under [[Article 13 GDPR|Articles 13]] and [[Article 14 GDPR|14]] GDPR is therefor not leading to valid consent. Simply linking to a lengthy privacy policy is also not making information '''easily accessible''<nowiki/>', as data subjects will hardly find the relevant information needed to make a decision on the specific processing that is based on consent.<blockquote><u>Common Misunderstanding:</u> A mere confirmation that users 'agree to the privacy policy' is in most cases not easily accessible, if the privacy policy usually concerns a lot of additional information and is not limited to only processing under Article 6(1)(a) GDPR. If the privacy policy also concerns multiple processing operaitons such cases consent is also not 'specific' (see below).</blockquote>Overall the controller has the (sometimes difficult) task to explain the use of personal data in a short, clear and plain way, without using overly technical or legal jargon, so that an average data subjects have a clear understanding of what they should consent to. 

=====Specific=====
In accordance with the principle of transparency from [https://gdprhub.eu/index.php%3Ftitle=Article_5_GDPR Article 5(1)(b) GDPR] consent must be provided for specific and legitimate purposes. When the processing has multiple purposes, consent should be given for all of them separately.<ref>Recital 32 sentences 5, 6 GDPR.</ref> A blanket consent to all kinds of purposes is therefore not valid. For example, "''I agree to the processing of my data for advertisement, product improvement and the sharing with business partners''" is not specific and therefore invalid.<blockquote><u>Example:</u> An online shop has a checkout page, where users must "consent to the use of your data for marketing, the transfer to non-EU providers and the sparing of data with partners". Any consent to these three purposes, would usually fail the 'specific' element required for consent. Equally, just naming 'partners' is likely not specific enough if there are specific known recipients.</blockquote>The principle of specificity of consent in [[Article 4 GDPR|Article 4(11) GDPR]] is confirmed by Article 6(1)(a) which requires consent to be given for “''for one or more specific purposes”.'' This seems in line with the case law of the Court of Justice of the EU, according to which consent must refer to specific processing activities, clearly identified, <ref>CJEU, C‑673/17, Planet49, 1 October 2019, margin number 58-60 (available [https://curia.europa.eu/juris/liste.jsf?num=C-673/17 here]).</ref> also in order to allow the user to effectively understand the operations being carried out.<ref>CJEU, C‑61/19, Orange România, 11 November 2020, margin number 46 (available [https://curia.europa.eu/juris/liste.jsf?num=C-61/19&language=en here]). This reading seems to be confirmed by ''Bucher, Petri'', in Kühling, Buchner, DS-GVO BDSG, Article 6 GDPR, margin number 20 (C.H. Beck 2020).</ref>
=====Unambiguous=====
Consent must be given unambiguously in the form of clear and affirmative action, however no specific form is required. Consent must be an unambiguous act, including any oral, written or other form of signifying the agreement to have personal data processed.<ref>Recital 32 sentence 1 GDPR.</ref> In a digital environment consent is typically given by checking a box ("opt-in"), choosing technical settings that indicate the data subject’s acceptance of the proposed processing or clicking a button.<ref>Recital 32 sentence 2 GDPR.</ref> <blockquote><u>Example:</u> At a wedding, the photographer asks a group to stand underneath the tree if they want to be on the picture, which will go to the couple's wedding website. Marcel and Alex make their way underneath the tree and waive at the camera. They have given unambiguous consent.</blockquote>Conversely, silence, pre-ticked boxes or inactivity should not constitute consent.<ref>Recital 32 sentence 3 GDPR.</ref> This has been stressed through recent case law by the Court of Justice where a pre-checked checkbox which the user had to deselect in order to refuse their consent cannot show any active behaviour.<ref name=":0">CJEU, C‑673/17, Planet49, 1 October 2019, margin number 44, 52 (available [https://curia.europa.eu/juris/liste.jsf?num=C-673/17 here]).</ref> Similarly, actions which are not clearly affirmative include the simple use of a webpage. A user may simply ignore that a webpage uses data in a certain way. This ambiguity extends to assigning certain actions a legal meaning through a disclaimer (e.g. "''by using our webpage you agree to X''"). Accordingly, it is in practice impossible to ascertain whether a user had actually given their consent by not deselecting the pre-ticked checkbox or had just not noticed the information provided.<ref>EUCJ, C‑673/17, Planet49, 1 October 2019, margin numbers 44, 52 (available [https://curia.europa.eu/juris/liste.jsf?num=C-673/1 here]).</ref> <blockquote><u>Case Law:</u> In [[CJEU - C-673/17 - Planet49|C‑673/17 - ''Planet49'']] a pre-checked checkbox which the data subject had to deselect in order to refuse their consent was not seen as valid consent, because not deactivating the box cannot be seen as active behaviour.<ref name=":0" /></blockquote>

=====Withdrawal=====
Consent can be withdrawn at any time. Withdrawing of consent shall be as easy as it was giving it. The controller has to inform the data subject on the possibility to withdraw consent prior to the processing. For further information, see the commentary on [https://gdprhub.eu/index.php%3Ftitle=Article_7_GDPR Article 7(3) GDPR].<blockquote><u>Example:</u> An fitness app allows customers to opt-in to share their sports data online with a simple button. To stop the online sharing, the app requires sending an email to the app provider, including the app ID and a verification that the sender is actually the data subject.</blockquote>

===== Demonstration of consent =====
[[Article 7 GDPR|Article 7(1) GDPR]] further requires that a controller can demonstrate that the data subject has given consent.<blockquote><u>EDPB Guidelines:</u> on this provision there are [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-052020-consent-under-regulation-2016679_en EDPB Guidelines 05/2020 on consent under Regulation 2016/679]</blockquote>

