European Union: 2018: A Year Of Consents And Sensitive Data As Distorted Through GDPR And PSD II

Last Updated: 14 May 2019
Article by James Debono

Most Read Contributor in Malta, July 2019

Last year the EU heralded two new laws which rattled the regulatory waters and legal landscapes of a number of EU Member States, while generating significant press coverage across the globe. Initially, the revised Payments Services Directive (Directive 2015/2366 or PSD II) came into force in January, which was then followed by the general data protection regulation (Regulation 2016/679 or GDPR) which kicked into force around the end of May.

Although these two legal instruments are rarely mentioned in the same context, it is pertinent to point out that both laws share at least one common objective, albeit at different levels, namely to restore citizens' control of their personal data.

The dichotomy between the two EU frameworks is evident in the fact that while GDPR seeks to protect personal data, PSDII aims to foster competition in the payments and financial industry by bestowing to the data subject, firmer control over its data, so it can then share it with various service providers. The European Central Bank (ECB), in a survey carried out in 2017, exposed the increasing trend in non-cash payments in the EU wherein such payments during 2016 increased by 8.5% (to €122 billion) over the previous year. In this respect, the underlying rationale behind PSDII becomes even more apparent. This exponential increase in the use of cards and online payment instruments, has made personal data generated through these payment services, a gold mine for service providers, who are able to use such data in improving and/or tailoring the service offering to their clients. In turn, such trend merits proper regulation, in line with the EU's efforts to give citizens control over their personal data.

This said, GDPR and PSDII are far from uniform and there seems to be discrepancy between the two on some key issues. Looking beside the shared general principles, one notes that legislators seems to have had contradictory perspectives when drafting the two laws. To this effect the European Data Protection Board (EDPB or the Board), in reply to a clarification requested from a member of the European Parliament, set out its position on a number of matters relating to the protection of personal data under both legislative instruments, two of which are discussed in further detail below.

Among the points raised, the notion of explicit consent has raised a number of eyebrows and in fact, the EDPB outlined that the two laws have their own different versions of what constitutes explicit consent. Primarily, one must consider article 6(1)(b) GDPR which provides that the performance of a contract to which the data subject is a party, forms a legal basis to the processing of personal data. Therefore, under GDPR, no explicit consent is required for the purpose of data processing, if and when processing may be performed on the basis of another ground outlined in the same article 6. Hence, in a hypothetical scenario, a service level agreement does not need to explicitly include the consent of the data subject for the processing of his/her personal data.

However, in parallel, article 94(2) PSDII, states "payment service providers shall only access, process and retain personal data necessary for the provision of their payment services, with the explicit consent of the payment service user."

One can immediately spot the conflict between the two articles (and laws) where the regulation allows for the processing of personal data without the data subject's express consent, while the directive requires the data subject's explicit consent. In this regard, the Board affirmed that the "explicit" consent under article 94(2) PSDII should be regarded as an additional contractual requirement for consent, irrespective of the fact that such consent would not be required under GDPR. The Board acknowledged the reality that payment services are always provided in the context of a contract between the parties involved. In fact, it referred to recital 87 of PSDII, which limits the scope of the same directive only to contractual obligations between the payment service user and the corresponding service provider.

However, its interpretation of Article 94(2) translates into an obligation on payment service providers to ensure that payment service users are made fully aware of the purposes for which their personal data will be processed and explicitly agree to the processing of their data through clauses in the agreement that are clearly distinguishable from the rest of the agreement, at the time they enter into a contract with the payment service provider. In this respect, one notes that the obligations under PSDII are more onerous than those under GDPR in this context.

Another issue which was highlighted to the Board was the concern relating to 'silent party data', specifically whether the processing of personal data of the payee (as a 'silent party') falls within the definition of "legitimate interests" (as outlined in article 6(1)(f) GDPR), when explicit consent is only given by the payer. This discussion is particularly relevant is in the context of payment initiation service providers (PISPs), which service was conceived under PSDII. If the payer user explicitly consents to the processing of his personal data for the performance of a service in a wire transfer, can the PISP also process the personal data of the user's counterparty? In this scenario, the latter, being a silent party, would not have a contractual relation with the PISP, and would not have explicitly consented to the processing of his personal data. On the other hand, the transfer would not be possible if the PISP does not process the data in question.

EDPB clarified that a lawful basis for the processing of silent-party data, by the PISP could be the legitimate interests of that service provider to perform the contract with the user. However, the Board qualified this statement by subject the PISPs to the following obligations:

  1. the service provider's legitimate interest is limited and determined by the reasonable expectations of the user and the silent party, and such interest is not overridden by the interests of fundamental rights and freedoms of both data subjects;
  2. the processing of personal data must be both necessary and proportional and in line with the other principles of the GDPR (such as data minimisation and transparency);
  3. the data is not used for a purpose other than that for which the personal data was collected.

In its response, the EDPB has pragmatically shed some light on most of the grey areas which surfaced with the advent of GDPR and its interaction with PSDII. This article briefly pores over some of the main points raised by the Board. For more detail on the EDPB's response please click on the link below:

Letter regarding the PSD2 Directive

The EDPB affirmed that there is room for "fruitful interaction" on this topic between EU data protection and financial supervision authorities to ensure a joint and coordinated effort. To this effect, we will strive to continue monitoring and keeping abreast with such discussions in order to provide you with any further updates.

This article was first published in the Sunday Times of Malta, 5 May 2019.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
GANADO Advocates
GANADO Advocates
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
GANADO Advocates
GANADO Advocates
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions