Recital 94

Recital 94

General Data Protection Regulation · UE 2016/679

(94)

Where a data protection impact assessment indicates that the processing would, in the absence of safeguards, security measures and mechanisms to mitigate the risk, result in a high risk to the rights and freedoms of natural persons and the controller is of the opinion that the risk cannot be mitigated by reasonable means in terms of available technologies and costs of implementation, the supervisory authority should be consulted prior to the start of processing activities. Such high risk is likely to result from certain types of processing and the extent and frequency of processing, which may result also in a realisation of damage or interference with the rights and freedoms of the natural person. The supervisory authority should respond to the request for consultation within a specified period. However, the absence of a reaction of the supervisory authority within that period should be without prejudice to any intervention of the supervisory authority in accordance with its tasks and powers laid down in this Regulation, including the power to prohibit processing operations. As part of that consultation process, the outcome of a data protection impact assessment carried out with regard to the processing at issue may be submitted to the supervisory authority, in particular the measures envisaged to mitigate the risk to the rights and freedoms of natural persons.

Luxembourg specificity
loi luxembourgeoise du 1er aout 2018 portant organisation de la Commission nationale pour la protection des donnees ; deliberation CNPD du 17 octobre 2018

In Luxembourg, the CNPD (not APDL, which does not exist) published on 17 October 2018 the list of processing types subject to mandatory DPIA, which acts as the factual trigger for the Article 36 prior consultation duty. The law of 1 August 2018 organising the CNPD specifies the authority's intervention powers, including after the 8-week deadline expires.

Luxgap practice: before any CNPD filing, we recommend a DPIA pre-screening by a Luxgap-certified DPO to avoid premature filings or, conversely, the omission of a mandatory filing that could later be reclassified as an Article 5(2) accountability failure.