Article 54 GDPR

← Article 54 - Rules on the establishment of the 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 54 - Rules on the establishment of the supervisory authority

1. Each Member State shall provide by law for all of the following:

(a) the establishment of each supervisory authority;

(b) the qualifications and eligibility conditions required to be appointed as member of each supervisory authority;

(c) the rules and procedures for the appointment of the member or members of each supervisory authority;

(d) the duration of the term of the member or members of each supervisory authority of no less than four years, except for the first appointment after 24 May 2016, part of which may take place for a shorter period where that is necessary to protect the independence of the supervisory authority by means of a staggered appointment procedure;

(e) whether and, if so, for how many terms the member or members of each supervisory authority is eligible for reappointment;

(f) the conditions governing the obligations of the member or members and staff of each supervisory authority, prohibitions on actions, occupations and benefits incompatible therewith during and after the term of office and rules governing the cessation of employment.

2. The member or members and the staff of each supervisory authority shall, in accordance with Union or Member State law, be subject to a duty of professional secrecy both during and after their term of office, with regard to any confidential information which has come to their knowledge in the course of the performance of their tasks or exercise of their powers. During their term of office, that duty of professional secrecy shall in particular apply to reporting by natural persons of infringements of this Regulation.

Relevant Recitals

Recital 121: General Conditions for the Member(s) of Supervisory Authorities

The general conditions for the member or members of the supervisory authority should be laid down by law in each Member State and should in particular provide that those members are to be appointed, by means of a transparent procedure, either by the parliament, government or the head of State of the Member State on the basis of a proposal from the government, a member of the government, the parliament or a chamber of the parliament, or by an independent body entrusted under Member State law. In order to ensure the independence of the supervisory authority, the member or members should act with integrity, refrain from any action that is incompatible with their duties and should not, during their term of office, engage in any incompatible occupation, whether gainful or not. The supervisory authority should have its own staff, chosen by the supervisory authority or an independent body established by Member State law, which should be subject to the exclusive direction of the member or members of the supervisory authority.

Commentary

Article 54 GDPR combines two very different objectives under the heading “Establishment of the supervisory authority”. Article 54(1) GDPR contains a list of the individual specifications to be made by the Member States in national legislation regarding Articles 51-53 GDPR in order to ensure the establishment of an independent supervisory authority (“SA”). Article 54(2) GDPR regulates the special data protection confidentiality obligation of the respective member or members of the SA. Such confidentiality obligations already existed in Article 28(7) Directive 95/46. Whereas this provisions seems to be of direct application, it does not preclude national legislation to further specify the confidentiality obligations of the members of the SA and its staff.

(1) Elements Provided by Member States Law

Article 54(1) GDPR mandates member states’ law to provide for all the elements listed below.

(a) Establishment of the Supervisory Authority

Criteria concerning the establishment of SAs are set out in Article 51(1) GDPR and Article 52 GDPR. Article 54(1)(a) GDPR specifies that this should be done by law. Considering that the member state may have appointed several authorities, the law should provide for the conditions and rules regarding the establishment of each of them. The law should among others also provide, if the SA is a monocratic or a collegial body and if it has any competences in addition to the monitoring of the enforcement of the GDPR.

(b) Qualifications and Eligibility Conditions for SA's Members

Article 54(1)(b) GDPR clearly refers to Article 53(2) GDPR according to which the members of the SA will require qualifications, experience and skills as a prerequisite for being hired as a data protection supervisor. Article 54(1)(b) clarifies that these legal terms should be further specified in national law. A clear specification of qualifications, experience and skills in the law means that the pool of potential candidates is determined by law and not subject to arbitrary political decision.

(c) The Rules and Procedures for the Appointment of SA's Members

As already seen under Article 53(1) GDPR, Member States shall establish rules and procedures for the appointment of the member or members of each SA.

(d) Duration of the Term

Each Member State is obliged to regulate by law the term of office of the member or members of each SA. The minimum term is four years which presumably corresponds to the regular length of a legislative period in most EU Member States. Member States are free to set longer terms. However, a term of office that is in principle for life or is to last until retirement should be excluded since subsequent Article 54(1)(e) GDPR addresses the question of reappointment and therefore assumes a limited duration of the position.

(e) Whether and, if so, for how Many Reappointment is Possible

Article 54(1)(e) GDPR imparts on the Member States to regulate through national law whether and how often the reappointment of the member or members of a SA is permissible. A reappointment ban (only one mandate being possible) is conceivable, but also a limitation of the number of reappointment can be laid down in the law.

