GDPR Guide to National Implementation: Netherlands - A practical guide to national GDPR compliance requirements across the EEA

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White & Case LLP[co-authors: Quinten Kroes and Manon Oostveen, Brinkhof]

Netherlands

In this chapter:

Q1/ Applicable legislation

Q2/ Personal data of deceased persons

Q3/ Legal bases for processing

Q4/ Consent of children

Q5/ Processing of sensitive personal data

Q6/ Data relating to criminal offences or convictions

Q7/ Exemptions

Q8/ Restrictions on data subjects’ rights

Q9/ Joint controllership

Q10/ Processor

Q11/ Data protection Impact Assessments

Q12/ Prior authorisation and public interest

Q13/ DPOs

Q14/ International data transfers

Q15/ DPAs

Q16/ Claims by not-for-profit bodies

Q17/ Administrative fines, penalties and sanctions

Q18/ Freedom of expression and information

Q19/ National identification numbers

Q20/ Processing in the context of employment

Q21/ Other material derogations

Q22/ Current legal challenges

Q23/ Enforcement

Q24/ Regulatory Guidance

Q1/ Applicable legislation

(a) Have the requirements of the GDPR been addressed by introducing a new law, or by updating existing legislation?

New legislation has been passed.

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(b) Relevant legislation includes:

  • Uitvoeringswet Algemene Verordening Gegevensbescherming (General Data Protection Regulation Implementation Act) (the “Data Protection Act”)
    • Date in force: 25 May 2018
    • Link: In Dutch: see here

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(c) What is the status of national pre-GDPR data protection law?

The relevant pre-GDPR legislation has been repealed in full.

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Q2/ Personal data of deceased persons

Does national law make specific rules regarding the processing of personal data of deceased persons?

There are no specific rules governing this issue.

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Q3/ Legal bases for processing

(a) Does national law make specific rules regarding the processing of personal data in compliance with a legal obligation?

There are no specific rules governing this issue.

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(b) Does national law make specific rules regarding the processing of personal data for the performance of tasks carried out in the public interest?

Personal data relating to criminal convictions and offences may be processed for reasons of prevailing public interest.

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(c) Does national law make specific rules regarding the processing of personal data in the exercise of official authority vested in the controller?

There are no specific rules governing this issue.

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(d) Does national law contain criteria in addition to those listed in the GDPR, to determine whether processing for a new purpose is compatible with the purpose for which the personal data were initially collected?

There are no specific additional criteria governing this issue.

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Q4/ Consent of children

At what age can a child give their consent to processing in relation to ISS?

16 years of age.

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Q5/ Processing of sensitive personal data

(a) Are there any sensitive personal data which cannot be processed on the basis of a data subject’s consent?

All sensitive personal data can be processed if the data subject’s explicit consent has been obtained.

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b) Does national law contain any specific requirements regarding the processing of sensitive personal data in respect of the following:

(i) Employment, social security and/or social protection law

The processing of health data is permitted if it is carried out by administrative bodies, pension funds, employers (or institutions that perform activities on their behalf), to the extent that such processing is necessary to comply with legal requirements, pension schemes, collective employment contracts, or the reintegration or support of employees or recipients of welfare benefits relating to illness or disability.

(ii) Substantial public interest

The processing of sensitive personal data is permitted if:

  • the processing is necessary to comply with an obligation under international law;
  • the data are processed by the DPA or an ombudsman insofar as the processing is necessary for the performance of the tasks entrusted to them by law;
  • safeguards have been put in place for the processing to be carried out, such that the data subject’s privacy is not disproportionately compromised; or
  • the relevant processing is necessary for the detection or prevention of crime or for the administration of justice.

(iii) Preventative or occupational medicine; employee working capacity, medical diagnosis, provision of health or social care, or management of health or social care systems or services

Health insurers may have access to sensitive personal data in certain pre-defined cases.

(iv) Public interest in the area of public health

There are no specific rules on processing this category of data.

(v) Archiving purposes, scientific or historical research purposes or statistical purposes

Sensitive personal data may be processed for archiving purposes, scientific or historical research purposes, or statistical purposes, so long as:

  • the research serves a public interest;
  • it is impossible or would involve a disproportionate effort to request explicit consent; and
  • safeguards are in place to ensure that the data subject’s privacy is not disproportionately affected.

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(c) Has national law introduced any further conditions and/ or limitations with regard to the processing of genetic data, biometric data, or health data?

