Article 75 GDPR: Difference between revisions

Revision as of 14:25, 19 August 2021

← Article 75 - Secretariat →

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 75 - Secretariat

1. The Board shall have a secretariat, which shall be provided by the European Data Protection Supervisor.

2. The secretariat shall perform its tasks exclusively under the instructions of the Chair of the Board.

3. The staff of the European Data Protection Supervisor involved in carrying out the tasks conferred on the Board by this Regulation shall be subject to separate reporting lines from the staff involved in carrying out tasks conferred on the European Data Protection Supervisor.

4. Where appropriate, the Board and the European Data Protection Supervisor shall establish and publish a Memorandum of Understanding implementing this Article, determining the terms of their cooperation, and applicable to the staff of the European Data Protection Supervisor involved in carrying out the tasks conferred on the Board by this Regulation.

5. The secretariat shall provide analytical, administrative and logistical support to the Board.

6. The secretariat shall be responsible in particular for:

(a) the day-to-day business of the Board;

(b) communication between the members of the Board, its Chair and the Commission;

(c) communication with other institutions and the public;

(d) the use of electronic means for the internal and external communication;

(e) the translation of relevant information;

(f) the preparation and follow-up of the meetings of the Board;

(g) the preparation, drafting and publication of opinions, decisions on the settlement of disputes between supervisory authorities and other texts adopted by the Board.

Relevant Recitals

Recital 140: Secretariat and Staff of the EDPS

The Board should be assisted by a secretariat provided by the European Data Protection Supervisor. The staff of the European Data Protection Supervisor involved in carrying out the tasks conferred on the Board by this Regulation should perform its tasks exclusively under the instructions of, and report to, the Chair of the Board.

Commentary

(1) The Secretariat

Article 75(1) GDPR clarifies that the EDPB secretariat, one of the most important structures with the Board, is provided by the EDPS. According to Docksey, the choice of the EDPS rather than the Commission to provide its secretariat “was grounded on a number of compelling considerations”. In particular, the EDPS is itself an independent supervisory authority, has its own financial budget and independent administration and has deep data protection expertise.^[1]

(2) Exclusive Performance of Tasks under the Instructions of the Chair of the Board

Section 2 clarifies that the Secretariat is subject to the instructions of the EDPB Chair. The use of the word "exclusively" is intended to make it clear that the EDPS does not retain any authority over the staff seconded to the EDPB.^[2]

Some commentators doubt that Article 75(1) can effectively ensure the EDPB staff full independence from the EDPS' – even indirect – influence. For instance, the Secretariat staff remain formally employed by the EDPS and on its budget, are only made available to the EDPB on a temporary basis, and are subject to the EDPS for any step in their career development.^[3] Whether Article 75(1) ensures that there is no indirect influence on the work processes of the Secretariat, which could endanger the EDPB independence, remains to be seen.

(3) Separate reporting lines for the EDPB staff

The employees of the EDPB Secretariat only report to the Chair (Recital 140). In this respect, they are therefore withdrawn from the EDPS’s area of responsibility (Article 46 Regulation (EC) No. 45/2001) and are obliged to maintain secrecy vis-à-vis their employer with regard to their activities within the EDPB.

(4) A Memorandum of Understanding to protect the EDPB staff from EDPS undue influence

The EDPB's dependence status, discussed in the previous paragraphs, is reflected in the need to ensure a special status for members of the Secretariat in terms of staff selection, leave, performance appraisals, disciplinary profiles, reintegration into the EDPS ranks and separate reporting lines.

To this end, as suggested by Article 75(4), the EDPS and the EDPB issued a joint Memorandum of Understanding on May 25, 2018 (“MoU”) which also defines the terms of the EDPS/EDPB cooperation with regard to organization of work spaces and structures (service rooms, e-mail addresses, filing systems and separation of documents).^[4]

Some scholars, whose views we unpretentiously share, doubt the MoU will be able to prevent the EDPS from potentially influencing the staffing and budget.^[5]

(5) Secretariat main task: providing analytical, administrative and logistical support

The secretariat of the Board has a broader range of tasks than the simple administrative and logistical tasks provided by the Commission secretariat to the WP29. Article 75(5) states generally that the secretariat shall provide 'analytical, administrative and logistical support'. This requires the secretariat to carry out two different types of activity for the Board: analytical tasks on the one hand, and logistical and administrative tasks on the other.^[6]

(6) Specific tasks

Article 75(6) specifies above-mentioned types of tasks. On the one hand, administrative and logistical tasks, such as (a) the day-to-day business of the Board; (b) communication between the members of the Board, its Chair and the Commission, and, where relevant, the EFTA Surveillance Authority; (d) the use of electronic means for the internal and external communication; and (e) the translation of relevant- information.^[7] On the other hand, reference is made to analytical responsibilities such as (c) communication with other institutions and the public; (f) the preparation and follow-up of the meetings of the Board; and (g) the preparation, drafting and publication of opinions, decisions on the settlement of disputes between supervisory authorities and other texts adopted by the Board.^[8]

