Article 61 GDPR: Difference between revisions
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== Commentary == | == Commentary == | ||
'' | '''Commentary Article 61''' | ||
The subject of administrative assistance under Paragraph 1 can be all types of supervisory measures in support of any supervisory duties and powers. Administrative assistance enables the requesting supervisory authority to access knowledge that it would otherwise not have and could not gain, at least for territorial reasons. <ref>''Polenz'', in Simitis, Hornung, Spiecker, Datenschutzrecht, Art. 61, Marginal number 7, 1st edition 2019 who clarifies that the requested supervisory authority can be asked, for example, to exercise authorisation under Article 58(3) or to carry out investigations in the form of data protection reviews in accordance with Article 58(1)(b)</ref> | |||
'''(1) Mutual assistance to implement and apply the GDPR in a consistent manner''' | |||
Article 61 does not shine for clarity. If, on the one hand, it seems manifest that the ultimate goal of the cooperation is to "implement and apply [the] Regulation in a consistent manner", it is not clear, on the other hand, what are the instruments an authority can use to achieve such goal. | |||
In fact, whilst the "Mutual assistance" between authorities seems to be identified as the principal instrument of the task, Article 61(1) also refers to other concepts or tasks. In particular, DPAs "provide each other with relevant information" '''and''' "put in place measures for effective cooperation". By using the conjunction "and", the lawmaker seems to suggest that "information" and" measures" are alternatives to the "Mutual assistance". Probably, as the most sound doctrine states, it is simply a case of poor legislative technique.<ref>''Polenz'', in Simitis, Hornung, Spiecker, Datenschutzrecht, Art. 61, Marginal number 7, 1st edition 2019</ref> | |||
It follows that the attention of the interpreter can focus on the central concept of "Mutual assistance", which can, in turn, be obtained through a series of tools such as "relevant information" and "measures for effective cooperation". Under paragraph 1, in particular, requests for Mutual assistance "shall cover […] information requests and supervisory measures, '''such as''' requests to carry out prior authorisations and consultations, inspections and investigations" [emphasis added]. | |||
'''(2) DPAs have to act on the assistance request (Article 61(2))''' | |||
Following the request for assistance, the authority shall reply without delay and, in any event, no later than one month after receipt of the request. The provision's wording indicates that, in principle, the answer shall not consist of a mere update but rather the outcome of the requested activities. However, it seems entirely foreseeable that the deadline will not be met in some cases, especially if the requested activities involve dealing with third parties or complex investigation operations.<ref>''Körffer'' in Paal, Pauly, Körffer, DS-GVO BDSG, Art. 61, Marginal number 4, 3rd edition 2021</ref> | |||
'''(3) Requirements and limits of the assistance request''' | |||
The request for administrative assistance must contain all the information necessary enabling the requested authority to comply with it without delay. The Regulation stipulates that the information includes the purpose and reasons for the request. Therefore, the requested information must be tailored to the subject matter of the request and can only be used in that context. However, scholars suggest that the requirement should not be interpreted in an overly restrictive fashion. For example, the request (and the information it implies) may trigger ex-officio investigations (on both sides).<ref>''Dix'', in Kühling, Buchner, GDPR BDSG, Art. 61, Marginal number 12, 3rd edition 2020</ref> | |||
'''(4) Exceptions''' | |||
The requested supervisory authority shall not refuse to comply with the request unless (a) it is not competent for the subject matter of the request or for the measures it is requested to execute, or (b) compliance with the request would infringe the Regulation or Union or Member State law to which the supervisory authority receiving the request is subject. | |||
We agree with some authors that letter (b) contains letter (a) because it is the same European law that defines the supervisory authorities' competence and the measures they can take.<ref>''Dix'', in Kühling, Buchner, GDPR BDSG, Art. 61, Marginal number 13, 3rd edition 2020</ref> Therefore, a request for administrative assistance may only be refused if the requested authority is forced to act unlawfully, either under Union or domestic law. However, the domestic law that limits the obligation to provide administrative assistance must, for its part, conform with Union law. In particular, the regulation does not authorise the Member States to create further grounds for refusing administrative assistance.<ref>''Dix'', in Kühling, Buchner, GDPR BDSG, Art. 61, Marginal number 13, 3rd edition 2020</ref> | |||
In any case, according to paragraph 5 below, the requested supervisory authority shall provide reasons for any refusal to comply with a request under paragraph 4. | |||
'''(5) Constant updates are required following the request''' | |||
Paragraph 5 seems to require the requested authority to communicate the results of the request or, if not possible (see Par. 2 above), at least an update on the progress of the procedure, in particular by making clear which "measures [has been] taken in order to respond".<ref>On this point, we would like to point out that, unlike what happens in Article 57(f), under which the data subject is entitled to know the "progress and the outcome of the investigation", Article 61 seems to require higher-level accountability for inter-DPAs communications.</ref> | |||
