View source for Article 56 GDPR

{| class="wikitable" style="width: 25%; margin-left: 10px; float:right;"
![[Article 55 GDPR|←]] Article 56 - Competence of the lead supervisory authority [[Article 57 GDPR|→]]
|-
|style="padding: 20px; background-color:#003399;"|[[File:Gdpricon.png|100px|center|link=Overview_of_GDPR]]
|-
|

<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px">
<div style="font-weight:bold;line-height:1.6;">Chapter 1: General provisions</div>
<div class="mw-collapsible-content">
<small>
[[Article 1 GDPR|Article 1: Subject-matter and objectives]]<br />
[[Article 2 GDPR|Article 2: Material scope]]<br />
[[Article 3 GDPR|Article 3: Territorial scope]]<br />
[[Article 4 GDPR|Article 4: Definitions]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px">
<div style="font-weight:bold;line-height:1.6;">Chapter 2: Principles</div>
<div class="mw-collapsible-content">
<small>
[[Article 5 GDPR|Article 5: Principles relating to processing of personal data]]<br />
[[Article 6 GDPR|Article 6: Lawfulness of processing]]<br />
[[Article 7 GDPR|Article 7: Conditions for consent]]<br />
[[Article 8 GDPR|Article 8: Conditions applicable to child’s consent in relation to information society services]]<br />
[[Article 9 GDPR|Article 9: Processing of special categories of personal data]]<br />
[[Article 10 GDPR|Article 10: Processing of personal data relating to criminal convictions and offences]]<br />
[[Article 11 GDPR|Article 11: Processing which does not require identification]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px">
<div style="font-weight:bold;line-height:1.6;">Chapter 3: Rights of the data subject</div>
<div class="mw-collapsible-content">
<small>
[[Article 12 GDPR|Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject]]<br />
[[Article 13 GDPR|Article 13: Information to be provided where personal data are collected from the data subject]]<br />
[[Article 14 GDPR|Article 14: Information to be provided where personal data have not been obtained from the data subject]]<br />
[[Article 15 GDPR|Article 15: Right of access by the data subject]]<br />
[[Article 16 GDPR|Article 16: Right to rectification]]<br />
[[Article 17 GDPR|Article 17: Right to erasure (‘right to be forgotten’)]]<br />
[[Article 18 GDPR|Article 18: Right to restriction of processing]]<br />
[[Article 19 GDPR|Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing]]<br />
[[Article 20 GDPR|Article 20: Right to data portability]]<br />
[[Article 21 GDPR|Article 21: Right to object]]<br />
[[Article 22 GDPR|Article 22: Automated individual decision-making, including profiling]]<br />
[[Article 23 GDPR|Article 23: Restrictions]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px">
<div style="font-weight:bold;line-height:1.6;">Chapter 4: Controller and processor</div>
<div class="mw-collapsible-content">
<small>
[[Article 24 GDPR|Article 24: Responsibility of the controller]]<br />
[[Article 25 GDPR|Article 25: Data protection by design and by default]]<br />
[[Article 26 GDPR|Article 26: Joint controllers]]<br />
[[Article 27 GDPR|Article 27: Representatives of controllers or processors not established in the Union]]<br />
[[Article 28 GDPR|Article 28: Processor]]<br />
[[Article 29 GDPR|Article 29: Processing under the authority of the controller or processor]]<br />
[[Article 30 GDPR|Article 30: Records of processing activities]]<br />
[[Article 31 GDPR|Article 31: Cooperation with the supervisory authority]]<br />
[[Article 32 GDPR|Article 32: Security of processing]]<br />
[[Article 33 GDPR|Article 33: Notification of a personal data breach to the supervisory authority]]<br />
[[Article 34 GDPR|Article 34: Communication of a personal data breach to the data subject]]<br />
[[Article 35 GDPR|Article 35: Data protection impact assessment]]<br />
[[Article 36 GDPR|Article 36: Prior consultation]]<br />
[[Article 37 GDPR|Article 37: Designation of the data protection officer]]<br />
[[Article 38 GDPR|Article 38: Position of the data protection officer]]<br />
[[Article 39 GDPR|Article 39: Tasks of the data protection officer]]<br />
[[Article 40 GDPR|Article 40: Codes of conduct]]<br />
[[Article 41 GDPR|Article 41: Monitoring of approved codes of conduct]]<br />
[[Article 42 GDPR|Article 42: Certification]]<br />
[[Article 43 GDPR|Article 43: Certification bodies]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px">
<div style="font-weight:bold;line-height:1.6;">Chapter 5: Transfers of personal data</div>
<div class="mw-collapsible-content">
<small>
[[Article 44 GDPR|Article 44: General principle for transfers]]<br />
[[Article 45 GDPR|Article 45: Transfers on the basis of an adequacy decision]]<br />
[[Article 46 GDPR|Article 46: Transfers subject to appropriate safeguards]]<br />
[[Article 47 GDPR|Article 47: Binding corporate rules]]<br />
[[Article 48 GDPR|Article 48: Transfers or disclosures not authorised by Union law]]<br />
[[Article 49 GDPR|Article 49: Derogations for specific situations]]<br />
[[Article 50 GDPR|Article 50: International cooperation for the protection of personal data]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible" overflow:auto;" style="border-width: 0px">
<div style="font-weight:bold;line-height:1.6;">Chapter 6: Supervisory authorities</div>
<div class="mw-collapsible-content">
<small>
[[Article 51 GDPR|Article 51: Supervisory authority]]<br />
[[Article 52 GDPR|Article 52: Independence]]<br />
[[Article 53 GDPR|Article 53: General conditions for the members of the supervisory authority]]<br />
[[Article 54 GDPR|Article 54: Rules on the establishment of the supervisory authority]]<br />
[[Article 55 GDPR|Article 55: Competence]]<br />
[[Article 56 GDPR|Article 56: Competence of the lead supervisory authority]]<br />
[[Article 57 GDPR|Article 57: Tasks]]<br />
[[Article 58 GDPR|Article 58: Powers]]<br />
[[Article 59 GDPR|Article 59: Activity reports]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px">
<div style="font-weight:bold;line-height:1.6;">Chapter 7: Cooperation and consistency</div>
<div class="mw-collapsible-content">
<small>
[[Article 60 GDPR|Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned]]<br />
[[Article 61 GDPR|Article 61: Mutual assistance]]<br />
[[Article 62 GDPR|Article 62: Joint operations of supervisory authorities]]<br />
[[Article 63 GDPR|Article 63: Consistency mechanism]]<br />
[[Article 64 GDPR|Article 64: Opinion of the Board]]<br />
[[Article 65 GDPR|Article 65: Dispute resolution by the Board]]<br />
[[Article 66 GDPR|Article 66: Urgency procedure]]<br />
[[Article 67 GDPR|Article 67: Exchange of information]]<br />
[[Article 68 GDPR|Article 68: European Data Protection Board]]<br />
[[Article 69 GDPR|Article 69: Independence]]<br />
[[Article 70 GDPR|Article 70: Tasks of the Board]]<br />
[[Article 71 GDPR|Article 71: Reports]]<br />
[[Article 72 GDPR|Article 72: Procedure]]<br />
[[Article 73 GDPR|Article 73: Chair]]<br />
[[Article 74 GDPR|Article 74: Tasks of the Chair]]<br />
[[Article 75 GDPR|Article 75: Secretariat]]<br />
[[Article 76 GDPR|Article 76: Confidentiality]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px">
<div style="font-weight:bold;line-height:1.6;">Chapter 8: Remedies, liability and penalties</div>
<div class="mw-collapsible-content">
<small>
[[Article 77 GDPR|Article 77: Right to lodge a complaint with a supervisory authority]]<br />
[[Article 78 GDPR|Article 78: Right to an effective judicial remedy against a supervisory authority]]<br />
[[Article 79 GDPR|Article 79: Right to an effective judicial remedy against a controller or processor]]<br />
[[Article 80 GDPR|Article 80: Representation of data subjects]]<br />
[[Article 81 GDPR|Article 81: Suspension of proceedings]]<br />
[[Article 82 GDPR|Article 82: Right to compensation and liability]]<br />
[[Article 83 GDPR|Article 83: General conditions for imposing administrative fines]]<br />
[[Article 84 GDPR|Article 84: Penalties]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px">
<div style="font-weight:bold;line-height:1.6;">Chapter 9: Specific processing situations</div>
<div class="mw-collapsible-content">
<small>
[[Article 85 GDPR|Article 85: Processing and freedom of expression and information]]<br />
[[Article 86 GDPR|Article 86: Processing and public access to official documents]]<br />
[[Article 87 GDPR|Article 87: Processing of the national identification number]]<br />
[[Article 88 GDPR|Article 88: Processing in the context of employment]]<br />
[[Article 89 GDPR|Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes]]<br />
[[Article 90 GDPR|Article 90: Obligations of secrecy]]<br />
[[Article 91 GDPR|Article 91: Existing data protection rules of churches and religious associations]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px">
<div style="font-weight:bold;line-height:1.6;">Chapter 10: Delegated and implementing acts</div>
<div class="mw-collapsible-content">
<small>
[[Article 92 GDPR|Article 92: Exercise of the delegation]]<br />
[[Article 93 GDPR|Article 93: Committee procedure]]<br />
</small>
</div></div>