(f) Rules on Members' Occupation, Prohibitions, Incompatible Actions and Benefits

Under Article 54(1)(f) GDPR, Member States shall provide by law the conditions governing the obligations of the member or members and staff of each SA, prohibitions on actions, occupations and benefits incompatible therewith during and after the term of office, and rules governing the cessation of employment. Such conditions can be laid down in national law or in a contract (where the staff is subject to an employment contract). They concern:

i) The Obligations of the Members and the Staff of the Supervisory Authority

With regard to this mandate, Member States’ law must stipulate the obligation to exercise their office with integrity and independence. The mandate of the SAs is laid down in Article 51(1) GDPR, namely the monitoring of the application of the GDPR, in order to protect the data protection rights on the one hand, and on the other hand, to facilitate the free flow of personal data within the Union.

ii) Prohibitions on Actions, Occupations and Benefits Incompatible Therewith During and After the Term of Office

The rules laid down by national law are to be linked with Article 52(3) GDPR. It is particularly important that the national legislation does not limit itself to reproducing the text of Articles 52(3) GDPR and 54(2)(f) GDPR, but further specifies what is to be understood as “incompatible”, and “prohibited occupations, actions and benefits”. A “cooling off” period should also be specified after the end of the term of office as data protection supervisor, whereby periods of 18-24 months can be viewed as an EU-wide minimum standard.

iii) The Termination Rules

The ordinary and extraordinary reasons for termination of office are regulated in Article 53(3) GDPR. Therefore, Member States only have to regulate the procedure in the event of dismissals, (i.e. in particular who decides on the existence of the extraordinary reasons for termination, the period within which a dismissal is to be decided and under which procedure). Naturally, these rules should not impair the independence of the SA, as required by Article 52 GDPR.

(2) Duty of Professional Secrecy

The duty to keep information confidential is of the essence for a trust-based exercise of the investigative powers of SAs. Similar obligations exist regarding competition authorities and other regulatory bodies supervising economic operators.

The notion of confidential information, which is the subject of this obligation, is to be linked with the notion of confidential obligation under Article 339 TFEU. As recognised by the CJEU, information should be considered as confidential if it fulfills the following conditions: (i) The information is known only to a limited number of people; (ii) disclosure of the information can cause serious harm to the person who has provided it or to third parties; (iii) the interests likely to be harmed by disclosure must, objectively, be worthy of protection. The test of Article 339 TFEU requires a reinforced protection for business secrets.

The definition of Article 339 TFEU can be applied on the obligation of secrecy and confidentiality of the SAs. In this context, such confidentiality shall also apply in particular to reporting of infringements of the GDPR by natural persons. That is due to the core activity of the SA: its staff should pay particular attention to the protection of the holders of fundamental rights, whose rights could be impaired if their names were disclosed to the public.

A link between the obligation of confidentiality should be established with the right to access one's file under the right to good administration (Article 41(2)(b) CFR) and the right to access to documents (Article 42 CFR and Regulation 1049/2001), but also with the right to data protection. Access to documents can be limited on the basis of the obligation of confidentiality and/or the protection of personal data of individuals. Balancing these rights can however be difficult in practice since the right to be heard implies that the complainant can access the file, which in turn could include confidential information.

Information is only protected if it has come to the knowledge of a member or an employee of a SA “in the course of the performance of their tasks or exercise of their powers”. Considering the broad dimension of powers under Article 58 GDPR, this protection will apply to a large range of information.

The wording of Article 54(2) GDPR both refers to EU law and national law. Therefore, in order to fully understand the implication of this provision, one should also read Member States’ legislation. The provision evidently prohibits any member or staff of an SA to share the confidential information with a third party or to disclose it to the public without prior authorisation. However, this prohibition will not apply when SAs exchange information pursuant to the cooperation mechanism under Articles 60, 61, 64, 65 GDPR.

Furthermore, the obligation of confidentiality only applies to the staff and the members of the SA. Thus, subject to restrictions under national law, nothing appears to prevent the parties to the proceedings (including the complainant) from sharing the information obtained from the SA.

Finally, the obligation of confidentiality also applies after the end of the activity. In this case, a specific duration of the duty of confidentiality should be determined in each individual case based on the need for protection of the information and the consequences to be expected from disclosure.

Decisions

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