Article 68 GDPR

← Article 68 - European Data Protection 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 68 - European Data Protection Board

1. The European Data Protection Board (the ‘Board’) is hereby established as a body of the Union and shall have legal personality.

2. The Board shall be represented by its Chair.

3. The Board shall be composed of the head of one supervisory authority of each Member State and of the European Data Protection Supervisor, or their respective representatives.

4. Where in a Member State more than one supervisory authority is responsible for monitoring the application of the provisions pursuant to this Regulation, a joint representative shall be appointed in accordance with that Member State's law.

5. The Commission shall have the right to participate in the activities and meetings of the Board without voting right. The Commission shall designate a representative. The Chair of the Board shall communicate to the Commission the activities of the Board.

6. In the cases referred to in Article 65, the European Data Protection Supervisor shall have voting rights only on decisions which concern principles and rules applicable to the Union institutions, bodies, offices and agencies which correspond in substance to those of this Regulation.

Relevant Recitals

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.

Commentary

Article 68 GDPR addresses the nature, legal status, and internal composition of the European Data Protection Board (“EDPB”). The EDPB replaces the Article 29 Working Party (“WP29”), the former advisory body established under Directive 95/46/EC. Notably, the powers granted to the EDPB are far grater than those afforded to its predecessor. The WP29 was constrained to a purely advisory role. However, the EDPB in contrast, has been afforded a wide array duties, including the power to adopt binding decisions pursuant to Article 65 GDPR (Article 70(1)(t) GDPR). Article 68 GDPR is the first of nine Articles (Articles 68-76 GDPR) governing the EDPB set forth in Section 3 of Chapter VII GDPR.

(1) Legal personality

Article 68(1) GDPR, in addition to Recital 139 GDPR, establish the EDPB as a body of the Union with legal personality. The objectives behind granting the EDPB legal personality were rooted in the perceived defficiencies of the WP29. The WP29, likewise acted as an independent body, but as noted, was not granted legal personality. The WP29's lack of legal personality contributed to what was generally seen as a fragmented application and interpretation of Directive 95/46/EC by supervisory authorities (“SA”). As Docksey notes, imbuing the EDPB with legal personality serves to “strengthen[s] [its] nature […] as a governing body in its own right, deriving its legitimacy directly from legislation rather than by delegation from the Commission. In practical terms it means that the Board may take action before the Courts.”

Having legal personality allows for the Board to make legally binding decisions, pursuant to Articles 65 and 70 GDPR. The EDPB’s status as an Union body is significant in terms of political and legal accountability, as consequently, it is subject to the oversight of various bodies in the European Union's regulatory framework. These include the following, regarding legal accountability, under Article 263 TFEU, the decisions of the Board may be appealed to the General Court, and under Article 41 CFR the Board is accountable to the European Ombudsman. In terms of political accountability, the EDPB's monetary and administrative decisions are subject to the Court of Auditors pursuant to Article 287 TFEU. More generally, it is accountable to the European Parliament and its committees, in particular, the Committee on Budgetary Control and the Committee on Civil Liberties, Justice and Home Affairs. The independent nature of the EDPB is addressed further in the commentary on Article 69 GDPR.

(2) Chair

The second paragraph of Article 68 establishes that the Board will be represented by a Chair. The Chair fulfils both a public and formal role. The former consists of representing the Board and its supervisory authorities at conferences, press meetings and so forth. The latter establishes the Chair as the Board's formal legal representative whose responsibilities include authorising decisions of the Board and representing the Board before the European Courts. The Chair's formal capacity acts in stark contrast to the WP29, which acted only in a public capacity. Articles 73 and 74 GDPR further outline the appointment and tasks of the Chair.

(3) National supervisory authorities

The WP29 was comprised of members from national supervisory authorities. However, Article 68(3) GDPR requires the Board to be composed of the heads of the national supervisory authorities. As noted by Docksey, this prerequisite “emphasizes that the Board is intended to be a high-level body” and “significantly increases the ‘self-binding’ effect on national authorities of discussions and decisions by their heads at the Board.” Beyond necessitating that only the heads of national supervisory authorities may act as Board members, the GDPR does not establish further eligibility criteria for Board members. Nonetheless, the GDPR does lay down criteria regulating the eligibility of supervisory authority members in Article 53 GDPR. While not explicitly stated, it can be inferred from Article 68(5) GDPR that all Board members have the right to vote. Article 68(5) GDPR outlines that the Commission shall participate in the Board’s activities and meetings, without voting rights, suggesting that Board members in contrast, do have voting rights. The supervisory authorities heads of EEA/EFTA States are members of the EDPB, but are resticted in their functions. They generally have the same obligations to the Board as the supervisory authorities of Member States, but notably, do not hold voting rights and may not stand for election as deputy chairs.

(4) Joint representative

The fourth paragraph of Article 68 GDPR provides that where a Member State has multiple supervisory authorities, a joint representative, appointed in accordance with that Member State’s law, must act as representative to the Board.

(5) European Commission

While the Commission may participate in the EDPB’s meetings and activities, it is not a member and does not enjoy voting rights. Docksey notes that this right to participation is somewhat “remarkable,” and undermines the EDPB’s independent nature. This point is discussed further in the commentary on Article 69 GDPR.

(6) EDPS

The European Data Protection Supervisor ('EDPS') holds limited voting rights in the Board on issues of dispute resolution pursuant to Article 65 GDPR. These issues concern the principles and rules applicable to the Union institutions, bodies, offices and agencies established under Regulation (EU) 2018/1725. This arrangement acts as a compromise between two opposing understandings of the EDPS' function. The first notes that the EDPS should not be entitled to vote on decisions that are not of its concern, and the second understanding, which argues that the EDPS should be treated the same as any other supervisory authority. Arguably, in practice the outcome of any such debate makes little difference, given that the principles and rules under Regulation 2018/1725 materially correspond to those of the GDPR. Thus, regarless the EDPS is likely to be eligible to vote in many cases.

Decisions

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