<div class="toccolours mw-collapsible mw-collapsed" overflow:auto;" style="border-width: 0px">
<div style="font-weight:bold;line-height:1.6;">Chapter 11: Final provisions</div>
<div class="mw-collapsible-content">
<small>
[[Article 94 GDPR|Article 94: Repeal of Directive 95: /46: /EC]]<br />
[[Article 95 GDPR|Article 95: Relationship with Directive 20: 02: /58: /EC]]<br />
[[Article 96 GDPR|Article 96: Relationship with previously concluded Agreements]]<br />
[[Article 97 GDPR|Article 97: Commission reports]]<br />
[[Article 98 GDPR|Article 98: Review of other Union legal acts on data protection]]<br />
[[Article 99 GDPR|Article 99: Entry into force and application]]<br />
</small>
</div>
</div>
|}

== Legal Text ==
<center>'''Article 56 - Competence of the lead supervisory authority'''</center>

<span id="1">1.   Without prejudice to Article 55, the supervisory authority of the main establishment or of the single establishment of the controller or processor shall be competent to act as lead supervisory authority for the cross-border processing carried out by that controller or processor in accordance with the procedure provided in Article 60.</span>

<span id="2">2.   By derogation from paragraph 1, each supervisory authority shall be competent to handle a complaint lodged with it or a possible infringement of this Regulation, if the subject matter relates only to an establishment in its Member State or substantially affects data subjects only in its Member State.</span>

<span id="3">3.   In the cases referred to in paragraph 2 of this Article, the supervisory authority shall inform the lead supervisory authority without delay on that matter. Within a period of three weeks after being informed the lead supervisory authority shall decide whether or not it will handle the case in accordance with the procedure provided in Article 60, taking into account whether or not there is an establishment of the controller or processor in the Member State of which the supervisory authority informed it.</span>

<span id="4">4.   Where the lead supervisory authority decides to handle the case, the procedure provided in Article 60 shall apply. The supervisory authority which informed the lead supervisory authority may submit to the lead supervisory authority a draft for a decision. The lead supervisory authority shall take utmost account of that draft when preparing the draft decision referred to in Article 60(3).</span>

