Article 31 GDPR

← Article 31 GDPR- Cooperation with the supervisory authority →
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 31 GDPR- Cooperation with the supervisory authority

The controller and the processor and, where applicable, their representatives, shall cooperate, on request, with the supervisory authority in the performance of its tasks.

Relevant Recitals

Recital 80: Designated Representative

Where a controller or a processor not established in the Union is processing personal data of data subjects who are in the Union whose processing activities are related to the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union, or to the monitoring of their behaviour as far as their behaviour takes place within the Union, the controller or the processor should designate a representative, unless the processing is occasional, does not include processing, on a large scale, of special categories of personal data or the processing of personal data relating to criminal convictions and offences, and is unlikely to result in a risk to the rights and freedoms of natural persons, taking into account the nature, context, scope and purposes of the processing or if the controller is a public authority or body. The representative should act on behalf of the controller or the processor and may be addressed by any supervisory authority. The representative should be explicitly designated by a written mandate of the controller or of the processor to act on its behalf with regard to its obligations under this Regulation. The designation of such a representative does not affect the responsibility or liability of the controller or of the processor under this Regulation. Such a representative should perform its tasks according to the mandate received from the controller or processor, including cooperating with the competent supervisory authorities with regard to any action taken to ensure compliance with this Regulation. The designated representative should be subject to enforcement proceedings in the event of non-compliance by the controller or processor.

Recital 82: Maintenance and Availability of Records

In order to demonstrate compliance with this Regulation, the controller or processor should maintain records of processing activities under its responsibility. Each controller and processor should be obliged to cooperate with the supervisory authority and make those records, on request, available to it, so that it might serve for monitoring those processing operations.

Commentary

Generally, the purpose of Article 31 GDPR is to facilitate the supervisory authority’s fulfilment of its duties under the GDPR. Article 31 GDPR can be categorised as a 'largely declaratory' provision, as the regulation of the relationship between controllers and processors and the supervisory authorities is explicitly done through several other provisions of the GDPR. Consequently, Article 31 GDPR can mainly be read as a supporting provision to Article 58 GDPR, which outlines the extensive powers of the supervisory authority and establishes a corresponding obligation upon controllers and processors to tolerate.

Cooperation

On request

The wording of Article 31 GDPR, 'on request', distinguishes the duty to cooperate under this provision from other provisions of the GDPR which necessitate proactive action on the part of the controller or processor, for instance, Articles 33 and 36 GDRP. To illustrate, Article 36 GDPR obliges the controller to consult the competent supervisory authority, where the controller considers the processing to be high risk and has not adopted mitigating measures to reduce the risk. This Article places a cooperative burden upon the controller without the supervisory authority having to take prior action, as the controller is obliged to assess the nature of its processing activities, and in the instance that they are high risk and the controller cannot mitigate this risk, the controller must then consult the supervisory authority.

Article 31 GDPR stands in opposition to its proactive counterparts. Commentators contend that it would be wrong to interpret the duty of cooperation under Article 31 GDPR as imposing 'administrative procedural cooperative burdens' on controllers and processors, as Articles such as 36 do, which oblige the controller or processor to take prior action. Hence, Article 31 GDPR can be said to impose a general duty of cooperation which arises when a request is made by a supervisory authority that relates to the fulfilment of its tasks.

Fulfilment of its tasks

In this regard, Article 31 GDPR must be read in line with Articles 57 and 58 GDPR. Article 57 GDPR outlines the extensive tasks afforded to supervisory authorities, while Article 58 GDPR establishes the correspondingly extensive investigative powers granted to supervisory authorities under the Regulation. The wording of the provision clearly notes that the supervisory authority’s request is to further the performance of its tasks.

Following from this, the content and scope of a supervisory authority’s request is constricted by Article 57 GDPR, which exhaustively lists its tasks. Therefore, the request must be formulated precisely in relation to the fulfilment of an authority’s tasks, subject to the principle of proportionality. A request that falls outside the scope of Article 57 GDPR should be deemed inadmissible for the purposes of Article 31 GDPR.

