Article 70 GDPR

← Article 70 - Tasks of the Board →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 70 - Tasks of the Board

1. The Board shall ensure the consistent application of this Regulation. To that end, the Board shall, on its own initiative or, where relevant, at the request of the Commission, in particular:

(a) monitor and ensure the correct application of this Regulation in the cases provided for in Articles 64 and 65 without prejudice to the tasks of national supervisory authorities;

(b) advise the Commission on any issue related to the protection of personal data in the Union, including on any proposed amendment of this Regulation;

(c) advise the Commission on the format and procedures for the exchange of information between controllers, processors and supervisory authorities for binding corporate rules;

(d) issue guidelines, recommendations, and best practices on procedures for erasing links, copies or replications of personal data from publicly available communication services as referred to in Article 17(2);

(e) examine, on its own initiative, on request of one of its members or on request of the Commission, any question covering the application of this Regulation and issue guidelines, recommendations and best practices in order to encourage consistent application of this Regulation;

(f) issue guidelines, recommendations and best practices in accordance with point (e) of this paragraph for further specifying the criteria and conditions for decisions based on profiling pursuant to Article 22(2);

(g) issue guidelines, recommendations and best practices in accordance with point (e) of this paragraph for establishing the personal data breaches and determining the undue delay referred to in Article 33(1) and (2) and for the particular circumstances in which a controller or a processor is required to notify the personal data breach;

(h) issue guidelines, recommendations and best practices in accordance with point (e) of this paragraph as to the circumstances in which a personal data breach is likely to result in a high risk to the rights and freedoms of the natural persons referred to in Article 34(1).

(i) issue guidelines, recommendations and best practices in accordance with point (e) of this paragraph for the purpose of further specifying the criteria and requirements for personal data transfers based on binding corporate rules adhered to by controllers and binding corporate rules adhered to by processors and on further necessary requirements to ensure the protection of personal data of the data subjects concerned referred to in Article 47;

(j) issue guidelines, recommendations and best practices in accordance with point (e) of this paragraph for the purpose of further specifying the criteria and requirements for the personal data transfers on the basis of Article 49(1);

(k) draw up guidelines for supervisory authorities concerning the application of measures referred to in Article 58(1), (2) and (3) and the setting of administrative fines pursuant to Article 83;

(l) review the practical application of the guidelines, recommendations and best practices referred to in points (e) and (f);

(m) issue guidelines, recommendations and best practices in accordance with point (e) of this paragraph for establishing common procedures for reporting by natural persons of infringements of this Regulation pursuant to Article 54(2);

(n) encourage the drawing-up of codes of conduct and the establishment of data protection certification mechanisms and data protection seals and marks pursuant to Articles 40 and 42;

(o) carry out the accreditation of certification bodies and its periodic review pursuant to Article 43 and maintain a public register of accredited bodies pursuant to Article 43(6) and of the accredited controllers or processors established in third countries pursuant to Article 42(7);

(p) specify the requirements referred to in Article 43(3) with a view to the accreditation of certification bodies under Article 42;

(q) provide the Commission with an opinion on the certification requirements referred to in Article 43(8);

(r) provide the Commission with an opinion on the icons referred to in Article 12(7);

(s) provide the Commission with an opinion for the assessment of the adequacy of the level of protection in a third country or international organisation, including for the assessment whether a third country, a territory or one or more specified sectors within that third country, or an international organisation no longer ensures an adequate level of protection. To that end, the Commission shall provide the Board with all necessary documentation, including correspondence with the government of the third country, with regard to that third country, territory or specified sector, or with the international organisation.

(t) issue opinions on draft decisions of supervisory authorities pursuant to the consistency mechanism referred to in Article 64(1), on matters submitted pursuant to Article 64(2) and to issue binding decisions pursuant to Article 65, including in cases referred to in Article 66;

(u) promote the cooperation and the effective bilateral and multilateral exchange of information and best practices between the supervisory authorities;

(v) promote common training programmes and facilitate personnel exchanges between the supervisory authorities and, where appropriate, with the supervisory authorities of third countries or with international organisations;

(w) promote the exchange of knowledge and documentation on data protection legislation and practice with data protection supervisory authorities worldwide.

(x) issue opinions on codes of conduct drawn up at Union level pursuant to Article 40(9); and

(y) maintain a publicly accessible electronic register of decisions taken by supervisory authorities and courts on issues handled in the consistency mechanism.