<span id="5">5.   Where the lead supervisory authority decides not to handle the case, the supervisory authority which informed the lead supervisory authority shall handle it according to Articles 61 and 62.</span>

<span id="6">6.   The lead supervisory authority shall be the sole interlocutor of the controller or processor for the cross-border processing carried out by that controller or processor.</span>

== Relevant Recital==
{{Recital/36 GDPR}}
{{Recital/123 GDPR}}
{{Recital/124 GDPR}}
{{Recital/125 GDPR}}
{{Recital/126 GDPR}}
{{Recital/127 GDPR}}
{{Recital/128 GDPR}}

==Commentary==
In cross-border cases (Article 4(23) GDPR), several supervisory authorities (SA) could be competent according to [[Article 55 GDPR]]. For this reason, Article 56(1) GDPR establishes a specific mechanism to keep all the competent SAs involved and at the same time ensure the consistent application of the GDPR by issuing of one decision.  This would be undermined in case of conflicting decisions on the same subject matter. The provision identifies a lead supervisory authority (LSA). This is the SA where the controller or the processor have their main establishment or single establishment ([[Article 4 GDPR|Article 4(16) GDPR]]) in the European Union/European Economic Area (EU/EEA).  Under Article 56(2-5) GDPR, the LSA’s competence can be waived, in particular if the cross-border processing at stake has only a local impact. Article 56(6) GDPR introduces the one-stop shop mechanism. Whenever an LSA is validly appointed, it is to be the sole interlocutor of the controller or processor.

Article 56 GDPR makes a direct reference to [[Article 55 GDPR]] (Competence), [[Article 60 GDPR]] (cooperation between LSE and other SA concerned (CSA)), Article [[Article 61 GDPR|61 GDPR]] (mutual assistance) and [[Article 62 GDPR]] (joint operations of SAs). Additional provisions that are closely related to Article 56 GDPR are [[Article 4 GDPR|Article 4(7) GDPR]] (definition of controller), [[Article 4 GDPR|Article 4(8) GDPR]] (definition of processor), [[Article 4 GDPR|Article 4(16) GDPR]] (definition of main establishment), [[Article 4 GDPR|Article 4(21) GDPR]] (definition of SA), [[Article 4 GDPR|Article 4(22) GDPR]] (definition of SA concerned(CSA)), [[Article 4 GDPR|Article 4(23) GDPR]] (definition of cross-border processing), [[Article 57 GDPR]] (tasks of SAs), [[Article 58 GDPR]] (powers of SAs), as well as [[Article 65 GDPR]] (dispute resolution by the board), [[Article 63 GDPR]] (consistency mechanism), [[Article 64 GDPR]] (opinion of the board), [[Article 66 GDPR]] (urgency procedure) and [[Article 67 GDPR]] (exchange of information).

===(1) Designation of the Lead Supervisory Authority (LSA) and the Cooperation Mechanism===
Article 55 GDPR confirms the general rule that breaches of data protection law occurring in a given Member State are investigated and possibly punished by the independent authority of that Member State. However, the processing of personal data often presents transnational features due, for example, to the existence of several establishments of the data controller within the territory of the EU/EEA (''"Union"'').<ref>The GDPR applies for all states of EEA. This includes all EU member states, Iceland, Liechtenstein and Norway.  For more information see [[Article 1 GDPR]].</ref> In such circumstances, the general rule of Article 55 GDPR would require each independent authority to decide on a certain processing of personal data, with the obvious consequence of possible inconsistencies of application in case of divergent decisions. This would be in contradiction with one of the main objectives of the GDPR, namely to “''ensure a consistent and high level of protection of natural persons and to remove the obstacles to flows of personal data within the Union, the level of protection of the rights and freedoms of natural persons with regard to the processing of such data should be equivalent in all Member States''” (Recital 10 GDPR). In that view, Article 56 GDPR provides for an alternative decision-making procedure under two conditions: (i) the processing is of a cross-border nature, and (ii) the controller or processor has a main establishment or a single establishment in the EEA. Where these conditions are met, Article 56 GDPR, in conjunction with [[Article 60 GDPR]] and [[Article 65 GDPR]],  reserves part of the powers and tasks originally held by SAs under [[Article 55 GDPR]] for the (lead) SA where the main establishment or the single establishment of the controller or processor is located.

==== Without prejudice to Article 55 GDPR ====
“''Without prejudice to''” presents a clarification that the derogation from the rules of Article 55 GDPR, by Article 56(1) with the one-stop-shop mechanism with the LSA, is only partial. First, it is not applicable where processing is carried out by public authorities or private bodies under [[Article 55 GDPR|Article 55(2) GDPR]].<ref>See, ''Robert'', Les autorités de contrôle dans le nouveau règlement général, in Docquir, Vers un droit européen de la protection des données, margin numbers 57-60 (Larcier, 2017).</ref> This can result in several SAs being competent with regard to a cross-border processing activity when a company is processing the same data to comply with statutory requirements and for commercial purposes.<blockquote>Example: Spanish telecommunications company Y, with clients from all over Europe and the main establishment in France, is storing phone records for law enforcement purposes and to comply with its contractual obligations. With regard to the processing activities for law enforcement purposes the Spanish SA is the competent SA. For processing activities in the context of contractual services, such as billing, the French SA will act as the LSA.</blockquote>Second, when the derogation from Article 55 applies, other SAs concerned are not losing their competences, but are limited in carrying them out. LSA’s competence is not exclusive. In fact, even if the LSA is in charge of directing the investigation and the decision-making process, it is still obliged to ensure dialogue with the other SAs and to take their positions into consideration as a matter of priority. Moreover, LSA’s position on substance is no stronger than that of any other CSA. In case of dispute the consistency mechanism is triggered and the EDPB adopts a binding decision under [[Article 65 GDPR]].<ref>See ''Hijmans'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 56 GDPR, p. 917 and 918 (Oxford University Press 2020). See also ''Boehm'', in Kühling, Buchner, DS-GVO BDSG, Article 55 GDPR, margin number 16 (C.H. Beck 2020, 3rd Edition).</ref> 

==== Supervisory authority of the main or single establishment (lead supervisory authority) ====
Under Article 56(1) GDPR the SA of the main establishment or single establishment of the controller or the processor is (“shall be”) competent to act as LSA for cross-border processing of that controller or processor.

