Portuguese GDPR implementation legislation


Even though the GDPR is directly applicable in the Member States, it has left open the possibility for Member States to enact national legislation implementing different solutions for certain aspects, the so called opening clauses.

The Portuguese Government has created a working group with the purpose of preparing the Portuguese legislation for the application of the GDPR. This Working Group was made responsible for the following: 

  • conducting a public consultation, namely on the GDPR's opening clauses;
  • identifying the security rules in the processing of personal data resulting from the GDPR, and presenting the different alternatives on the institutional architecture necessary for the operationalisation of the GDPR; 
  • presenting a draft law proposal before December 31, 2017; and 
  • assessing, together with other entities, the best option to ensure the training of Public Administration officials on the GDPR. 

The Portuguese Government held a public consultation on the following topics, which ended on September 30, 2017: 

  • additional requirements and limits on the processing of special categories of personal data - genetic, biometric and health data; 
  • the need for specific rules on the processing of personal data in the labour context, and corresponding guarantees; 
  • the need for specific rules on data portability between entities providing financial, banking, insurance and communications services, or other areas or sectors of activity; 
  • conditions applicable to the consent of children as to information society services;
  • reinforcement of the right to erase data (the "right to be forgotten"); 
  • reinforcement of the exceptions applicable to individual automated decisions, including profile definition; and
  • the appointment, position and duties of the data protection officer for certain sectors of activity, namely the adequacy of the appointment of a sole data protection officer for a sector.

The conclusions of the public consultation are not available and no draft law has yet been made public at the time of writing. Nonetheless, there is news of a draft having been circulated amongst some entities which have meanwhile leaked to the public some of the options made in respect of the above mentioned topics, with some controversial options, of which we highlight the following:

  • Requirement of consent for processing of biometric data of employees, with exemption of  those already registered with the Data Protection Authority;
  • Limitations on data processing resulting from CCTV recordings;
  • Setting the age of 13 as the relevant age for independent consent of children as to information society services;
  • Further details on the data protection officers attributions and appointment requirements for the public and private sector;
  • Definition of 3 different levels of fines, minimum amounts applicable and respective statute of limitation;
  • Exemption of public entities from the application of fines;
  • Inclusion of a list of crimes similar to that which was included in the previously existing Portuguese Data Protection Law;
  • Cancellation of all pending data processing activity registration requests with the Data Protection Authority;
  • Exemption of the requirement to perform data protection impact assessment for the controllers which have valid authorizations from the data protection authority.

Much can still change in terms of what the law which is expected to be approved within the next months will finally define in terms of these topics. Nonetheless, it will certainly be interesting to see what changes the legislator will ultimately introduce and finally have some more clarity as to the applicable rules in respect of some very important issues in the day to day life of every individual and companies who collect and process their data.


Article provided by: Ricardo Henriques (Abreu & Associados, Portugal)


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INPLP is a not-for-profit international network of qualified professionals providing expert counsel on legal and compliance issues relating to data privacy and associated matters. INPLP provides targeted and concise guidance, multi-jurisdictional views and practical information to address the ever-increasing and intensifying field of data protection challenges. INPLP fulfils its mission by sharing know-how, conducting joint research into data processing practices and engaging proactively in international cooperation in both the private and public sectors.