Kleyr Grasso
What law(s) specifically govern personal data / information?
Regulation (EU) 2016/679 (General Data Protection Regulation – “GDPR”)
The principal data protection legislation in Luxembourg (and the EU) is the GDPR, which replaced Directive 95/46/EC (“Data Protection Directive”). The GDPR intends to increase the harmonisation of data protection law across the EU Member States.
Loi du 1er août 2018 portant organisation de la Commission nationale pour la protection des données et du regime général sur la protection des données (Law of 1 August 2018 on the organization of the National Commission for Data Protection and the general data protection regime).
Loi du 1er août 2018 relative à la protection des personnes physiques à l’égard du traitement des données à caractère personnel en matière pénale ainsi qu’en matière de sécurité nationale (Law of 1 August 2018 on the protection of individuals with regard to the processing of personal data in criminal matters and in matters of national security).
Loi modifiée du 30 mai 2005 concernant la protection de la vie privée dans le secteur des communications électroniques (Amended law of 30 May 2005 concerning the protection of privacy in the electronic communications sector).
What are the key data protection principles in this jurisdiction?:
Lawful basis for processing
The GDPR provides an exhaustive list of legal bases on which personal data may be processed:
- consent of the data subject for one or more specific purposes;
- contractual necessity;
- compliance with a legal obligation of the controller to perform the relevant processing;
- protection of the vital interests of the data subject or of another natural person;
- performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; or
- legitimate interests (i.e. the processing is necessary for the purposes of legitimate interests pursued by the controller, except where the controller’s interests are overridden by the interests, fundamental rights or freedoms of the affected data subjects).
The processing of sensitive personal data requires stronger grounds and is only permitted under certain conditions, of which the most relevant are:
- explicit consent of the affected data subject;
- the processing is necessary in the context of employment or social security law; or
- the processing is necessary for the establishment, exercise or defence of legal claims.
Transparency
Personal data must be processed lawfully, fairly and in a transparent manner. Regarding the processing of personal data, controllers are obliged to provide certain information to data subjects. Such information must be provided in a concise, transparent, intelligible and easily accessible form, using clear and plain language.
Purpose limitation
Personal data may only be collected for specified, explicit and legitimate purposes and must not be further processed in a manner that is incompatible with those purposes.
Data minimisation
The processing of personal data must be adequate, relevant and limited to what is necessary in relation to the purposes for which those data are processed.
Accuracy
Personal data must be accurate and, where necessary, kept up to date.
Storage limitation
Personal data must be stored in a form that permits identification of data subjects for no longer than it is necessary for the purposes for which the personal data was initially collected.
Integrity and confidentiality
Personal data must be processed in a manner that ensures appropriate security of those data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.
Accountability
The controller is responsible for processing of data in accordance with the GDPR. In particular, the controller is obliged to implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in compliance with the GDPR.
What is the supervisory authority / regulator in charge of data protection?
The National Commission for Data Protection (CNPD)
Is there a requirement to register with a supervisory authority / regulator?
There is no requirement under Luxembourgish law to register with the supervisory authority as a data controller or processor, except for the DPO
Is there a requirement to notify the supervisory authority / regulator?
No; there exist no provisions in Luxembourgish law different from the GDPR regarding the requirement to notify the supervisory authority/regulator
Is it possible to register with / notify the supervisory authority / regulator online?
No, there is no possibility to register the company acting as a data processor or data controller with the supervisory authority online
What are the key data subject rights under the data protection laws of this jurisdiction?
Right to information
Pursuant to Articles 13 and 14 GDPR, data subjects have the right to be provided with information on the identity of the controller, the reasons for processing their personal data and other relevant information necessary to ensure the fair and transparent processing of personal data.
Right of access
A data subject has the right to obtain from a controller certain information in respect of the data subject’s personal data as listed in Article 15 GDPR.
Additionally, the data subject may request a copy of the personal data being processed.
Right to rectification of errors
Pursuant to Article 16 GDPR, data subjects have the right to rectification of inaccurate personal data.
Right to deletion/right to be forgotten
Data subjects have the right to erasure of their personal data (the “right to be forgotten”) if one of the reasons as listed in Article 17 GDPR apply.
