Data Protected - Luxembourg
Last updated February 2024
General | Data Protection Laws
National Legislation
National Supervisory Authority
Scope of Application
Personal Data
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Security
Transfer of Personal Data to Third Countries
Enforcement
ePrivacy | Marketing and cookies
National Legislation
Cookies
Marketing by E-mail
Marketing by Telephone
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General | Data Protection Laws
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National Legislation
General data protection laws
The General Data Protection Regulation (EU) (2016/679) (“GDPR”).
On 16 August 2018, the Luxembourg Government adopted and published the law of 1 August 2018 on the organisation of the National Commission for Data Protection and implementation of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (the “Luxembourg Law”).
The Luxembourg Law repeals the law of 2 August 2002 on the protection of persons with regard to the processing of personal data. The Luxembourg Law also amends the Labour Code and the amended law of 25 March 2015 laying down the system of salaries and the conditions and procedures for advancement of civil servants of the State.
Entry into force
The GDPR has applied since 25 May 2018.
The Luxembourg Law applies from 20 August 2018.
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National Supervisory Authority
Details of the competent national supervisory authority
The CNPD acts as the supervisory authority in Luxembourg.
Commission Nationale pour la Protection des Données (the “CNPD”)
15, Boulevard du Jazz
L-4370 Esch-sur-Alzette
The CNPD represents Luxembourg on the European Data Protection Board.
Notification or registration scheme and timing
There is no obligation to notify regulators of any processing under the GDPR. However, controllers and processors must keep a record of their processing and make it available to their supervisory authority on request (subject to limited exemptions).
The controller shall consult the CNPD prior to processing where a data protection impact assessment indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk (see below).
Exemptions to notification
Not applicable.
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Scope of Application
What is the territorial scope of application?
The GDPR applies to the processing of personal data in the context of the establishment of a controller or processor in the EU.
It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.
The European Data Protection Board has issued Guidelines on the territorial scope of the GDPR (3/2018).
Is there a concept of a controller and processor?
Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.
The European Data Protection Board has issued Guidelines on the concepts of controller and processor in the GDPR (7/2020).
Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited.
Are both manual and electronic records subject to data protection legislation?
Yes. The GDPR applies to both electronic records and structured hard copy records.
Are there any national derogations?
The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.
The Luxembourg Law lays down broad exemptions for the processing of personal data solely for journalistic purposes, or for the purposes of academic, artistic or literary expression.
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Personal Data
What is personal data?
Personal data is information relating to an identified or identifiable natural person.
This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as cookies.
Is information about legal entities personal data?
No. However, information about sole traders and partnerships is likely to be personal data.
What are the rules for processing personal data?
All processing of personal data must comply with all six general data quality principles. Personal data must be: (i) processed fairly, lawfully and transparently; (ii) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (iii) adequate, relevant and not excessive; (iv) accurate and, where necessary, up to date; (v) kept in an identifiable form for no longer than necessary; and (vi) kept secure.
The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or a third party's legitimate interests, except where overridden by the interests or fundamental rights and freedoms of the data subject.
These rules are almost identical to the core requirements for processing personal data in the old Data Protection Directive. The European Data Protection Board has issued Guidelines on the performance of a contract processing condition for online services (2/2019).
Are there any formalities to obtain consent to process personal data?
The requirements for consent under the GDPR are strict.
To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.
In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials.
The European Data Protection Board has issued Guidelines on consent (5/2020).
Are there any special rules when processing personal data about children?
Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.
The Luxembourg Law does not reduce the age at which a child can provide a valid consent.
Are there any special rules when processing personal data about employees?
The GDPR allows Member States to implement more specific national rules governing the processing of personal data about employees. It may also be possible to process special category personal data where it is necessary for a legal obligation in the field of employment law.
Pursuant to the Luxembourg Labour Code, employers must inform the staff delegation, or in the absence thereof, the Luxembourg Labour Inspectorate ("Inspection du Travail et des Mines") of any employee monitoring.
The staff delegation or, in its absence, the employees concerned, may request a prior opinion of the CNPD on the conformity of the contemplated employee monitoring.
Moreover, if the monitoring takes place (i) for the health and safety of the employees; (ii) for the control of the performance of an employee to the extent such measure is the only means of determining the exact salary of the employee; or (iii) within the context of a flexible working scheme, the employer has to submit the contemplated monitoring to the staff delegation, unless such processing meets a legal or regulatory requirement.
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Sensitive Personal Data
What is sensitive personal data?
Special category data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation. The decision in OT (C-184/20) might suggest this should be interpreted broadly to include publication of information that indirectly discloses these characteristics.
The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.
Information about criminal offences is dealt with separately and is subject to even tighter controls.
Are there additional rules for processing sensitive personal data?
Special category data may only be processed if a condition for processing special category data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the fields of employment, social security and social protection law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.
In the field of labour and insurance law, the processing of genetic data for the purpose of the exercise of the data controller's own rights is prohibited.
Are there additional rules for processing information about criminal offences?
It is only possible to process personal data relating to criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects.
