Take-Aways (AI)
- EDPS guidelines provide a four-stage checklist for assessing the proportionality of measures in terms of appropriateness and effectiveness.
- The guidelines require an assessment of the intensity of the interference, a weighing up of fundamental rights and, if necessary, the introduction of protective measures in the event of disproportionality.
The European Data Protection Supervisor (EDPS), the data protection supervisory authority over the EU institutions, has Guidelines for the proportionality test (cf. e.g. Recital 4 and Art. 32 GDPR) are published. They consist for the most part of a checklist comprising the following four steps:
- Step 1: assess the importance (‘legitimacy’) of the objective and whether and to what extent the proposed measure would meet this objective (effectiveness and efficiency)
- Step 2: assess the (scope, extent and intensity of the) interference in terms of effective impact of the measure on the fundamental rights to privacy and data protection
- Step 3: proceed to the fair balance evaluation of the measure
- Step 4: analysis conclusions on the proportionality of the proposed measure. If the conclusion is ’not proportionate’, identify and introduce safeguards which could make the measure proportionate.
Like the other EDPS guidelines, these guidelines can provide guidance for the private sector as well.