Article 61 GDPR
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
Commentary
Article 61(1) GDPR regulates how independent authorities are to cooperate to enable the uniform application of the GDPR. Supervisory authorities must share any relevant information and, where requested, provide mutual assistance in relation to the carrying out of certain investigations or acts of investigation. Paragraph 2 requires SAs to have appropriate organisational and technical measures in place to respond promptly to mutual assistance requests made in accordance with certain standards of clarity (paragraph 3). Requests are imperative and, subject to specific exceptions (paragraphs 4 and 5), must be fulfilled and, as a rule, acknowledged electronically (paragraph 6) and free of charge (paragraph 7). Finally, where the requested activity is not carried out, the national authority is given the possibility of adopting measures having legal effects on the territory of its Member State (paragraph 8).
(1) Mutual Assistance to Implement and Apply the GDPR in a Consistent Manner
The ultimate goal of the mutual assistance under Article 61 GDPR is to "implement and apply [the] Regulation in a consistent manner". SAs "provide each other with relevant information" and "mutual assistance". By using the conjunction "and", the lawmaker seems to suggest that "information" and "mutual assistance" are alternative. Such conclusion should be rejected because "relevant information" is only a tool to achieve "mutual assistance".[1] Other activities enabling real cooperation among SAs are "supervisory measures, such as requests to carry out prior authorisations and consultations, inspections and investigations".[2]
(2) DPAs Must Act on the Assistance Request
Article 61(2) GDPR requires authorities to take all necessary measures to respond to requests for mutual assistance made by other SAs. This means, first of all, that the receiving authority is required to have adequate organisational measures in place to process the request internally and to follow it up fully, by any action deemed necessary. The request must also be responded to in a timely manner. In particular, the requested authority shall reply without delay and, in any event, no later than one month after receipt of the request. The 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 to enable 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 context of that request. 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 well 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. Some authors convincingly argue that letter (b) contains letter (a) because the competence of the supervisory authority is regulated either by European or national law.[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 legislation. 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 paragraph 2 above), at least an update on the progress of the procedure, in particular by making clear which "measures [have 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. The mere assertion of a possible legal violation is not sufficient in this respect. Rather, 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 generate 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 does not meet the deadline, the consequences seem to be two, both of them derogatory to the standard procedure set forth by Article 66 GDPR. First, the DPA does not have to prove the urgency required by Article 66(1) for "normal" urgency cases (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) GDPR, 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
- ↑ It is therefore a simple case of poor legislative technique. See, Polenz, in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 61 GDPR, margin number 7 (Beck 2019, 1st ed.) (accessed 19 July 2021).
- ↑ Polenz, in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 61 GDPR, margin number 7 (Beck 2019, 1st ed.) (accessed 19 July 2021), 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) GDPR.
- ↑ Körffer in Paal, Pauly, DS-GVO BDSG, Article 61 GDPR, margin number 4 (Beck 2021, 3rd ed.) (accessed 19 July 2021).
- ↑ Dix, in Kühling, Buchner, DS-GVO BDSG, Article 61 GDPR, margin number 12 (Beck 2020, 3rd ed.) (accessed 19 July 2021).
- ↑ Dix, in Kühling, Buchner, DS-GVO BDSG, Article 61 GDPR, margin number 13 (Beck 2020, 3rd ed.) (accessed 19 July 2021).
- ↑ Dix, in Kühling, Buchner, DS-GVO BDSG, Article 61 GDPR, margin number 13 (Beck 2020, 3rd ed.) (accessed 19 July 2021).
- ↑ 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, Europäische Datenschutzgrundverordnung, Article 61 GDPR, margin number 39 (Beck 2018, 2nd ed.) (accessed 19 July 2021).
- ↑ Peuker in Sydow, Europäische Datenschutzgrundverordnung, Article 61 GDPR, margin number 42 (Beck 2018, 2nd ed.) (accessed 19 July 2021).
- ↑ Peuker in Sydow, Europäische Datenschutzgrundverordnung, Article 61 GDPR, margin number 44 (Beck 2018, 2nd ed.) (accessed 19 July 2021).