Luxembourg employers are entitled to require future employees to provide an extract of their criminal record in the context of the organisation and recruitment of the staff.
According to the law of 23 July 2016, the employer may only request an extract from the criminal record from the candidate at the time of his recruitment, provided that this request is made in writing in the job offer and that it is duly justified with regard to the specific needs of the position offered; and during the employment relationship when the law expressly provides for it (e.g. profession related to minors, financial institution) or when the employee is assigned to a new position requiring verification of his or her good repute.
Moreover, the employer may only keep the criminal record for a limited time: (i) for one month from the conclusion of the employment contract; (ii) if the candidate is not recruited, the employer must destroy the record without delay; and (iii) if the record has been requested and provided during the employment relationship, it can be kept for a maximum period of two months from its issue, unless specific legal provisions set a longer retention period.
Are there any formalities to obtain consent to process sensitive personal data?
Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.
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Data Protection Officers
When must a data protection officer be appointed?
Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing special category personal data on a large scale (including processing information about criminal offences).
Data protection officers must also be appointed where required by national law. However, the Luxembourg Law does not provide for further scenarios in which a data protection officers needs to be appointed.
What are the duties of the data protection officer?
The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management. Details of the data protection officer must be communicated to the relevant supervisory authority.
The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).
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Accountability and Privacy Impact Assessments
Is there a general accountability obligation?
The GDPR adds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.
Are privacy impact assessments mandatory?
A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing on a large scale either special categories of personal data or personal data relating to criminal convictions and offences; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV). Where the assessment indicates the risk cannot be mitigated, the controller must consult the relevant supervisory authority.
The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above.
In Luxembourg, the CNPD has the power to draw up a list of “high risk processing” but has not done so yet. The controller must consult the CNPD in cases where the identified risks cannot be sufficiently addressed (i.e. the residual risks remains high). The CNPD will then give an opinion on the planned processing operation and the risk management of the controller (prior consultation). Processing may only be carried out after implementing the recommendations in the opinion of the CNPD.
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Rights of Data Subjects
Privacy notices
A controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.
The Article 29 Working Party has issued Guidelines on Transparency (WP260).
The Luxembourg Law does not specify in which language the information needs to be provided, though it may be difficult to demonstrate that the information has been fairly provided if it is not in a language the data subject is familiar with.
Rights to access information
Data subjects will have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The right to obtain a copy of personal data should not adversely affect the rights and freedoms of others. The response must be provided within a month, though this can be extended by two months if the request is complex.
The European Data Protection Board has issued Guidelines on rights of access (1/2022).
Rights to data portability
Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.
The Article 29 Working Party has issued Guidelines on data portability (WP242).
Right to be forgotten
A data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are a range of exemptions, for example where there is a legal obligation to retain the data.
The European Data Protection Board has issued Guidelines on the criteria of the Right to be Forgotten in the search engines cases under the GDPR (part 1) (5/2019).
Objection to direct marketing
A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes profiling to the extent related to direct marketing.
Other rights
The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition.
Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subject. The Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).
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Security
Security requirements in order to protect personal data
The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.
In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.
Specific rules governing processing by third party agents (processors)
A controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.
The controller must have written contracts with its processor containing the enhanced processor clauses.
Notice of breach laws
A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified.
Specific notice of breach laws apply to the electronic communications sector under national laws implementing the Privacy and Electronic Communications Directive and to operators of essential services and digital service providers under national laws implementing the Network and Information Systems Directive.
The European Data Protection Board has issued Guidelines on Personal Data Breach Notification (9/2022) and Examples regarding Personal Data Breach Notification (1/2021).
In Luxembourg, the notice of breach provisions in the Privacy and Electronic Communications Directive have been implemented by the law of 30 May 2005 relating to specific provisions concerning the processing of personal data and the protection of privacy in the electronic communications sector and the provisions in the Network and Information Systems Directive have been implemented under the law of 28 May 2019.
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Transfer of Personal Data to Third Countries
Restrictions on transfers to third countries
The GDPR contains a restriction on transborder dataflows. This restriction does not apply if the transfer is to a whitelisted country.
Transfers can be made: (i) pursuant to a set of Standard Contractual Clauses; (ii) pursuant to binding corporate rules; (iii) to an importer who has signed up to an approved code or obtained an approved certification; or (iv) where otherwise approved by the relevant supervisory authority. However, following the decision in Schrems II (C-311/18) any transfer made on this basis must be subject to a transfer impact assessment of the laws of the relevant third country and supplemented by supplementary protections where necessary.
The European Data Protection Board has issued Recommendation on European Essential Guarantees for surveillance measures (2/2020) and a Recommendation on measures that supplement transfer tools (1/2020) to help conduct this transfer impact assessment. The European Commission has also issued an FAQ on the new Standard Contractual Clauses.
Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption.
The European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018). Finally, the European Data Protection Board has issued draft Guidelines on the interplay between Article 3 and international transfers (2/2018) to help identify when a transfer takes place.
Notification and approval of national regulator (including notification of use of Standard Contractual Clauses)
In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer.
For example, there will be no obligation to get approval for the use of Standard Contractual Clauses (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.