Processing this category of data is permitted where, for example, a significant overriding medical reason exists.

The processing of biometric data is permitted if it is necessary for authentication or security purposes.

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Q6/ Data relating to criminal offences or convictions

Under what conditions does national law permit the processing of personal data relating to criminal convictions?

National law permits the processing of personal data relating to criminal convictions, in compliance with the following rules:

  • personal data relating to criminal law matters may be processed on grounds similar to those relating to the processing of sensitive personal data, inter alia the explicit consent of the data subject or its vital interests. The processing of personal data that have been manifestly made public by the data subject is also permitted, as well as processing data that is necessary for the establishment, exercise or defence of legal claims and for reasons of substantial public interest;
  • controllers are permitted to process this type of data in the three following situations:
    • for the assessment of a request made by the data subject to take a decision regarding themselves;
    • to protect its interests in case of criminal offences that it expects to be committed against it or committed by its employees;
    • when rules on the processing of such data have been established by the works council through a regulated procedure; and
  • it is also possible to acquire a license from the DPA or the Dutch Ministry of Justice for the processing of data relating to criminal offences or convictions.

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Q7/ Exemptions

(a) Does national law specify exemptions to a data subject’s right to erasure?

There are no specific exemptions to the right to erasure.

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(b) Does national law specify exemptions to a data subject’s right to be provided information under Art. 14 GDPR where the personal data has not been obtained from the data subject?

There are no specific exemptions to the right to be provided information.

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(c) Does national law specify exemptions to a data subject’s right to not be subject to a decision based solely on automated processing, including profiling?

An exemption to a data subject’s right to not be subject to a decision based solely on automated processing (excluding profiling) is permitted if it is necessary for the compliance with a legal obligation to which the controller is subject, or it is necessary for the performance of a task carried out in the public interest.

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Q8/ Restrictions on data subjects’ rights

Aside from the exemptions noted in Q7, does national law contain any other restrictions on the rights of data subjects under Chapter III GDPR?

The right to object does not apply to public registers established by law. Therefore, Arts. 15-16 & 18-19 GDPR are not applicable to public registers for which special procedures are established with respect to these rights by other laws.

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Q9/ Joint controllership

Does national law provide rules or guidance on the apportionment of responsibility between joint controllers?

There are no additional rules on apportionment of liability between joint controllers.

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Q10/ Processor

In addition to the contract between controller and processor, are there any pieces of legislation which govern processing by a processor?

There are no additional pieces of legislation.

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Q11/ Impact Assessments

Are there any circumstances in which national law requires an Impact Assessment to be carried out, where the GDPR would not otherwise require such an assessment?

Impact Assessments are only required in accordance with the provisions of the GDPR. The DPA has issued guidance on relevant factors to consider when determining the necessity of an Impact Assessment.

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Q12/ Prior authorisation and public interest

Are there any circumstances in which national law requires controllers to consult with, or obtain prior authorisation from, the DPA in relation to processing for the performance of a task carried out by the controller in the public interest (including processing in relation to social protection and public health)?

Prior authorisation from the DPA is only required in accordance with the provisions of the GDPR.

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Q13/ DPOs

(a) Does national law require controllers to appoint a DPO in circumstances other than those in Art. 37(1) GDPR?

DPOs are only mandatory in the circumstances set out in Art. 37(1) GDPR.

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(b) Does national law impose secrecy and confidentiality obligations on DPOs and if so, in what circumstances do they apply?

DPOs are subject to secrecy obligations regarding any information that has become known to them pursuant to a complaint or a request from a data subject, unless the data subject consents to disclosure of such information.

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Q14/ International data transfers

(a) Does national law make specific rules about transfers of personal data from public registers?

Data transfers from public registers are not subject to specific rules.

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(b) Does national law restrict the transfer of specific categories of personal data to third countries?

Data transfers are not subject to restrictions beyond those set out in the GDPR.

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Q15/ DPAs

(a) Details of the DPA(s).

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(b) If more than one national DPA has been established, what is the rationale behind multiple DPAs?

Not applicable as there is only one DPA.

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(c) How does national law ensure consistent application of the GDPR by the various DPAs in accordance with Art. 63 GDPR?

Not applicable.

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(d) Does national law grant the relevant DPA additional powers beyond those set out in Art. 58 GDPR?

Local law does not grant the relevant DPA any additional powers.