Paragraph 5, sentence 2 imposes an obligation on the requested authority to give reasons if a request for administrative assistance is rejected. However, the mere assertion of a possible legal violation is not sufficient for this. Instead, the requested authority must substantiate why it cannot comply with the request. In the event of rejection due to lack of competence, the principle of genuine cooperation between the supervisory authorities requires the requested authority to inform the requesting authority of the competent authority.<ref>''Peuker'', in Sydow, European General Data Protection Regulation, Art. 61, Marginal number 39, 2nd edition 2018</ref> | |||
'''(6) Modalities and other aspects''' | |||
Paragraph 6 sets out the principle of electronic communication between the supervisory authorities without excluding other forms of communication ("as a rule"). In urgent cases, for example, information can also be transmitted by telephone or by other means. | |||
'''(7) Fees''' | |||
Mutual assistance requests shall be carried out free of charge. The idea behind the '''exemption from fees''' is that the proper implementation of Union law is a matter of common interest (Article 197(1) TFEU). It is argued that costs for administrative assistance of the individual Member States converge or offset each other in the long term. Therefore, mutual invoicing of individual administrative assistance would only generates additional administrative effort, but no additional income.<ref>''Peuker'', in Sydow, European General Data Protection Regulation, Art. 61, Marginal number 42, 2nd edition 2018</ref> | |||
However, in exceptional circumstances, DPAs can arrange agreements to indemnify each other for specific expenditures arising from the provision of mutual assistance. These include, for example, expenses for experts or interpreters or expenses in the event of particular difficulties with administrative assistance.<ref>''Peuker'', in Sydow, European General Data Protection Regulation, Art. 61, Marginal number 44, 2nd edition 2018</ref> | |||
'''(8) Inaction of the requested authority''' | |||
According to Paragraph 8, first sentence, if, within one month of receiving the request, the requested DPA does not inform the requesting supervisory authority of the results or, as the case may be, of the progress of the measures taken in order to respond to the request (Article 61(5) GDPR), the requesting supervisory authority may adopt a provisional measure on the territory of its Member State under Article 55(1). | |||
If the authority do so, the consequences seem to be two, both of them derogatory to the standard procedure set forth by Article 66. First, the DPA do not have to prove the urgency required by Article 66(1) for "normal" urgency cases (in fact, the urgency "shall be presumed"). Second, the provisional measure will be subject to an "urgent binding decision from the Board". This second consequence is also exceptional because, as opposed to Article 66(2), under which the DPA '''may''' request either a '''binding''' or '''non-binding''' decision from the EDPB, in this case, there is no choice: there will be an assessment by the EDPB the outcome of which will be binding. | |||
'''(9) Implementing acts by the Commission''' | |||
The Commission may, by means of implementing acts, specify the format and procedures for mutual assistance referred to in Article 61 and the arrangements for the exchange of information by electronic means between supervisory authorities, and between supervisory authorities and the Board, in particular, the standardised format referred to in paragraph 6 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 93(2). | |||
== Decisions == | == Decisions == | ||
Revision as of 09:19, 19 July 2021
Legal Text
1. Supervisory authorities shall provide each other with relevant information and mutual assistance in order to implement and apply this Regulation in a consistent manner, and shall put in place measures for effective cooperation with one another. Mutual assistance shall cover, in particular, information requests and supervisory measures, such as requests to carry out prior authorisations and consultations, inspections and investigations.
2. Each supervisory authority shall take all appropriate measures required to reply to a request of another supervisory authority without undue delay and no later than one month after receiving the request. Such measures may include, in particular, the transmission of relevant information on the conduct of an investigation.
3. Requests for assistance shall contain all the necessary information, including the purpose of and reasons for the request. Information exchanged shall be used only for the purpose for which it was requested.
4. The requested supervisory authority shall not refuse to comply with the request unless:
- (a) it is not competent for the subject-matter of the request or for the measures it is requested to execute; or
- (b) compliance with the request would infringe this Regulation or Union or Member State law to which the supervisory authority receiving the request is subject.
5. The requested supervisory authority shall inform the requesting supervisory authority of the results or, as the case may be, of the progress of the measures taken in order to respond to the request. The requested supervisory authority shall provide reasons for any refusal to comply with a request pursuant to paragraph 4.
6. Requested supervisory authorities shall, as a rule, supply the information requested by other supervisory authorities by electronic means, using a standardised format.
