Article 63 GDPR

← Article 63 - Consistency mechanism →
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 63 - Consistency mechanism

In order to contribute to the consistent application of this Regulation throughout the Union, the supervisory authorities shall cooperate with each other and, where relevant, with the Commission, through the consistency mechanism as set out in this Section.

Relevant Recitals

Recital 135: Consistency Mechanism

In order to ensure the consistent application of this Regulation throughout the Union, a consistency mechanism for cooperation between the supervisory authorities should be established. That mechanism should in particular apply where a supervisory authority intends to adopt a measure intended to produce legal effects as regards processing operations which substantially affect a significant number of data subjects in several Member States. It should also apply where any supervisory authority concerned or the Commission requests that such matter should be handled in the consistency mechanism. That mechanism should be without prejudice to any measures that the Commission may take in the exercise of its powers under the Treaties.

Recital 138: Urgency Procedure

The application of such mechanism should be a condition for the lawfulness of a measure intended to produce legal effects by a supervisory authority in those cases where its application is mandatory. In other cases of cross-border relevance, the cooperation mechanism between the lead supervisory authority and supervisory authorities concerned should be applied and mutual assistance and joint operations might be carried out between the supervisory authorities concerned on a bilateral or multilateral basis without triggering the consistency mechanism.

Commentary

One of the main goals of the GDPR was to solve the problem of having a fragmented system of EU data protection rules, which the DPD had not been able to prevent from happening. In this respect, it was crucial to implement a system which would eventually ensure a consistent interpretation of such rules in the same way. The GDPR now foresees a consistency mechanism which pursues two main objectives. First, it seeks to “ensure that all DPAs interpret and apply the GDPR in a consistent, harmonious and uniform manner”. Second, it assists in solving disputes which may arise “either between the DPAs over the course of the one-stop-shop mechanism [...], or when a DPA disregards or fails to seek the opinion of the EDPB in those cases where it is required by the consistency mechanism”. The authority tasked with such an important role is the European Data Protection Board (EDPB). The ultimate goal of ensuring consistency in the European data protection system is implemented through the so-called consistency mechanism, which is triggered in three distinct circumstances, as outlined below.

A Supervisory Authority Plans to Adopt a Measure which has Effects in Different Member States

First, under Article 64(1) GDPR, the consistency mechanism is triggered when a supervisory authority (“SA”) plans to adopt a measure intended to produce legal effects as regards processing operations which substantially affect a significant number of data subjects in several Member States. Examples of these measures are standard data protection clauses referred to in Article 46(2)(d) GDPR, contractual clauses referred to in Article 46(3)(a) GDPR, or binding corporate rules within the meaning of Article 47 GDPR. In these cases, the EDPB will issue an opinion on the matter within eight weeks by simple majority.

Any Other Matter of General Application or Producing Effects in different Member States

Any SA, the Chair of the EDPB or the Commission may request that any matter of general application or producing effects in more than one Member State be examined by the EDPB with a view to obtaining an opinion, in particular where a competent SA does not comply with the obligations for mutual assistance in accordance with Article 61 GDPR or for joint operations in accordance with Article 62 GDPR. Also in this case, the EDPB will issue an opinion on the matter within eight weeks by simple majority.

Following a Dispute During the One-stop-shop

This mechanism seems to be directly, though not entirely, related to remedying possible dysfunctions of the one-stop-shop. As analysed above, the one-stop-shop provides specific rules for the management of so-called “cross-border cases”. Through these rules, the SAs involved improve cooperation and reduce uncertainty for data subjects and controllers. This mechanism, however, does not prevent a certain SA from abusing its position, for instance by arrogating to itself (wrongly) the role of lead SA or by ignoring relevant and reasoned objections formulated by other SAs.

Precisely to remedy the shortcomings or possible problems of the one-stop-shop, the GDPR foresees specific rules with respect to different types of situations. Article 65 GDPR provides for a dispute-resolution procedure in the event that the SA concerned does not comply with Article 64 GDPR mentioned above or that clarification by the EDPB is required for disputes arising during the one-stop-shop. Article 66 GDPR provides for an urgency procedure when, by virtue of exceptional circumstances, a DPA needs to derogate from the one-stop-shop or the consistency mechanism.

In this scenario, the EDPB can issue a decision on how to resolve the aforementioned situations. This decision is legally binding on the SAs concerned.

Decisions

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