==== (b) Contract ====
Most daily business requires rather simple and foreseeable processing of personal data. To ensure that these standard processing operations are not limited and do not need the data subject's consent, Article 6(1)(b) GDPR legalizes these processing operations by law. <blockquote><u>Example:</u> A data subject buys a product in an online shop. To perform this contract the controller may need to process the data subject's credit card details. The details may be transferred to financial institutions for payment purposes. The buyer’s name and physical address can be shared with the shipment service for product delivery.  </blockquote>While contract and consent must be clearly separated, Article 6(1)(b) GDPR is usually also based on a (civil law) agreement of the data subject and therefore related to the notion of informational self-determination.<ref>Scholars suggest that, together with consent ([https://gdprhub.eu/index.php%3Ftitle=Article_6_GDPR Article 6(1)(a) GDPR]), contract is the only legal basis covered by [https://gdprhub.eu/index.php%3Ftitle=Article_6_GDPR Article 6] in which processing is based on the data subject's will. A direct will in the case of consent, and indirect in the case of contract (by agreeing to the Terms). See ''Resta'', in Riccio, Scorza, Belisario, GDPR e normativa privacy - Commentario, Article 6 GDPR p. 69 (Wolters Kluwer 2018), which, in turn, refers to Pelino, Bistolfi, Bolognini, Il regolamento privacy europeo (Giuffrè 2018).</ref>

The EDPB has issued its [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-22019-processing-personal-data-under-article-61b_en Guidelines 2/2019 on the processing of personal data under Article 6(1)(b) GDPR] with a detailed analysis of Article 6(1)(b) GDPR. 

===== Necessary =====

General information on necessity can be found above under the overview on Article 6(1) under 'necessity'. The concept of necessity means that processing must be limited to what is strictly necessary. This does not mean that only indispensable processing is allowed. Unreasonable alternatives are not taken into account, but merely 'useful' additional processing is not 'necessary'<blockquote><u>Example:</u> A gym that is requesting core information from customers (e.g. name, address) can use the 'necessary' for the performance of a contract clause. However, the use of entry and exit data to measure the use of the gym is only 'necessary' under the contract if the gym is paid per entry, not per month. There may be other legal basis to process such data, but it is not 'necessary' under the contract.</blockquote>
Usually most contracts are imposed by the controller, not the data subject. If a controller could arbitrarily add elements to the scope of its contracts as to make any processing activity 'necessary', then the reference to 'necessity' itself would become useless (and contracts would become, indeed, a tool to bypass e.g the requirement to ask for valid consent under Article 6(1)(a) for any where there is no other legal basis. <blockquote><u>Case Law:</u> In it's [[EDPB - Binding Decision 3/2022 - 'Meta (Facebook)'|Binding Decision 3/2021 on Meta (Facebook)]] the EDPB held that adding elements in terms and conditions that are aimed at making behavioral advertisement do not make the 'necessary' under Article 6(1)(b) GDPR, as the core contract has to be determined not by artificially added elements, but by the expectations of data subject. In the case of Facebook, data subjects mainly see this as a communication tool.</blockquote>In practice, the assessment should be driven by questions such as: what is the nature of the service being provided to the data subject? What are its distinguishing characteristics in the view of an average data subject? What is the exact rationale of the contract (i.e. its substance and fundamental object) and essential elements? What are the mutual perspectives and expectations of the parties to the contract? How is the service promoted or advertised to the data subject? Would an ordinary user of the service reasonably expect that, considering the nature of the service, the envisaged processing will take place in order to perform the contract to which they are a party?<ref>EDPB, ‘Guidelines 2/2019 on the processing of personal data under Article 6(1)(b) GDPR in the context of the provision of online services to data subjects’, 8 October 2019 (Version 2.0), p. 10 (available [https://edpb.europa.eu/sites/default/files/files/file1/edpb_guidelines-art_6-1-b-adopted_after_public_consultation_en.pdf here]).</ref><blockquote><u>Common Misunderstanding:</u> Just because processing is related to a contract, or merely useful for the performance of a contract, does not mean that it is strictly necessary for the performance of a contract.</blockquote>

===== Existence of a Valid Contract =====
A contract under Article 6(1)(b) GDPR must be valid.<ref>''Heberlein'', in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 6 GDPR, margin number 13 (C.H.Beck 2018, 2nd Edition 2018).</ref> Void contracts cannot serve as a legal basis under Article 6(1)(b) GDPR.<ref>''Bucher, Petri'', in Kühling, Buchner, DS-GVO BDSG, Article 6 GDPR, margin number 31 ( C.H. Beck 2020, 3<sup>rd</sup> Edition).</ref> 

It is a matter of applicable contract law if a specific contract or clause is valid. While some contractual elements are regulated on a European level (for example the minimum requirements under the [https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31993L0013 Unfair Terms Directive 93/13/EEC] for terms and conditions), civil law is generally a matter of each Member State. Especially in the consumer context, a contract may be subject to the laws of the Member State where each consumer resides (see e.g. Articles 17 to 19 of the [https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12012P/TXT&from=EN#d1e68-393-1 Brussles-Ia Regulation (EU) No 1215/2012]).<blockquote><u>Example:</u> A Spanish controller and a French consumer concluded a contract that would be valid in Spain, but is void under the applicable French law. The lack of any valid contract means there is also no legal basis under Article 6(1)(b) GDPR.</blockquote>However, certain contractual defects seem to be common to many European legal traditions: for example, intention, misrepresentation and duress. However, beyond such standard cases there are circumstances in which a breach does not necessarily lead to a contract being void, but only allows contract partners to successfully challenge the contract.  

The EDPB [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-22019-processing-personal-data-under-article-61b_en Guidelines 2/2019] have clarified that these rules must be taken into account in assessing the validity of a national contract: “''contracts and contractual terms must comply with'' […] ''consumer protection laws in order for processing based on those terms to be considered fair and lawful''”.<ref>EDPB, ‘Guidelines 2/2019 on the processing of personal data under Article 6(1)(b) GDPR in the context of the provision of online services to data subjects’, 8 October 2019 (Version 2.0), p. 5 (available [https://edpb.europa.eu/sites/default/files/files/file1/edpb_guidelines-art_6-1-b-adopted_after_public_consultation_en.pdf here]).</ref> In conclusion, in order to understand whether a contract is valid or not, a controller must first identify the applicable law and, second, verify whether the contract is valid under that law (including any applicable EU law). 

