Article 54 GDPR

← Article 54 - Rules on the establishment of the supervisory authority →
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 54 - Rules on the establishment of the supervisory authority

1. Each Member State shall provide by law for all of the following:

(a) the establishment of each supervisory authority;

(b) the qualifications and eligibility conditions required to be appointed as member of each supervisory authority;

(c) the rules and procedures for the appointment of the member or members of each supervisory authority;

(d) the duration of the term of the member or members of each supervisory authority of no less than four years, except for the first appointment after 24 May 2016, part of which may take place for a shorter period where that is necessary to protect the independence of the supervisory authority by means of a staggered appointment procedure;

(e) whether and, if so, for how many terms the member or members of each supervisory authority is eligible for reappointment;

(f) the conditions governing the obligations of the member or members and staff of each supervisory authority, prohibitions on actions, occupations and benefits incompatible therewith during and after the term of office and rules governing the cessation of employment.

2. The member or members and the staff of each supervisory authority shall, in accordance with Union or Member State law, be subject to a duty of professional secrecy both during and after their term of office, with regard to any confidential information which has come to their knowledge in the course of the performance of their tasks or exercise of their powers. During their term of office, that duty of professional secrecy shall in particular apply to reporting by natural persons of infringements of this Regulation.

Relevant Recitals

Recital 117: Establishment of Independent Supervisory Authorities

The establishment of supervisory authorities in Member States, empowered to perform their tasks and exercise their powers with complete independence, is an essential component of the protection of natural persons with regard to the processing of their personal data. Member States should be able to establish more than one supervisory authority, to reflect their constitutional, organisational and administrative structure.

Recital 121: General Conditions for the Member(s) of Supervisory Authorities

The general conditions for the member or members of the supervisory authority should be laid down by law in each Member State and should in particular provide that those members are to be appointed, by means of a transparent procedure, either by the parliament, government or the head of State of the Member State on the basis of a proposal from the government, a member of the government, the parliament or a chamber of the parliament, or by an independent body entrusted under Member State law. In order to ensure the independence of the supervisory authority, the member or members should act with integrity, refrain from any action that is incompatible with their duties and should not, during their term of office, engage in any incompatible occupation, whether gainful or not. The supervisory authority should have its own staff, chosen by the supervisory authority or an independent body established by Member State law, which should be subject to the exclusive direction of the member or members of the supervisory authority.

Commentary

Article 54 GDPR lays down the requirements for the organisational framework of supervisory authorities ("SAs"). However, in doing so, it combines two notably different objectives under its ambit. The first of which, under Article 54(1) GDPR, is to list the specifications to be legislated for by each Member States through their national legislation for the establishment and governance of SAs. This provision is largely repetitive of requirements outlined under other Articles of the GDPR, namely in Articles 51, 52 and 53 GDPR. The second objective, under Article 54(2) GDPR, seeks to regulate the confidentiality obligations of SA members and staff. These confidentiality obligations were already in place under Article 28(7) of the GDPR's predecessor, Directive 95/46/EC.

(1) Elements provided by Member States law

Article 54(1) GDPR mandates Member States to provide for all the elements listed below through their national law. A substantial number of provisions under Article 54(1) GDPR are mainly reiterations of obligations outlined under Articles 51- 53 GDPR.

(a) Establishment of the supervisory authority (SA)

The criteria regulating the establishment of SAs are set out in Article 51(1) and 52 GDPR, Article 54(1)(a) GDPR repeats that these should be legislated for through a Member State's domestic law. Under the GDPR, Member States are permitted to appoint several different types of SAs, for example, sector specific SAs. In these instances, the law should provide for the conditions and rules regarding the establishment of each type. In addition, commentators have noted that the functional nature of an SA should also be legislated for through national law. For instance, Member States should legislate for whether their SAs are monocratic or collegial bodies, or whether they have any competences in addition to the monitoring of the enforcement of the GDPR.

For more information regarding the establishment of SAs, please refer to Article 51(1) GDPR and Article 52 GDPR in this Commentary.

(b) Qualifications and eligibility conditions for SA members

Article 54(1)(b) GDPR echoes Article 53(2) GDPR, which outlines the qualificatory and experiential requirements for SA members. However, unlike Article 53(2) GDPR, Article 54(1)(b) GDPR explicitly clarifies that these eligibility requirements are to be determined by national law.

For more information on the eligibility requirements for SA members, please refer to Article 53(2) GDPR.

(c) The rules and procedures for the appointment of SA members

Pursuant to Article 54(1)(c) GDPR, Member States must legislate for the rules and procedures governing the appointment of SA members. This provision is, in essence, a restatement of Article 53(1) GDPR, with the difference that Article 53(1) GDPR further stipulates that any procedure legislated for is 'transparent'.

For more information on the procedural requirements for the appointment of SA members, please refer to Article 53(1) GDPR.

