Article 76 GDPR: Difference between revisions

Latest revision as of 08:17, 19 October 2023

← Article 76 - Confidentiality →

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 76 - Confidentiality

1. The discussions of the Board shall be confidential where the Board deems it necessary, as provided for in its rules of procedure.

2. Access to documents submitted to members of the Board, experts and representatives of third parties shall be governed by Regulation (EC) No 1049/2001 of the European Parliament and of the Council (21).

Relevant Recitals

Recital 164: Professional and Other Equivalent Secrecy Obligations of the Controller

As regards the powers of the supervisory authorities to obtain from the controller or processor access to personal data and access to their premises, Member States may adopt by law, within the limits of this Regulation, specific rules in order to safeguard the professional or other equivalent secrecy obligations, in so far as necessary to reconcile the right to the protection of personal data with an obligation of professional secrecy. This is without prejudice to existing Member State obligations to adopt rules on professional secrecy where required by Union law.

Commentary

Article 76 GDPR subjects the Board's discussions to confidentiality, only in circumstances where the Board deems it necessary.^[1] The deliberations of the Board's predecessor, the Article 29 Working Party (“WP29”), were wholly privileged. Under Article 11(1) of WP29's Rules of Procedure, any minutes and draft documents were confidential, except in circumstances where the WP29 decided to make any such information public.^[2]

European legislators thought it necessary to provide for a more transparent approach in regards to the EDPB. Article 42 of the Charter of Fundamental Rights of the European Union ("CFR") and Article 15(3) Treaty on the Functioning of the European Union ("TFEU") establish a right of transparency, ensuring the public accessibility of documents. In respect of these provisions, Article 76 GDPR reverses the confidentiality rules applicable to the WP29. The Regulation establishes that for the EDPB, transparency regarding deliberations is to be the norm, except in instances where confidentiality is warranted.^[3]

The provision presents an insight into how the Regulation attempts to balance different interests at stake. On the one hand, European authorities must act transparently to ensure accountability is maintained - and to ensure compliance with the wider institutional legal framework. While on the other hand, a space of confidentiality must be preserved to allow them to act effectively.

(1) Confidentiality, Where Necessary

The wording of Article 76(1) GDPR makes it clear that the Board's deliberations are only to be confidential in exceptional circumstances, where the Board considers that confidentiality is specifically required. Consequently, the general norm is that the Board's discussions are to be publicly accessible unless it is necessary to impose secrecy on them. In turn, the criteria for defining cases of secrecy are laid down in the EDPB's Rules of Procedure (“RoP”).

Confidentiality in the EDPB Rules of Procedure.

Article 33(1) RoP stipulates that in “accordance with Art 76 (1) GDPR”, discussions of the Board and of expert subgroups shall be confidential when: “a. they concern a specific individual; b. they concern the consistency mechanism; c. the Board decides that the discussions on a specific topic shall remain confidential for instance when the discussions concern international relations and/or where the absence of confidentiality would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure.”

(2) Access to Documents

Article 76(2) GDPR provides that access to documents submitted to members of the EDPB, experts and representatives of third parties shall be governed by Regulation (EC) No 1049/2001 which lays down the general principles and limits to public access of Union documents. The scope of what falls under Regulation (EC) No 1049/2001 is fairly broad. Article 2(3) of Regulation (EC) No 1049/2001 provides that documents which fall under its scope are any “documents drawn up or received by it [Union bodies].”

In this regard, Article 76(2) GDPR significantly reduces the scope of the access only to “documents submitted to members of the Board, experts and representatives of third parties”. It follows that documents drawn up by the EDPB itself are not included in the right of access unless other more specific provisions of the GDPR apply, only documents received by the Board fall under the governance of Regulation (EC) No 1049/2001. More specific provisions include Articles 64(5)(b), 65(5), 70(3) and 70(4) GDPR, which regulate the publication of opinions and resolutions of the Board.

Decisions

→ You can find all related decisions in Category:Article 76 GDPR

References

↑ Dix, in Kühling, Buchner, DS-GVO BDSG, Article 76 GDPR, margin number 1 (C.H. Beck 2020, 3rd edition).
↑ Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 76 GDPR, p. 1111-1112 (Oxford University Press 2020).
↑ Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 76 GDPR, p. 1112 (Oxford University Press 2020).

[1] Dix, in Kühling, Buchner, DS-GVO BDSG, Article 76 GDPR, margin number 1 (C.H. Beck 2020, 3rd edition).

[2] Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 76 GDPR, p. 1111-1112 (Oxford University Press 2020).

[3] Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 76 GDPR, p. 1112 (Oxford University Press 2020).