===== Prior to entering into a contract =====
Under Article 6(1)(b) GDPR, data processing may also be lawful in pre-contractual situations at the request of the data subject.<blockquote><u>Example:</u> A data subject asks a sales representative for curtains to send information on their products and to schedule an appointment at the data subject's house. The parties have not (yet) formed a contract, but the sales representative may use the data subject's details to the extent that this is necessary for the pre-contractual steps.</blockquote>EDPB [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-22019-processing-personal-data-under-article-61b_en Guidelines 2/2019] point out that “''this provision would not cover unsolicited marketing or other processing which is carried out solely on the initiative of the data controller, or at the request of a third party''”.<ref>EDPB, ‘Guidelines 2/2019 on the processing of personal data under Article 6(1)(b) GDPR in the context of the provision of online services to data subjects’, 8 October 2019 (Version 2.0), p. 13 (available [https://edpb.europa.eu/sites/default/files/files/file1/edpb_guidelines-art_6-1-b-adopted_after_public_consultation_en.pdf here]).</ref>

===== End of contract =====
Where the processing is based on the performance of a contract, the end of such a contract (e.g. in the case of fulfillment or termination) makes this legal basis vanish, the processing of personal data under Article 6(1)(b) GDPR is no longer allowed. As the controller typically still needs to process personal data after a contract is fulfilled or terminated, the same data can be still be processed for other legal purposes.<blockquote><u>Example:</u> Already the privacy policy of the controller included that the relevant personal data is not only processed for the performance of the contract, but also compliance with a legal obligations under Article 6(1)(c) GDPR (e.g. tax records) and the establishment, exercise or defense of legal claims under Article 6(1)(f) GDPR (e.g. to manage guarantee claims and alike). </blockquote>You can find more information on such other legal basis in the commentary on Article 6(1)(c) to (f) below.<blockquote><u>EDPB Guidelines:</u> On this provision there are the [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-062020-interplay-second-payment-services_en EDPB Guidelines  06/2020 on the interplay of the Second Payment Services Directive and the GDPR]


<u>EDPB Guidelines:</u> on this provision there are the [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-22019-processing-personal-data-under-article-61b_en EDPB Guidelines 2/2019 on the processing of personal data under Article 6(1)(b) GDPR in the context of the provision of online services to data subjects]</blockquote>

==== (c) Legal obligation ====
The GDPR recognises that under many European and Member State's laws controllers may be obliged to collect, store, and otherwise process personal information. Under Article 6(1)(c), such processing operations are considered lawful if they are necessary to fulfill these obligaitons. <blockquote><u>Example:</u> An employer processes personal data for social insurance purposes or under a duty to document compliance with workers' rights. A bank keeps records and shares them with authorities under money laundering legislation. A company keeps all relevant financial information under a duty to keep documentation on paid taxes for a certain number of years.</blockquote>

===== Necessary =====
Iinformation on necessity can be found above under the overview on Article 6(1) under 'necessity'. The concept of necessity means that processing must be limited to what is strictly necessary. This does not mean that only indispensable processing is allowed. Unreasonable alternatives are not taken into account, but merely 'useful' additional processing is not 'necessary' 

===== Compliance with a legal obligation =====
The legal obligation must originate directly from the law. ‘Member State law’ refers to all material law of that Member State.<ref>''Buchner, Petri'', in Kühling, Buchner, DS-GVO BDSG, Article 6, margin number 197 (C.H. Beck 2020, 3rd Edition).</ref> It may not result from a contractual arrangement,<ref>WP29, Opinion 06/2014 on the notion of legitimate interests of the data controller under Article 7 of Directive 95/46/EC, 844/14/EN, 9 April 2014, p. 19 (available [https://ec.europa.eu/justice/article-29/documentation/opinion-recommendation/files/2014/wp217_en.pdf here]).</ref> non-binding government requests or any form of 'guidelines' or 'best practice documents' and like that do not have the force of law. It is a matter of the national constitutional law to determine what constitutes obligations with the force of law. In some Member States this may include secondary legislation (e.g. 'statutory instruments' or ministerial 'directives'), local laws or ordinances, all the way to collective bargaining agreements that are given the force of law in some Member States.<ref>See for example § 11 Austrian '''Arbeitsverfassungsgesetz''<nowiki/>' (ArbVG)</ref><blockquote><u>Example:</u> A controller gets a request from the police to disclose certain information. The police says it has a right to get that information. Once the controller takes a closer look, it turns out that under applicable national law, the police may ask the controller for such information and hope for their voluntary support, but the controller has no obligation to comply with this request. The controller cannot share the information under Article 6(1)(c) GDPR, as there is no 'legal obligation'.</blockquote>Article 6(1)(c) GDPR only covers 'obligations' under national law, meaning regulations that ''require'' a certain processing operation. Article 6(1)(c) does not cover situations where the law ''permits'' certain conduct or processing operations. In certain cases, there may however be options to use Article 6(1)(f) GDPR to process personal data.

The legal provision which defines the legal obligations for the controller does not need to be specific to each individual processing. It must, however, be sufficiently clear, precise and foreseeable and, in particular, define the purposes of the processing.<ref>''Heberlein'', in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 6 GDPR, margin number 15 (C.H. Beck 2018, 2nd Edition).</ref> Processing that goes beyond these legal obligations is not lawful under this provision. Any obligation to process data under another law must itself be proportionate (Article 7 and 8 EU Charter of Fundamental Rights) and in compliance with Article 6(2) and (3) GDPR.

===== Union or Member State law =====
According to Article 6(3) GDPR, the legal obligations may only be based in Union law or Member State law to which the controller is subject. This means that:

* Union or Member State law trigger Article 6(1)(c) GDPR, this includes laws that make foreign obligation enforceable in the Union or Member State.
* Any third country law (even if it applies to the controller under the laws of that third country) do not fall under Article 6(1)(c) GDPR.
* Any Members State law that the controller is not subject to (e.g. the laws of another Member State than his establishment) do not apply.

Obligations under third country law may, according to some views, be a factor to assess a possible 'legitimate interest' under Article 6(1)(f) GDPR.

===== Specifications in Member State law =====
Equally to Article 6(1)(c) GDPR, Article 6(2) and (3) GDPR require that Union or Member State law fulfill certain criteria. See commentary on Article 6(2) and (3) below for the commentary on this element.

===== To which the controller is subject =====
Article 6(1)(c) GDPR only covers situations where the controller is subject to a direct legal obligation. Obligations on the data subject or a third party do not trigger Article 6(1)(c) GDPR.

