Article 55 GDPR

← Article 55 - Competence →
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 55 - Competence

1. Each supervisory authority shall be competent for the performance of the tasks assigned to and the exercise of the powers conferred on it in accordance with this Regulation on the territory of its own Member State.

2. Where processing is carried out by public authorities or private bodies acting on the basis of point (c) or (e) of Article 6(1), the supervisory authority of the Member State concerned shall be competent. In such cases Article 56 does not apply.

3. Supervisory authorities shall not be competent to supervise processing operations of courts acting in their judicial capacity.

Relevant Recitals

Recital 20: Respect to the Independence of the Judiciary

While this Regulation applies, inter alia, to the activities of courts and other judicial authorities, Union or Member State law could specify the processing operations and processing procedures in relation to the processing of personal data by courts and other judicial authorities. The competence of the supervisory authorities should not cover the processing of personal data when courts are acting in their judicial capacity, in order to safeguard the independence of the judiciary in the performance of its judicial tasks, including decision-making. It should be possible to entrust supervision of such data processing operations to specific bodies within the judicial system of the Member State, which should, in particular ensure compliance with the rules of this Regulation, enhance awareness among members of the judiciary of their obligations under this Regulation and handle complaints in relation to such data processing operations.

Recital 122: Competence of Supervisory Authorities

Each supervisory authority should be competent on the territory of its own Member State to exercise the powers and to perform the tasks conferred on it in accordance with this Regulation. This should cover in particular the processing in the context of the activities of an establishment of the controller or processor on the territory of its own Member State, the processing of personal data carried out by public authorities or private bodies acting in the public interest, processing affecting data subjects on its territory or processing carried out by a controller or processor not established in the Union when targeting data subjects residing on its territory. This should include handling complaints lodged by a data subject, conducting investigations on the application of this Regulation and promoting public awareness of the risks, rules, safeguards and rights in relation to the processing of personal data.

Recital 128: No Lead Supervisory Authority for Processing Carried Out by Public Authorities or Private Bodies in the Public Interest

The rules on the lead supervisory authority and the one-stop-shop mechanism should not apply where the processing is carried out by public authorities or private bodies in the public interest. In such cases the only supervisory authority competent to exercise the powers conferred to it in accordance with this Regulation should be the supervisory authority of the Member State where the public authority or private body is established.

Commentary

Article 55 is a provision on jurisdiction. According to the general rule in paragraph 1, a supervisory authority (SA) has jurisdiction on the territory of its Member State. Paragraphs 2 and 3 contain competence rules for two specific situations, overlaying the principle of territorial competence. Processing in public interest, in the exercise of public authority or to comply with a legal obligation (point c and e of Article 6(1) GDPR) is always supervised by the SA of the Member State concerned, also in cross-border cases. Second, processing by judiciary is partially exempt from supervision by SAs to safeguard the independence of judiciary (separation of powers).

Additionally, Article 56 GDPR contains rules on competences of SAs in cases of cross-border processing. A cross-border case occurs and thus Article 56 GDPR is to be consulted where data is processed by several establishments of a processor or controller in the EU/EEA or when processing substantially affects (or is likely to sustainably affect) data subjects in more than one Member State, as per legal definition of cross-border processing in Article 4(23) GDPR.

(1) Territorial competence of supervisory authorities (SAs)

The jurisdiction of a SA is limited to the territory of its own Member State. SAs are entitled to act and exercise their powers on the territory of its own state and their competence ends at the border of it's Member State. This reflects the basic principle of public international law, the principle of sovereignty: a state has the power to enforce the law within its national borders through its national authorities. On the other hand, each state is prohibited to exercise power or authority on the territory of another state.

Example: French DPA can conduct an investigation on the premises of a controller, if the premises is located in France. At the same time the French DPA cannot on its own conduct an investigation on the premises of a processor, if the premises is located in Spain.

It also means that a decision issued by a SA cannot be enforced in another state.

Example: If the Austrian SA would issue a decision by which it would ban further processing of data and impose a 150.000 EUR fine against a controller from France that has no establishment in Austria the Austrian authority would not have the power or any means to force the controller to comply with the decision and pay the fine since it is not on the territory of Austria.

This was confirmed by CJEU in C-230/14 - Weltimmo. The judgement, among others, confirmed the territorial nature of competences, performance of tasks and exercising of powers of SAs. It concerned the interpretation of Article 28 GDPR of Directive 95/46, the GDPR predecessor,. It stays relevant with regard to guiding principles regarding SAs' competences, including their duty to cooperate with other SAs, where necessary to enforce the law in order to provide effective protection to individuals.

