Article 52 GDPR

← Article 52 - Independence →
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 52 - Independence

1. Each supervisory authority shall act with complete independence in performing its tasks and exercising its powers in accordance with this Regulation.

2. The member or members of each supervisory authority shall, in the performance of their tasks and exercise of their powers in accordance with this Regulation, remain free from external influence, whether direct or indirect, and shall neither seek nor take instructions from anybody.

3. Member or members of each supervisory authority shall refrain from any action incompatible with their duties and shall not, during their term of office, engage in any incompatible occupation, whether gainful or not.

4. Each Member State shall ensure that each supervisory authority is provided with the human, technical and financial resources, premises and infrastructure necessary for the effective performance of its tasks and exercise of its powers, including those to be carried out in the context of mutual assistance, cooperation and participation in the Board.

5. Each Member State shall ensure that each supervisory authority chooses and has its own staff which shall be subject to the exclusive direction of the member or members of the supervisory authority concerned.

6. Each Member State shall ensure that each supervisory authority is subject to financial control which does not affect its independence and that it has separate, public annual budgets, which may be part of the overall state or national budget.

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

Article 8(3) CFR as well as Article 16(2) TFEU and Article 39 TEU require independent authorities to monitor and enforce the application of data protection law. Article 52 specifies the elements of such independence, making it clear that the authority and its members must exercise their functions without any external influence and without any conflict of interest. In order to make these principles operational, the provision requires Member States to provide the AS with adequate financial and organisational means for this purpose.

(1) Complete Independence

Under Article 52(1) GDPR, each supervisory authority shall act with complete independence in performing its tasks and exercising its powers.

In order to be 'complete', independence must be achieved on several fronts. Obviously, the authority must be independent with respect to the entities, controllers or processors, over which it is required to exercise control. However, independence also applies to any other entity that may exercise any kind of direct or indirect control over the decision-making capacity of the SA, including the Commission. To give an example, while Member States are free (within the parameters of the GDPR) to adopt or amend the institutional model that they consider to be the most appropriate for their supervisory authorities, "in order to comply with the requirement of 'complete independence', the supervisory authority must be placed outside the classic hierarchical administration".

That said, even complete independence has limits. For example, it does not exclude that the appointment of SA members is made by political bodies such as the parliament or the government (Article 53(1) GDPR) or that their actions (including their inactivity) may be subject to judicial review (Article 78 GDPR).

(2) Freedom from External Influence

The second paragraph addresses the members of the SA during the performance of their duties. On the one hand, it requires them to remain free from external influences, whether direct or indirect, and on the other hand, it prohibits them from seeking or taking instructions from anyone.

The provision should be read in the light of the case law of the CJEU. In particular, in Commission vs. Germany, the Court decided that Germany did not correctly respect such standard (Article 28(1) of Directive 95/46) considering that the fact that the SA competent for the private sector were subject to governmental supervision, and state scrutiny, which allowed the government to influence, directly or indirectly, the decisions of the SAs, and even to cancel or replace these decisions. The Court specified that the notion of "complete independence" in Article 28 DPD must be given a broad and autonomous interpretation, and aligned on the Article 44 of Regulation 45/2001. Likewise, in Commission vs. Austria, the Court held that Austria failed to comply with Article 28 DPD by allowing an influence of the government on the SA for the following reasons: the managing member of the SA was an officer working for the Federal Chancellor office and under direct supervision of the Chancellor, the office of the SA was integrated within the department of the Federal Chancellery, and the right of the Chancellor to be informed on all aspects of the work of the SA. Finally, In 2014, in Commission vs. Hungary, the Court found that the complete independence of the SA was not guaranteed due to the possibility of prematurely terminating the mandate of the Commissioner.

To sum up, the SAs must be able to act objectively and impartially and free from any influence that might have an effect on their decision making process, tasks and powers. Direct influence refers to instructions given to a SA, on whatever aspect of its work. The mere possibility to exercise a political influence over their decisions is enough to conclude to the absence of independence of the SA. Indirect influence, on the other hand, occurs whenever the SA's actions may be affected by external factors, such as when the mandate of the members may be terminated at any time. In the Court's view, this generates a form of 'prior compliance' which is incompatible with the free and independent exercise of its functions.

Given these conditions, the question arises as to what is, or rather what should be, the scale of national legislative intervention to ensure effective independence during the term of office. The problem is particularly pressing where certain professional categories are concerned, such as legal advisers in the private sector. In this case, too, a form of prior compliance can be envisaged, not so much with respect to political or governmental bodies, but rather with respect to positions taken previously, or to the risk that certain 'unpopular' decisions may reduce the number of job opportunities after the end of the mandate. In this sense, one possible solution might be to provide the SA's appointed members with a medium to long-term financial emolument that would allow them to free themselves from reductive calculations on their professional future.

