Article 43 GDPR

← Article 43 - Certification bodies →
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 43 - Certification bodies

1. Without prejudice to the tasks and powers of the competent supervisory authority under Articles 57 and 58, certification bodies which have an appropriate level of expertise in relation to data protection shall, after informing the supervisory authority in order to allow it to exercise its powers pursuant to point (h) of Article 58(2) where necessary, issue and renew certification. Member States shall ensure that those certification bodies are accredited by one or both of the following:

(a) the supervisory authority which is competent pursuant to Article 55 or 56;

(b) the national accreditation body named in accordance with Regulation (EC) No 765/2008 of the European Parliament and of the Council (20) in accordance with EN-ISO/IEC 17065/2012 and with the additional requirements established by the supervisory authority which is competent pursuant to Article 55 or 56.

2. Certification bodies referred to in paragraph 1 shall be accredited in accordance with that paragraph only where they have:

(a) demonstrated their independence and expertise in relation to the subject-matter of the certification to the satisfaction of the competent supervisory authority;

(b) undertaken to respect the criteria referred to in Article 42(5) and approved by the supervisory authority which is competent pursuant to Article 55 or 56 or by the Board pursuant to Article 63;

(c) established procedures for the issuing, periodic review and withdrawal of data protection certification, seals and marks;

(d) established procedures and structures to handle complaints about infringements of the certification or the manner in which the certification has been, or is being, implemented by the controller or processor, and to make those procedures and structures transparent to data subjects and the public; and

(e) demonstrated, to the satisfaction of the competent supervisory authority, that their tasks and duties do not result in a conflict of interests.

3. The accreditation of certification bodies as referred to in paragraphs 1 and 2 of this Article shall take place on the basis of criteria approved by the supervisory authority which is competent pursuant to Article 55 or 56 or by the Board pursuant to Article 63. In the case of accreditation pursuant to point (b) of paragraph 1 of this Article, those requirements shall complement those envisaged in Regulation (EC) No 765/2008 and the technical rules that describe the methods and procedures of the certification bodies.

4. The certification bodies referred to in paragraph 1 shall be responsible for the proper assessment leading to the certification or the withdrawal of such certification without prejudice to the responsibility of the controller or processor for compliance with this Regulation. The accreditation shall be issued for a maximum period of five years and may be renewed on the same conditions provided that the certification body meets the requirements set out in this Article.

5. The certification bodies referred to in paragraph 1 shall provide the competent supervisory authorities with the reasons for granting or withdrawing the requested certification.

6. The requirements referred to in paragraph 3 of this Article and the criteria referred to in Article 42(5) shall be made public by the supervisory authority in an easily accessible form. The supervisory authorities shall also transmit those requirements and criteria to the Board. The Board shall collate all certification mechanisms and data protection seals in a register and shall make them publicly available by any appropriate means.

7. Without prejudice to CHAPTER VIII, the competent supervisory authority or the national accreditation body shall revoke an accreditation of a certification body pursuant to paragraph 1 of this Article where the conditions for the accreditation are not, or are no longer, met or where actions taken by a certification body infringe this Regulation.

8. The Commission shall be empowered to adopt delegated acts in accordance with Article 92 for the purpose of specifying the requirements to be taken into account for the data protection certification mechanisms referred to in Article 42(1).

9. The Commission may adopt implementing acts laying down technical standards for certification mechanisms and data protection seals and marks, and mechanisms to promote and recognise those certification mechanisms, seals and marks. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 93(2).

Relevant Recitals

You can help us fill this section!

Commentary

Article 43 GDPR explains the procedure involved in establishing certification bodies, in order to assist with the certification mechanisms laid out in Article 42 GDPR. As established in the aforementioned article, certification is a means through which controllers and processors can demonstrate compliance with their legal obligations under the GDPR. However, certification itself does not prove compliance, but rather only constitutes an element of it. To this end, certification bodies can assist controllers and processors with demonstrating their compliance by certifying their processing operations.

