Article 53 GDPR

← Article 53 - General conditions for the members 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 53 - General conditions for the members of the supervisory authority

1. Member States shall provide for each member of their supervisory authorities to be appointed by means of a transparent procedure by:

— their parliament;

— their government;

— their head of State; or

— an independent body entrusted with the appointment under Member State law.

2. Each member shall have the qualifications, experience and skills, in particular in the area of the protection of personal data, required to perform its duties and exercise its powers.

3. The duties of a member shall end in the event of the expiry of the term of office, resignation or compulsory retirement, in accordance with the law of the Member State concerned.

4. A member shall be dismissed only in cases of serious misconduct or if the member no longer fulfils the conditions required for the performance of the duties.

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 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 53 GDPR regulates, for the first time by means of a European law, the manner of appointment of the members of the supervisory authority (SA), the qualities required to hold office, certain elements relating to the termination of office and the minimum conditions for removal in the event of misconduct. The provision, which partly integrates Article 51, Article 52 and Article 54 GDPR, has different characteristics depending on the different paragraphs. In some cases, it is directly applicable as a provision of an EU regulation, in others, it requires legislative intervention by the member states.

(1) Authority appointing the members of the supervisory authority (SA)

In line with the specificities of the different constitutional and organisational rules, this provision leaves the decision on how the member(s) of the supervisory authorities should be appointed up to the members states. Pursuant to Article 54(1)(c) GDPR the rules and the the procedure for the appointment must be laid down in the law.

Transparent procedure

Irrespective of which body makes the appointment, the procedure must be transparent. This should ensure that the public is able to review and comprehend the appointment of a member of a SAs. The GDPR does not provide any information on how a procedure should be structured to qualify as transparent. However, as a minimum requirement of transparency, publicity of the selection process should be fully adopted. The procedure should also show that several alternatives have been considered and evaluated according to the criteria specified by the GDPR.

Example: The transparent procedure for the appointment of the president of EDPS in 2019 involved:

• A public call for candidates for the Supervisor posts resulted in the most competent applicants being shortlisted by an inter-institutional selection board;
• Following interviews with the shortlisted candidates, the selection board presented the European Commission with their recommendations for its review and submission to the European Parliament and the Council.
• Hearings to evaluate the experiences, skills and independence of the candidates took place in the European Parliament. A joint decision  of the Parliament and Council was reached following their deliberations.

Appointing body

Article 53(1) is naming four possible appointing bodies: the parliament, the government, the head of state or an independent body. If member(s) of the SA are appointed by the parliament, the government or the head of state the appointment should be made based on a proposal by the government, a member of the government, the parliament or a chamber of the parliament. A joint appointment by different branches of government is not foreseen. It is regrettable that the appointment procedure will imply, as a rule, a political decision, since three authorities listed in Article 53(1) GDPR are political organisations. In fact, independent bodies can also be appointed by entities of a political nature. In this case, therefore, it also cannot be ruled out that the appointment of the SA member be inspired by some political criteria.

For example: In France the President ofthe SA is appointed by the President of France and in the Netherlands the members of the SA are appointed by the King.

(2) Qualification, expertise and skills of the member(s)

Article 53(2) GDPR stipulates that each SA member must ("shall") have the qualifications, experience and skills, in particular in the area of the protection of personal data, required to perform its duties and exercise its powers. In addition to expertise in data protection law, in particularly IT and organisational expertise are of relevance for the work of SA members. Also general requirements, for example such as general requirements foreseen for all employees of the national administration can be prescribed for members. Competence requirements must be provided by law pursuant to Article 54(1)(b) GDPR.

These competence requirements serve two purposes. On the one hand, at least in theory, this should contribute to the quality of work of SAs and consequently to the effectiveness of data protection. On the other hand, they act as a minimum barrier against appointments of a purely political nature, without adequate professional preparation. However, Article 53(2) does not require member states to test the knowledge of the members. There is also no requirement that the members are chosen from independent individuals.

Qualifications

The “qualification” includes the educational background, such as the completion of vocational training, the completion of a course of study, the acquisition of additional qualifications, and further training certificates in relation to the activities of the SA. The qualification is thus aimed at proving that theoretical knowledge has been acquired.

Experience

The “experience” establishes a temporal reference in that what was learned has been applied and deepened in the practical activity.

Example: DPOs have experience in the field of data protection.

Skills

“Skills” concerns the acquisition of practical knowledge and the necessary interdisciplinarity, which can be demonstrated, for example, by the performance of supervisory tasks and the exercise of supervisory powers. Regular participation in practice-relevant projects would be another proof of skills.

Example: xxx.

Performance of tasks and the exercise of powers

SA’s tasks and powers include handling of complaints lodged by a data subject, conducting investigations on the application of the GDPR and promoting public awareness of the risks, rules, safeguards and rights in relation to the processing of personal data. Tasks of SAs are provided in Article 57 GDPR. Powers of SAs are listed in Article 58 GDPR.