===== Establishment =====
Recital 22 GDPR, following the CJEU ruling in ''[[CJEU - C-230/14 - Weltimmo|Weltimmo]]'' defines “''establishment''” as “''the effective and real exercise of activity through stable arrangements''”.<ref>CJEU, 1 October 2015, ''Weltimmo'', C-230/14, margin number 31 (available [https://curia.europa.eu/juris/liste.jsf?language=de&num=C-230/14 here]).</ref> The legal form of such arrangements is irrelevant. The presence of only one representative can in some circumstances suffice.<ref>CJEU, 1 October 2015, ''Weltimmo'', C-230/14, margin number 30 (available [https://curia.europa.eu/juris/liste.jsf?language=de&num=C-230/14 here]).</ref> For more information see commentary to [[Article 4 GDPR|Article 4(16) GDPR]]. 

===== Main establishment =====
The GDPR uses separate criteria for determining the main establishment of a processor and of a controller.

====== Main establishment of the controller ======
As a general rule, as per [[Article 4 GDPR|Article 4(16)(a) GDPR]], the main establishment of a controller is the place of its central administration in the EEA. This is however a rebuttable presumption, since another establishment can also be the main establishment, according to [[Article 4 GDPR|Article 4(16) GDPR]], when the decisions on the purposes and means of the processing of personal data are taken in another establishment in the EEA and the latter establishment has the power to have such decisions implemented. 

For more information, see commentary on [[Article 4 GDPR|Article 4(16) GDPR]] and [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-82022-identifying-controller-or-processors-lead_en EDPB Guidelines 8/2022 on identifying a controller or processor’s lead supervisory authority].

====== Main establishment of the processor ======
The main establishment of a processor with establishments in more than one Member State is the place of its central administration. In cases where the processor has no central administration in the EEA, the GDPR provides that its main establishment is the place where the main processing activities take place in the EEA (i) in the context of the activities of an establishment of the processor and (ii) to the extent that the processor is subject to specific obligations under the GDPR. The first qualification “''implies that the processing of personal data does not need to be carried out 'by' the relevant establishment itself, rather that it is sufficient if the processing is carried out 'in the context of the activities' of the establishment."<ref>''Tosoni'', The EU General Data Protection Regulation (GDPR), Article 4(16) GDPR, p. 235.</ref>'' The second qualification confirms the scope of application of the GDPR to processors.  

For more information, refer to commentary on [[Article 4 GDPR|Article 4(16) GDPR]] and [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-82022-identifying-controller-or-processors-lead_en EDPB Guidelines 8/2022 on identifying a controller or processor’s lead supervisory authority].

====== Main establishment of group undertakings ======
In the case of a group of undertaking with a headquarter in the EEA, the main establishment will be presumed to be the decision-making center relating to the processing of personal data.<ref>Guidelines 8/2022 on identifying a controller or processor’s lead supervisory authority, version 2.1, paragraph 27, available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-82022-identifying-controller-or-processors-lead_en here].</ref> However, if the decisions relating to the processing are taken by another establishment of the controller in the Union, the latter should be considered the main establishment.<ref>For criteria taken into account by the Irish SA to conclude that Twitter had its main establishment in Ireland; see EDPB, Decision 01/2020 on the dispute arisen on the draft decision of the Irish Supervisory Authority regarding Twitter International Company under Article 65(1)(a) GDPR, 9 November 2020, margin number 34 (available [https://edpb.europa.eu/our-work-tools/our-documents/binding-decision-board-art-65/decision-012020-dispute-arisen-draft_ga here]).</ref> 
====Identifying the lead supervisory authority (LSA) ====

===== General principles =====
If a controller or a processor has establishments in more than one Member State, identifying its “''main establishment''” is the first step to recognize the LSA in a cross-border processing.<ref>Note that the main establishment is defined for each processing operation. Therefore, there may be several main establishments, for example if the decisions regarding the different processing operations are done by different establishments of the controller. WP29, Guidelines for identifying a controller or processor’s lead supervisory authority, WP 244 rev.01, 5 April 2017, p. 5 (available [https://ec.europa.eu/newsroom/document.cfm?doc_id=44102 here]).</ref> The EDPB stresses that the GDPR does not allow “forum shopping”. It is a role of the SAs to properly define the main establishment according to objective criteria and subsequently determine the LSA. 

EDPB provided following, not exhaustive list of questions to determine a controller’s main establishment: Where are decisions about the purposes and means of the processing given final “sign off”? Where are decisions about business activities that involve data processing made? Where does the power to have decisions implemented effectively lie? Where is the Director (or Directors) with overall management responsibility for the cross-border processing located? Where is the controller or processor registered as a company, if in a single territory?”.<ref>Guidelines 8/2022 on identifying a controller or processor’s lead supervisory authority, version 2.1, paragraphs 25 and 26, available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-82022-identifying-controller-or-processors-lead_en here].</ref> 