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 == Commentary ==
-Article 76 GDPR presents an interesting example of how the GDPR balances different interests at stake. On the one hand, European authorities must act transparently to ensure that their actions can be verified. On the other hand, a space of confidentiality must be preserved to allow them to act effectively. The result is Article 76 GDPR which seeks to regulate this issue, partly through its own provisions, partly through reference to other areas of legislation, including the EDPB's rules of procedure.
+Article 76 GDPR subjects the Board's discussions to confidentiality, only in circumstances where the Board deems it necessary.<ref>''Dix'', in Kühling, Buchner, DS-GVO BDSG, Article 76 GDPR, margin number 1 (C.H. Beck 2020, 3rd edition).</ref> The deliberations of the Board's predecessor, the Article 29 Working Party (“''WP29''”), were wholly privileged. Under Article 11(1) of WP29's Rules of Procedure, any minutes and draft documents were confidential, except in circumstances where the WP29 decided to make any such information public.<ref>''Docksey'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 76 GDPR, p. 1111-1112 (Oxford University Press 2020).</ref>
+European legislators thought it necessary to provide for a more transparent approach in regards to the EDPB. Article 42 of the  Charter of Fundamental Rights of the European Union ("''CFR''") and Article 15(3)  Treaty on the Functioning of the European Union ("''TFEU''") establish a right of transparency, ensuring the public accessibility of documents. In respect of these provisions, Article 76 GDPR reverses the confidentiality rules applicable to the WP29. The Regulation establishes that for the EDPB, transparency regarding deliberations is to be the norm, except in instances where confidentiality is warranted.<ref>''Docksey'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 76 GDPR, p. 1112 (Oxford University Press 2020).</ref>
+The provision presents an insight into how the Regulation attempts to balance different interests at stake. On the one hand, European authorities must act transparently to ensure accountability is maintained - and to ensure compliance with the wider institutional legal framework. While on the other hand, a space of confidentiality must be preserved to allow them to act effectively.
 === (1) Confidentiality, Where Necessary ===
-Under Article 76(1) GDPR, “[t]''he discussions of the Board shall be confidential where the Board deems it necessary''”. Therefore, the rule is that EDPB discussions are publicly accessible unless it is necessary to impose secrecy on them. In turn, the criteria for defining cases of secrecy are laid down in the EDPB's internal rules (“''as provided for in its rules of procedure''”).
+The wording of Article 76(1) GDPR makes it clear that the Board's deliberations are only to be confidential in exceptional circumstances, where the Board considers that confidentiality is specifically required. Consequently, the general norm is that the Board's discussions are to be publicly accessible unless it is necessary to impose secrecy on them. In turn, the criteria for defining cases of secrecy are laid down in the EDPB's Rules of Procedure (“''RoP''”).
 ==== Confidentiality in the EDPB Rules of Procedure. ====
-Article 33(1) of the Rules of procedure (“''RoP''”) stipulates that in “''accordance with Art 76 (1) GDPR''”, discussions of the Board and of expert subgroups shall be confidential when: “''a. they concern a specific individual; b. they concern the consistency mechanism; c. the Board decides that the discussions on a specific topic shall remain confidential for instance when the discussions concern international relations and/or where the absence of confidentiality would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure.''”
+Article 33(1) RoP stipulates that in “''accordance with Art 76 (1) GDPR''”, discussions of the Board and of expert subgroups shall be confidential when: “''a. they concern a specific individual; b. they concern the consistency mechanism; c. the Board decides that the discussions on a specific topic shall remain confidential for instance when the discussions concern international relations and/or where the absence of confidentiality would seriously undermine the institution's decision-making process, unless there is an overriding public interest in disclosure.''”
 === (2) Access to Documents ===
-Article 76(2) GDPR provides that access to documents submitted to members of the EDPB, experts and representatives of third parties shall be governed by Regulation (EC) No 1049/2001 on public access to EU documentation. Under Article 2(3) of that Regulation, all documents held by an institution, that is to say, “''documents drawn up or received by it''” are under the scope of the access. In this regard, Article 76(2) GDPR significantly reduces the scope of the access only to “''documents submitted to'' [and therefore, ‘received by’] ''members of the Board, experts and representatives of third parties''”. It follows that documents drawn up by the EDPB itself are not intended to be covered by the access right unless other more specific GDPR provisions apply. For instance, opinions and resolutions of the Board are published under Article 64(5)(b) and Article 65(5) and Article 70(3) and (4) GDPR.
+Article 76(2) GDPR provides that access to documents submitted to members of the EDPB, experts and representatives of third parties shall be governed by Regulation (EC) No 1049/2001 which lays down the general principles and limits to public access of Union documents. The scope of what falls under Regulation (EC) No 1049/2001 is fairly broad. Article 2(3) of Regulation (EC) No 1049/2001 provides that documents which fall under its scope are any “''documents drawn up or received by it'' [Union bodies]''.''”
+In this regard, Article 76(2) GDPR significantly reduces the scope of the access only to “''documents submitted to'' ''members of the Board, experts and representatives of third parties''”. It follows that documents drawn up by the EDPB itself are not included in the right of access unless other more specific provisions of the GDPR apply, only documents received by the Board fall under the governance of Regulation (EC) No 1049/2001. More specific provisions include Articles 64(5)(b), 65(5), 70(3) and 70(4) GDPR, which regulate the publication of opinions and resolutions of the Board.
 == Decisions ==