Article 92 GDPR

← Article 92 - Exercise of the delegation →
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 92 - Exercise of the delegation

1.   The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2.   The delegation of power referred to in Article 12(8) and Article 43(8) shall be conferred on the Commission for an indeterminate period of time from 24 May 2016.

3.   The delegation of power referred to in Article 12(8) and Article 43(8) may be revoked at any time by the European Parliament or by the Council. A decision of revocation shall put an end to the delegation of power specified in that decision. It shall take effect the day following that of its publication in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4.   As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5.   A delegated act adopted pursuant to Article 12(8) and Article 43(8) shall enter into force only if no objection has been expressed by either the European Parliament or the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or of the Council.

Relevant Recitals

Recital 166: Delegated Acts

In order to fulfil the objectives of this Regulation, namely to protect the fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data and to ensure the free movement of personal data within the Union, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission. In particular, delegated acts should be adopted in respect of criteria and requirements for certification mechanisms, information to be presented by standardised icons and procedures for providing such icons. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing-up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

Commentary

This provision outlines the limits to the Commission's power to adopt delegated acts pursuant to Article 290 of the Treaty on the Functioning of the European Union ("TFEU"), within the scope of the GDPR. The function of Article 92 GDPR is to lay down conditions for the delegation of power as necessitated by Article 290 TFEU, such as its duration (Article 290(1) TFEU), its revocability (Article 290(2)(a) TFEU), and the dependence of the entry of force of individual delegated acts on the absence of objections by the Parliament and the Council (Article 290(2)(b) TFEU). Delegated acts are distinguishable from other types of acts which the Commission may adopt in relation to the GDPR, in particular the implementing acts found in Article 93 GDPR.

(1) Delegated acts

Under Article 290(1) TFEU, an EU legislative act may delegate the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act to the Commission. Article 290(1) TFEU provides that “the objectives, content, scope and duration of the delegation of power” must be explicitly defined within the legislative act, which Article 92 GDPR does through Articles 12(8) and 43(8) GDPR. Nonetheless, the Article 290(1) TFEU restricts the delegation of power to 'non-essential' areas of the legislative provision in question.

The “essential elements of an area” shall be reserved for the legislative act, and cannot be delegated to the Commission. In regard to the GDPR, the 'essential' legislative areas are the regulation and enforcement of data protection. The Commission may not legislate in these core areas, but is permitted to legislate for periphery matters which fall outside of the scope of areas considered 'essential.' In accordance with the framework established through Article 290 TFEU, Article 92 GDPR provides that the commission may make use of its delegated powers solely through Articles 12(8) and 43(8) GDPR.

(2) Delegation of power under Article 12(8) and 43(8) GDPR

The first delegation is provided for in Article 12(8) GDPR. This provision permits the Commission to adopts delegated acts in accordance with Article 92 for the purpose of determining the procedures for providing standardised icons and to determine the information to be displayed by icons.

The second delegation is provided for through Article 43(8) GDPR, which empowers the Commission 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).

Any delegated acts made under these provisions are inherently subject to the general principles governing delegated acts under Article 92 GDPR, as well as to the principles of the Articles under which any delegated act is made. A delegated act may not contradict the GDPR's fundamental principles and objectives.

(3) The delegation of power may be revoked

The delegation of power provided for by Article 92(2) GDPR is for an 'indeterminate' period of time. Nonetheless, the wording of Article 290(1) TFEU requires that the 'duration' of the delegation must be provided for in the legislative act which confers the delegation of power. At first glance, Article 92 GDPR's wording seems to be in conflict with Article 290(1) TFEU, but in actuality it is not. Article 92(2) GDPR must be read in line with Article 92(3) GDPR, which provides that the Parliament and the Council may revoke the conferral of power at any time. This provision ensures that there can be no unlimited conferral.

In the instance that a revocation is made, it shall take effect the day following that of its publication in the Official Journal of the European Union or at a later date specified therein. Should it be used to revoke the delegations granted in Articles 12(8) and 43(8) GDPR, the revocation will not affect the validity of any of the delegated acts that the Commission may have already adopted and which are in force up to that point. This, of course, does not preclude the possibility that the legislators (once the power has been resumed following revocation) may remove or amend the act issued by the Commission by an ordinary legislative act.

(4) Notification of delegated acts

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. This notification triggers the start of the three-month period in which Parliament and the Council may raise objections pursuant to Article 92(5) GDPR.

(5) Entry into force of delegated acts

Article 92(5) GDPR imposes a further condition for the delegation of power, in line with Article 290(2)(b) TFEU. A delegated act only enters into force, if no objection has been expressed by either the European Parliament or the Council within the three-month notification period. The period may be extended by a further three months at the request of Parliament or the Council. If no objection has been expressed within this time frame, the delegated act enters into force following the expiry of the three-month period.

Possible scenarios

(a) In the instance that the Parliament and Council inform the Commission of their intention not to object to the delegated act, the delegated act may be published in the Official Journal of the European Union and enters into force before the end of the three-month period.

(b) In the instance that the Parliament and Council express the same objection, the original act is void and the Commission may seek to amend the proposed act.

(c) In the instance that either the Parliament or the Council express an objection while the other remains silent, the Commission may choose to amend the act (if requested) and await a reaction from the other legislator. If there is no reaction within three months, the act is published in the Official Journal and enters into force.

(d) In the instance that the Parliament and Council express separate objections or different positions on the same issue, this can be resolved either by the Commission renouncing the power of delegation, or via a dialogue between the two legislators.

(e) In the instance that the Parliament and Council do not express any objections within the three-month notification period, the act enters into force.

Decisions

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