Decisions

→ You can find all related decisions in Category:Article 75 GDPR

References

↑ Docksey furthermore suggests that the choice must also be seen in the light of the ECJ, Case C-614/10, Commission v Austria “which made it plain that the EDPB could not be attached ro and be dependent upon the Commission and its services for its operation. It was also out of the question for the officials of the Board to be Commission officials. It therefore made sense ro attach the Board for such administrative purposes ro another, larger independent authority whkh was completely in control over its own human and budgetary resources”. See, Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 75 GDPR, p. 1105 (Oxford University Press 2020).
↑ Dix, in Kühling/Buchner, DS-GVO BDSG, Article 75 GDPR, Margin number 6 (Beck 2020, 3rd ed.) (accessed 5 August 2021)
↑ Brink, Wilhelm, in BeckOK DatenschutzR, Article 75 GDPR, margin number 8-9 (Beck 2020, 36th ed.) (accessed 5 August 2021) who, to reduce the EDPS influence, advocate for a wider use of staff from the individual member state supervisory authorities.
↑ Available here
↑ Brink, Wilhelm, in BeckOK DatenschutzR, Article 75 GDPR, margin number 13 (Beck 2020, 36th ed.) (accessed 5 August 2021).
↑ Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 75 GDPR, p. 1108 -1109 (Oxford University Press 2020).
↑ Also confirmed by Article 64(5)(a): “The secretariat of the Board shall, where necessary, provide translations of relevant information”
↑ Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 75 GDPR, p. 1108 -1109 (Oxford University Press 2020) who also reports how “Section IY.2 of the MoU sets forth a number of further support tasks regarded as included under Article 75(6) GDPR: (i) organisation of meetings, (ii) IT communications, (iii) handling access to document requests, (iv) record management, (v) security of information, (vi) information and communication tasks, (vii) relations with other institutions, including representation of the Board before the Courts, and (viii) DPO activities”.

[1] Docksey furthermore suggests that the choice must also be seen in the light of the ECJ, Case C-614/10, Commission v Austria “which made it plain that the EDPB could not be attached ro and be dependent upon the Commission and its services for its operation. It was also out of the question for the officials of the Board to be Commission officials. It therefore made sense ro attach the Board for such administrative purposes ro another, larger independent authority whkh was completely in control over its own human and budgetary resources”. See, Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 75 GDPR, p. 1105 (Oxford University Press 2020).

[2] Dix, in Kühling/Buchner, DS-GVO BDSG, Article 75 GDPR, Margin number 6 (Beck 2020, 3rd ed.) (accessed 5 August 2021)

[3] Brink, Wilhelm, in BeckOK DatenschutzR, Article 75 GDPR, margin number 8-9 (Beck 2020, 36th ed.) (accessed 5 August 2021) who, to reduce the EDPS influence, advocate for a wider use of staff from the individual member state supervisory authorities.

[4] Available here

[5] Brink, Wilhelm, in BeckOK DatenschutzR, Article 75 GDPR, margin number 13 (Beck 2020, 36th ed.) (accessed 5 August 2021).

[6] Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 75 GDPR, p. 1108 -1109 (Oxford University Press 2020).

[7] Also confirmed by Article 64(5)(a): “The secretariat of the Board shall, where necessary, provide translations of relevant information”

[8] Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 75 GDPR, p. 1108 -1109 (Oxford University Press 2020) who also reports how “Section IY.2 of the MoU sets forth a number of further support tasks regarded as included under Article 75(6) GDPR: (i) organisation of meetings, (ii) IT communications, (iii) handling access to document requests, (iv) record management, (v) security of information, (vi) information and communication tasks, (vii) relations with other institutions, including representation of the Board before the Courts, and (viii) DPO activities”.

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@@ Line 222: / Line 222: @@
 === (2) Exclusive Performance of Tasks under the Instructions of the Chair of the Board ===
-Section 2 clarifies that the Secretariat is subject to the instructions of the EDPB Chair. The use of the word "exclusively" is intended to make it clear that the EDPS does not retain any authority over the staff seconded to the EDPB. In this regard, many doubt that Article 75(1) can effectively ensure the EDPB staff full independence from the EDPS – even indirect – influence. For instance, the Secretariat staff remain formally employed the EDPS and on its budget, is only made available to the EDPB on a temporary basis, and is subject to the EDPS for any step in their career development.<ref>''Brink, Wilhelm'', in BeckOK DatenschutzR, Article 75 GDPR, margin number 8-9 (Beck 2020, 36th ed.) (accessed 5 August 2021) who, to reduce the EDPS influence, advocates for a wider use of  staff from the individual member state supervisory authorities.</ref> In other words, whether Article 75(1) ensures that there is no indirect influence on the work processes of the Secretariat, which could endanger the EDPB independence, remains to be seen.<ref>''Dix'', in Kühling/Buchner, DS-GVO BDSG, Article 75 GDPR, Margin number 6 (Beck 2020, 3rd ed.) (accessed 5 August 2021)</ref>
+Section 2 clarifies that the Secretariat is subject to the instructions of the EDPB Chair. The use of the word "exclusively" is intended to make it clear that the EDPS does not retain any authority over the staff seconded to the EDPB.<ref>''Dix'', in Kühling/Buchner, DS-GVO BDSG, Article 75 GDPR, Margin number 6 (Beck 2020, 3rd ed.) (accessed 5 August 2021)</ref>
+Some commentators doubt that Article 75(1) can effectively ensure the EDPB staff full independence from the EDPS' – even indirect – influence. For instance, the Secretariat staff remain formally employed by the EDPS and on its budget, are only made available to the EDPB on a temporary basis, and are subject to the EDPS for any step in their career development.<ref>''Brink, Wilhelm'', in BeckOK DatenschutzR, Article 75 GDPR, margin number 8-9 (Beck 2020, 36th ed.) (accessed 5 August 2021) who, to reduce the EDPS influence, advocate for a wider use of  staff from the individual member state supervisory authorities.</ref> Whether Article 75(1) ensures that there is no indirect influence on the work processes of the Secretariat, which could endanger the EDPB independence, remains to be seen.
 === (3) Separate reporting lines for the EDPB staff ===