(d) Duration of the term

Pursuant to Article 54(1)(d) GDPR, each Member State is obliged to legislate for SA member(s) term of office. The provision specifies that the minimum term is four years; nonetheless, Member States are free to set longer terms. However, any attempt to legislate for a term of office that is for life or until retirement should be excluded, as Article 54(1)(e) GDPR addresses the question of reappointment. Therefore, the GDPR assumes a limited term for the position.

(e) Reappointment

Article 54(1)(e) GDPR mandates Member States to legislate for the reappointment of SA members. Member States are entitled to determine whether, and how often the reappointment of members is permitted. For instance, Union law does not prohibit Member States from legislating for reappointment bans, or limitations to the number of consecutive reappointments, or even for the possibility of indefinite reappointments.

Notably though, leniency on the possibility of multiple consecutive reappointments has the capacity to undermine the independence of SA members, and by relation, the institutional integrity of SAs as independent bodies. Commentators have noted that, in particular in the context of members' re-election, allowing multiple reappointments risks candidates who have previously held office, to make concessions to the appointing body in favour of their renomination. Admittedly, the risk to independence is countered by the fact that a reappointed member will have greater experience than a candidate who has not previously held office.

(f) Rules on members' occupation, prohibitions, incompatible actions and benefits

Under Article 54(1)(f) GDPR, Member States must ('shall') legislate for the (i) conditions governing the obligations of members and staff of each SA, (ii) prohibitions on the actions, occupations and benefits incompatible with membership during and after their term of office, as well as (iii) the rules governing the cessation of their employment.

SA member(s) and staff

While not made explicit under Article 54(1)(f)GDPR, any domestic legislation governing the obligations and prohibitions for SA members during their term of office, must be in line with provisions of Article 52(3) GDPR and Articles 53(3) and 53(4) GDPR. These provisions expand on the conditions outlined under this Article. For instance, Article 52(3) GDPR prohibits SA members from engaging in any incompatible actions and occupations, while Articles 53(3) and 53(4) GDPR regulate the expiry of a member's term of office and dismissal.

To clarify, the GDPR's use of the terms 'members' and 'staff' differentiate between the two types of SA personnel. The former refers to SAs' lead personnel, while the latter refers to supporting staff. Under Article 54(1)(f) GDPR, rules regulating the actions of staff must also be legislated for through national law. However, these conditions are not required to comply with the strict criteria governing SA members, as provided for provided for in Article 52(3) GDPR and Articles 53(3) and 53(4) GDPR.

For more information on SA members and staff, please refer to Article 52(2) GDPR (SA members) and Article 52(5) GDPR (SA staff).

Obligations

Article 54(1)(f) GDPR is not particularly specific in relation to what obligations are to be imposed upon SA members during their term of office. Elements of what constitute a member's 'obligations' are found in other Articles of the GDPR. For instance, Article 52 GDPR mandates that members serve their office with integrity. While, Article 51(1) GDPR outlines SAs' broad purpose of monitoring the GDPR's application, the objectives of which are to protect the right to data protection and facilitate the free flow of personal data within the Union. Especially relevant to the interpretation of the term 'obligations' by the national legislature are Articles 57 and 58 GDPR, which determine the tasks and powers of SAs.

Prohibitions on incompatible actions, occupations and benefits

Any interpretation by national law on the scope and content of incompatible actions, occupations and benefits which SA members and staff are prohibited to take, are to be read in line with Article 52(3) GDPR. Given that GDPR is quite vague in terms of specifying what exactly 'incompatible actions, occupations and benefits' are, it is particularly important that national legislation does not limit itself to reproducing the text of Articles 52(3) GDPR and 54(1)(f) GDPR.

For more information on the conflict of interest rules, please refer to commentary to Article 52(3) GDPR.

During and after the term of office

Member States must adopt appropriate conflict of interest rules for the time during the term in office, as well as for after. In particular, Member States should regulate against the issue of 'revolving doors'. This term refers to the movement of high-level personnel from public roles to those in the private sector, in particular to industries impacted by the work undertaken by those individuals while holding public office. The European Ombudsman has highlighted that the movement of public officials to the private sector presents risks to the integrity of public bodies, as 'valuable inside knowledge can move into the private sector, or because former officials may lobby their former colleagues or existing officials may be influenced by possible future employment.' The level of independence required of SAs as public bodies is extremely high. Consequently, even the risk of partiality is sufficient to undermine it. Therefore, it would be incompatible with the principle of independence if an SA member were to work for a private entity which was under the SA's scrutiny, immediately after their term of office with the SA ended.

A possible solution to curb potential conflicts of interest could be a 'cooling off' period after the end of a member's term of office. Commentators suggest that periods of 18-24 months should be be viewed as a minimum standard. At the same time, it is important that any 'cooling off' periods do not lead to a ban on all professional activities.