7. Requested supervisory authorities shall not charge a fee for any action taken by them pursuant to a request for mutual assistance. Supervisory authorities may agree on rules to indemnify each other for specific expenditure arising from the provision of mutual assistance in exceptional circumstances.
8. Where a supervisory authority does not provide the information referred to in paragraph 5 of this Article within one month of receiving the request of another supervisory authority, the requesting supervisory authority may adopt a provisional measure on the territory of its Member State in accordance with Article 55(1). In that case, the urgent need to act under Article 66(1) shall be presumed to be met and require an urgent binding decision from the Board pursuant to Article 66(2).
9. The Commission may, by means of implementing acts, specify the format and procedures for mutual assistance referred to in this Article and the arrangements for the exchange of information by electronic means between supervisory authorities, and between supervisory authorities and the Board, in particular the standardised format referred to in paragraph 6 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 93(2).
Relevant Recitals
Where a Member State establishes several supervisory authorities, it should establish by law mechanisms for ensuring the effective participation of those supervisory authorities in the consistency mechanism. That Member State should in particular designate the supervisory authority which functions as a single contact point for the effective participation of those authorities in the mechanism, to ensure swift and smooth cooperation with other supervisory authorities, the Board and the Commission.
The supervisory authorities should monitor the application of the provisions pursuant to this Regulation and contribute to its consistent application throughout the Union, in order to protect natural persons in relation to the processing of their personal data and to facilitate the free flow of personal data within the internal market. For that purpose, the supervisory authorities should cooperate with each other and with the Commission, without the need for any agreement between Member States on the provision of mutual assistance or on such cooperation.
The supervisory authorities should assist each other in performing their tasks and provide mutual assistance, so as to ensure the consistent application and enforcement of this Regulation in the internal market. A supervisory authority requesting mutual assistance may adopt a provisional measure if it receives no response to a request for mutual assistance within one month of the receipt of that request by the other supervisory authority
Commentary
Commentary Article 61
The subject of administrative assistance under Paragraph 1 can be all types of supervisory measures in support of any supervisory duties and powers. Administrative assistance enables the requesting supervisory authority to access knowledge that it would otherwise not have and could not gain, at least for territorial reasons. [1]
(1) Mutual assistance to implement and apply the GDPR in a consistent manner
Article 61 does not shine for clarity. If, on the one hand, it seems manifest that the ultimate goal of the cooperation is to "implement and apply [the] Regulation in a consistent manner", it is not clear, on the other hand, what are the instruments an authority can use to achieve such goal.
In fact, whilst the "Mutual assistance" between authorities seems to be identified as the principal instrument of the task, Article 61(1) also refers to other concepts or tasks. In particular, DPAs "provide each other with relevant information" and "put in place measures for effective cooperation". By using the conjunction "and", the lawmaker seems to suggest that "information" and" measures" are alternatives to the "Mutual assistance". Probably, as the most sound doctrine states, it is simply a case of poor legislative technique.[2]
It follows that the attention of the interpreter can focus on the central concept of "Mutual assistance", which can, in turn, be obtained through a series of tools such as "relevant information" and "measures for effective cooperation". Under paragraph 1, in particular, requests for Mutual assistance "shall cover […] information requests and supervisory measures, such as requests to carry out prior authorisations and consultations, inspections and investigations" [emphasis added].
(2) DPAs have to act on the assistance request (Article 61(2))
Following the request for assistance, the authority shall reply without delay and, in any event, no later than one month after receipt of the request. The provision's wording indicates that, in principle, the answer shall not consist of a mere update but rather the outcome of the requested activities. However, it seems entirely foreseeable that the deadline will not be met in some cases, especially if the requested activities involve dealing with third parties or complex investigation operations.[3]
(3) Requirements and limits of the assistance request
The request for administrative assistance must contain all the information necessary enabling the requested authority to comply with it without delay. The Regulation stipulates that the information includes the purpose and reasons for the request. Therefore, the requested information must be tailored to the subject matter of the request and can only be used in that context. However, scholars suggest that the requirement should not be interpreted in an overly restrictive fashion. For example, the request (and the information it implies) may trigger ex-officio investigations (on both sides).[4]
(4) Exceptions
The requested supervisory authority shall not refuse to comply with the request unless (a) it is not competent for the subject matter of the request or for the measures it is requested to execute, or (b) compliance with the request would infringe the Regulation or Union or Member State law to which the supervisory authority receiving the request is subject.