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(e) What national appeals process exists to enable parties to challenge the decisions of the DPA?

The following limits and safeguards are available:

  • an interested or concerned party may object to decisions by the DPA; and
  • the DPA’s decision on these objections is subject to judicial review in two instances on appeal by any interested party.

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(f) Have specific national rules been adopted regarding the DPA’s power to obtain information from controllers or processors that are subject to obligations of professional secrecy (or equivalent)?

The DPA may obtain information from controllers or processors that are subject to obligations of professional secrecy (or equivalent) to the extent that the information or cooperation is required in connection with their own involvement in the processing of personal data.

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Q16/ Claims by not-for-profit bodies

Does national law specify any not-for-profit bodies that are entitled to bring claims on behalf of individuals without the specific mandate of those individuals?

There are no not-for-profit bodies that are specifically mandated to bring such claims.

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Q17/ Administrative fines, penalties and sanctions

(a) Does national law lay down rules on whether and to what extent administrative fines may be imposed on public authorities for breaches of the GDPR?

Fines may be imposed on public authorities in the same way that they may be imposed on others.

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(b) Does national law impose penalties/sanctions in addition to those set out in the GDPR, for breaches of the GDPR not subject to administrative fines (e.g., criminal penalties)?

The following additional penalties and sanctions are available:

  • the maximum GDPR penalty can be imposed for a violation of any of the provisions of Art. 10 GDPR; and
  • fines may be imposed on public authorities.

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Q18/ Freedom of expression and information

(a) What (if anything) does national law do to balance the provisions of the GDPR against the right to freedom of expression and information?

Where data is processed solely for journalistic purposes, the Data Protection Act, for the most part, does not apply. Additionally, the following sections of the GDPR do not apply:

  • Arts. 7(3) & 11(2) GDPR;
  • Chapter III;
  • Chapter IV, with the exception of Arts. 24-25, 28-29 & 32 GDPR;
  • Chapter V;
  • Chapter VI; and
  • Chapter VII.

Furthermore, Arts. 9-10 GDPR do not apply insofar as the processing of the data referred to in those articles is necessary for journalistic purposes.

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(b) What derogations have been introduced by national law concerning the processing of personal data for the purpose of academic, artistic or literary expression?

The derogations which apply are the same as those which apply to the processing of personal data for journalistic purposes (see Q18(a) above).

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Q19/ National identification numbers

Does national law stipulate specific conditions for the processing of a national identification number, and if so, what are the conditions?

National identification numbers may only be processed for purposes provided for by law. Otherwise, use of the national identification number may be designated by governmental decree.

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Q20/ Processing in the context of employment

(a) For what purposes can employees’ personal data in the employment context be processed under national law?

Employers may process employee health data insofar as it is necessary for either:

  • proper compliance with legal requirements or collective employment contracts that provide entitlements and depend on the data subject’s health status; or
  • the reintegration or support of employees or recipients of welfare benefits relating to illness or disability.

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(b) Does national law provide safeguards for employees’ dignity, legitimate interests, and fundamental rights?

There are no specific safeguards of this nature, other than those already contained in pre-existing laws, and the requirement mentioned in Q6 above.

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Q21/ Other material derogations

Are there any other material derogations from, or additions to, the GDPR under national law?

There are no other material derogations.

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Q22/ Current legal challenges

Are there any current legal challenges (e.g., court cases or regulatory appeals) regarding the validity or operation of the national GDPR implementation law (e.g., claims that the law incorrectly applies the GDPR; claims that the law is incompatible with constitutional principles; etc.)?

There are no current legal challenges ongoing.

———

Q23/ Enforcement

Has the local DPA issued any material fines or taken any material enforcement action to date for breaches of the GDPR?

The DPA has taken the following enforcement actions:

  • it imposed a ban, starting 1 January 2020, on the processing of the national identification number by the Dutch Tax Authority, which used include the national identification number in the VAT number given to freelancers; and
  • it imposed an incremental penalty payment on the Employee Insurance Agency for not implementing the appropriate security measures for its login portal for employers.

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Q24/ Regulatory Guidance

Has the DPA issued any significant guidance on the application of the GDPR or national implementation law?

Most guidance by the DPA is published on its website and includes the following:

  • FAQs or blogposts, e.g., on:
  • instructions on data breach registration (see here); and
  • a manual for privacy-friendly settings on Google Analytics (see here).

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