(1-5) The certification body

Article 43(1) GDPR states that certification bodies with an ‘appropriate level of expertise’ are to be tasked with issuing and renewing certification for processing operations, as detailed in Article 42 GDPR. Although the GDPR has not defined what would constitute this level of expertise, it seems that this may be left to the Data Protection Authority (DPA) or national accreditation body to determine. This is derived from the fact that a certification body must be accredited by either of the two aforementioned entities in order to begin certifying processing operations.

In order for a certification body to become accredited, it must demonstrate that it has the necessary elements required for accreditation, listed in Articles 43(2)(a) to (e) GDPR. The body must be able to demonstrate independence and expertise “to the satisfaction of the supervisory authority”. It must also respect the certification criteria referred to in Article 42(5) GDPR. Furthermore, it must establish procedures for both issuing, reviewing, and withdrawing certifications, and for handling complaints regarding certification infringements. Finally, the certification body must also demonstrate that its tasks and duties do not result in conflicts of interests.

Once a certification body has demonstrated these elements, it may apply to become accredited. Article 43(3) GDPR provides that the accreditation of certification bodies shall take place on the basis of the requirements (criteria) approved by the DPA or by the European Data Protection Board (EDPB). Article 43(4) states that, if an accreditation is issued, it is limited to five years in duration, and may be renewed on the same conditions provided that the certification body continues to meet the requirements for accreditation.

Once accredited, the certification body can begin to carry out its functions of issuing and renewing certifications for controllers and processors. However, as per Article 43(5), for every acceptance or withdrawal of certification that the certification body oversees, it must inform the competent DPA of its reasons for doing so. If the certification body is no longer meeting the conditions for accreditation, both the competent DPA and the national accreditation body have the right to revoke its accreditation.

(6-7) Criteria for certification to be made public

In order to promote transparency, the criteria for certification should be made public by the supervisory authority in an easily accessible form. Here, the EDPB has also stated that certification bodies using certification mechanisms, seals or marks directed towards data subjects as consumers or customers, should also provide easily accessible and intelligible information about the processing operations it has certified. The information to be made transparent should include: a description of the target of evaluation (the processing operation), reference to the approved criteria which have been applied in the particular instance, which methodology has been used for evaluating the criteria, the duration of the validity of the certificate issued.

(8-9) The role of the European Commission

Articles 43(8) GDPR and Article 43(9) GDPR equip the European Commission (Commission) with the power to adopt acts in relation to certification mechanisms. While Article 43(8) GDPR deals with delegated acts for the purpose of specifying requirements to be taken into account for certification mechanisms, Article 43(9) GDPR deals with implementing acts which lay down technical standards for certification mechanisms.

Delegated acts

The delegated acts of Article 43(8) GDPR aim to specify the requirements taken into account for certification mechanisms. The Commission has interpreted this provision as presenting the opportunity to further flesh out the GDPR with regard to data protection certification mechanisms. However, the Commission reminds that Article 290 of the Treaty on the Functioning of the European Union (TFEU) states that the content of these delegated acts should (1) complement the GDPR and be in compliance with it, and (2) only refer to non-essential elements of the legislation, which the law has not specified.

Implementing acts

Alongside the power to adopt delegated acts, the Commission also has the power to adopt implementing acts. As mentioned in Recital 167 GDPR and Article 291 TFEU, the aim of implementing acts is to “ensure uniform conditions for implementing” the GDPR. In its GDPR Certification Study, the Commission has stated that the purpose of referring to technical standards in Article 43(9) for certification mechanisms is precisely to ensure uniformity of implementation. Furthermore, Article 43(9) GDPR also allows the Commission to adopt mechanisms to promote and recognize data protection certification mechanisms, seals, and marks. This is to be read in light of Article 42(1) GDPR, which obliges the Commission to encourage the establishment of such mechanisms, seals, and marks.

Decisions

→ You can find all related decisions in Category:Article 43 GDPR