==== (d) Vital Interest ====
A data processing may also be lawful if it is necessary to protect the vital interests of the data subject or of another natural person. The underlying assumption here is that the right to life takes precedence over data protection and - in the case of the vital interests of the data subject - the data subject is assumed to consent to the processing. <blockquote><u>Example:</u> The data subject is rushed to the hospital and the doctors check their medial data systems to ensure that they are fully aware of any potential complications from preexisting conditions or allergically reactions.</blockquote>In practice many situations where data for the 'vital interests' are processed my concern special categories of personal data (e.g. health data) and are therefor regulated by [[Article 9 GDPR]].

===== Necessary =====
Information on necessity can be found above under the overview on Article 6(1) under 'necessity'. The concept of necessity means that processing must be limited to what is strictly necessary. This does not mean that only indispensable processing is allowed. Unreasonable alternatives are not taken into account, but merely 'useful' additional processing is not 'necessary'

===== Protection =====
Article 6(1)(d) GDPR only requires the aim to protect vital interests. The mere effort seems to be sufficient.

===== Vital interests =====
Recital 46 clarifies that vital interests are "''essential for the life''" of the data subject. It follows that data processing on this ground “''requires that a situation of concrete and imminent danger exists for the data subject or a third (natural) person''”.<ref>''Kotschy'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 6 GDPR, p. 333 (Oxford University Press 2020).</ref> 

The provision does not require that the natural person subjectively wants to have his or her vital interests protected. The provision could consequently also apply in situations of self-harm or natural persons that do not care about the protection of their vital interests. Such an interpretation would potentially go against the concept of informational self-determination.

===== Natural person =====
According to the provision the '<nowiki/>''vital interests of the data subject or another natural person''<nowiki/>' must be protected. As data subjects are defined as natural persons under [[Article 4 GDPR|Article 4(1) GDPR]], the provision could equally read '''any natural person''<nowiki/>'.

==== (e) Public interest ====
Article 6(1)(e) GDPR allows processing for tasks carried out in the public interest or in the exercise of official authority vested in the controller, if the processing is based on EU or Member State law. The Member States have vastly different traditions in allocating tasks in the public interest. In recent decades, many tasks that were typically allocated to the government were outsources to private or quasi-private entities. Article 6(1)(e) GDPR consequently follows a 'functional' approach.<ref>''Buchner, Petri'', in Kühling, Buchner, DS-GVO BDSG, Article 6 GDPR, margin number 111 (C.H. Beck 2020, 3rd Edition), citing Dammann & Simitis, DSRL Art. 7,  (Nomos 1997) p. 10.</ref> It does not matter if the controller is a public authority, a private entity or a publicly owned entity.<ref>''Buchner, Petri'', in Kühling, Buchner, DS-GVO BDSG, Article 6 GDPR, margin number 111 (C.H. Beck 2020, 3rd Edition).</ref> Examples of entities that carry out tasks in the public interest or exercise official authority:

* Certain tasks of notary publics, lawyers, probation services or tax accountants;
* A private limited company, fully owned by the Member State, that is tasked with air-traffic control and licensing pilots;<ref>See e.g. Austro Control GmbH</ref>
* Private entities tasked with technical inspections on behalf of the government (e.g. chimney sweepers);
* Political parties in the administration of elections;
* Private or non-profit health care providers or ambulance services operating on behalf of the government;
* Utility providers that are e.g. tasked with operating 'smart meters';<ref>''Buchner, Petri'', in Kühling, Buchner, DS-GVO BDSG, Article 6 GDPR, margin number 131 (C.H. Beck 2020, 3rd Edition).</ref>

===== Necessary =====
Information on necessity can be found above under the overview on Article 6(1) under 'necessity'. The concept of necessity means that processing must be limited to what is strictly necessary. This does not mean that only indispensable processing is allowed. Unreasonable alternatives are not taken into account, but merely 'useful' additional processing is not 'necessary'

===== Performance of a task carried out in the public interest =====
The first branch covers Union or Member State laws that require public or private entities to process personal data for a task carried out in the public interest. <blockquote><u>Example:</u>  In a Member State public but also private entities are operating the ambulance services. This includes a government department but also non-profits operating ambulances. Equally full-time emergency doctors, but also local doctors in the countryside are involved in the system. They are all coordinated by a single software system. The legal basis is a national law that uses the options under Article 6(1)(e) GDPR.</blockquote>

===== The exercise of official authority vested in the controller   =====
The second branch covers Union or Member State laws that require public or private entities to process personal data when exercising official authority. <blockquote><u>Example:</u> A Member State has outsourced issuing and revocation of certain licenses to a private entity. The law transfers certain authority to that entity that requires the use of personal data. The entity can rely on Article 6(1)(e) GDPR.</blockquote>

===== Specifications in Union or Member State law =====
Equally to Article 6(1)(c) GDPR, Article 6(2) and (3) GDPR require that Union or Member State law fulfill certain criteria. See commentary on Article 6(2) and (3) below for the commentary on this element.

==== (f) legitimate interest ====
While Articles 6(1)(a) GDPR deals with situations where data subjects waived their rights and Articles 6(1)(b) to (e) deal with common purposes where processing is allowed, Article 6(1)(f) deals solely with situations where the controller or a third party has an interest that conflicts with the data subjects' fundamental right to data protection. 

===== Flexible but legally uncertain =====
Article 6(1)(f) GDPR is the 'catch all' balancing test for anything not foreseen by Articles 6(1)(b) to (e) GDPR, where the controller does not seek consent, but takes the view that the rights of the controller or a third party override  the rights of the data subject. 

The ''flexibility'' of this clause also leads to ''major legal uncertainty'' for controllers and data subjects. In practice this 

While Article X of the previous Data Protection Directive 95/46/EC also foresaw the option to process based on an overriding 'legitimate interest' the previous Directive allowed Member States to implement more specific provisions for certain situations (e.g. video surveillance, credit ranking and alike). Given that the GDPR is now a direclty applicable Regulation, there is no room for such national 'interpretations'. Nevertheless, many Member States have kept their national 'legitimate interest' implementations, despite lacking the necessary jurisdiction. While this approach is meant to provide more legal certainty, it actually adds even more uncertainty.<blockquote><u>Common Misunderstanding:</u> Under § XX of the German Data Protection Act xxxx. There seems to be no opening clause in the GDPR that would allow the German legislator to pass such a provision. However, given that § XX  represents the national tradition in Germany, courts still apply the provision or interpret the GDPR in the light of the national provision. This is not correct, given that EU law must be interpreted autonomously.</blockquote>During the GDPR negotiations, Article 6(1)(f) was one of the major battle grounds between the legislator and industry lobbyists. The European Commission foresaw a right of the Commission itself to pass delegated acts that would further define Article 6(1)(f) GDPR - this was rejected by the European Parliament. Various proposals to add explanatory lists of what does and what does not constitute a legitimate interest were not getting a majority, as each side was unwilling to agree that certain elements are included or excluded.