Case law: In C-230/14 - Weltimmo, CJEU ruled that a SA is able to exercise the effective powers of intervention conferred on it in accordance with Directive 95/46 only within the territory of its own Member State. Accordingly, it can hear claims by persons who consider themselves victims of unlawful processing of their personal data and exercise investigative powers vis-à- vis the company established in another state which was directing its activities to residents of its state. However, it cannot impose penalties on the controller who is not established in their territory. Therefore, the SA must request the SA of the Member State of the establishment of the controller to act in this part, as individuals must be afforded effective protection under the law.

The limitation of jurisdiction to the territory of the state “confirms the role of SA as enforcement authorities, having competence on national territory equal to other public bodies and judicial authorities.”

Is competent

A SA is competent to perform tasks assigned to it and exercise powers conferred on it by the GDPR on the territory of its own state. Recital 122 clarifies that competence is vested with a SA of a Member State in particularly where processing takes place in the context of the activities of an establishment on its territory, affects data subjects on its territory, or where processing, by a controller or processor without an establishment in the EU/EEA, is targeting data subjects residing on its territory. Recital 122 reference points reflect the criteria defining the territorial application of the GDPR from Article 3. As a result there is always a SA competent to supervise and enforce the application of GDPR whenever the GDPR applies.

To have jurisdiction in situations where competence is linked to the establishment on its territory data does not need to be physically processed by the controller or processor nor must the controller or processor be formally registered in that state. The concepts of "in the context of its activities" and "establishment" are much wider.

Case law: In Google Spain CJEU ruled that personal data, which were de facto processed by the global search engine provider Google Search, were also processed in the context of the commercial and advertising activities of its Spanish subsidiary that was promoting and selling advertising space offered by that engine in the territory of Spain and thus making the service offered by that engine profitable. First the CJEU held that the activities of the operator of the search engine and those of its Spanish establishment are inextricably linked. The advertising space offered serves to make the search engine economically profitable and the engine enables the advertising activities to be performed. Then it concluded that since the display of results containing personal data is accompanied, on the same page, by the display of advertising linked to the search terms (name of the data subject), the processing of personal data in question is carried out in the context of the commercial and advertising activity of the controller’s establishment on the territory of that state.

According to CJEU concept of ‘establishment’ extends to any real and effective activity, even a minimal one, exercised through stable arrangements. "Legal form of such arrangements, whether through a branch or a subsidiary with a legal personality, is not the determining factor." Recital 22 GDPR resonates these case law.

Case law: In Weltimmo CJEU considered that operating a website by a company of one state in the language of another state and having, among others, a representative in that state, who was actively involved in certain operations of the company in that state, presents real and effective activity through stable arrangements vesting the competence to hear claims of individuals with the SA of that state. The representative has sought to negotiate the settlement of the unpaid debts with the advertisers, served as a point of contact between that company and the data subjects who lodged complaints and represented the company in the administrative and judicial proceedings. He had a Hungarian address and was also recorded in the Slovak companies registry with that address.

On the other hand, as confirmed in C-191/15 - Verein für Konsumenteninformationen, the mere accessibility of a website in a Member State does not suffice to constitute establishment and vest competence with the SA of that state.

The concepts of "in the context of its activities" and "establishment" are further discussed in Article 4 GDPR of this commentary.

The wide and flexible concept and interpretation of competences is intended to ensure effective and complete protection of individuals.

Where one of the links between the processing and territory (establishment, affect on data subjects or targeting of data subjects) exists SA of that Member State is competent the extend to which a SA will be competent with regard to a specific data processing depends on existence of transnational elements, an establishment in the EU/EEA and if the processing concerned is cross-border. The competence will be either allocated between a lead supervisory authority and other supervisory authorities concerned (cross-border processing, Article 56 GDPR), a case will have to be handled based on mutual assistance (Article 61) and joint operations (Article 62) provisions or SA of each member state will be competent with regard to data subjects residing on its territory (no establishment in the EU).

Performance of tasks and exercise of powers

The competence of a SA extends to all of the tasks assigned to it and powers conferred to it by the GDPR, as long as the tasks are performed and the powers exercised on the territory of its own Member State. This is confirmed by the wording of Articles 57 and 58 GDPR the main articles on tasks and powers of SAs, respectively. Both Articles explicitly limit SA's performance of entailed tasks and the exercising of conferred powers to the territory of its own Member State.

