Article 51 GDPR

← Article 51 - 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 51 - Supervisory authority

1. Each Member State shall provide for one or more independent public authorities to be responsible for monitoring the application of this Regulation, in order to protect the fundamental rights and freedoms of natural persons in relation to processing and to facilitate the free flow of personal data within the Union (‘supervisory authority’).

2. Each supervisory authority shall contribute to the consistent application of this Regulation throughout the Union. For that purpose, the supervisory authorities shall cooperate with each other and the Commission in accordance with Chapter VII.

3. Where more than one supervisory authority is established in a Member State, that Member State shall designate the supervisory authority which is to represent those authorities in the Board and shall set out the mechanism to ensure compliance by the other authorities with the rules relating to the consistency mechanism referred to in Article 63.

4. Each Member State shall notify to the Commission the provisions of its law which it adopts pursuant to this Chapter, by 25 May 2018 and, without delay, any subsequent amendment affecting them.

Relevant Recitals

Recital 117: Establishment of Independent Supervisory Authorities

The establishment of supervisory authorities in Member States, empowered to perform their tasks and exercise their powers with complete independence, is an essential component of the protection of natural persons with regard to the processing of their personal data. Member States should be able to establish more than one supervisory authority, to reflect their constitutional, organisational and administrative structure.

Recital 118: Control and Monitoring of Supervisory Authorities

The independence of supervisory authorities should not mean that the supervisory authorities cannot be subject to control or monitoring mechanisms regarding their financial expenditure or to judicial review.

Recital 119: Participation in Consistency Mechanism in Case of Multiple Supervisory Authorities

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.

Commentary

Chapter VI of the GDPR is dedicated to supervisory authorities (SAs). Chapter VI is divided into two sections. Section 1 regulates the establishment of SAs, staffing and other organizational requirements that the Member State must enforce to ensure independence and proper functioning of SAs. Section 2 defines the tasks and powers of SAs.

Article 51 GDPR marks the beginning of the administrative part of the GDPR, where the SAs play a key role. It is the core article regarding the establishment and key responsibilities of SAs. It is followed by Articles that are laying down more detailed rules on SAs and its powers. Article 51 and the related Articles provide the institutional framework for the enforcement of the data protection rules, one of the main objectives of the GDPR.

Article 51 is closely connected to Article 4(21) (definition of SA), Article 52 (independence), Article 53 (General conditions for the members of SA), Article 54 (Rules on the establishment of SA), Articles 55-59 (Competence, tasks and powers), Articles 60-62 (Cooperation), Articles 63-67 (Consistency) and Article 68-76 (European Data Protection Board).

(1) Establishment of Supervisory authority (SA)

Establishment of SAs

Pursuant to Article 51(1) GDPR, each Member State must appoint one or more SAs, i.e. independent public authorities responsible to monitor the application of the GDPR. The establishment of SAs performing their tasks and powers in an independent manner, is an essential component of a data subject’s right to data protection (Recital 117).

One or more

It is sufficient if a Member State provides for one SA. However also several SAs can co-exist in one Member State, for example in Germany or Spain. For details see below on paragraph 3.

Independent

According to Article 8(3) CFR and Article 16(2) TFEU the EU treaties require independent SAs. For more information on independence see commentary to Article 52 GDPR.

Public

SAs must be public bodies. Member States cannot leave the control of the correct application of the GDPR to private entities.

The GDPR provides for some exceptions from this rule for processing for specific purposes. According to Article 85(2) GDPR states can provide for exemptions or derogations from Chapter VI (independent supervisory authorities) for processing carried out for journalistic purposes or the purpose of academic artistic or literary expression, if they are necessary to reconcile the right to the protection of personal data with the freedom of expression and information. While some German states have separate SAs for broadcasting companies, they are still embedded in public oversight bodies. The authors are not aware of any private SAs under Article 85 GDPR.

Equally, Article 91(2) GDPR allows specific SAs for religious groups. Both exceptions are for example used in Germany, where SAs are partly incorporated within the catholic or protestant churches and can be in charge of various religious institutions.

Monitoring the application

The SA's main task is to monitor the correct application of the GDPR. The term monitoring the application should be understood as being equal to control of compliance, which is the terminology used in Article 16(2) TFEU and Article 8(3) CFR. Control by an independent supervisory authority is one of the main elements of the EU mechanism of data protection. It is also an essential component of the right to data protection under CJEU case law.

In order to

Article 51(2) specifies two aims that the SAs shall pursue when monitoring the application of the GDPR: (i) protecting the fundamental rights and freedoms of individuals and (ii) facilitating the free flow of personal data within the Union. The role of SAs is therefore twofold.

Protect the fundamental rights and freedoms of natural persons in relation to processing

Protecting the fundamental rights and freedoms of individuals includes all elements of the GDPR. Protection of fundamental rights and freedoms of individuals with regard processing of personal data is the direct and actual purpose of SAs. SAs structure, tasks and powers serve this purpose.

Protection also extends to all rights and freedoms guaranteed by the EU Charter of Fundamental Rights and the Treaty on the Functioning of the European Union. Other laws, regulations and aims are not outside of the SAs' jurisdiction, as they regularly need to determine provisions in other laws to correctly apply the GDPR.