One of the political solutions was to 'park' some of these suggestions in Recitals XX to XX GDPR, as one side was able to argue that the matter is now 'in the GDPR' and the other side was able to highlight that the Recitals are not legally binding. When it comes to the contentious issue of advertisement the legislator finally added the remarkable line that '<nowiki/>''direct marketing''<nowiki/>' (not all advertisement) '''may''<nowiki/>' constitute a legitimate interest. There is no indication as to when this 'may' or 'may not' be a legitimate interest.

Article 6(1)(f) GDPR consequently requires a delicate balancing of relevant interests. The balancing act in question is not a straightforward balancing test which would simply consist of weighing two easily quantifiable and easily comparable 'weights' against each other. <blockquote><u>Guidelines:</u> In Opinion 06/2014 of the WP29 on 'legitimate interests' under Directive 95/46/EC (in the only and now outdated guidance on the issue) suggests a multi-step procedure. First, controllers ought to verify whether their interest is actually “legitimate”. Second, they need to identify the data subject’s interests, rights and freedoms. Third, they have to establish (through an appropriate balancing operation) whether the controller’s (presumably, legitimate) interests are overridden by those of the data subject.<ref>WP29, ‘Opinion 06/2014 on the notion of legitimate interests of the data controller under Article 7 of Directive 95/46/EC’ 844/14/EN WP 217, 9 April 2014, p. 23 (available [https://ec.europa.eu/justice/article-29/documentation/opinion-recommendation/files/2014/wp217_en.pdf here]).</ref></blockquote>

===== Whether the Interest is Legitimate =====
In the view of the WP29, the notion of interest [A distinction must first be made between interest and purpose. Interest is the general objective that a controller intends to pursue (i.e. ensuring the occupational safety of its employees). The purpose, on the other hand, is the specific aim of a certain processing activity (for instance, implementation of specific access control procedures to only allow trained personnel in certain areas of the workplace] can include a broad range of activities, whether trivial or very compelling, straightforward or more controversial.<ref>WP29, ‘Opinion 06/2014 on the notion of legitimate interests of the data controller under Article 7 of Directive 95/46/EC’ 844/14/EN WP 217, 9 April 2014, p. 23 (available [https://ec.europa.eu/justice/article-29/documentation/opinion-recommendation/files/2014/wp217_en.pdf here]).</ref> In general terms, an interest is “legitimate” if the controller can legitimately pursue it and thus in accordance with the GDPR and any applicable law. As to what “law” means in this case, in the absence of updated guidance, reference should be made to the instructions provided by the WP29 in Opinion 3/2013 on purpose limitation, according to which the notion of "law" must be interpreted in an extensive manner, including all forms of written or common law, as interpreted by the competent courts and supplemented by other official sources.<ref>WP29, ‘Opinion 06/2014 on the notion of legitimate interests of the data controller under Article 7 of Directive 95/46/EC’ 844/14/EN WP 217, 9 April 2014, p. 25 (available [https://ec.europa.eu/justice/article-29/documentation/opinion-recommendation/files/2014/wp217_en.pdf here]).</ref> The above seems to be confirmed by the recent guidelines on contract-based treatment. There, the EDPB clarified that the contract (and thus, by analogy, the legitimate interest) must be valid i.e. “''must comply with the requirements of contract laws and, as the case may be for consumer contracts, consumer protection laws in order for processing based on those terms to be considered fair and lawful''”.<ref>EDPB, ‘Guidelines 2/2019 on the processing of personal data under Article 6(1)(b) GDPR in the context of the provision of online services to data subjects’, 8 October 2019 (Version 2.0), p. 5 (available [https://edpb.europa.eu/sites/default/files/files/file1/edpb_guidelines-art_6-1-b-adopted_after_public_consultation_en.pdf here]).</ref>

===== Pursued by the Controller or by a Third Party =====
The interest at stake must also be “''pursued by the controller''”. This requires a real and present interest, instrumental to the controller’s current activities or benefits expected in the very near future. In other words, interests that are too vague or speculative will not be sufficient. <ref>WP29, ‘Opinion 06/2014 on the notion of legitimate interests of the data controller under Article 7 of Directive 95/46/EC’ 844/14/EN WP 217, 9 April 2014, p. 24 (available [https://ec.europa.eu/justice/article-29/documentation/opinion-recommendation/files/2014/wp217_en.pdf here]).</ref> According to Article 6(1)(f) the processing can also lawfully take place for the legitimate interests pursued by a third party. This is “secondary use” of data (or “further processing”) per Article 5(1)(b) GDPR and, under Article 6(4) GDPR, in the absence of consent or a law explicitly allowing it, “''is permitted only if it is compatible with the purpose of the initial processing''”. It follows that the third party’s interest must fulfill two conditions: it shall be “legitimate” and “compatible” with the purpose of the initial processing.<ref>''Kotschy,'' in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, [Update of Selected Articles - May 2021] Article 6 GDPR, p. 74 (Oxford University Press 2020).</ref>

===== Interests or fundamental rights and freedoms of the data subject =====
In general, the definition of “fundamental rights and freedom” includes all the traditional rights foreseen in the European constitutions, the Charter of Fundamental Rights of the EU as well as the European Convention on Human Rights. This obviously includes the right to the protection of personal data, personal and family life, freedom of expression and human dignity. In addition to the fundamental rights of the data subject, other “freedoms or interests” must also be taken into account. This includes the interest not to suffer any economic disadvantages, regardless of whether the damage occurs following the publication of personal data or in another way, such as via a discriminatory personalized pricing policy.<ref>''Bucher, Petri'', in Kühling, Buchner, DS-GVO BDSG, Article 6 GDPR, margin numbers 148-148a (C.H. Beck 2020, 3rd Edition).</ref>

Finally, it is important to note that unlike the case of the controller’s interests, the adjective “legitimate” is not used here to precede the ‘interests’ of the data subjects. This implies a wider scope to the protection of individuals’ interests and rights. It follows that even individuals engaged in illegal activities should not be subject to disproportionate interference with their rights and interests. For example, “''an individual who may have perpetrated theft in a supermarket could still see his interests prevailing against the publication of his picture and private address on the walls of the supermarket and/or on the Internet by the owner of the shop''”. [WP29, ‘Opinion 06/2014 on the notion of legitimate interests of the data controller under Article 7 of Directive 95/46/EC’ 844/14/EN WP 217, 9 April 2014, p. 30 (available here).]