The conclusion of the location of the main establishment cannot be based only on a statement of the organisation under review. The controllers and processors have to demonstrate where the relevant processing decisions are taken and where there is the power to implement such decisions. SAs can rebut the controller's analysis based on an objective examination of the relevant facts, requesting further information where required. The burden of proof is with the controllers and processors. <ref>EDPB, Guidelines 8/2022 on identifying a controller or processor’s lead supervisory authority, version 2.1, paragraph 37  (available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-82022-identifying-controller-or-processors-lead_en here]). </ref> Therefore the designation of one of several establishments in different Member States as the main establishment in the organizational chart is not sufficient to establish the LSA competence under Article 65(1) GDPR.<ref>''Selmayr'', in Ehmann, Selmayr, DS-GVO Kommentar, Article 56 GDPR, margin number 7 (C.H. Beck 2018).</ref> <blockquote>Example: Company X has designated a mailbox company in Estonia in organisational chart as its central administration, while all decisions regarding cross-border processing are made and enforced by its establishment located in France. The LSA is the French SA and not the Estonian SA.  </blockquote>The main establishment is determined for each cross-border processing activity separately. This means that where different establishments are in charge of making decisions about different categories of cross-border processing, for example one for processing of customers’ data for advertising purposes and another for processing of employees’ data, and can also enforce their decisions, different LSAs will be in charge for each cathegory of cross-border processing.<blockquote>Example: Bike rental company XT has establishments in Germany, Austria and Hungary. Exclusively the establishment in Hungary is in charge of advertising, and the establishment in Austria for all decisions related to human resources. In this case  the LSA for processing related to advertising is the Hungarian SA and for processing of employees data the Austrian SA.</blockquote>Companies can avoid situations leading to competence of different LSAs for different cross-border processing activities by putting one undertaking in charge of all decisions that are of data-protection relevance.<ref>''Selmayr'', in Ehmann, Selmayr, DS-GVO Kommentar, Article 56 GDPR, margin number 8 (C.H. Beck 2018).</ref>

===== Identifying the LSA in specific cases of cross-border processing =====

====== Cases involving both controller and processor ======
In cases involving both the controller and the processor, the competent LSA remains the SA of the controller, if there is one. In such a case, the SA of the processor will be a concerned SA as per [[Article 4 GDPR|Article 4(22) GDPR]]. However, this is not the case if the draft decision concerns only the controller (Recital 36 GDPR). In cases where the processor is acting for several controllers, it may then be subject to the competence of several SAs.<ref>Guidelines 8/2022 on identifying a controller or processor’s lead supervisory authority, version 2.1, Section 2.2, available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-82022-identifying-controller-or-processors-lead_en here].</ref>

====== Cases involving joint controllers ======
The GDPR does not address the situation of joint controllership and does not define specific criteria to determine the LSA. However, according to [[Article 26 GDPR|Article 26(1) GDPR,]] the controllers have to in a transparent manner determine their respective responsibilities for compliance with the obligations under the GDPR. EDPB considers that agreement between the controller could designate the establishment having the power to implement decisions about the processing with respect to the joint controllership.<ref>Guidelines 8/2022 on identifying a controller or processor’s lead supervisory authority, version 2.1, Section 2.2, available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-82022-identifying-controller-or-processors-lead_en here].</ref> This could also be supported by the wording of Recital 79 GDPR, which implies that the agreement regarding the allocation of responsibilities among controllers should also concern the monitoring and the measures of the SAs. However, this seems in contradiction with the aim expressed by the EDPB to avoid forum shopping.<ref>EDPB, Opinion 8/2019 on the competence of a supervisory authority in case of a change in circumstances relating to the main or single establishment, 9 July 2019, p. 30 (available [https://edpb.europa.eu/our-work-tools/our-documents/opinion-board-art-64/opinion-82019-competence-supervisory-authority_en here]).</ref>

====== Cases where decisions are made outside EU/EEA ======
Some difficulties may arise when none of the EEA establishments are making decisions about the processing (even with a headquarter in the EEA). In such a case, significantly called “''borderline cases''” by the EDPB,<ref>Guidelines 8/2022 on identifying a controller or processor’s lead supervisory authority, version 2.1, Section 2.2, available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-82022-identifying-controller-or-processors-lead_en here].</ref> the GDPR does not provide for a clear answer. While the GDPR wants to encourage the non EU controller to be established in the EEA to benefit from the one-stop shop, forum shopping should be avoided and it would be too easy to pretend that decision-making is made in the EEA while the decisions are actually taken in another establishment outside of the EEA. The idea of the one-stop shop is to provide a single SA as interlocutor for the controller and to facilitate the dialogue with the main establishment making the decisions on the processing. When the latter is located outside EEA, such controller cannot profit from the one-stop-shop mechanism for cross-border processing and must deal with local SAs in every Member State concerned.<ref>xxx</ref>

===== ''Conflict of competence between supervisory authorities (SAs)'' =====
In case of “''conflicting views''” on which of the SA concerned is the LSA, the EDPB adopts a decision under the dispute resolution mechanism ([[Article 65 GDPR|Article 65(1)(b) GDPR]]). It seems that the decision on a conflicting view can only be taken within a specific procedure under [[Article 65 GDPR|Article 65(1)(b) GDPR]] and conflicting views on the LSA cannot be addressed via a reasoned objection within a procedure under [[Article 65 GDPR|Article 65(1)(a) GDPR]]. In its decision on the dispute resolution mechanism in case Twitter, the EDPB considered “''that a disagreement on the competence of the supervisory authority acting as LSA to issue a decision in the specific case should not be raised through an objection pursuant to [[Article 60 GDPR|Article 60(4) GDPR]] and falls outside of the scope of Article 4(24) GDPR''.”<ref>In this respect, see EDPB, Decision 01/2020 on the dispute arisen on the draft decision of the Irish Supervisory Authority regarding Twitter International Company under Article 65(1)(a) GDPR, 9 November 2020, margin number 52 (available [https://edpb.europa.eu/our-work-tools/our-documents/binding-decision-board-art-65/decision-012020-dispute-arisen-draft_ga here]). </ref> 