The competence with regard to tasks and powers "include handling complaints lodged by a data subject, conducting investigations on the application of this Regulation and promoting public awareness of the risks, rules, safeguards and rights in relation to the processing of personal data" as noted in Recital 122.

While Article 55 GDPR vests the competence with the SA to perform tasks assigned to it and powers conferred to it, Articles 57 and 58 GDPR impose the obligation to perform all the tasks and exercise the powers, when applicable.

Competence on the territory

National cases

The competent SA is simple to determine in cases where the processing concerned takes place within the establishment of a controller or processor in one Member State and concerns only data subjects on the territory of the same state. The national SA of that state will be competent to handle a complaint, conduct an investigation, issue a decision and a fine or to carry out any other task and exercise any other power confered on it by the GDPR.

Example: Polish SA will be competent to handle a complaint lodged with it by a Hungarian citizen living in Poland with regard to processing of her data by the Polish company Moonlight.

Transnational cases

On the other hand, in cases with transnational elements several SAs from different Member States could be competent with regard to a specific processing considering the various reference points sufficing to establish competence according to Recital 122. For instance, if the data of a data subject of one Member State is processed by a controller established in another state or if one controller processes data of data subjects from different Member States. At the same time, due to the territorial limitation of SA's competences to its own Member State several SAs may have to work together to provide for effective protection and enforcement of the GDPR. GDPR addresses these situations.

For cross-border processing, where processing takes place in more than one establishment of a processor or controller in the EU/EEA or where processing substantially affects or is likely to substantial affect data subjects in more than one Member State the competences are allocated between SAs, which would be competent under Article 55(1) GDPR, as provided in Article 56 GDPR in connection with Article 60 GDPR. The SA of the main or single establishment of the controller or processor acts as the lead supervisory authority, while other supervisory authorities participate in the procedure and decision taking as supervisory authorities concerned. Under the one stop shop mechanism the competences with regard to individual tasks and powers are divided or shared between the SAs of different states. For more information see section bellow and commentary to Articles 56 GDPR and 60 GDPR. As a rule the LSA (SA of the main/single establishment) is competent to issue a decision and take other legally binding measures against the controller or processor, while the SA where the complaint was lodged keeps the competence in relation to the data subject. The data subject must be informed about the procedure and can participate in the procedure through the national SA. Also the decision rejecting or dismissing his complaint must be issued by the SA where the complaint was lodged, so he can appeal it before the national courts according to Article 78 GDPR.

In Articles 61 and 62 GDPR provides for assistance and joint operations of SAs from different Member States when they have to work together to effectively supervise and enforce the application of the GDPR when there are transnational elements, without the conditions for cross-border processing being fulfilled.

The jurisdiction of a SA and its coercive power is limited to the territory of its own state due to the principle of sovereignty. This means that a SA of one Member State cannot use its powers outside the borders of it's state, on the territory of another state. The provision should not be understood as an obligation that each SA must be competent for the whole territory where several SAs co-exist in one Member State. It is a question of national law to determine the jurisdiction of SAs when a state takes advantage of the option provided under Article 51(3) GDPR to establish several SAs.

CJEU ruled on the territorial limitation of performance of tasks and exercising of powers in Weltimmo judgement (C-230/14).

Case law: In case C-230/14, Weltimmo, CJEU stated that a SA cannot impose penalties outside the territory of its own Member State but it can examine a complaint and exercise investigative powers against a company established in another Member State which was directing its activities to residents of its state. For finding an infringement and imposing penalties the SA must request cooperation of SA of the establishment in accordance with the rules on cooperation. At the same time CJEU pointed out that “the law should make it possible for individuals to enforce their right to protection” Where a SA is competent when processing carried out by a controller or processor not established in the EU/EEA is targeting data subjects residing on its territory. The targeting can be done in relation to offering goods or services or through monitoring their behaviour. This refers to situations when GDPR is applicable according to Article 3(2) GDPR. In these situations, several SAs can be competent to act in parallel, each with regard to the processing of data of their residents.

In this situations the main question is how to enforce a decision when a violation of the GDPR is established. In particularly, how corrective measures and fines can be enforced, since the controller or processor are located outside the territory and thus outside the reach of any Member State, especially in situations when a controller has not designated a representative on  the territory of the European Union (in breach of Article 27(1) GDPR). In such situations s SA may ask the competent authorities of the country of the processor for cooperation under an international agreement between the countries. It may also order that the data has to remain within the Union and cannot be transferred to a third country.