Example: The SA has to determine the need to process personal data under applicable tax laws. Record keeping requirements in other laws can not only become relevant under Article 5(1)(e) GDPR when determining the duration for which data must be stored, but also when determining if the processing is even 'necessary' to comply with a legal obligation under Article 6(1)(c) GDPR.

Facilitate the free flow of personal data within the Union

In line with the general objectives of the GDPR (Article 1 GDPR), SAs will also be required to facilitate the free flow of information within the European Union, thus taking into account the requirements of the single market. This means that the SAs should not apply measures that would impair or prevent the free flow of data within the EU when exercising their powers.

The aim of this provision is thus not to put protection of fundamental rights and freedoms of natural persons and economic interests of controllers to free flow of personal data on equal footing but to prevent national measures on data protection and GDPR related issues that would negatively affect the free flow of personal data within the common market. Any measure adopted by a SA must be neutral with regard to the cross-border flow of data within the EU.

Such interpretation of the obligation to facilitate the free flow of personal data within the Union is also in line with the concept of the right to data privacy as a fundamental right under the CFR and the Lisbon Treaty and the more profound role of fundamental rights in the newer case law of the CJEU. After the entry into force of the Lisbon Treaty the center of gravity in data protection is no longer the free flow of data but rather the protection of fundamental rights.

However, also different opinions can be found. According to these opinions the right to free flow of data is understood as the right to process personal data for economic purposes, whereas both purposes, protection of fundamental rights of private persons and the right to free flow of personal data should be taken into account to the same extend and balanced.

(2) Consistent Application of the GDPR

Shall

SAs must ("shall") contribute to the consistent application of the GDPR throughout the entire EU. This forms a positive obligation on the side of the SAs.

Contribute

The use of the verb “contribute” denotes a form of proactive participation specifically aimed at (i) the “consistent monitoring and enforcement of this Regulation” and, according to Recital 135, (ii) the uniform application of the law. Accordingly, SAs are required to identify any problems (e.g. inactivity of a SA involved in a collegial decision-making process) and act for its prompt resolution.

Consistent application

Consistent application means that the application and interpretation of GDPR provisions should not differ between MS and SAs. All SAs should have the same understanding of GDPR provisions and interpret and enforce them in the same manner. No matter in which country a data subject or controller or processor is located the rights and obligations should be the same.

Example: Lisa lives in Stockholm. Anna lives in Athens. Both love to go to the gym. Many gyms in Europe start the same unlawful practice. Consistent application of GDPR means various SAs in Europe should cooperate on the matter, maybe issue EDPB guidelines and alike. In the end, the outcome of their complaints procedures should be the same, so that controllers cannot avoid compliance with the GDPR via 'forum shopping' and data subjects enjoy a consistent level of protection.

Cooperation

According to the second sentence of Article 51(2) GDPR, SAs must cooperate with each other and the Commission in accordance with Chapter VII of the GDPR. Cooperation is an essential feature of the SAs' action, considered as one of the tools for fostering “contribution” to the consistent application of the GDPR. It can be seen as specific provision that implements the general duty of sincere cooperation among EU Member States under Article 4(3) TEU.

Chapter VII provides rules on cooperation between SAs in cross-border cases, as well as their participation in the consistency mechanism and the European Data Protection Board. This gives SAs responsibilities on national and EU level.

When cooperation takes place with other 'independent' SAs, there seems to be no issue with respect the the treaty law in Article 8(3) CFR and Article 16(2) TFEU. However, there may be a certain tension with the concept of 'independence' when SAs have to cooperate with the European Commission. It must be noted that the European Commission is a political body and Article 8(3) CFR and Article 16(2) TFEU require complete independence.

(3) More than one SA in one Member State

Pursuant to Article 51(3) GDPR, Member States with several SAs must (i) designate which of these authorities represents the Member State in the EDPB and (ii) ensure that all SAs accept the procedures and effects of the consistency mechanism.

In accordance with Article 51(2) GDPR there can be several SAs in one Member State, if a state appoints different SAs for different parts of its territory (territorial division of competences, e.g. see Germany or Spain) and/or for controllers from different sectors (sectorial division of competence; e.g. one SA responsible for controllers from the private sector and another one for the controllers from the public sector).

Any Member State with several SAs should establish by law mechanisms for ensuring the effective participation of those SAs in the consistency mechanism. That Member State should in particular designate the SA 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 SAs, the Board and the Commission (see also Article 68(4) GDPR).

At the same time the Member State must ensure by national law that all SAs accept the procedures and effects of the consistency mechanism, notwithstanding if they actively participated in it or not.

Article 51(3) GDPR is particularly relevant for Member States with a federal structure. Germany, for example, consists of 16 Federal States (“Bundesländer”) each with its own SA (similar situation in Spain, where there are separate SAs for Catalonia and the Basque Country). Currently the German SAs are represented by the German Federal SA ("BfDI").

(4) Notification to the Commission

Member States should notify the Commission of the measures adopted to create their SAs and any subsequent changes. Non-compliance with the requirements of the GDPR relating to the establishment of an independent SA can lead to an infringement procedure under Article 258 TFEU.

Decisions

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