===== ''Change of main establishment'' =====
GDPR does not address change of main establishment in the course of cooperation and consistency mechanism, the EDPB considers that “''the lead competence can switch to another SA until a final decision is made by the LSA''”.<ref>EDPB, Opinion 8/2019 on the competence of a supervisory authority in case of a change in circumstances relating to the main or single establishment, 9 July 2019, p. 30 (available [https://edpb.europa.eu/our-work-tools/our-documents/opinion-board-art-64/opinion-82019-competence-supervisory-authority_en here]).</ref> Thus, its competence is not definite until the very end of the procedure.<ref>''Hijmans'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 56, p. 920. </ref> The EDPB stressed that to prevent “''forum shopping''”, “''SAs should exercise effective control over the notion of main establishment in order to reduce the risk that controllers or processors artificially change their main establishment for the purpose of changing the competent authority to handle the case''”.<ref>EDPB, Opinion 8/2019 on the competence of a supervisory authority in case of a change in circumstances relating to the main or single establishment, 9 July 2019, p. 30 (available [https://edpb.europa.eu/our-work-tools/our-documents/opinion-board-art-64/opinion-82019-competence-supervisory-authority_en here]).</ref> While EDPB guidelines are useful, there are doubts about the chosen solution and its effectiveness.<ref>''Hijmans'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 56 GDPR, pages 920-921 (Oxford University Press 2020).</ref> At the same time this solution prevents problems of enforceability of LSA decisions in another Member State, which would emerge if the competence would be linked to the time when the complaint was lodged.   

====Cross-Border Processing====
One of the conditions for triggering the competence of the LSA and the cooperation mechanism of [[Article 60 GDPR]] is the existence of a cross-border processing. The definition of cross-border processing is provided by [[Article 4 GDPR|Article 4(23) GDPR]] which stipulates that such a processing takes place in the context of the activities<ref>The meaning of “''the context of the activities''” was already developed by the CJEU. The Court built on a broad definition of “''establishment''” and held that intending to promote and sell advertising space by an establishment in a Member State of a third country undertaking to make the latter profitable is carried out “in the context of the activities” of that establishment" (CJEU, 13 May 2014, ''Google Spain'', C-131/12 (available [https://curia.europa.eu/juris/liste.jsf?num=C-131/12 here]); and CJEU, 1 October 2015, ''Weltimmo'', C-230/14 (available [https://curia.europa.eu/juris/liste.jsf?language=de&num=C-230/14 here]). The EDPB also confirmed that this notion should not be interpreted too restrictively considering the view to fulfil the objective of ensuring effective and complete protection. See, See EDPB, Guidelines 3/2018 on the territorial scope of the GDPR (Article 3), 12 November 2019, p. 7 (available [https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-32018-territorial-scope-gdpr-article-3-version_en here]).</ref> of either (a) establishments in more than one Member State of a controller or processor in the EEA where the controller or processor is established in more than one Member State; or (b) a single establishment of a controller or processor in the EEA which substantially affects<ref>The notion of “''substantial effect''” on data subjects as mentioned by Article 4(23)(b) is not defined in the GDPR. In its guidelines (endorsed by the EDPB), the Working Party 29 considered that the number of affected individuals in several Member States is not decisive. Rather, the Working Party developed a following, non-exhaustive list of criteria that will be taken into account on a case by case basis. The guidelines suggest to take into account the context of the processing, the type of data, the purpose of the processing and other factor factors, such as potential discrimination, reputational damage, impact on the well-being or involvement of special categories of data. See, WP29, Guidelines for identifying a controller or processor’s lead supervisory authority, WP 244 rev.01, 5 April 2017, p. 4 (available [https://ec.europa.eu/information_society/newsroom/image/document/2016-51/wp244_en_40857.pdf here]).</ref> or is likely to substantially affect data subjects in at least one other Member State.  <blockquote>Example: Bike rental company XT has establishments in Hungary, Austria and Slovenia. Decision on processing, e.g. data that is collected, purposes for which it can be used and for how long it is stored,  are made in Austria and implemented in every establsihment. 

Example: Company TX from Checz Republic is providing online services to customers from all over EEA and in for that purpose collecting and storing their data.</blockquote>On the other hand, the processing by a controller only established in one Member State which substantially only affects the individuals in this Member State will not meet the conditions.  <blockquote>Example:  A Polish company, which is a branch of a Swedish company, processess human resources data of its employees alone, the processed data relates only to its employees and any decision about the purposes and means of this processing is taken by the Polish company, e.g. the Human resources policy, and also the servers on which these data are held is in Poland. There is no cross-border processing and Article 56 of the GDPR does not apply in this case.<ref>See Internal EDPB Document 1/2019 on handling cases with only local impacts under Article 56.2 GDPR, version 2.0, page 6, available [https://edpb.europa.eu/system/files/2022-07/Internal%20EDPB%20document%201-2019%20on%20handling%20of%20local%20cases_en.pdf here].</ref>  </blockquote>For more information, please, refer to the commentary to Article 4(23) GDPR. 
====Main Establishment====   
===(2) Derogation for cases of a local nature===
Article 56(2) GDPR introduces an exception (“''by derogation''”)  to the general competence of the SA of the main establishment for cases of cross-border processing under first paragraph (''"from paragraph 1"''). Article 56(2) GDPR provides that a SA which is not the LSA is to be competent to (a) handle a complaint lodged with it concerning a cross-border processing of personal data or (b) a possible infringement of the GDPR, if the subject matter (i) relates only to an establishment in its own Member State or (ii) substantially affects data subjects only in that Member State. In particular, a case is local in nature if the controller is established in more than one Member State, but the subject matter of the specific processing concerns only processing carried out in a single state and involves only data subjects in that state, for example, where the subject matter concerns the processing of employees' personal data in the specific employment context of a Member State (Recital 127). EDPB adopted Internal EDPB Document 1/2019 on procedural steps to be applied by SAs for handling of cases that potentialy relate to cross-border processing and in particularly cases with only local impacts under Article 56.2 GDPR ("EDPB Internal Document").<ref>Internal EDPB Document 1/2019 on handling cases with only local impacts under Article 56.2 GDPR, available [https://edpb.europa.eu/our-work-tools/our-documents/internal-documents/internal-edpb-document-12019-handling-cases-only_en here].</ref> <blockquote>Example: Due to repeated thefts occurring in a store located in France, of a retail company established in several Member States, the Italian headquarters decides to use video surveillance for the store in France. Since the Italian establishment determines the purposes and means of this monitoring system, this is a cross-border processing and the controller’s main establishment is in Italy. If a French employee (or a customer) lodges a complaint regarding the use of the surveillance-camera with the French SA, the SA may find that this case is of local nature, since no other establishment, except the French, makes use of video-surveillance.<ref name=":0">See Internal EDPB Document 1/2019 on handling cases with only local impacts under Article 56.2 GDPR, version 2.0, page 8, available [https://edpb.europa.eu/our-work-tools/our-documents/internal-documents/internal-edpb-document-12019-handling-cases-only_en here].</ref></blockquote>On the contrary, the resolution of a case of video surveillance systems implemented in stores in more than one Member States, as a matter of general policy, which infringes GDPR’s provisions, for example due to allegedly excessive retention period of the video surveillance data, is not only relating to the establishment located in one Member State.<ref name=":0" />

