Article 66 GDPR

← Article 66 - Urgency 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 66 - Urgency procedure

1. In exceptional circumstances, where a supervisory authority concerned considers that there is an urgent need to act in order to protect the rights and freedoms of data subjects, it may, by way of derogation from the consistency mechanism referred to in Articles 63, 64 and 65 or the procedure referred to in Article 60, immediately adopt provisional measures intended to produce legal effects on its own territory with a specified period of validity which shall not exceed three months. The supervisory authority shall, without delay, communicate those measures and the reasons for adopting them to the other supervisory authorities concerned, to the Board and to the Commission.

2. Where a supervisory authority has taken a measure pursuant to paragraph 1 and considers that final measures need urgently be adopted, it may request an urgent opinion or an urgent binding decision from the Board, giving reasons for requesting such opinion or decision.

3. Any supervisory authority may request an urgent opinion or an urgent binding decision, as the case may be, from the Board where a competent supervisory authority has not taken an appropriate measure in a situation where there is an urgent need to act, in order to protect the rights and freedoms of data subjects, giving reasons for requesting such opinion or decision, including for the urgent need to act.

4. By derogation from Article 64(3) and Article 65(2), an urgent opinion or an urgent binding decision referred to in paragraphs 2 and 3 of this Article shall be adopted within two weeks by simple majority of the members of the Board.

Relevant Recitals

Recital 137: Provisional Measures

There may be an urgent need to act in order to protect the rights and freedoms of data subjects, in particular when the danger exists that the enforcement of a right of a data subject could be considerably impeded. A supervisory authority should therefore be able to adopt duly justified provisional measures on its territory with a specified period of validity which should not exceed three months.

Recital 138: Urgency Procedure

The application of such mechanism should be a condition for the lawfulness of a measure intended to produce legal effects by a supervisory authority in those cases where its application is mandatory. In other cases of cross-border relevance, the cooperation mechanism between the lead supervisory authority and supervisory authorities concerned should be applied and mutual assistance and joint operations might be carried out between the supervisory authorities concerned on a bilateral or multilateral basis without triggering the consistency mechanism.

Commentary

(1) Adoption of Provisional Measures

On the condition that the three strict requirements mentioned in Article 66(1) are met (exceptional circumstances, urgent need to act and protection of the rights and freedoms of data subjects), a supervisory authority ('SA') can adopt a measure which is limited to its territory and the duration of which cannot be longer than 3 months. Such a SA can of course be a concerned SA (SA), but also the lead supervisory authority (LSA), if the latest considers that the measure should be adopted urgently without going through the cooperation mechanism.

This decision should be communicated to the Commission and the EDPB, but also to the “other SAs concerned”, together with the reasons for adopting such measures.

However, the provision does not say to who the decision should be addressed if there is no establishment or representative of the controller on the territory of the SA where the measure is imposed.

The GDPR foresees two cases where the urgency is presumed to be met, namely when an SA does not answer within one month to a request for mutual assistance (Article 61(8) GDPR) or to a request of joint operations (Article 62(7) GDPR).

Situations in which the urgency of the measures is presumed may cover, for example, cases where an SAC is potentially faced with persistent inertia from the LSA in charge.

Article 66 is one of the exceptions to the cooperation (“one-stop-shop”) mechanism under Article 56 and 60 GDPR and should be used, as stated by the first part of this provision, “in exceptional circumstances”.

(2) Adoption of a Final Decision after Provisional Measures

When the SA having adopted the provisional measure under Article 66(1) considers that a final decision should be adopted, it should refer the matter to the EDPB, which shall adopt an urgent opinion or urgent decision.

The reasons for asking such an urgent opinion or decision should obviously be mentioned by the requesting SA.

It is not clear what kind of urgent opinion the SA could ask the EDPB to adopt: while one can understand that a decision implying a coercive measure can be adopted by a SA, it is not clear what kind of urgent opinion the EDPB could adopt, having a look in particular to the list of opinions that the EDPB should adopt under Article 64 GDPR.

Articles 61(8) and 62(7) make an explicit reference to the obligation to ask for an urgent decision from the EDPB where the deadline for mutual assistance or joint operation is not met.

On 12 July 2021, the EDPB adopted an urgent binding decision under Article 66 GDPR, at the request of the Hamburg SA which adopted provisional measures under Article 66(1) GDPR, based on its consideration that the circumstances were exceptional and there was an urgent need to act to protect the rights and freedoms of data subjects.

The Hamburg SA considered that the urgency requirement was presumed, as specifically stated by Article 61(8) GDPR. However, the Hamburg SA had made some specific requests through the IMI system by using, in particular, the VMA channel (Voluntary Mutual Assistance). According to the interpretation provided by the EDPB, "Unlike formal Article 61 GDPR requests, the SA receiving a VMA request does not have a legal obligation to answer to that request". Therefore, the EDPB considered that the urgency was not established considering that the Hamburg SA "did not formally launch an Article 61 GDPR request in the IMI system to the LSA, but merely sent a letter replying to the VMA request flow initiated by the IE SA". Furthermore, the urgency needed to be demonstrated under Article 66(2) GDPR, which could not be done in the present case.

(3) Adoption of a Final Decision of the EDPB Without Provisional Measures

Besides the case where a SA is asking the EPDB to adopt a final decision after a provisional measure, Article 66(3) opens this possibility for any SA to request an urgent opinion or urgent binding decision, “where a competent authority has not taken any appropriate measure in a situation where there is an urgent need to act, in order to protect the rights and freedoms of data subjects”.

As acknowledged by the Advocate General BOBEK, the two mechanisms of Articles 61 and 66 of the GDPR on the one hand, and Articles 64 and 65 of the GDPR on the other hand, “are somewhat cumbersome. Their actual functioning is not always crystal clear. Therefore, if on paper the abovementioned provisions seem to avoid those problems, only the future application of those provisions will tell whether, in practice, those provisions may turn out to be ‘paper tigers’”. 

Notwithstanding the above, we can surely expect to see interesting developments in the application of this provision, having seen the inaction (or at least the very slow action) of some LSAs in charge of supervising big actors. The procedure under Article 66 allows to protect the interests of the individuals and to force these SAs to act.

(4) Procedure

As a derogation to the “regular” procedure to be followed to adopt opinion and decisions under Article 64 (3) and 65 (2) GDPR, the deadline for the EDPB to adopt the decision or opinion shall be reduced to two weeks, and a simple majority will be needed (instead of a 2/3 majority in the cases of Article 65(2) GDPR).

It remains to be seen how the EDPB will be able to deal with multiple cases, should the SA decide to use the possibility offered to them under Article 66.

Decisions

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