===== Balancing test (“overridden by”) =====
The fact that the controller has such a legitimate interest in the processing of certain data does not mean that it can necessarily rely on Article 6(1)(f) as a legal ground for the processing. The legitimacy of the data controller’s interest is just a starting point, while the overall lawfulness of the entire processing operation based on legitimate interests will depend on the outcome of the balancing test between the two opposed positions. To do so, the WP29 suggests a four-step test which includes (a) assessing the controller’s legitimate interest, (b) evaluating the impacts of such interest on the data subjects, (c) striking a provisional balance and, should the situation still be uncertain, (d) applying additional safeguards to reduce any negative impact on the data subjects.

====== Assessing the controller’s legitimate interest ======
The WP29 points out that a controller’s legitimate interest may be justified by their freedom of expression and information, academic and scientific research, right of access to documents, as well as the right to liberty and security, freedom of thought, conscience and religion, the freedom to conduct a business, the right to property and to an effective judicial remedy or the presumption of innocence. In other cases, the controller may even invoke the public interest, for instance when it enforces policies that ensure the safety of an online community. 

====== Evaluating the Impact on the Data Subject ======
Once the controller´s interest has been assessed, the impact of the processing on the data subject´s interests or fundamental rights should be evaluated. Several elements can be useful at this stage, including the likelihood that a risk can materialise, the severity of its consequences, the number of individuals potentially impacted as well as the nature of the data. In general, it appears that the more sensitive the information involved is, the more consequences for the data subject there may be.

Also of relevance is the way the information is being processed, whether it is shared with a large number of actors or persons or combined with other data sets. Finally, the reasonable expectations of the data subjects and the status of the controller should be considered (Recital 47). In particular, it is important to evaluate whether the status of the data controller, the nature of the relationship or the service provided, or the applicable legal or contractual obligations (or other promises made at the time of collection) could give rise to reasonable expectations of stricter confidentiality and stricter limitations on further use.<ref>WP29, ‘Opinion 06/2014 on the notion of legitimate interests of the data controller under Article 7 of Directive 95/46/EC’ 844/14/EN WP 217, 9 April 2014, p. 40 (available [https://ec.europa.eu/justice/article-29/documentation/opinion-recommendation/files/2014/wp217_en.pdf here]).</ref>

In C-708/18, TK, para. 53-59, the CJEU elaborated on the criteria for the balancing of interests. In a case involving the lawfulness of a CCTV surveillance system, the Court considered different factors including whether the data to be processed were retrieved from publicly accessible sources or were rather related to the data subject’s private life; the nature of the data, particularly their sensitiveness; and the modalities of processing, including the number of persons having access to the data. As Kotschy points out, the Court also “''took implicitly into account recital 47,17 which stresses the importance of the reasonable expectations of the data subjects based on the time and context of the processing, and indicates that conflict with these expectations could, in certain cases, ‘override’ a controller’s interest in ‘further processing’''”.<ref>See, ''Kotschy,'' in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary [Update of Selected Articles - May 2021] Article 6 GDPR, p. 74 (Oxford University Press 2020). In CJEU, Case C-468/10 and C-469/10, ''ASNEFF and FECEMD'', 24 November 2011, margin number 38 (available [https://curia.europa.eu/juris/document/document.jsf?text=&docid=115205&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=135346 here]) , the CJEU named two elements for a test under Article 7(f) of Directive 95/46/EC. Firstly, the processing of the personal data must be necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed. Secondly, such interests must not be overridden by the fundamental rights and freedoms of the data subject. The wording of Article 6(1)(f) GDPR and Article 7(f) of Directive 95/46 are sufficiently overlapping to be able to apply this test after the introduction of GDPR.</ref>

====== Provisional balance ======
The essence of the balancing act is not clarified by the WP29´s opinion (nor does the GDPR provide any general instruction on the matter). It follows that, in accordance with the principle of accountability, the balancing act is entirely in the hands of the data controller who, taking into account the elements described above, must proceed in one direction or another, assuming full responsibility for the choice. It goes without saying that the controller should document and be able to demonstrate the reasoning used to reach their conclusions. These assessments must therefore be made on a case-by-case basis.<ref>The following situations are generally assumed to form a legitimate interest: Defense of legal claims It is generally accepted that the defense of legal claims is a legitimate interest. This includes civil law claims (whether contractual or not), administrative or criminal cases. Any such use of personal data must still comply with other provisions like the general principles in Article 5 GDPR. Fraud prevention Recital 47 explicitly names the prevention of fraud as a legitimate interest. In practice, an assessment and balancing of the likeliness of any fraudulent activity and the interference with the rights of the data subject needs to be made. Previous fraudulent activity may be an indicator. Any such use of personal data must still comply with other provisions like the general principles in Article 5 GDPR. Network security Recital 49 explicitly deals with data processing for network security. Processing of personal data for these purposes can also be derived as a legal duty under Article 32 GDPR. Any such use of personal data must still comply with other provisions like the general principles in Article 5 GDPR. Search engines Insofar as search engines process personal data, the right to freedom of information by the user as well as the rights of the search engine operators generally leads to an overriding legitimate interest. This may, however, be overridden by the interests of specific data subjects. Video surveillance: In many national laws under Directive 95/46/EC, video surveillance ("CCTV") was accepted under the legitimate interest. Many limitations on the specific situations when a controller has an overriding interest in surveillance over the interest of others were defined in national laws. When there is a genuine security challenge or threat, the use of structural surveillance may override the interests of data subjects. This includes the security of third parties, like the safety of passengers on a train. Such examples may include a high risk institution (e.g. banks) or previous criminal activity (e.g. thefts, violent crime or vandalism). Any video surveillance system must still comply with other provisions like the general principles in Article 5 GDPR. This means that the records must be destroyed as soon as the purpose is fulfilled (usually the time that realization of a crime takes, which may be 72 hours over a weekend). Data minimization also requires that only the strictly necessary area is filmed. Other obliogations like information to the public through signs under Article 13 GDPR also need to be observed. Direct marketing: During the negotiations on the GDPR there were multiple attempts to include "direct marketing" into the list of legitimate interests. In the end, the negotiating parties agreed to not reach a clear agreement: "Direct marketing" was moved to the last sentence of the non-binding recitals and the word "may" was added. Recital 47 now says that direct marketing "may be regarded" as carried out for a legitimate interest. At the same time, [https://gdprhub.eu/index.php%3Ftitle=Article_21_GDPR Article 21(2) GDPR] includes an absolute right to object to direct marketing. Generally, the GDPR therefore seems to accept that direct marketing can be a legitimate interest ("may") while recognizing that it will not always be a legitimate interest across all situations. After all, a controller must engage in a balancing test in each individual case. The only legal description of "direct marketing" can be found in Article 13(3) of the ePrivacy Directive 2002/58/EC, which requires (1) obtaining the personal data in the context of the sale of a product or service (existing relationship), (2) the use by the same controller, for (3) its own similar products or services and (4) a clear and distinctive opportunity to object when the data is collected and with any further communication. It can be assumed that these situations also form a legitimate interest within the meaning of the GDPR</ref> However, this does not mean that, where possible, certain official guidelines may not be used to draw useful indications with respect to processing operations having common characteristics.<ref>''Heberlein'', in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 6 GDPR, margin number 32 (C.H. Beck, 2nd edition 2018)</ref>

