On January 5, 2022, the European Data Protection Supervisor (“EDPS”) issued a reprimand to the European Parliament for its offering of a website to its staff and members to schedule Covid-19 tests which violated the transparency and transfer provisions of Regulation (EU) 2018/1725 (“Regulation”).  In addition, the EDPS ordered the European Parliament to bring the website’s privacy notice in compliance with the Regulation within one month of the decision (available here).  The decision was issued just weeks after the Austrian Supervisory Authority decided that a website unlawfully transferred personal data to the US by using Google Analytics (find our blog post here).

The EDPS’s investigation was prompted by complaints from six members of Parliament (in October 2020) as well as a complaint from the non-for-profit organization NOYB (in January 2021).

Specifically, the EDPS found that:

  • The privacy notice available on the website did not meet the transparency requirements of the Regulation.

The privacy notice had been copied from the Brussels airport’s COVID testing center and had not been appropriately adapted to the Parliament’s data processing.  For example, it included references to the GDPR, which does not apply to the European Parliament’s data processing.  According to the EDPS, the updated privacy notice that the Parliament published in February 2021 also did not meet the transparency requirements of the Regulation. For example, it did not identify the legal basis the Parliament relied on for its data processing.

  • The website deployed cookies that resulted in a transfer of personal data to the US in violation of the Regulation’s provisions on transfers.

The Parliament’s website deployed Google analytics cookies “to optimize the website and minimize the risk of spoofing,” as well as cookies from Stripe “for secure payments.”  According to the Parliament, Stripe’s cookies were dropped by mistake.  The EDPS found that these Google analytics and Stripe cookies collect online identifiers (that can be used to single out a user) which are considered “personal data” under the Regulation.  This personal data was transferred to Google and Stripe in the US.  Although this transfer was conducted on the basis of Standard Contractual Clauses, the EDPS found that the Parliament had not conducted a transfer impact assessment or implemented appropriate supplementary measures.  The EDPS considered this to be in violation of the Regulation’s transfer provisions, writing:

transfers of personal data to the US can only take place if they are framed by effective supplementary measures in order to ensure an essentially equivalent level of protection for the personal data transferred.

  • The website’s cookie notice failed to provide appropriate information about the cookies deployed.

The cookie notice failed to disclose the types of information accessed or stored through the cookies, as well as the purposes for such access or storage.  The EDPS also cited discrepancies between the different linguistic versions of the cookie notice.

  • The Parliament did not satisfactorily respond to a complainant’s access requests, in which the complainant asked whether personal data was transferred to the US.

The Parliament stated that it was not in a position to identify specific users and therefore to confirm whether their personal data had been transferred to the US.  But, according to the EDPS, the Parliament knew that the personal data of persons who accessed the website between September 30, 2020 and November 4, 2020 had been transferred to the US and therefore it should have disclosed this to the complainant.  By not doing so, the EDPS found that the Parliament violated the Regulation.

Separately, on May 27, 2021, the EDPS announced that it is conducting two investigations on the use of US cloud providers by EU institutions and bodies (see here).  So far, the EDPS has not released further information on the status of these investigations.

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The Covington team will continue to track and report on enforcement cases relating to the CJEU’s Schrems II judgement.

Photo of Dan Cooper Dan Cooper

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing…

Daniel Cooper is co-chair of Covington’s Data Privacy and Cyber Security Practice, and advises clients on information technology regulatory and policy issues, particularly data protection, consumer protection, AI, and data security matters. He has over 20 years of experience in the field, representing clients in regulatory proceedings before privacy authorities in Europe and counseling them on their global compliance and government affairs strategies. Dan regularly lectures on the topic, and was instrumental in drafting the privacy standards applied in professional sport.

According to Chambers UK, his “level of expertise is second to none, but it’s also equally paired with a keen understanding of our business and direction.” It was noted that “he is very good at calibrating and helping to gauge risk.”

Dan is qualified to practice law in the United States, the United Kingdom, Ireland and Belgium. He has also been appointed to the advisory and expert boards of privacy NGOs and agencies, such as Privacy International and the European security agency, ENISA.

Photo of Kristof Van Quathem Kristof Van Quathem

Kristof Van Quathem advises clients on data protection, data security and cybercrime matters in various sectors, and in particular in the pharmaceutical and information technology sector. Kristof has been specializing in this area for over fifteen years and covers the entire spectrum of…

Kristof Van Quathem advises clients on data protection, data security and cybercrime matters in various sectors, and in particular in the pharmaceutical and information technology sector. Kristof has been specializing in this area for over fifteen years and covers the entire spectrum of advising clients on government affairs strategies concerning the lawmaking, to compliance advice on the adopted laws regulations and guidelines, and the representation of clients in non-contentious and contentious matters before data protection authorities.

Photo of Anna Oberschelp de Meneses Anna Oberschelp de Meneses

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate…

Anna Sophia Oberschelp de Meneses is an associate in the Data Privacy and Cybersecurity Practice Group.  Anna is a qualified Portuguese lawyer, but is both a native Portuguese and German speaker.  Anna advises companies on European data protection law and helps clients coordinate international data protection law projects.  She has obtained a certificate for “corporate data protection officer” by the German Association for Data Protection and Data Security (“Gesellschaft für Datenschutz und Datensicherheit e.V.”). She is also Certified Information Privacy Professional Europe (CIPPE/EU) by the International Association of Privacy Professionals (IAPP).  Anna also advises companies in the field of EU consumer law and has been closely tracking the developments in this area.  Her extensive language skills allow her to monitor developments and help clients tackle EU Data Privacy, Cybersecurity and Consumer Law issues in various EU and ROW jurisdictions.