Digital Omnibus: No Relief for Data Protection in AI
> June 2026
With the so-called “Digital Omnibus”, the European Commission aims to facilitate use of data for artificial intelligence. Among other things, the proposal provides for a new Article 88c GDPR. This provision is intended to clarify that the development and operation of AI may, in principle, be based on legitimate interest.... At first glance, this sounds like an important relief for companies. On closer inspection, however, the added value for practice remains limited. Even under current law, a legitimate interest in developing or using AI may already be considered. What remains decisive is the assessment in each individual case: What data is being processed? For what purpose? What risks exist for the data subjects?
The draft does not solve the actual problem. Especially in the case of AI, it is often difficult to predict what insights the system will derive from data or what results it will later generate. However, GDPR requires personal data to be processed only for purposes determined in advance. This principle of purpose limitation fits only to a limited extent with AI applications that are specifically designed to discover new patterns and correlations.
Other legal bases are also of limited help in practice. Consent is often difficult to obtain in a legally secure manner and can be withdrawn. A contractual basis can only be considered if the data processing is genuinely necessary for the performance of the contract.
In their article in the current issue of the Zeitschrift für Datenschutzrecht, Dr. Daniel Sens and Hendrik Sievers therefore reach the following conclusion: the proposed Article 88c GDPR essentially only confirms what already applies. For companies, it does not provide a real solution für companies to the central data protection questions arising when using AI. It remains to be seen whether the European legislator will further refine the draft. > Art. 88c DS-GVO-E – Kein spürbarer Mehrwert für Datenverarbeitung im KI-Kontext (Dr. Daniel Sens and Hendrik Sievers, ZD 2026, 320 ff.)
> COM(2025) 837 respectively 2025/0360 (COD)