2. Where the Commission requests advice from the Board, it may indicate a time limit, taking into account the urgency of the matter.

3. The Board shall forward its opinions, guidelines, recommendations, and best practices to the Commission and to the committee referred to in Article 93 and make them public.

4. The Board shall, where appropriate, consult interested parties and give them the opportunity to comment within a reasonable period. The Board shall, without prejudice to Article 76, make the results of the consultation procedure publicly available.

Relevant Recitals

Recital 124: Lead Supervisory Authority and Cooperation

Where the processing of personal data takes place in the context of the activities of an establishment of a controller or a processor in the Union and the controller or processor is established in more than one Member State, or where processing taking place in the context of the activities of a single establishment of a controller or processor in the Union substantially affects or is likely to substantially affect data subjects in more than one Member State, the supervisory authority for the main establishment of the controller or processor or for the single establishment of the controller or processor should act as lead authority. It should cooperate with the other authorities concerned, because the controller or processor has an establishment on the territory of their Member State, because data subjects residing on their territory are substantially affected, or because a complaint has been lodged with them. Also where a data subject not residing in that Member State has lodged a complaint, the supervisory authority with which such complaint has been lodged should also be a supervisory authority concerned. Within its tasks to issue guidelines on any question covering the application of this Regulation, the Board should be able to issue guidelines in particular on the criteria to be taken into account in order to ascertain whether the processing in question substantially affects data subjects in more than one Member State and on what constitutes a relevant and reasoned objection.

Recital 136: Opinions and Binding Decisions of the EDPB

In applying the consistency mechanism, the Board should, within a determined period of time, issue an opinion, if a majority of its members so decides or if so requested by any supervisory authority concerned or the Commission. The Board should also be empowered to adopt legally binding decisions where there are disputes between supervisory authorities. For that purpose, it should issue, in principle by a two-thirds majority of its members, legally binding decisions in clearly specified cases where there are conflicting views among supervisory authorities, in particular in the cooperation mechanism between the lead supervisory authority and supervisory authorities concerned on the merits of the case, in particular whether there is an infringement of this Regulation.

Recital 139: EDPB

In order to promote the consistent application of this Regulation, the Board should be set up as an independent body of the Union. To fulfil its objectives, the Board should have legal personality. The Board should be represented by its Chair. It should replace the Working Party on the Protection of Individuals with Regard to the Processing of Personal Data established by Directive 95/46/EC. It should consist of the head of a supervisory authority of each Member State and the European Data Protection Supervisor or their respective representatives. The Commission should participate in the Board's activities without voting rights and the European Data Protection Supervisor should have specific voting rights. The Board should contribute to the consistent application of this Regulation throughout the Union, including by advising the Commission, in particular on the level of protection in third countries or international organisations, and promoting cooperation of the supervisory authorities throughout the Union. The Board should act independently when performing its tasks.

Recital 172: Consultation and Opinion of the EDPS

The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on 7 March 2012.

Commentary

Article 70 GDPR is a crucial component of Section 3 of Chapter VII. This provision delimitates the content and scope of the duties and powers entrusted to the Board for the purpose of ensuring the consistent application of the Regulation across the Union. The powers afforded to the Board under Article 70 GDPR differentiate it from the Article 29 Working Party (“WP29”), which was confined to solely an advisory role.

(1) Tasks to ensure the consistent application of the Regulation

Articles 70(1)(a) and 70(1)(t) GDPR grant the EDPB an important and new role regarding the Regulation’s consistency mechanism. In particular, the Board is required to issue opinions on draft measures by supervisory authorities under the consistency mechanism (Article 64(1) GDPR); opinions on matters of general application, or producing effects in more than one member state, in particular where a competent supervisory authority does not comply with obligations for mutual assistance (Article 64(2) GDPR); binding decisions under the dispute resolution procedure (Article 65 GDPR); and binding decisions where a supervisory authority has adopted provisional measures under the urgency procedure and considers a need for definitive action (Article 66 GDPR). The EDPB adopted its first binding decision under the Article 65 GDPR dispute resolution procedure on 9 November 2020 regarding a draft decision by the Irish Supervisory Authority. The draft decision concerned a data breach by Twitter, to which supervisory authorities in Austria, Denmark, France, Germany, Hungary, Italy and Spain had objected to. The EDPB had asked the Irish Supervisory Authority to re-assess the elements it relied upon in its calculation of the fine to be imposed on Twitter, and to amend its draft decision by increasing the fine in order to ensure it fulfils its purpose as a corrective measure.

