Article 72 GDPR

← Article 72 - Procedure →
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 72 - Procedure

1. The Board shall take decisions by a simple majority of its members, unless otherwise provided for in this Regulation.

2. The Board shall adopt its own rules of procedure by a two-thirds majority of its members and organise its own operational arrangements.

Relevant Recitals

Recital 72: GDPR Applicability to Profiling

Profiling is subject to the rules of this Regulation governing the processing of personal data, such as the legal grounds for processing or data protection principles. The European Data Protection Board established by this Regulation (the ‘Board’) should be able to issue guidance in that context.

Recital 77: Guidance on Evaluating Risks

Guidance on the implementation of appropriate measures and on the demonstration of compliance by the controller or the processor, especially as regards the identification of the risk related to the processing, their assessment in terms of origin, nature, likelihood and severity, and the identification of best practices to mitigate the risk, could be provided in particular by means of approved codes of conduct, approved certifications, guidelines provided by the Board or indications provided by a data protection officer. The Board may also issue guidelines on processing operations that are considered to be unlikely to result in a high risk to the rights and freedoms of natural persons and indicate what measures may be sufficient in such cases to address such risk.

Recital 136: Opinions and Binding Decisions of the EDPB

In applying the consistency mechanism, the Board should, within a determined period of time, issue an opinion, if a majority of its members so decides or if so requested by any supervisory authority concerned or the Commission. The Board should also be empowered to adopt legally binding decisions where there are disputes between supervisory authorities. For that purpose, it should issue, in principle by a two-thirds majority of its members, legally binding decisions in clearly specified cases where there are conflicting views among supervisory authorities, in particular in the cooperation mechanism between the lead supervisory authority and supervisory authorities concerned on the merits of the case, in particular whether there is an infringement of this Regulation.

Recital 139: EDPB

In order to promote the consistent application of this Regulation, the Board should be set up as an independent body of the Union. To fulfil its objectives, the Board should have legal personality. The Board should be represented by its Chair. It should replace the Working Party on the Protection of Individuals with Regard to the Processing of Personal Data established by Directive 95/46/EC. It should consist of the head of a supervisory authority of each Member State and the European Data Protection Supervisor or their respective representatives. The Commission should participate in the Board's activities without voting rights and the European Data Protection Supervisor should have specific voting rights. The Board should contribute to the consistent application of this Regulation throughout the Union, including by advising the Commission, in particular on the level of protection in third countries or international organisations, and promoting cooperation of the supervisory authorities throughout the Union. The Board should act independently when performing its tasks.

Commentary

Article 72 GDPR regulates the Board's voting procedure. Generally, the GDPR grants the EDPB a high degree of autonomy. In particular, Article 72(2) GDPR entitles the Board to adopt its own procedural rules and operational arrangements, subject to an internal two-thirds majority vote. This autonomy is rooted in the legislative aim of ensuring the Board's independence, as provided for through Article 69 GDPR.

(1) Principle of simple majority

Article 72(1) GDPR establishes that the EDPB shall operate by simple majority. Deviating majority requirements are only permissible insofar as they are provided for in the GDPR. This procedural rule is intended to enable the EDPB to swiftly make a large number of timely decisions to effectively manage the implementation of the GDPR. Unlike the voting procedure of other EU institutions, there are neither blocking minorities nor veto positions. A decision of the “last member” does not exist at the EDPB in this respect.

In principle, the majority of the voting members of the EDPB decides. According to the wording of the provision, the majority of the members present is not sufficient. The voting members always include the heads of the supervisory authority (“SA”) of each Member State (Article 68(3) GDPR). The EDPS is a member, but has only limited voting rights pursuant to Article 68(6) GDPR. In this respect, the minimum number of positive votes required for a decision changes depending on the voting rights of the EDPS. The Commission, however, is never to be taken into account. First, this already follows from the fact that, according to Article 68(3) GDPR, the Commission is not a member of the EDPB. Secondly, Article 68(5) GDPR explicitly states that the Commission has no voting rights. With currently 27 Member States (the three EFTA states that have acceded the EDPB are not entitled to vote), 14 members or, in the case of the EDPS with voting rights, 15 members must vote in favour of a decision. The term “decision” is to be understood broadly. The GDPR only provides for two exceptions to the simple majority rule, where a two-thirds majority is required. These exceptions are for dispute resolution in the consistency mechanism under Article 65(2)(1) GDPR and the adoption of the EDPS’s rules of procedure under Article 72(2) GDPR.

Notably, each EDPB member is granted one vote regardless of the size of its population. This arrangement may give rise to the risk that a majority of smaller members will win a vote despite the fact that they only represent the data protection interests of a small proportion of the European population, despite the fact that decisions affect individuals in all Member States. This makeup arguably threatens the democratic legitimacy of the EDPB’s decisions, and creates the risk that corporations and associations will exert their influence, particularly in smaller Member States where their role in the national economy is crucial. Nguyen argues that this risk is offset by Article 52(1) GDPR which protects SAs from illegitimate influence.