Supporting provision to Article 58 GDPR

Article 31 GDPR can be read as a supporting provision to Article 58 GDPR. In practice, this means that when the Article is relied upon in conjunction with an order made under Article 58 GDPR, no additional legal obligations are imposed on the controller, as these obligations stem from orders made under Article 58 GDPR.

However, Commentators note that when a supervisory authority makes a request that relies solely on Article 31 GDPR which contains no corresponding order under Article 58 GDPR, the request has the capacity to give rise to a more extensive duty to cooperate, in the sense of imposing administrative procedural cooperative burdens. This reading of Article 31 GDPR is supported by the language of Article 83(4)(a) GDPR which categorises Article 31 GDPR as an 'obligation' of the controller and processor.

In addition to imposing a general duty of cooperation, Article 31 GDPR also acts as a 'gap filling' provision for Article 58 GDPR. In particular, where the supervisory authority requires a controller or processor to take an action, which is not included within its powers to make an order for under Article 58 GDPR, it may rely on Article 31 GDPR to do so. In practice, this reading suggests that a request made solely under Article 31 GDPR would be of the same binding nature as an order made by a supervisory authority in the exercise of its powers under Article 58 GDPR.

Shall cooperate

The controversy surrounding Article 31 GDPR arises when the question of to what extent may a controller or processor lawfully refuse to cooperate with a request made by the supervisory authority. The duty to cooperate finds its limits when confronted by the right against self-incrimination.

The right against self-incrimination stems from Article 6 of the European Convention on Human Rights ('ECHR') and is found in Union law under Article 47 of the EU Charter of Fundamental Rights ('the Charter'). This privilege does not protect against the making of an incriminating statement, but rather protects against the obtaining of evidence by coercion or threat of sanction.

Infringements of the GDPR and the sanctions issued in response to any such infringements often have the capacity to be criminal in nature. Thus, in certain circumstances, GDPR infringements may give rise to the applicability of this right, as Member States are permitted to legislate criminal sanctions for infringements of the GDPR (Recital 149). Consequently, in certain jurisdictions infringements of the GDPR may give rise to criminal liability. Moreover, the imposition of a significant fine (or the threat of such a fine) may equally give rise to the right against self-incrimination. 

Article 31 GDPR gains an independent significance as it is included the Regulation’s sanctions framework through Article 83(4) GDPR. Article 83(4) GDPR provides that the infringement of Article 31 GDPR may be subject to administrative fines up to 10,000,000 EUR, or in the case of an undertaking, up to 2% of the total worldwide annual turnover. CJEU case law demonstrates that administrative fines may be considered criminal if they serve a punitive purpose and have a high degree of severity, regardless of the fine’s classification as administrative under national legislation. Therefore, if a request made under Article 31 GDPR gives rise to circumstances which invoke the right against self-incrimination, it is widely accepted by commentators that the right against self-incrimination takes precedence.

Commentators have suggested that the practical application of this reading would mean that Article 31 GDPR cannot be invoked by a supervisory authority ('SA') to induce a controller or processor to make an admission which would give rise to criminal liability, instead a supervisory authority must use its own investigative powers to establish facts which are incumbent on itself to prove.

While the CJEU has yet to rule on the interaction between Article 31 GDPR and the right against self-incrimination, similar lines of reasoning were taken by the Court in relation to the duty to cooperate in the context of competition law. The leading case in this regard, Orkem, establishes that:

Case law: '[W]hile the Commission is entitled . . . to compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to it, if necessary, such documents relating thereto as are in its possession, even if the latter may be used to establish against it or an-other undertaking, the existence of anti-competitive conduct, it may not, by means of a decision calling for information, undermine the rights of defence of the undertaking concerned. Thus, the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent on the Commission to prove.'

It is debatable whether the Court would interpret the interaction between Article 31 GDPR and the right against self-incrimination along the same lines as in Orkem. Nonetheless, under European Union law, any reading of legislative acts of the European Union must respect the fundamental rights and freedoms guaranteed by the Charter, as they constitute general principles of Union law (Article 6(3) Treaty on the European Union ('TEU') ). Therefore, the restriction of the duty to cooperate under Article 31 GDPR by the right against self-incrimination is not in question; however, what is in question is the precise degree to which the duty is restricted once the right against self-incrimination arises.

Decisions

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