====== Additional safeguards ======
In cases where it is not clear which way the balance should be struck, the controller may consider whether it is possible to introduce additional safeguards.  For example, these may include the “''strict limitation on how much data is collected, or immediate deletion of data after use. While some of these measures may already be compulsory under the Directive, they are often scalable and leave room for controllers to ensure better protection of data subjects''” as well as “''providing an easily workable and accessible mechanism to ensure an unconditional possibility for data subjects to opt-out of the processing''”. These additional measures may in some cases help tip the balance and help ensure that the processing can be based on Article 6(1)(f), whilst simultaneously protecting the rights and interests of the data subjects.<ref>WP29, ‘Opinion 06/2014 on the notion of legitimate interests of the data controller under Article 7 of Directive 95/46/EC’ 844/14/EN WP 217, 9 April 2014, pp. 40-41 (available [https://ec.europa.eu/justice/article-29/documentation/opinion-recommendation/files/2014/wp217_en.pdf here]).</ref>

====== Children ======
Article 6(1)(f) GDPR explicitly mentions situations "''in particular where the data subject is a child''". This seems to indicate that a balancing test needs to take the specific interests and expectations of a child into account.

=== (2) In case of processing under Article 6(1)(c) and (e) specific national rules are possible ===
This provision gives Member States more competence in the public sector,<ref>''Kotschy'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 6 GDPR, p. 326 (Oxford University Press 2020).</ref> since it allows them to adopt, or keep,<ref>This is clear from the wording ‘maintain’. See ''Plath'', in Plath, DSGVO BDSG , Art. 6 DSGVO, margin number 126 , (Otto Schmidt 2018).</ref> their own (material) rules that regulate in which instances a controller can rely on the legal bases provided for in Article 6(1)(c) and Article 6(1)(e). Member States can do so by providing specific requirements for the processing (including provisions relating to specific processing situations), to, ultimately, ensure that this processing is more lawful and fair.<ref>''Frenzel'', in Paal/Pauly, DS-GVO BDSG, Article 6, margin number 32 (C.H. Beck 2021, 3rd Edition).</ref> Through this wording it is apparent that these national provisions must stay within, and cannot go beyond the framework of the GDPR.<ref>''Plath'', in Plath, DSGVO BDSG, Article 6 DSGVO, margin number 125, (Otto Schmidt 2018).</ref> Since this provision allows Member States to enact denser regulation, as well as more concrete requirements for controllers. ''Frenzel'' notes this can lead to conflicts, not only between a Member State and the Commision (since the latter monitors the application of Union law), but also in case of different processing situations by the same controller or vis-à-vis the same data subject.<ref>''Frenzel'', in Paal, Pauly, DS-GVO BDSG, Article 6, margin number 32 (C.H. Beck 2021, 3rd Edition).</ref>

=== (3) In case of processing under Article 6(1)(c) and (e) specific national rules must follow the GDPR instructions ===
Articles 6(2) and (3) GDPR allows Member States to implement specific provisions contained in this legal basis, for example:

* the general conditions governing the lawfulness of processing by the controller; 
* the types of data which are subject to the processing; 
* the data subjects concerned; 
* the entities to, and the purposes for which, the personal data may be disclosed; 
* the purpose limitation; 
* storage periods; 
* and processing operations and processing procedures. 

This is a non-exhaustive and non-binding, but are certainly permissible specific provisions.<ref>''Buchner, Petri'', in Kühling, Buchner, DS-GVO BDSG, Article 6, margin number 94 (C.H. Beck 2020, 3rd Edition).</ref> However, this opening clause allows Member States to further define elements that would otherwise only be governed by Article 5(1) GDPR or solely determined by the controller. 