Right to restriction of processing
Data subjects have the right to request restriction of the processing of personal data, which means that the data may only be processed for limited purposes as defined in Article 18 GDPR.
Right to data portability
Data subjects have a right to receive a copy of their personal data in a commonly used machine-readable format, and transfer their personal data from one controller to another or have the data transmitted directly between controllers (Article 20 GDPR).
Right to object to processing
Data subjects have the right to object, on grounds relating to their particular situation, to the processing of personal data where the basis for that processing is either public interest (Article 6 para 1(e) GDPR) or legitimate interest of the controller (Article 6 para 1(f) GDPR). The controller must cease such processing unless it demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the relevant data subject or requires the data in order to establish, exercise or defend legal rights.
Data subjects have the right to object to the processing of personal data for marketing purposes, including profiling.
Right to withdraw consent
A data subject has the right to withdraw their consent at any time (Article 7 para 3 GDPR). The withdrawal of consent does not affect the lawfulness of processing based on consent before the withdrawal.
Right to complain to the relevant data protection authority(ies)
Data subjects have the right to lodge complaints concerning the processing of their personal data with the competent data protection authority.
Right not to be subject to automated individual decision-making
Under certain circumstances, data subjects have the right not to be subject to a decision based solely on automated processing of data (including profiling), which produces legal effects or similarly significant effects for the data subject (Article 22 GDPR).
This is a summary only and there are some qualifications and limitations to these rights which may be relevant.
Is there a requirement to appoint a data protection officer (or equivalent)?
Under the GDPR (articles 37 to 39), a Data Protection Officer (DPO) must be appointed by organisations that:
- are a public authority or body (except for courts acting in their judicial capacity);
- whose core activities require large scale, regular and systematic monitoring of individuals (for example, online behaviour tracking); or
- whose core activities consist of large scale processing of special categories of data or data relating to criminal convictions and offences.
This applies to both controllers and processors. Organisations that are not required to appoint a DPO may do so voluntarily. In making a voluntary appointment, organisations should be aware that the same requirements of the position and tasks apply as of the appointment had been mandatory.
The DPO must have expert knowledge of data protection law and practices, be independent and report to the highest management level.
Do data protection/ privacy impact assessments need to be carried out in certain circumstances?
Pursuant to Article 35 GDPR the controller is obliged – prior to the processing – to carry out a data protection impact assessment ("DPIA"), where the type of processing in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons.
Does this jurisdiction have any specific data breach notification requirements?
Data controllers must notify personal data breaches to the CNPD within 72 hours of becoming aware of them if the breach is likely to result in a risk to the rights and freedoms of data subjects, and to the data subjects themselves as soon as possible if the risk is high.
Data breaches in the electronic communications sector
According to the European Commission Regulation (EU) No. 611/2013 of 24 June 2013, which entered into force on 25 August 2013, providers of publicly available electronic communications services, such as fixed or mobile telephone companies or Internet service providers, must notify the CNPD within 24 hours after the discovery of a breach of security and confidentiality of personal data, and also inform their subscribers if the incident is likely to adversely affect the level of protection of their privacy and personal data.
The EDPB (European Data Protection Board) has issued guidelines on the data breach notification, detailing requirements for data breach notifications ( Guidelines 9/2022 on personal data breach notification under GDPR and Guidelines 01/2021 on Examples regarding Data Breach Notification)
What restrictions apply to the international transfer of personal data / information?
International Data transfers (i.e. jurisdictions outside the European Economic Area (“EEA”)) can only take place if the transfer is subject to an “Adequacy Decision” or the recipient has implemented certain safeguards required by the GDPR:
The EU Commission has issued decisions concerning an adequate level of protection on the basis of Article 45 para 3 GDPR for the following countries: Andorra; Argentina; Canada; Faroe Islands; Guernsey; Isle of Man; Israel; Japan; Jersey; New Zealand; Republic of Korea, Switzerland; and Uruguay. The United Kingdom has been recognised by EU Commission as providing adequate protection under the GDPR and the Law Enforcement Directive.