According to the EDPB "''[t]o be considered as a local case, the actual impact of it should be limited to data subjects residing in the SA’s Member State.''"<ref>See Internal EDPB Document 1/2019 on handling cases with only local impacts under Article 56.2 GDPR, version 2.0, page 9, available [https://edpb.europa.eu/our-work-tools/our-documents/internal-documents/internal-edpb-document-12019-handling-cases-only_en here].</ref><blockquote>Example: An online retail company sells products that can be delivered throughout EEA. The website provides information about the processing of personal data in many languages used in the EEA. The Islandic linguistic version is incomplete and this language is spoken only in a single Member State Iceland. In this situation, the case could be considered as having only local impacts in the SA’s territory.</blockquote>If the SA considers that the case is likely  to impact individuals in another Member State, it should consider that this is not a local case.<blockquote>Example:  An online order form from a retail company requires that all customers (located in several Member States) provide information that is not necessary to deliver the products. The subject matter of the case as well as the resolution of this case will substantially affect data subjects in several Member States.</blockquote>Also a case about a cross-border processing that is in line with the GDPR but infringes the national legislation could have only local impacts.<blockquote>Example: The Italian main establishment of a company decides to implement video-surveillance in each of its establishments. The French national law about video-surveillance in public space provides that the images should not be stored more than one month, and the retention period of data is excessive only according to this national law, the resolution of the case would be only relating to the local establishment and would concern only data subjects in France.<ref>See Internal EDPB Document 1/2019 on handling cases with only local impacts under Article 56.2 GDPR, version 2.0, page 10, available [https://edpb.europa.eu/our-work-tools/our-documents/internal-documents/internal-edpb-document-12019-handling-cases-only_en here].</ref></blockquote>The competence of local SAs in local cases reflects one of the principles of the GDPR, namely the principle of proximity as an important aspect of the protection of individuals rights.<ref>See  ''Selmayr'', in Ehmann, Selmayr, DS-GVO Kommentar, Article 56 GDPR, margin number 14 (C.H. Beck 2017); and ''Zerdick'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 56 GDPR, p. 921 (Oxford University Press 2020).</ref> Nevertheless, the local SA will handle a case with a subject matter of a local nature only, if the LSA does not decide to handle it (see below).

=== (3) Involvement of the lead supervisory authority (LSA) ===
Under Article 56(3) GDPR, in the event of a “local case” under Article 56(2) GDPR, the SA must inform the LSA “''without delay''” on that matter. The LSA must respond within a period of three weeks whether or not it will handle the case. To make this decision, the (L)SA will take into account of the presence of an establishment of the controller or processor in the Member State of which the SA informed it. The existence of an establishment in the Member State of the local SA is to be taken into account, “''in order to ensure effective enforcement of a decision vis-à-vis the controller or processor.''”<ref>Recital 127.</ref> According to the EDPB Internal Document 1/2019 the (L)SA should also take into account wether the case raises a new matter of principe which has not yet been resolved at the European level.<ref>See Internal EDPB Document 1/2019 on handling cases with only local impacts under Article 56.2 GDPR, version 2.0, page 10, available [https://edpb.europa.eu/our-work-tools/our-documents/internal-documents/internal-edpb-document-12019-handling-cases-only_en here].</ref> In its Internal Document the EDPB clarifies that a matter has been addressed at European level, when it has been decided on the merits, either by the LSA following the cooperation procedure, or by the European Data Protection Board (EDPB) or by the case law of the CJ EU or the European Court of Human Rights.<ref>See Internal EDPB Document 1/2019 on handling cases with only local impacts under Article 56.2 GDPR, version 2.0, page 13, available [https://edpb.europa.eu/our-work-tools/our-documents/internal-documents/internal-edpb-document-12019-handling-cases-only_en here].</ref> 

In the event that the LSA does not decide within the three week period whether it will handle the case the local SA can trigger the  mutual assistance procedure under [[Article 61 GDPR]], in order to receive an answer from the LSA. Followed by a request to obtaining an opinion from the EDPB under Article 64(2) GDPR, if the LSA does not comply with the obligations for mutual assistance within one month.<ref>See Internal EDPB Document 1/2019 on handling cases with only local impacts under Article 56.2 GDPR, version 2.0, page 14, available [https://edpb.europa.eu/our-work-tools/our-documents/internal-documents/internal-edpb-document-12019-handling-cases-only_en here].</ref>

