Article 35

Data protection impact assessment

Chapter 4 | Controller and Processor | 📖 7 min read

1. Where a 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, the controller shall, prior to the processing, carry out an assessment of the impact of the envisaged processing operations on the protection of personal data. A single assessment may address a set of similar processing operations that present similar high risks.

2. The controller shall seek the advice of the data protection officer, where designated, when carrying out a data protection impact assessment.

3. A data protection impact assessment referred to in paragraph 1 shall in particular be required in the case of:

(a) a systematic and extensive evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling, and on which decisions are produced that produce legal effects concerning the natural person or similarly significantly affect the natural person;

(b) processing on a large scale of special categories of data referred to in Article 9(1), or of personal data relating to criminal convictions and offences referred to in Article 10; or

4. The supervisory authority shall establish and make public a list of the kind of processing operations which are subject to the requirement for a data protection impact assessment pursuant to paragraph 1. The supervisory authority shall communicate those lists to the Board referred to in Article 68.

5. The supervisory authority may also establish and make public a list of the kind of processing operations for which no data protection impact assessment is required. The supervisory authority shall communicate those lists to the Board.

6. Prior to the adoption of the lists referred to in paragraphs 4 and 5, the competent supervisory authority shall apply the consistency mechanism referred to in Article 63 where such lists involve processing activities which are related to the offering of goods or services to data subjects or to the monitoring of their behaviour in several Member States, or may substantially affect the free movement of personal data within the Union.

7. The assessment shall contain at least:

(a) a systematic description of the envisaged processing operations and the purposes of the processing, including, where applicable, the legitimate interest pursued by the controller;

(b) an assessment of the necessity and proportionality of the processing operations in relation to the purposes;

(d) the measures envisaged to address the risks, including safeguards, security measures and mechanisms to ensure the protection of personal data and to demonstrate compliance with this Regulation taking into account the rights and legitimate interests of data subjects and other persons concerned.

8. Compliance with approved codes of conduct referred to in Article 40 by the relevant controllers or processors shall be taken into account in assessing the impact of the processing operations performed by such controllers or processors, in particular for the purposes of a data protection impact assessment.

9. Where appropriate, the controller shall seek the views of data subjects or their representatives on the intended processing, without prejudice to the protection of commercial or public interests or the security of processing operations.

10. Where processing pursuant to point (c) or (e) of Article 6(1) has a legal basis in Union law or in the law of the Member State to which the controller is subject, that law regulates the specific processing operation or set of operations in question, and a data protection impact assessment has already been carried out as part of a general impact assessment in the context of the adoption of that legal basis, paragraphs 1 to 7 shall not apply unless Member States deem it to be necessary to carry out such an assessment prior to processing activities.

11. Where necessary, the controller shall carry out a review to assess if processing is performed in accordance with the data protection impact assessment at least when there is a change of the risk represented by processing operations.

Understanding This Article

Article 35 introduces the Data Protection Impact Assessment (DPIA) - a key accountability tool requiring controllers to identify and minimize privacy risks before high-risk processing begins. It's proactive privacy protection.

Paragraph 1 - When Required:

DPIA required when processing:

Particularly uses new technologies, AND
Likely to result in high risk to rights and freedoms

Consider nature, scope, context, and purposes. Can cover similar processing operations with one assessment.

Paragraph 2 - DPO Involvement:

Must seek DPO advice when conducting DPIA (if DPO appointed).

Paragraph 3 - Three Specific Scenarios (Non-Exhaustive):

(a) Automated systematic evaluation: Profiling/automated decisions producing legal or similarly significant effects (e.g., credit scoring, automated recruitment)
(b) Large-scale special category processing: Processing sensitive data (health, biometric, political opinions, etc.) or criminal data at scale
(c) Systematic public monitoring: Large-scale surveillance of publicly accessible areas (e.g., CCTV networks)

Paragraphs 4-6 - Supervisory Authority Lists:

Authorities publish:

Processing requiring DPIA (blacklist)
Processing exempt from DPIA (whitelist)

Paragraph 7 - Required Content:

(a) Description: What processing, why, what legitimate interests
(b) Necessity and proportionality: Is processing necessary? Are less intrusive alternatives available?
(c) Risk assessment: What are the risks to individuals?
(d) Mitigation measures: Safeguards, security, compliance mechanisms

Paragraph 8 - Codes of Conduct:

Compliance with approved codes considered in impact assessment.

