Article 64 GDPR

← Article 64 - Opinion 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 64 - Opinion of the Board

1. The Board shall issue an opinion where a competent supervisory authority intends to adopt any of the measures below. To that end, the competent supervisory authority shall communicate the draft decision to the Board, when it:

(a) aims to adopt a list of the processing operations subject to the requirement for a data protection impact assessment pursuant to Article 35(4);

(b) concerns a matter pursuant to Article 40(7) whether a draft code of conduct or an amendment or extension to a code of conduct complies with this Regulation;

(c) aims to approve the criteria for accreditation of a body pursuant to Article 41(3) or a certification body pursuant to Article 43(3);

(d) aims to determine standard data protection clauses referred to in point (d) of Article 46(2) and in Article 28(8);

(e) aims to authorise contractual clauses referred to in point (a) of Article 46(3); or

(f) aims to approve binding corporate rules within the meaning of Article 47.

2. Any supervisory authority, the Chair of the Board or the Commission may request that any matter of general application or producing effects in more than one Member State be examined by the Board with a view to obtaining an opinion, in particular where a competent supervisory authority does not comply with the obligations for mutual assistance in accordance with Article 61 or for joint operations in accordance with Article 62.

3. In the cases referred to in paragraphs 1 and 2, the Board shall issue an opinion on the matter submitted to it provided that it has not already issued an opinion on the same matter. That opinion shall be adopted within eight weeks by simple majority of the members of the Board. That period may be extended by a further six weeks, taking into account the complexity of the subject matter. Regarding the draft decision referred to in paragraph 1 circulated to the members of the Board in accordance with paragraph 5, a member which has not objected within a reasonable period indicated by the Chair, shall be deemed to be in agreement with the draft decision.

4. Supervisory authorities and the Commission shall, without undue delay, communicate by electronic means to the Board, using a standardised format any relevant information, including as the case may be a summary of the facts, the draft decision, the grounds which make the enactment of such measure necessary, and the views of other supervisory authorities concerned.

5. The Chair of the Board shall, without undue, delay inform by electronic means:

(a) the members of the Board and the Commission of any relevant information which has been communicated to it using a standardised format. The secretariat of the Board shall, where necessary, provide translations of relevant information; and

(b) the supervisory authority referred to, as the case may be, in paragraphs 1 and 2, and the Commission of the opinion and make it public.

6. The competent supervisory authority shall not adopt its draft decision referred to in paragraph 1 within the period referred to in paragraph 3.

7. The supervisory authority referred to in paragraph 1 shall take utmost account of the opinion of the Board and shall, within two weeks after receiving the opinion, communicate to the Chair of the Board by electronic means whether it will maintain or amend its draft decision and, if any, the amended draft decision, using a standardised format.

8. Where the supervisory authority concerned informs the Chair of the Board within the period referred to in paragraph 7 of this Article that it does not intend to follow the opinion of the Board, in whole or in part, providing the relevant grounds, Article 65(1) shall apply.

Relevant Recitals

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.

Commentary

Section 2 of Chapter VII, the GDPR introduces a so-called “consistency mechanism” to ensure the consistent application of the GDPR by the supervisory authorities (“SA”). In order to empower the European Data Protection Board (“EDPB”) to fulfil this task, Article 64 GDPR includes an opinion procedure which can be triggered in two types of situations: First, when a SA prepares a draft decision in a selected range of cases that require the EDPB’s opinion (Article 64(1) GDPR). Second, when a SA, the EDPB Chair, or the Commission request the EDPB to issue an opinion on any other matter (Article 64(2) GDPR). The remaining paragraphs of Article 64(3)-(8) GDPR lay down substantive rules and a detailed procedure for the EDPB’s opinions.

(1) A mandatory opinion of the EDPB

Article 64(1) GDPR formulates a list of cases that require a mandatory opinion by the EDPB in view of their nature – there is a considerable need for a harmonised implementation of the issues they deal with across the EU. These issues are: (a) the adoption of a list of the processing operations subject to the requirement for a data protection impact assessment; (b) a decision on whether a draft code of conduct is compliant with the GDPR; (c) a decision which will approve requirements for accreditation or certification bodies; (d) a decision which will determine standard data protection clauses; (e) a decision that will authorise contractual clauses; (f) or a decision approving binding corporate rules. If one of the situations listed in this paragraph has been triggered, a SA that intends to issue a decision shall submit a draft decision to the EDPB to obtain an opinion. The validity of the relevant SA’s decision will depend on the opinion of the EDPB. The opinions of the EDPB are not directly binding on the SAs. However, the SAs are obliged to notify the EDPB if they intend to deviate from the opinion in order to ensure a possibility to trigger a binding dispute resolution procedure in accordance with Article 65 GDPR.

