Article 2*

Article 2 – Material scope

Commission Proposal

1. This Regulation applies to the processing of personal data wholly or partly by automated means, and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.2. This Regulation does not apply to the processing of personal data:

(a) in the course of an activity which falls outside the scope of Union law, in particular concerning national security;

(b) by the Union institutions, bodies, offices and agencies;

(c) by the Member States when carrying out activities which fall within the scope of Chapter 2 of the Treaty on European Union;

(d) by a natural person without any gainful interest in the course of its own exclusively personal or household activity;

(e) by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties.

3. This Regulation shall be without prejudice to the application of Directive 2000/31/EC, in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive.

Go to related Recital 13Go to related Recital 14Go to related Recital 15Go to related Recital 16Go to related Recital 17

EDRi’s proposed amendment:

Article 2 – Material scope

1. This Regulation applies to the processing of personal data wholly or partly by automated means, and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system.

2. This Regulation does not apply to the processing of personal data:

 

(a) in the course of an activity which falls outside the scope of Union law, in particular concerning national security;

(b) by the Union institutions, bodies, offices and agencies;

 

(c) by the Member States when carrying out activities which fall within the scope of Chapter 2 of the Treaty on European Union;

(d) by a natural person without any gainful interest in the course of its own exclusively personal or household activity;

(e) by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties.

2 a. Subject to the rules in this Regulation, the European Parliament and the Council, and the Commission where this is provided for in this Regulation, may adopt specific rules further clarifying the rules in this Regulation with regards to specific areas or to processing by specific entities. Within a period of one year from the coming into force of this Regulation, the European Parliament and the Council shall adopt such specific subsidiary rules with regard to the processing of personal data by:

(a) by providers of publicly available electronic communications services, both generally and as concerns the preservation of communications data for purposes of law enforcement;

(b) by the the Union institutions, bodies, offices and agencies.

2 b. To the extent that processing referred to in paragraph 2a is already subject to Union law at the time of coming into force of this Regulation, those rules shall remain in force pending the adoption of subsidiary rules mentioned in that paragraph, but shall be applied in accordance with this Regulation. Any rules in such pre-existing law that contravene this Regulation shall be invalid to the extent that they contravene this Regulation.

3. This Regulation shall be without prejudice to the application of Directive 2000/31/EC, in particular of the liability rules of intermediary service providers in Articles 12 to 15 of that Directive.

Justification

The aim of this proposal is to establish a general data protection regulation. In order to achieve this aim and to avoid fragmentation of the legal framework, the scope should thus be wide. There is no a priori reason why Union institutions, bodies, offices and agencies should excluded; the same applies for providers of publicly available electronic communications services, both generally and as concerns the preservation of communications data for purposes of law enforcement. Existing legislation covering such entities should be brought in line with this Regulation. Until then, it should be applied in the spirit of the Regulation. It is already obvious that matters outside the scope of Union law are outside the scope of this Regulation, so paragraph 2 point (a) has no added value.

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