Cessation of employment rules

Member States are free to regulate for the rules concerning members' and staff's cessation of employment. In this regard, the GDPR does not contain any specific requirements. Naturally, these rules should not infringe upon SAs' independence, as required by Article 52 GDPR. However, if SA members are legally employed with the SA, any conditions set out by Articles 53(3) and 53(4) GDPR regulating members' end of term or dismissal must also be taken into account by the laws governing their cessation of employment.

For more information regarding the conditions regulating SA members' end of term, please refer to Article 53 GDPR.

(2) Duty of professional secrecy

The second paragraph of Article 54 GDPR prohibits any member or staff of an SA from sharing confidential information with a third party, or disclosing it to the public without prior authorisation.

The duty of professional secrecy, is at its core an essential element of SAs' investigative powers. In broader terms, the duty of professional secrecy applies as a general principle to the information obtained by SAs in the course of the fulfilment of their role as a supervisory body under Union law. Similar obligations apply to members of competition authorities and other Union regulatory bodies, for instance members of the Commission or European Central Bank. Notably, the duty of professional secrecy does not extend to SAs' cooperation mechanism under Articles 60, 61, 64, and 65 GDPR.

The general duty of professional secrecy finds its footing in primary Union law, under Article 339 of the Treaty on the Functioning of the European Union ("TFEU"). Transparency considerations arise in relation to the duty of professional secrecy, especially in the context of public access to documents. For instance, access to documents can lawfully be restricted on confidentiality grounds, in particular when they concern the protection of personal data of individuals or the protection of trade secrets. As a result, the duty of professional secrecy is intertwined with the right of access under the right to good administration found in Article 41(2)(b) of the Charter of Fundamental Rights of the European Union ("CFR"), and the right of public access under Article 42 CFR and Regulation 1049/2001. In relation to these conflicting interests, commentators have noted that the obligation of secrecy should “not unduly restrict the transparency of DPA [SA] performance, one of the main elements of public accountability of DPAs [SAs].”

The duty of professional secrecy arises in other provisions of the GDPR, namely under Article 38(5) GDPR in relation to data protection officers ("DPO"). For the interpretation of the duty of professional secrecy in regard to DPOs, please refer to Article 38(5) GDPR.

Members and the staff of supervisory authority (SA)

The duty of professional secrecy only applies to SA staff and members. Thus, nothing prevents the parties to the proceedings (including the complainant) from sharing the information obtained from the SA, subject to restrictions under national law.

Union or Member State law

Member states may further regulate the duty of professional secrecy through their national legislation. In any case, EU law applies as a minimum threshold, thus Member States may regulate for more stringent requirements but not for less.

Union law

Article 339 TFEU establishes that '[t]he members of the institutions of the Union, the members of committees, and the officials and other servants of the Union shall be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components.' Other relevant legislative provisions include Article 17 of the EU Staff Regulations, and Article 56 of Regulation (EU) 2018/1725 ("EUDPR").

National law

Generally, Member States regulate for sector specific confidentiality obligations. In particular, these regulations apply to professionals which handle confidential information on a regular basis, such as doctors, lawyers and public officials. As noted above, Member States may choose to further regulate the confidentiality obligations applying to SAs.

Duty of professional secrecy

The duty of professional secrecy applies to any confidential information which SA members and staff have come into contact with in the course of the performance of their tasks or exercise of their powers.

Confidential information

The CJEU clarified, in Bank Austria Creditanstalt v Commission, that information will be considered confidential if it fulfils the following three conditions: (i) if the information is known only to a limited number of people; (ii) disclosure of the information can cause serious harm to the person who has provided it or to third parties; and (iii) the interests likely to be harmed by disclosure must, objectively, be worthy of protection. Commentators have noted that the test of Article 339 TFEU requires a reinforced protection for business secrets.

In the course of the performance of their tasks or exercise of their powers

Information is only protected if it has come to the knowledge of a member or an employee of a SA 'in the course of the performance of their tasks or exercise of their powers'. Given the broad nature of the tasks and powers afforded to SAs under Articles 57 and 58 GDPR, the duty of professional secrecy applies to all confidential information that SA members and staff come into contact with in the course of their duties, which considering the extent of SAs' work is not an insignificant amount.

Reporting by natural persons of infringements

The duty of professional secrecy, in particular, applies to the reporting of GDPR infringements by natural persons. Considering that protecting the fundamental rights and freedoms of natural persons is a central component of SAs' role, they must pay particular attention to the protection of the holders of those fundamental rights.

During and after their term of office

The duty of professional secrecy applies both during and following an SA member's or staff's term of office. There is no specific duration for which the duty of professional secrecy continues to apply after the expiry of the term of office. The period of time should be determined on a case-by-case basis, taking into account the sensitivity of the information concerned and the potential consequences to be expected from disclosure.

Decisions

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