(3) End of mandate

Article 53(3) GDPR regulates the ordinary coming to an end of the duties of SA members. It sets out three reasons for the ordinary termination of the mandate of a SA member: expiry of term of office, resignation and compulsory retirement. Internal reorganisations of the SA, real or alleged, do not fall within the mandatory cases under Article 53(3) GDPR and therefore do not justify the termination of the mandate.

The aim of the limitation of reasons for the termination of mandates of SA members is to limit the exposure of members of SAs to political influences. This way the independence of SAs and its members is safeguarded. Full terms in office also further contribute to the effectiveness of the work of SAs and its members.

Case law: In its judgment  C- 288/2012 - Commission v Hungary, the CJEU held that while the states are entitled to restructure their data protection systems and SAs such restructuring may not result in a preliminary termination of the mandate of a SA member. Preliminary termination of the SA member’s mandate would unjustifiably interfere with the independence of SAs.

Members of SAs can be employed in SAs. In Such cases the conditions for the termination of the employment of members must be in line with the provisions of Article 53 GDPR. Rules on termination of employment must be determined by law according to Article 54(1)(f) GDPR.

Expiry of the term of office

Normally, the duties of a SA member end “in the event of the expiry of the term of office”. The term of office is dealt with in Article 54(1) GDPR, as an obligation for the member states to include a provision in their national laws. The term in office of a SA member also expires in case of death.

Example: The member of a SA was nominated in September 2022 for a 6-year term in accordance with the national law. Her mandate will expire 6 years after its beginning.

Resignation

A member of SA can voluntarily decide to end his duties before the end of the full term in office. It should be highlighted that resignation should be voluntary, so not pressured by government or parliament.

Example: A member of a SA decides that he wants to resign for family reasons and resigns two years into his 6-year term in office.

Compulsory retirement

Retirement can be a reason for a premature termination of the mandate af a SA member, in particularly in cases of retirement due to age or illness. It must be provided for in the national law of the state before the SA member is nominated to comply with the requirement of independence of SAs.

Example: According to a member state’s law officials can work until the age of 70 years. Once they reach 70 years of age they cannot continue working in the public sector and must retire.

(4) Dismissal of SA members

Under Article 53(4) GDPR, an SA member can be dismissed only in two cases: serious misconduct or if they no longer fulfill the conditions required for the performance of the duties. These are the two extraordinary reasons for the premature termination of duties of SAs and should be interpreted strictly. First, these reasons are an exception to the ordinary end of duties of SA members from Article 53(3) GDPR. Also, they must be serious enough to justify the intrusion into the general principle of independence of SAs.

The GDPR does not specify what these two important requirements entail nor is it clear which authority is responsible for deciding on removal or what procedural safeguards are in place, if any. These elements should be explicitly provided by member state law and be precise enough to avoid any misleading interpretation or arbitrariness.

The two elements are contained also in several other EU law provisions concerning the dismissal of members of independent bodies, such as Article 247 TFEU regulating the dismissal of members of the Commission, Article 228(2) TFEU with regard to the dismissal of European Ombudsman, and Article 53(5) of the Regulation (EU) 2018/1725 dealing with the dismissal of European Data Protection Supervisor. Interpretation of these elements and corresponding provisions by the CJEU may be of relevance for the interpretations of Article 53(4) GDPR.

Dismissed

Dismissal entails an involuntary preliminary loss of office.

Serious misconduct

Personal actions and acts of the SA member can condtitute serious misconduct. This can be actions and acts incompatible with the duties and obligations of a SA member, as well as holding of competing offices or engaging in an incompatible occupation. For example, Article 52(2) GDPR requires SA members to remain free from external influence and Article 52(3) GDPR entails a prohibition of incompatible actions. Also engaging in criminal activity can be a serious misconduct.

For example: A SA member takes money to decide in favour of a controller in a complaint procedure.

No longer fulfills the conditions

The failure to fulfill the conditions can in particularlly concern serious health issues that would permanently prevent the ability of the SA member to conduct the duties or general conditions required by the member state's law, such as citizenship and general conditions for officials to hold office.

Example: Citizenship of the member state is a requirement to hold the office. The SA member acquires the citizenship of another state and gives up her former citizenship.

Responsible authority and procedure

The procedure and the responsible authority should allow for an independent and not purely political decisions regarding the dismissal of SA member(s). For example, courts can be given the competence to decide on the dismissal of SA member(s). On the other hand, a decision on the dismissal of SA member(s) is politcal if the responsible body is the parliament voting by a simple majority. If the SA is entitled to judicial remedy against the decision, this would enchance the independence and objectivness of the dismissal procedure.

Decisions

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