Paragraph 9 - Data Subject Consultation:

Should seek data subject views where appropriate (unless commercial/public interest/security concerns).

Paragraph 10 - Legal Basis Exception:

If law already includes impact assessment, may not need separate DPIA.

Paragraph 11 - Review Requirement:

Must review DPIA when risk changes.

Key Points

Required before high-risk processing, particularly with new technologies
Three specific scenarios: automated systematic evaluation with legal effects, large-scale special category data, systematic public monitoring
Must include: processing description, necessity/proportionality assessment, risk assessment, mitigation measures
Must consult DPO when carrying out
Supervisory authorities publish lists of processing requiring or exempt from DPIA
Must review when risk changes
Can seek data subject views where appropriate

Practical Application

When DPIA Required - Examples:

AI-powered recruitment system evaluating candidates
Healthcare app processing health data at scale
Credit scoring algorithms
Citywide CCTV surveillance network
Genetic testing service
Behavioral advertising platform
Automated fraud detection system
Employee monitoring system
Biometric authentication system (large scale)
COVID-19 contact tracing app

When DPIA Likely Not Required - Examples:

Standard email newsletter
Single CCTV camera at store entrance
Basic customer database for invoicing
Employee payroll (standard processing)
Processing similar to operations done before GDPR

DPIA Template/Structure:

Introduction
- Project description
- Scope of DPIA
- Stakeholders involved
Description of Processing (Para 7(a))
- Nature: What processing activities?
- Scope: How much data, how many people?
- Context: What's the setting?
- Purposes: Why processing?
- Data categories and subjects
- Recipients and transfers
- Retention periods
- Technology used
- Legal basis and legitimate interests
Necessity and Proportionality (Para 7(b))
- Is processing necessary for purpose?
- Could purpose be achieved with less data?
- Is processing proportionate?
- Data minimization assessment
Consultation (Para 2 and 9)
- DPO consulted?
- Data subjects consulted?
- Other stakeholders?
Risk Assessment (Para 7(c))

Risk Likelihood Severity Overall

Unauthorized access Medium High High

Function creep Low Medium Low

Discrimination Medium High High
Mitigation Measures (Para 7(d))

Risk Mitigation Residual Risk Approved?

Unauthorized access Encryption, access controls, MFA Low Yes
Conclusion
- Sign-off by DPO
- Approval by senior management
- Consultation with supervisory authority (if needed per Article 36)
- Review date

Risk	Likelihood	Severity	Overall
Unauthorized access	Medium	High	High
Function creep	Low	Medium	Low
Discrimination	Medium	High	High

Risk	Mitigation	Residual Risk	Approved?
Unauthorized access	Encryption, access controls, MFA	Low	Yes

Nine Criteria for High Risk (WP29 Guidelines):

Evaluation or scoring (profiling)
Automated decision-making with legal/similar effect
Systematic monitoring
Sensitive data or criminal data
Large scale processing
Matching or combining datasets
Data concerning vulnerable individuals
Innovative use or new technology
Prevents data subjects from exercising rights/using services

If 2+ criteria met, DPIA likely required.

Supervisory Authority Consultation (Article 36):

If DPIA shows high residual risk despite mitigation, must consult supervisory authority before processing.

Review Triggers (Para 11):

Change in processing purpose
New data categories
New recipients
New technology
Increased scope or scale
New risks identified
Periodic review (e.g., every 2-3 years)

Common Mistakes:

Not conducting DPIA when required
Conducting DPIA after processing already started
Treating DPIA as checkbox exercise
Not involving DPO
Not reviewing when processing changes
Insufficient risk analysis
Not documenting mitigation measures

Tools and Resources:

ICO DPIA template (UK)
CNIL DPIA software (France)
WP29 Guidelines on DPIA (WP248)
Supervisory authority-specific guidance

Understanding This Article

Key Points

Practical Application

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