(3) Prohibition Against Incompatible Actions

Under Article 53(3) GDPR, members of each supervisory authority shall refrain from any action incompatible with their duties and shall not, during their term of office, engage in any incompatible occupation, whether gainful or not. The provision does not list neither the actions nor the occupations that are supposed to be incompatible with a function within the SA. However, Article 54(1)(f) GDPR requires the Member States to regulate the matter in their national legislation.

Incompatible Action

Given that, as mentioned above, the matter of which action or activity is incompatible must be defined by the individual Member States, it is possible to outline some examples of actions which can be said to be certainly incompatible with the function of an SA member. The receipt of gifts, whether tangible or intangible, promises or any other form of benefit is certainly incompatible. At the same time, and to the extent possible, AS members should avoid frequent private contact with potential counterparties or representatives of controllers or processors, at least those against whom investigations are being conducted.

Incompatible Activity

In the case of activities, the wording of paragraph 3 makes no difference whether these are professional, part-time or voluntary. The decisive factor is whether the respective activity is "incompatible" with the office. This is meant to avoid the evil appearance of reduced independence and neutrality, comparable to the rules on bias. This is to be judged according to a prognostic scale. Therefore, there will be an incompatibility if the activity may lead to conflicts of interest with the independent exercise of office and influence on the office, whether in an economic, political or other way, is not excluded. Typically incompatible is, for example, accepting a job within a company that can be scrutinised by the DPA. Same goes for paid or unpaid legal advice, unless the client is located outside the SA's own jurisdiction. However, even in these cases, it must be examined whether there can be a connection to one's own official business. The latter may be the case, for example, if it is the establishment or processor of a body to be controlled in its own jurisdiction. When carrying out activities as a tax consultant or lawyer, it must be analyzed, especially with regard to the mandate and the task to be assigned, whether collisions with supervisory tasks can occur. However, at least in principle, such freelance activities are not incompatible with the office.

(4) Sufficient Resources

A harmonised data protection law at a high level and an independent supervisory authority with numerous powers are pointless if this authority cannot or only ineffectively carry out its tasks due to a lack of staff and equipment. Thus, in accordance with paragraph 4, Member States shall ensure that each supervisory authority is provided with the human, technical and financial resources, premises and infrastructure necessary for the effective performance of its tasks.

Human resources relate, on the one hand, to the necessary level of staff and, on the other hand, to the presence of qualified personnel to carry out the tasks and exercise of powers. This requires above all employees with a training background in the fields of law and computer science. Within the framework of the applicable salary structures, it must be ensured that the remuneration is designed in such a way that high-quality employees can be recruited in competition with the private sector.

Technical resources are aimed at an appropriate equipment with hardware and software in order to be able to carry out the transferred official business. The supervisory authorities must be at the cutting edge of information and communication technology in order to be able to carry out their monitoring tasks.

Financial resources includes the budget needed for the stable functioning of the SA as well as resources for unforeseen tasks. This includes, for example, funds for travel expenses, also for participation in further education and training, for the implementation of conferences and workshops, for obtaining external expertise in difficult legal issues or in legal representation or for the short-term reinforcement of staff coverage in the event of special workload.

Another essential element for the proper functioning of the AS is of course the premises and infrastructure. The AS should be equipped with premises with adequate space to ensure the permanence of its members and the confidentiality of meetings. Communication and security infrastructures commensurate with the sensitivity of the task are obviously needed.

Finally, all the above elements should take into account the activities carried out "in the context of mutual assistance, cooperation and participation in the Board". The authority should therefore have at its disposal, for example, linguistic interpreters when the collegial work requires the translation of documents or the interaction with colleagues of a different language, encrypted communication systems to maintain the secrecy of the investigations and, more generally, adequate financial cover for travel and joint investigations.

(5)

To be efficient, and deal with their tasks, the SAs should receive the financial, organisational, technical and human resources necessary to deal with their multiple tasks and use their powers. These tasks include the participation in the cooperation and consistency mechanisms: that involves staff attending the EDPB meetings, cooperation with the other SAs under the consistency mechanism (one-top-shop) but also technical and financial resources to cooperate with the other authorities.

In order to ensure complete independence of their resources, the SAs should be able to hire and select their own staff, who should be under their supervision.

(6) Financial Control

Of course, the independence of the SAs does not mean that they cannot receive a budget which is subject to the monitoring and control mechanisms regarding their financial expenditure. Paragraph 6 now requires that each SA has a separate budget annual budget.

Decisions

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