If Member States would pass such legislation without complying with the general principles of 'proportionality' under Article 8 and 52 of the Charter of Fundamental Rights, Article 6(1)(2) and (3) GDPR, [[Article 23 GDPR|Articles 23]] and [[Article 85 GDPR|85]] to [[Article 91 GDPR|91]] GDPR such national laws would be inapplicable, given the supremacy of EU law. <blockquote><u>Case Law:</u> In Joined Cases C-465/00, C-138/01 and C-139/01 - ''Österreichischer Rundfunk'' a national law foresaw to publish the income of employees of the public bodies, such as the public broadcaster for transparency reasons. The CJEU held that the disclosure of not only the amounts, but also the names of the recipients is only possible if it is truly necessary for and appropriate to the objective of proper management of public funds. While the CJEU seemed rather critical, the court left it to the Member State courts to make the ultimate determination.</blockquote>In practice, many Member States have extensively passed laws that go beyond the opening clauses in the GDPR. This creates massive legal uncertainty, as such laws are on the books, but may not be applied in practice.<blockquote><u>Case Law:</u> The legislator in Austria has passed a total exception from all GDPR obligations for journalism. As this blanket exception went far beyond anything that is 'proportionate' the Austrian Constitutional Court annulled the law.<ref>See [[VfGH - G 287/2022-16, G 288/2022-14]]</ref> In Sweden a similar provision does still exist.<ref>See Chapter 1, § 7 of the Swedish GDPR Implementation Act (2018:218)</ref></blockquote>


According to Article 6(3), the legal basis for processing under Article 6(1)(c) (legal obligation) and Article 6(1)(e) (public interest) ''shall'' be laid down by (a) Union, or (b) Member State law. Contrary to Article 6(1)(c), however, the public interest processing does not have to be ''expressly'' laid down in a legal basis. It suffices if the processing is necessary to fulfil a task which serves the public interest, or in the exercise of official authority, and the task is described in a specific and clear manner.<ref>''Buchner, Petri'', in Kühling, Buchner, DS-GVO BDSG, Article 6, margin number 121 (C.H. Beck 2020, 3rd Edition).</ref>

Moreover, the provision allows Member States to implement specific provisions contained in this legal basis, and suggests, ''inter alia'', the general conditions governing the lawfulness of processing by the controller; the types of data which are subject to the processing; the data subjects concerned; the entities to, and the purposes for which, the personal data may be disclosed; the purpose limitation; storage periods; and processing operations and processing procedures. These concretisations are non-exhaustive and non-binding, but are certainly permissible specific provisions.<ref>''Buchner, Petri'', in Kühling, Buchner, DS-GVO BDSG, Article 6, margin number 94 (C.H. Beck 2020, 3rd Edition).</ref> Lastly, the constituent element ‘Member State law’ refers to all material law of that Member State.<ref>''Buchner, Petri'', in Kühling, Buchner, DS-GVO BDSG, Article 6, margin number 197 (C.H. Beck 2020, 3rd Edition).</ref> 

==== Relationship between Articles 6(2) and 6(3) ====
It is important to set out that it remains unclear how Articles 6(2) and 6(3) relate to one another, legally and systematically.<ref>''Jahnel'', in Jahnel, DSGVO, Article 6, margin number 85 (Jan Sramek Verlag 2021).</ref> The exact relationship between the two clauses remains disputed. Some authors ascribe a more ‘declaratory nature’ to Article 6(2),<ref>''Buchner, Petri'', in Kühling, Buchner, DS-GVO BDSG, Article 6, margin number 195 (C.H. Beck 2020, 3rd Edition).</ref> and see Article 6(3) as the clause that offers the ''actual'' competence to enact material-specific data protection regulation.<ref>''Buchner, Petri'', in Kühling, Buchner, DS-GVO BDSG, Article 6, para 195 (C.H. Beck 2020, 3rd Edition);  ''Jahnel'', in Jahnel, DSGVO, Article 6, margin number 85, (Jan Sramek Verlag 2021).</ref> Other authors state that Article 6(2) ''does'' permit Member States to adopt material-specific regulation, and see Article 6(3) as a clause that sets out concrete requirements for this regulation.<ref>For example ''Plath'', in Plath, DSGVO BDSG, Article 6 DSGVO, margin number 3, (Otto Schmidt 2018).</ref> And then there is even another group of authors that does not see these requirements as ‘additional’, but cumulative.<ref>''Roßnagel'' et al., in Zeitschrift für Datenschutz (2015) pp. 455-456.</ref> Hence, the only thing that ''is'' clear, is that the exact relationship between the two clauses remains disputed. 

=== (4) Further processing ===
Article 6(4) GDPR prescribes certain factors to be taken into account where a controller wishes to further process personal data for a purpose other than that for which it was collected, where no other legal basis applies. This is only possible where the original and further purposes are "compatible". The factors set out in Article 6(4)(a)-(c) GDPR are not exhaustive.

Kotschy notes two key issues emerging from the factors in Article 6(4)(a)-(c) GDPR.<ref>''Kotschy'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 6 GDPR, p. 341 (Oxford University Press 2020).</ref> The first regards the relationship between the initial and further purpose. Notably, the new purpose does not need to be a "sub purpose" of the initial one. Rather, compatibility can exist where the initial and further purpose are “''pursued ‘together’ in close vicinity''” or where the further purpose is “''a logical consequence of the initial purpose''”.<ref>''Kotschy'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 6 GDPR, p. 341 (Oxford University Press 2020).</ref> Recital 50 GDPR adds that "''the reasonable expectations of data subjects based on their relationship with the controller''" should be considered. As Kotschy argues, "compatibility" therefore largely rests on “''what is usual and what is to be expected in certain circumstances''”. For example, where a customer receives further marketing information from an organisation they recently purchased from, this would classify as compatible further use, as customer relationship management “''is a usual activity resulting from the customer relationship.''"<ref>''Kotschy'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 6 GDPR, p. 342 (Oxford University Press 2020).</ref> 

The second issue regards the assessment of risk that may stem from processing, prescribed in Article 6(4)(c)-(e) GDPR. Importantly, further processing “''must not result in a substantially higher risk than the initial lawful processing''.” The presence of sensitive personal data is specifically mentioned as a risk factor. Risks may be mitigated by various safeguards, such as encryption or pseudonymisation. To rely on further processing compatibility, controllers must be able to demonstrate that an assessment of all relevant risks was done.<ref>''Kotschy'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 6 GDPR, p. 343 (Oxford University Press 2020).</ref> The potential to lawfully process information for a purpose that does not directly correlate with the original, but where there is a very high level of safeguards in place, is not yet clear from the law or relevant jurisprudence. It will have to be decided by future jurisprudence whether Article 6(4) “''might justify an assumption of ‘compatibility’ also in cases where the new purpose does not specifically ‘correlate’ to the initial purpose, but where a very high standard of risk containment is implemented''”.<ref>''Kotschy'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 6 GDPR, p. 343 (Oxford University Press 2020).</ref>
==Decisions==
→ You can find all related decisions in [[:Category:Article 6 GDPR]]

==References==
<references />

[[Category:GDPR Articles]]