Article 70(1)(b) GDPR states that the Commission may consult the EDPB on any issue regarding data protection in the Union. This provision is similar to that in Article 42 of Regulation 2018/1725, which states the Commission may consult either the EDPS, in relation to legislative proposals or drafts implementing measures impacting data protection, or, both the EDPS and EDPB jointly, where such proposals are of particular importance. On 13 May 2019, the Commission submitted its first request for a joint opinion of this kind on the draft Implementation Decision on eHealth. The EDPB and EDPS have also submitted joint advice to the European Parliament, although the GDPR does not specifically provide for this.

Under Article 70(1)(e) GDPR, the EDPB must examine – either on its own initiative or in response to a request from a member of the Commission – questions regarding the Regulation's application; as well as issue guidelines, recommendations, and best practices. Articles 70(1)(f)-(j) GDPR specify areas in which guidelines should be issued, namely profiling, data breaches, risk to data subject rights and freedoms, binding corporate rules, and data transfers. As Schiedermair emphasises, these guidelines are an “important building block in the effort to gradually dismantle” the varied enforcement of data protection law by member states. The Meijers Committee, an independent group researching and advising on privacy law, has highlighted the potential risks of soft law instruments such as these guidelines, recommendations, and best practices, which are in practice often treated as law. Soft law can consequently have legal effects, which means it requires a specific legal basis. Moreover, soft law may lack “safeguards, transparency and the involvement of democratically chosen bodies or interested citizens or organisations..." Docksey notes that the EDPB’s competence to issue guidelines, recommendations, and best practices under Article 70 GDPR largely avoids these risks. Importantly, the EDPB has a clear statutory mandate to ensure the consistent application of the GDPR as explicitly stated in Article 70(1) GDPR. Article 70(4) GDPR also requires the EDPB, “where appropriate”, to consult interested stakeholders and provide them with the opportunity to comment, and the results of this consultation must be made public.

The fact that Article 70(1)(l) GDPR only requires the Board to review the practical application of guidelines, recommendations, and best practices referred to in Articles 70(1)(e) and 70(1)(f) GDPR was an editorial error. This obligation applies to all guidance issued by the Board.

Articles 70(1)(n) to (q) GDPR outline the EDPB’s responsibilities regarding the drawing up of codes of conduct, and the accreditation of certification bodies pursuant to Articles 40-41 GDPR and Articles 42-43 GDPR, respectively. On certification, the EDPB must encourage the creation of codes of conduct on certification mechanisms (Article 70(1)(n) GDPR), as well as actually accredit the certification bodies, regularly review them, and keep a public register (Article 70(1)(n) GDPR). The latter requirement conflicts with the wording of Article 43(1) GDPR, which only requires national supervisory authorities to carry out accreditation. Article 70(1)(n) GDPR thus contains an editorial error as the EDPB is merely required to review accreditation decisions by national supervisory authorities.

(2) Time Limit

Article 70(2) GDPR postulates that where the Commission requests advice from the EDPB, it may indicate a time limit, taking into account the urgency of the matter. However, the question of whether such a time limit is binding for the EDPB is unclear. Some Commentators argue that it is not binding but that the EDPB should give priority to corresponding requests from the Commission and inform it that the deadline cannot be met and for what reasons, or at minimum provide by when the Committee is able to deliver the desired opinion. However, there is no consensus on this point, as other Commentators have suggested that an option for leeway exists only in cases of Article 64(2) GDPR but not the context of Article 70(2) GDPR.

(3) Forwarding the Opinions, Guidelines, and Recommendations

According to Article 70(3) GDPR, the EDPB is obligated to “forward its opinions, guidelines, recommendations, and best practices to the Commission and to the committee referred to in Article 93 and make them public.” At the same time, it has to publish all these working results, as the Article 29 Working Party has always done. For the decisions in the consistency mechanism, a more precise publication obligation results from Article 65(5) GDPR. The opinions, guidelines, recommendations and best practices are also published online.

(4) Consultation of Interested Parties

Article 70(4) GDPR requires the EDPB, where appropriate, to consult interested groups and provide them with the opportunity to comment. Interested groups may include data protection experts from science and practice, interested groups may also include any other groups active regarding data protection issues. In practice, the Board conducts consultations ex ante, by hosting workshops and ‘fablabs,’ and ex post, by providing stakeholders the opportunity to comment on draft guidelines.

Decisions

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