Article 93 GDPR

← Article 93 - Committee procedure →
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 93 - Committee procedure

1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

3. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.

Relevant Recitals

Recital 168: Examination Procedure

The examination procedure should be used for the adoption of implementing acts on standard contractual clauses between controllers and processors and between processors; codes of conduct; technical standards and mechanisms for certification; the adequate level of protection afforded by a third country, a territory or a specified sector within that third country, or an international organisation; standard protection clauses; formats and procedures for the exchange of information by electronic means between controllers, processors and supervisory authorities for binding corporate rules; mutual assistance; and arrangements for the exchange of information by electronic means between supervisory authorities, and between supervisory authorities and the Board.

Recital 169: Immediately Applicable Implementing Acts

The Commission should adopt immediately applicable implementing acts where available evidence reveals that a third country, a territory or a specified sector within that third country, or an international organisation does not ensure an adequate level of protection, and imperative grounds of urgency so require.

Commentary

The GDPR provides for the Commission to adopt implementing acts within the meaning of Article 291(2) of the Treaty on the Functioning of the European Union ("TFEU"). Implementing acts for the objectives of Article 291 TFEU serve the purpose of ensuring the uniform implementation of binding legal acts of the Union, in this instance, the GDPR. In principle, binding acts of the Union are implemented by each individual Member State in accordance with their national law (Article 291(1) TFEU). However, these implementing powers may be conferred upon the Commission in the absence of uniform conditions for implementing legally binding Union acts (Article 291(2) TFEU). The purpose of Article 93 GDPR is to regulate this conferral.

(1) Implementing acts

In the instance where implementing acts are delegated to the Commission pursuant to Article 291 TFEU, Article 93(1) GDPR provides that the Commission shall be assisted by a committee. This provision imposes a positive obligation upon the Commission to involve a committee in this process. According to Article 3(2) of Regulation (EU) No. 182/2011, the committee shall be composed of representatives of the Member States.

Implementing acts, functionally, take on a similar role as delegated acts (see Article 92 GDPR) as non-legislative acts. Nonetheless, there are significant procedural differences in regard to their adoption. In the case of implementing acts, the Parliament and Council have no decisive power, unlike delegated acts made under Article 92 GDPR.

(2) Examination procedure under Article 5 of Regulation (EU) No. 182/2011

Article 93(2) GDPR explicitly provides for the application of Article 5 of Regulation (EU) No 182/2011, which establishes the procedure for the adoption of implementing acts. Notably, Article 93(2) exclusively refers to the "examination procedure" provided for in Article 5 of Regulation (EU) No 182/2011. This procedure is generally foreseen for (a) implementing acts of general scope and (b) other implementing acts relating to programmes with substantial implications, including the intervention of a committee composed of representatives of each Member State.

GDPR cases where the examination procedure is referred to

Recital 168 GDPR exhaustively lists the circumstances in which the Commission may adopt implementing acts. The Commission may adopt an implementing act pursuant to Article 28(7) GDPR (standard contractual clauses between controllers and processors and between processors); Article 40(9) GDPR (codes of conduct); Article 43(9) GDPR (technical standards and mechanisms for certification); Article 45(3) GDPR (the adequate level of protection afforded by a third country, a territory or a specified sector within that third country, or an international organisation), Article 45(5) GDPR (revocation, change of such determinations); Articles 46(2)(c) and (d) GDPR (standard protection clauses); Article 47(3) GDPR (formats and procedures for the exchange of information by electronic means between controllers, processors and supervisory authorities for binding corporate rules); Article 61(9) GDPR (mutual assistance); and lastly Article 67 GDPR (arrangements for the exchange of information by electronic means between supervisory authorities, and between supervisory authorities and the Board).

Committee procedure

The committee procedure is offset by a proposal made by the Commission regarding the measures to be taken. Follwing the Commission's proposal, the committee gives its opinion by a qualified majority vote (55% of the Member States representing at least 65% of the population). If the majority indicated in favour of the draft act (favourable opinion), the Commission adopts the implementing act. If not (negative opinion), the President of the Commission may submit an amended version to the Committee. If neither a favourable nor an unfavourable opinion is reached, the Commission may decide to adopt the implementing act regardless.

(3) Urgency procedure under Article 8 of Regulation (EU) No. 182/2011

By way of derogation from Articles 4 and 5, under Article 8 of Regulation (EU) No. 182/2011 a basic act may provide that the Commission adopts an implementing act which shall apply immediately, without prior submission to a committee, only on "duly justified imperative grounds of urgency." An implementing act made pursuant to the urgency procedure will remain in force for a maximum period of 6 months, unless the basic act provides otherwise. At the latest, 14 days after its adoption, the chair shall submit the urgent act to the relevant committee in order to obtain its opinion. Recital 159 of the GDPR provides for the only case of “imperative urgency”. In particular, it notes that “[t]he Commission should adopt immediately applicable implementing acts where available evidence reveals that a third country, a territory or a specified sector within that third country, or an international organisation does not ensure an adequate level of protection, and imperative grounds of urgency so require.”

Decisions

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