Use of binding corporate rules
The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority (subject to approval through the consistency mechanism) that will cover transfers from anywhere in the EU.
In Luxembourg, the CNPD has approved binding corporate rules from eBay, PayPal and ArcelorMittal.
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Enforcement
Fines
The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.
A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.
Fines can only be imposed where there is an intentional or negligent infringement of the GDPR, see Deutsche Wohnen (C-807/21).
The EDPB has published Guidelines on the calculation of administrative fines (04/2022).
The CNPD may also impose penalty payments on controllers/processors, amounting to up to 5% of their average daily turnover achieved during the previous financial year, to compel such stakeholders to communicate specific information to the CNPD or to comply with a corrective measure prescribed by the CNPD.
Imprisonment
Pursuant to the Luxembourg Law, anybody who intentionally prevents or obstructs the performance of the CNPD’s duties may be liable to: (i) a prison sentence of between eight days and one year; and/or (ii) a fine of between €251 and 125,000.
Compensation
Data subjects have a right to compensation in respect of material and non-material damage. This requires more than a mere infringement of the GDPR and there must be actual material or non-material damage, however there is no minimum threshold of seriousness before compensation is available, see Österreichische Post (C-300/21).
Other powers
Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing.
Practice
Fines: Some of the most significant fines issued by the CNPD are set out below
- In July 2021, Amazon Europe Core S.à.r.l. was fined €746,000,000 for their improper use of customer data for targeted advertising purposes. This included an obligation to pay a daily fine should an associated compliance order not be implemented by January 2022. This daily fine was suspended in December 2021 as the compliance order was not formulated in clear, precise and uncertain terms, under conditions capable of enabling Amazon to satisfy the requirements within the time. Amazon has also lodged an appeal against the main fine.
- In August 2021, an unnamed Insurance company was fined €135,000 for not having the appropriate measures in place when sending e-mails containing special category of data. The appropriate measures should have included encryption, strong passwords and controls on the sharing the e-mails.
- Following an audit, a public entity was fined €18,000 for four breaches relating to the role and position of its Data protection Officer (DPO). These breaches were: (i) the contact details of the DPO were not readily accessible on its website; (ii) the public entity had appointed an external DPO (a data protection lawyer) however failed to ensure the DPO was involved properly, and in a timely manner, in all data protection issues; (iii) the DPO was not able to monitor compliance of the entity’s data processing practices as the necessary control procedures were not implemented; and (iv) the public entity had failed to allocate the external DPO with the necessary resources to carry out their tasks.
Most of the decisions of CNPD follow thematic investigations of non-compliance with GDPR.
Other enforcement action: In Luxembourg, there is no current enforcement practice in relation to the GDPR.
The District Court of Luxembourg-City has imposed a criminal fine of €7,000 on an employer that unlawfully installed a CCTV system and monitored its employees.
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ePrivacy | Marketing and cookies
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National Legislation
ePrivacy laws
The law of 30 May 2005 relating to specific provisions concerning the processing of personal data and the protection of privacy in the electronic communications sector, modifying provisions 88-2 and 88-4 of the Criminal Instruction Code and modifying the DPA (the “ECA”), has implemented Article 13 of the Privacy and Electronic Communications Directive.
The ECA was amended on 28 July 2011 to implement the amendments to the Privacy and Electronic Communications Directive.
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Cookies
Conditions for use of cookies
Consent is needed for the use of cookies unless the cookie is strictly necessary for the provision of a service to that subscriber or user. The ECA expressly refers to the use of browser settings as a means to obtain consent. There is an express requirement for consent to be “prior” to the use of a cookie.
Regulatory guidance on the use of cookies
The CNPD has published Guidelines on cookies and other tracking devices.
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Marketing by E-mail
Conditions for direct marketing by e-mail to individual subscribers
The ECA provides that sending direct marketing e-mails shall only be permitted with the prior consent of the recipient.
Conditions for direct marketing by e-mail to corporate subscribers
The requirement for consent under the ECA only applies to individuals. It is however generally considered as a good practice to discontinue any marketing messages if the receiver requests to do so. Moreover, where the sending of direct marketing e-mails to corporate subscribers involves the processing of personal data, the GDPR rules – including the right for the data subject to unsubscribe or opt-out from direct marketing – must be complied with.
Exemptions and other issues
The similar products and services exemption applies. The ECA also prohibits direct marketing e-mails from being sent if: (i) the identity of the sender is disguised, concealed or misrepresented; or (ii) an opt-out address is not provided.
The sender must also include the eCommerce information.
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Marketing by Telephone
Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)
The ECA provides that sending direct marketing by telephone is only permitted with the prior consent of the data subject.
Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)
The requirement for consent under the ECA only applies to individuals. It is however generally considered as a good practice to discontinue any marketing messages if the receiver requests to do so. Moreover, where the direct marketing by telephone to corporate subscribers involves the processing of personal data, the GDPR rules – including the right for the data subject to unsubscribe or opt-out from direct marketing – must be complied with.
Exemptions and other issues
No exemptions apply.
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