We agree with some authors that letter (b) contains letter (a) because it is the same European law that defines the supervisory authorities' competence and the measures they can take.[5] Therefore, a request for administrative assistance may only be refused if the requested authority is forced to act unlawfully, either under Union or domestic law. However, the domestic law that limits the obligation to provide administrative assistance must, for its part, conform with Union law. In particular, the regulation does not authorise the Member States to create further grounds for refusing administrative assistance.[6]
In any case, according to paragraph 5 below, the requested supervisory authority shall provide reasons for any refusal to comply with a request under paragraph 4.
(5) Constant updates are required following the request
Paragraph 5 seems to require the requested authority to communicate the results of the request or, if not possible (see Par. 2 above), at least an update on the progress of the procedure, in particular by making clear which "measures [has been] taken in order to respond".[7]
Paragraph 5, sentence 2 imposes an obligation on the requested authority to give reasons if a request for administrative assistance is rejected. However, the mere assertion of a possible legal violation is not sufficient for this. Instead, the requested authority must substantiate why it cannot comply with the request. In the event of rejection due to lack of competence, the principle of genuine cooperation between the supervisory authorities requires the requested authority to inform the requesting authority of the competent authority.[8]
(6) Modalities and other aspects
Paragraph 6 sets out the principle of electronic communication between the supervisory authorities without excluding other forms of communication ("as a rule"). In urgent cases, for example, information can also be transmitted by telephone or by other means.
(7) Fees
Mutual assistance requests shall be carried out free of charge. The idea behind the exemption from fees is that the proper implementation of Union law is a matter of common interest (Article 197(1) TFEU). It is argued that costs for administrative assistance of the individual Member States converge or offset each other in the long term. Therefore, mutual invoicing of individual administrative assistance would only generates additional administrative effort, but no additional income.[9]
However, in exceptional circumstances, DPAs can arrange agreements to indemnify each other for specific expenditures arising from the provision of mutual assistance. These include, for example, expenses for experts or interpreters or expenses in the event of particular difficulties with administrative assistance.[10]
(8) Inaction of the requested authority
According to Paragraph 8, first sentence, if, within one month of receiving the request, the requested DPA does not inform the requesting supervisory authority of the results or, as the case may be, of the progress of the measures taken in order to respond to the request (Article 61(5) GDPR), the requesting supervisory authority may adopt a provisional measure on the territory of its Member State under Article 55(1).
If the authority do so, the consequences seem to be two, both of them derogatory to the standard procedure set forth by Article 66. First, the DPA do not have to prove the urgency required by Article 66(1) for "normal" urgency cases (in fact, the urgency "shall be presumed"). Second, the provisional measure will be subject to an "urgent binding decision from the Board". This second consequence is also exceptional because, as opposed to Article 66(2), under which the DPA may request either a binding or non-binding decision from the EDPB, in this case, there is no choice: there will be an assessment by the EDPB the outcome of which will be binding.
(9) Implementing acts by the Commission
The Commission may, by means of implementing acts, specify the format and procedures for mutual assistance referred to in Article 61 and the arrangements for the exchange of information by electronic means between supervisory authorities, and between supervisory authorities and the Board, in particular, the standardised format referred to in paragraph 6 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 93(2).
Decisions
→ You can find all related decisions in Category:Article 61 GDPR
References
- ↑ Polenz, in Simitis, Hornung, Spiecker, Datenschutzrecht, Art. 61, Marginal number 7, 1st edition 2019 who clarifies that the requested supervisory authority can be asked, for example, to exercise authorisation under Article 58(3) or to carry out investigations in the form of data protection reviews in accordance with Article 58(1)(b)
- ↑ Polenz, in Simitis, Hornung, Spiecker, Datenschutzrecht, Art. 61, Marginal number 7, 1st edition 2019
- ↑ Körffer in Paal, Pauly, Körffer, DS-GVO BDSG, Art. 61, Marginal number 4, 3rd edition 2021
- ↑ Dix, in Kühling, Buchner, GDPR BDSG, Art. 61, Marginal number 12, 3rd edition 2020
- ↑ Dix, in Kühling, Buchner, GDPR BDSG, Art. 61, Marginal number 13, 3rd edition 2020
- ↑ Dix, in Kühling, Buchner, GDPR BDSG, Art. 61, Marginal number 13, 3rd edition 2020
- ↑ On this point, we would like to point out that, unlike what happens in Article 57(f), under which the data subject is entitled to know the "progress and the outcome of the investigation", Article 61 seems to require higher-level accountability for inter-DPAs communications.
- ↑ Peuker, in Sydow, European General Data Protection Regulation, Art. 61, Marginal number 39, 2nd edition 2018
- ↑ Peuker, in Sydow, European General Data Protection Regulation, Art. 61, Marginal number 42, 2nd edition 2018
- ↑ Peuker, in Sydow, European General Data Protection Regulation, Art. 61, Marginal number 44, 2nd edition 2018