In many places, the GDPR contains provisions (“leges speciales”) that explicitly require a simple majority, although the principle of simple majority is already contained in Article 72(1) GDPR. This requirement is superfluous for the purposes of the EDPB opinion provided for in the consistency mechanism under Article 64(3)(2) GDPR and for the election of the chair and the two deputy chairs under Article 73(1) GDPR. In the case of the latter provision, the wording of which differs from Article 72(1) GDPR, has lead to the view that the majority of the members present would be sufficient. This is not the case. In contrast, the emphasis on the requirement of a simple majority for dispute resolution under Article 65(3)(1) GDPR and for consistency decisions in the urgency procedure under Article 66(4) GDPR is necessary, as these are in this respect backward exceptions. The actual scope of application of the principle introduced in Article 72(1) GDPR in this regard extends to the recommendations, guidelines and best practices under Article 70 GDPR (beyond letter (t)).

However, the provision does not apply to decisions not provided for by the GDPR, which the EDPB may introduce through its own independent procedure. Under Article 72(2) GDPR the Board may adopt its own rules of procedure, unless these would undermine the principle of simple majority for decisions provided for in the GDPR in the broader sense. In the instance of a tie, the procedure under Article 65(3)(2) GDPR could also be applied to decisions made by the EDPB. The procedural regulations in Article 65(3)(2) GDPR establish that in the event of a tie, a decision by the Chair is taken. In practice though, the question of what procedure applies in the instance of a tie has yet to come up. The current rules of procedure only provide for simple majorities. For example, these include the rules regulating the dismissal of the chair and, or deputy chairs in Article 6(2) Rules of Procedure (“RoP”), the holding of extraordinary plenary meetings under Article 18(2) RoP, the holding of a secret ballot under Article 22(4) RoP and the holding of written procedure under Article 24(1) RoP.

(2) Rules of procedure

Article 72(2) GDPR grants the EDPB regulatory autonomy. It can and should decide on the introduction, amendment and abolition of rules on internal working practices and conduct. According to the provision, a two-thirds majority of the voting members is required for this – as an exception within the meaning of Article 72(1) GDPR. The GDPR does not contain detailed content requirements for the RoP.

Article 74(2) GDPR only stipulates that the allocation of tasks between the chair and the deputy chairs shall be laid down therein. Furthermore, Article 76(1) GDPR empowers the EDPB to declare discussions confidential in the rules of procedure if the Board deems it necessary. The EDPB is clearly not entitled to establish rules that deviate from the GDPR. Examples are the specific procedural, cooperation and information provisions of the consistency mechanism under Articles 64 et seq. GDPR; the essential organisational decisions regarding composition; the election of and representation by the chair; the different limited participation of the Commission and the EDPS; as well as the reporting obligations under Article 71 GDPR.

The EDPB first made use of its procedural autonomy when the GDPR came into force on 25 May 2018. The Rules of Procedure (RoP) have been amended several times since then, most recently on 6 April 2022 (8th version). The current version can be found here. The current RoP are divided into eight sections:

1.      Legal nature, tasks and guiding principles of the EDPB (Articles 1 to 3 RoP)

2.      Composition of the EDPB (Articles 4 to 9 RoP)

3.      Adoption of documents and procedure (Articles 10 to 13 RoP)

4.      Secretariat and organisation (Articles 14 to 17 RoP)

5.      Working methods including plenary meetings (Articles 18 to 30 RoP)

6.      General provisions (Articles 31 to 36 RoP)

7.      Coordinated Supervision Committee (Article 37 RoP)

8.      Final provisions (Articles 38 to 41 RoP)

First, some procedural provisions should be highlighted. For example, the EDPB introduced a written and electronic voting procedure with Article 24 RoP. For its implementation, a simple majority decision of the EDPB is required (Article 24(1) RoP). This provision ensures the EDPB's flexibility and ability to act. The EDPB also made use of the authorisation in Article 76(1) GDPR and declared the election of the chair and the deputy chairs confidential in Article 6(1) RoP. In organisational terms, the end of the term of office of the chair and the deputy chairs was regulated, thus filling the corresponding gaps in the GDPR. Furthermore, so-called expert subgroups were introduced by Articles 25 and 26 RoP. These are mainly to prepare the meetings of the EDPB. They consist of members of the Board (i.e. also the EDPS) and are to be supported by staff of the Secretariat (Article 25(4) RoP). Finally, the EDPB has also made use of another power not included in the GDPR. Article 62 of Regulation (EU) 2018/1725 provides that the EDPS and national SAs shall conduct coordinated supervision to ensure effective supervision of large-scale IT systems and of Union bodies, offices and agencies. To this end, the EDPB's Rules of Procedure provide for the establishment of the coordinated supervision committee in Article 37 RoP. This body is autonomous, which is shown in particular by the fact that it adopts its own rules of procedure under Article 37(3) RoP.

Arguably, the EDPB may also determine details of its operational arrangements on an ad hoc basis by means of separate resolutions. A determination in the rules of procedure would not be necessary if it was not a general determination of procedures for the future. This view is justified by the open wording of Article 72(2) GDPR. The wording also leads to the conclusion that ad hoc decisions on procedures do not require a two-thirds majority. This view is to be agreed with. The organisation of “operational arrangements” may be understood as an explication of the term “rules of procedure”.

Decisions

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