=== (4) Lead supervisory authority (LSA) takes the lead ===
If the LSA decides to handle the case, the one-stop shop procedure introduced in [[Article 60 GDPR]] is triggered. However, the SA which informed the LSA about the subject matter may submit to the LSA a draft for a decision. According to the EDPB Internal Guideliness the LSA must take atmost account of that draft, "''except where there are specific, overriding reasons preventing it.''"<ref>See Internal EDPB Document 1/2019 on handling cases with only local impacts under Article 56.2 GDPR, version 2.0, page 15, available [https://edpb.europa.eu/our-work-tools/our-documents/internal-documents/internal-edpb-document-12019-handling-cases-only_en here].</ref> The local SA remains in a strong position since it can still suggest a draft decision to the LSA, which is in general competent to draw up a draft decisions in accordance with [[Article 60 GDPR|Article 60(3) GDPR]].For more information see commentary to [[Article 60 GDPR]]. 

Paragraphs 4 and 5, in contrast to paragraphs 2 and 3, does not make any reference to local cases. Therefore one possible interpretation of these two paragraphs is, that they do not apply only in local cases but in any cross-border case, where the LSA in fact does not act and does not handle the case as it is obliged to under Article 60 GDPR.<ref>xxxx</ref> This means that the SA where the complaint was lodged or that informed the LSA about an assumed infringement of the GDPR is also competent to prepare a draft for the LSA decision and even handle the cross-border case  according to [[Article 61 GDPR]] and [[Article 62 GDPR|Article 62 GDPR, if the LSA fails to handle the case.]] (see paragraph 5 below). 

=== (5) Local supervisory authority handles the case ===

If the LSA decides not to handle a local case, Article 56(5) GDPR provides that the SA which triggered the procedure handles it according to [[Article 61 GDPR]] and [[Article 62 GDPR]].  Those provisions require the SAs to comply with the rules on mutual assistance and cooperation within the framework of joint operations, in order to ensure effective cooperation between the authorities concerned. EDPB Internal Document 1/2019 forsees that the local SA exercises its full range of powers pursuant to [[Article 58 GDPR]], including the corrective powers. Also, "''when the cross-border case is handled “locally”, the LSA is not the sole interlocutor of the controller or processor''" as provided for in Article 56(6) GDPR (see below).<ref>See Internal EDPB Document 1/2019 on handling cases with only local impacts under Article 56.2 GDPR, version 2.0, page 15, available [https://edpb.europa.eu/our-work-tools/our-documents/internal-documents/internal-edpb-document-12019-handling-cases-only_en here].</ref>

Paragraph 5, just as paragraph 4 and contraty to paragraphs 2 and 3, does not in any way refer to local cases it can be argued that it can be applied also in case of inactivity of the LSA. The SA that informed the LSA about the assumed infringement of the GDPR relating to cross-border processing that would require the LSA to handle the case in accordance with procedure prvided in Article 60 GDPR, was obliged to handle it ("shall handle it"), if the LSA failed to do so (see also commentary to paragraph 4 above).
===(6) The lead supervisory authority (LSA) as the sole interlocutor of the controller or the processor===
Article 56(6) GDPR provides that the LSA is the sole interlocutor of the controller or the processor. That means that, in case of cross-border processing, the communication should exclusively take place with the LSA, to avoid that the controller or processor would have multiple discussions with several SAs. In additon to relief from bureaucratic burdens, the ''"[e]xclusive contacts with a controller or processor are a means to streamline the procedure."''<ref>''Zerdick'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 56 GDPR, p. 924 (Oxford University Press 2020).</ref>

At the same time, in relation to other CSAs, the LSA ''"must exercise such competence within a framework of close cooperation with the other supervisory authorities concerned."''<ref>CJEU, [https://curia.europa.eu/juris/liste.jsf?num=C-645/19 C-645/19 - ''Facebook c. APD''], paragraph 64, available [https://curia.europa.eu/juris/liste.jsf?num=C-645/19 here].</ref> 

Article 56 GDPR does not specify whether the LSA remains the sole interlocutor of the controller or processor where the local SA is handling the case under Article 56(5) GDPR. The EDPB Internal Document 1/2019 suggests that  "''when the cross-border case is handled “locally”, the LSA is not the sole interlocutor of the controller or processor''".<ref>See Internal EDPB Document 1/2019 on handling cases with only local impacts under Article 56.2 GDPR, version 2.0, page 15, available [https://edpb.europa.eu/our-work-tools/our-documents/internal-documents/internal-edpb-document-12019-handling-cases-only_en here].

See also ''Boehm'', in Kühling, Buchner, DS-GVO BDSG, Article 56 GDPR, margin number 17 (C.H. Beck 2020, 3rd Edition).</ref> However, not all scholars share this view.<ref>See for example ''Polenz'', in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 56 GDPR, margin number 16 (Nomos 2019). ''See also Zerdick'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 56 GDPR, p. 924 (Oxford University Press 2020).</ref> Some scholars suggest a pragmatic approach to avoid communication issues with the controller or processor.<ref>''Hijmans'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 56, p. 92 ''Hijmans'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 56, p. 924.</ref>

This provision is not determining data subject's contact point. According to [[Article 77 GDPR|Article 77(1) GDPR]], the data subject can contact a SA of his choice when filing a complaint and the SA whit which the complaint was lodged stays his pont of contact throughout the procedure.
==Decisions==
→ You can find all related decisions in [[:Category:Article 56 GDPR]]

==References==
<references />

[[Category:GDPR Articles]]