For a data transfer to all other countries the controller is obliged to ensure compliance for international data transfers:
- The transfer may be based on Standard Contractual Clauses (“SCCs”) drafted by the EU Commission. . The SCCs which took effect from 27 June 2021, are available for the following transfers:
- Module 1: controller to controller
- Module 2: controller to processor
- Module 3: processor to processor
- Module 4: processor to controller
- The transfer may be based on contracts agreed between the data exporter and data importer provided that they meet the protection standards outlined in the GDPR. Additionally, prior approval by the relevant data protection authority is key.
- The transfer may be based on Binding Corporate Rules (“BCRs”), in particular within a group of entities. For BCRs prior approval by the relevant data protection authority is needed. Most importantly, the BCRs need to include a mechanism to ensure they are legally binding and enforced by every member in the group of entities.
- The transfer is covered by one of the permitted derogations set out in article 49 (in the absence of an adequacy regulation or appropriate safeguard), such as the explicit consent of the data subject, the transfer is necessary for the performance of a contract between the data subject and data controller at the data subject's request or in the interest of the data subject, or the transfer is necessary for the establishment, exercise or defence of legal claims.
Do the data protection laws in this jurisdiction have “extra-territorial effect” (i.e. do they apply to organisations outside this jurisdiction)?
With regard to its geographic scope, the GDPR combines the principles of establishment, market place and territoriality.
Pursuant to the principle of establishment, the GDPR is applicable for processing activities carried out in the context of the activities of an establishment of a controller or a processor in the EU, regardless of whether the processing itself takes place in the EU.
Pursuant to the principle of the market place, the GDPR is applicable for the processing of personal data of data subjects situated in the EU by a controller or processor who is not situated in the EU, where the processing activities are related to (i) the offering of goods or services to such data subjects situated in the EU, irrespective of whether a payment of the data subject is required; or (ii) the monitoring of their behaviour as far as their behaviour takes place within the EU (principle of the territoriality).
What rules specifically deal with marketing?
No specific provisions, but some provisions contained in the law of 14 August 2000 on electronic commerce and guidelines published by the CNPD (please see section here below for more details)
Do different rules apply to business-to-business and business-to-consumer marketing?
The law of 14 August 2000 on electronic commerce sets out strict rules in relation to the sending of unsolicited commercial communication, a commercial communication being defined as a communication of any kind designed to directly or indirectly promote the goods, services, or image of a company, organisation, or person pursuing a commercial, industrial or craft activity or exercising a regulated. The main rules are the following:
- The general rule is that there must be an opt-in (that is, explicit, specific, prior consent is needed), with the right to withdraw consent afterwards (which is to be included in each communication), free of charge (using at least the same communication means).
- Exceptions: no prior consent is needed if the message is sent to a business, using an impersonal address, and existing clients do not need to opt-in (no consent is needed) but can opt-out (with a right to request to no longer receive the emails) if all of the following apply:
- the electronic contact data was acquired in the context of the sale of a product or service;
- information is sent about similar products or services offered by the seller;
- at the time the contact data was acquired, the customer was clearly and expressly offered the opportunity to object easily and free of charge; and
- a similar opportunity to object (free of charge) using at least the same communication means is offered in each communication sent.
What rules specially deal with electronic marketing (for example, by email, text message, WhatsApp message, online ads etc)?
The law of 14 August 2000 on electronic commerce.
What rules specifically deal with cookies?
The National Commission for Data Protection has elaborated a Guideline on the use of cookies and other trackers, to help operators of websites or applications to comply with existing legislation (notably the law of 30 May 2005 relating to specific provisions concerning the processing of personal data and the protection of privacy in the electronic communications sector).
What are the consequences of non compliance with data protections laws (including marketing laws)?
The GDPR provides for a maximum penalty in the amount of the higher of EUR 20 million or 4% of worldwide turnover (Article 83 GDPR).
In broad terms, multinational organisations should be aware of what key factors if they process personal data / information from individuals within this jurisdiction, without being located there?
Controllers and processors who are not established in the EEA are generally required under Article 27 GDPR to designate a representative in the EEA where their activities fall within the territorial scope of the EEA data protection regime under Article 3, specifically if they involve processing personal data of data subjects within the EEA in connection with the provision of goods or services, or the monitoring of the behaviour of data subjects located in the EEA.
What upcoming data protection developments should multinational organisations be aware of?
To our knowledge, at least for the near future, there are no upcoming developments multinational organisations should be aware of in the field of data protection.