II.4. Context and strategic consequences

must always be interpreted in context. Subject to appropriate safeguards, they can be balanced against the rights of others. In some situations - and also subject to appropriate safeguards they can also be restricted on public interest grounds.

II.4. Context and strategic consequences

Ensuring legitimacy but also flexibility: means for specification of Article 7(f)

The current text of Article 7(f) of the Directive is open-ended. This means that it can be relied upon in a wide range of situations, as long as its requirements, including the balancing test, are satisfied. However, such flexibility may also have negative implications. To prevent it from leading to inconsistent national application or lack of legal certainty, further guidance would play an important role.

The Commission foresees such guidance in the proposed Regulation in the form of delegated acts. Other options include providing clarifications and detailed provisions in the text of the proposed Regulation itself25 , and/or entrusting the European Data Protection Board ('EDPB') with the task of providing further guidance in this area.

Each of these options in turn, has benefits and drawbacks. If the assessment were to be made case by case without any further guidance, this would risk inconsistent application and lack of predictability, as it has been the case in the past.

On the other hand, providing, in the text of the proposed Regulation itself, for detailed and exhaustive lists of situations in which the legitimate interests of the controller as a rule prevail over the fundamental rights of the data subject or vice versa, could risk being misleading, unnecessarily prescriptive, or both.

These approaches could nevertheless inspire a balanced solution, providing for some more detail in the proposed Regulation itself, and further guidance in delegated acts or in EDPB guidance.26

The analysis in Chapter III aims to lay the groundwork for finding such an approach, neither too general so as to be meaningless, nor too specific so as to be overly rigid.

the circumstances – even in a state of war or emergency. One example is the right not to be tortured or treated in an inhuman or degrading way. It is never permissible to torture or treat someone in an inhuman or degrading way, regardless of the circumstances. Examples of non-absolute human rights include the right to respect for private and family life, the right to freedom of expression and the right to freedom of thought, conscience and religion. 25 See Section II.1 Brief History, under 'The proposed Data Protection Regulation' on pages 8-9. 26 As to delegated acts and EDPB guidance, the Working Party's Opinion 08/2012 providing further input on the data protection reform discussions, adopted on 05.10.201 (WP199) expressed a strong preference for the latter (see p. 13-14).