(2) An optional opinion of the EDPB

Article 64(2) GDPR allows any SA, the EDPB Chair or the Commission to request the EDPB to issue an opinion in cases which are not included in the list from 64(1) GDPR, but which address issues having a general application or producing effects in more than one Member State. This provision potentially allows for a wide array of issues to be brought up before the EDPB depending on the interpretation of Article 64(2) GDPR.  

The EDPB, however, seems to have adopted a narrow interpretation of this provision requiring the issue at stake to be an abstract, substantive, and legal issue that is independent of any particular case or cases. The refusal by the EDPB to issue an opinion in cases which fulfil the necessary criteria, shall take a form of a formal decision by the EDPB. A SA will then be able to submit such a decision for the review of the legality of such a decision to the CJEU.

Early drafts of the GDPR foresaw giving the Commission the power to enforce the GDPR by means of implementing acts. However, as some authors indicate, granting the Commission such a power was seen as a violation of the independence of the SAs. Therefore, the final decision-making powers and the Commission’s role within the consistency mechanism were significantly reduced, leaving to the Commission the power to request from the EDPB to issue an opinion under Article 64(2) GDPR.

(3) Conditions for the adoption of the opinion and timeline

Article 64(3) GDPR provides that the EDPB shall adopt an opinion within eight weeks by a simple majority vote. In more complex cases, this period may be extended by another six weeks, allowing for 14 weeks in total. The Chair of the EDPB makes decisions about the extension either on its own initiative or at the request of at least one third of the Board’s members. Prior to the adoption of the opinion, the EDPB shall evaluate whether the request fulfils the requirements of 64(1) and (2) GDPR, and whether the EDPB has not already issued an opinion on the same matter in the past. The EDPB Secretariat prepares a draft opinion and presents it for approval to the Board. The EDPB Chair can also invite a rapporteur and expert subgroups to assist with the preparation of the draft opinion. The Board may adopt an opinion in favour of a draft decision submitted to the EDPB under Article 64(1) GDPR if none of the members of the Board objected to it (a “non-objection-procedure”). However, if at least one member of the Board objects to the draft decision, the obligation of the EPDB to examine the objection and prepare an opinion on the draft decision shall immediately be triggered. When objecting, members of the Board should provide reasons for their objections.

(4) Communication obligations

Article 64(4) and (5) GDPR contain the rules on communication between the EDPB, the SAs, and the Commission. The rules require the respective applicant to provide all relevant information to the EDPB without undue delay and by electronic means. After analysing the submitted documents, the EDPB secretariat may request to provide additional information to complete the file.

(5) Information obligations

Article 64(5) GDPR contains a comprehensive information obligation on the Chair of the EDPB about the draft opinion. The Chair shall inform the EDPB members of any relevant information received from the SA or from the Commission, as well as of the adopted opinion. The opinion shall be made public.

(6) Compliance with or deviation from the adopted opinion

Article 64(6)-(8) GDPR put forward the rules for SAs during and after the adoption of the opinion by the EDPB. The SA which submitted its draft decision to the EDPB according to Article 64(1) GDPR shall inform the EDPB within two weeks after receiving the opinion whether they will maintain or amend their draft decision. If the latter is the case, they should send to the EDPB the amended draft of the decision.

If the SA decides not to uphold the opinion of the EDPB, it shall notify the EDPB about the reasons not to do so. In this case, any SA or the European Commission may initiate the dispute resolution procedure (according to Article 65(1)(c) GDPR). If the dispute resolution procedure is not triggered, the SA may decide to deviate from the EDPB’s opinion in whole or in part providing the reasons. However, the provisions leave it open to decide how long the SA shall wait to see whether the dispute resolution procedure is initiated before it issues a final decision.

When the opinion of the EDPB is mandatory (in cases listed under Article 64(1) GDPR), the legality of a subsequent measure taken by the SA in question will depend on the validity of the opinion of the EDPB. Consequently, a failure to obtain a valid opinion from the EDPB will lead to an illegal draft decision which is not effective. The obligation of the SA to notify the EDPB about upholding the opinion enables the EDPB to monitor the uniformity of the GDPR enforcement across the Member States.

Decisions

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