activity cannot take place. On the other hand, an appropriate assessment of the balance under Article 7(f), often with an opportunity to opt-out of the processing, may in other cases be a valid alternative to inappropriate use of, for instance, the ground of 'consent' or ‘necessity for the performance of a contract'. Considered in this way, Article 7(f) presents complementary safeguards - which require appropriate measures - compared to the other pre-determined grounds. It should thus not be considered as 'the weakest link' or an open door to legitimise all data processing activities which do not fall under any of the other legal grounds. The Working Party reiterates that when interpreting the scope of Article 7(f), it aims at a balanced approach, which ensures the necessary flexibility for data controllers for situations where there is no undue impact on data subjects, while at the same time providing sufficient legal certainty and guarantees to data subjects that this open-ended provision will not be misused. II.3.
Related concepts
Relationship of Article 7(f) with other grounds for lawfulness Article 7 starts with consent, and goes on to list the other grounds for lawfulness, including contracts and legal obligations, moving gradually to the legitimate interest test, which is listed as the last among the six available grounds. The order in which the legal grounds are listed under Article 7 has sometimes been interpreted as an indication of the respective importance of the different grounds. However, as already emphasised in the Working Party's Opinion on the notion of consent20, the text of the Directive does not make a legal distinction between the six grounds and does not suggest that there is a hierarchy among them. There is not any indication that Article 7(f) should only be applied in exceptional cases and the text also does not otherwise suggest that the specific order of the six legal grounds would have any legally relevant effect. At the same time, the precise meaning of Article 7(f) and its relation with other grounds for lawfulness have long been rather unclear. Against this background and considering the historical and cultural diversities and the openended language of the Directive, different approaches have developed: some Member States have tended to see Article 7(f) as a least preferred ground, which is meant to fill the gaps only in a few exceptional cases when none of the five other grounds could or would apply.21 Other Member States, in contrast, see it only as one of six options, and one which is no more or no less important than the other options, and which may apply in a large number and large variety of situations, provided the necessary conditions are met. Considering these diversities, and also in light of the ASNEF and FECEMD judgment, it is important to clarify the relationship of the ‘legitimate interests’ ground with the other grounds of lawfulness - e.g. in relation to consent, contracts, tasks of public interest - and also in relation to the right of the data subject to object. This may help better define the role and function of the legitimate interests ground and thus may contribute to legal certainty.
20
See footnote 2 above. It should also be noted that the Draft LIBE Committee Report, in its Amendment 100 proposed to separate Article 7(f) from the rest of the legal grounds and also proposed additional requirements for the case when this legal ground is relied on, including more transparency and stronger accountability, as will be shown later. 21
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