No rule on applicable law

The GDPR in several provisions mandates Member States to adopt more specific national rules on data protection, such as on special categories of data (Article 9 GDPR) or human resources data (Article 88 GDPR). It is not evident which national law is applicable in such instances as GDPR does not contain any rules on applicable law for data processed within the Union. The SA of one state may have to apply the national rules of another state in such cases concerning such situations.

Auch wenn der Territorialitätsgrundsatz grundsätzlich einen Gleichlauf zwischen der Zuständigkeit einer nationalen Datenschutz-Behörde und dem anwendbaren Recht verlangt, sind bei der aufsichtsbehördlichen Zusammenarbeit in Fällen der grenzüberschreitenden Datenverarbeitung Modifikationen dieses Grundsatzes möglich. So sieht Art. 62 Abs. 3 vor, dass bei gemeinsamen Maßnahmen von mehreren Datenschutz-Aufsichtsbehörden eine Datenschutz-Aufsichtsbehörde den an der gemeinsamen Maßnahme beteiligten Mitgliedern oder Bediensteten der unterstützenden Datenschutz-Aufsichtsbehörde Befugnisse einschließlich Untersuchungsbefugnisse übertragen oder es diesen gestatten kann, dass sie ihre Untersuchungsbefugnisse nach dem Recht des Mitgliedstaats der unterstützenden Datenschutz-Aufsichtsbehörde ausüben. Es ist allerdings darauf hinzuweisen, dass unter der unmittelbaren und einheitlichen Geltung der DS-GVO das von den nationalen Datenschutz-Aufsichtsbehörden anzuwendende Recht grundsätzlich identisch ist; insbesondere sind gemäß Art. 57 und Art. 58 die Aufgaben und Befugnisse der nationalen Datenschutz-Aufsichtsbehörden umfassend harmonisiert, so dass es im Ergebnis keine Rolle spielen sollte, welche Datenschutz-Aufsichtsbehörde im Einzelfall auf der Grundlage der DS-GVO tätig wird. SELMAYR, RN 8

(2) Exclusive competence regarding processing for compliance with a legal obligation or in the public interest

Article 55(2) GDPR regulates the SA’s competence in case of processing carried out by public authorities or private bodies complying with a legal obligation or performing a task in the public interest. The provision confirms the competence of the SA in whose Member State the public authority or private body is located. In such cases, Article 56 GDPR will not apply and the only competent SA to exercise its powers should be the one where the public authority or private body is established. This rule thus establishes the exclusive jurisdiction of the national SA.

The rule should prevent SAs of another state from monitoring public authorities and other bodies carrying out tasks in public interest. Also, the monitoring of processing of data to comply with a legal obligation imposed by the public law of a Member State, such as collection of telecommunication data, should be subject to control by the national SA of that state.

Processing carried out by public authorities

This provision applies to public authorities when they perform their public duties by virtue of Article 6(1)(c)(e) GDPR. According to Recital 128 GDPR the rules on the LSA and the one-stop-shop mechanism should not apply where the processing is carried out by public authorities. In such cases the only supervisory authority competent should be the supervisory authority of the state where the public authority is established.

Any other activities by a public body, such as publicly owned undertaking, that would not be performance of public tasks, such as commercial activities, are not subject to the exception under Article 55(2) GDPR. There may be a LSA.

Processing carried out by private entities performing tasks under a legal obligation or under the public interest

Also, private entities performing tasks under a legal obligation or in the public interest will not be subject to the cooperation mechanism. That would imply that the obligation of air carriers to retain data or data retention obligation of electronic communication providers would not be subject to the one-stop shop procedure. However, when the private entity is processing data under any other legal basis than Article 6(1)(c)(e), for example based on consent or contract (Article 6(1)(b)), the same entity is subject to Article 56. This means that in case of cross-border processing the LSA will be responsible for monitoring the entities' compliance with the GDPR. This can lead to situations where the same entity can be subject to monitoring by different SAs in relation to different processing of same data.

For example: Passenger data that are collected by airlines for commercial purposes are subject to control by the LSA (SA of main establishment of the airline). When data on passengers is transferred to the public authority where the plane will land or take off under Article 8 Directive 2016/681, the transfer is subject to the control of the SA of the Member State on the territory of which the plane will land or take off.

(3) Limited competence for supervision of courts

In order to protect the independence of the judiciary, Article 55(3) GDPR exempts SAs from supervising the activities of courts and other judicial authorities when they are acting in their judicial capacity. That does not mean that their activities are not subject to the GDPR, since this would be contrary to Article 8(3) of the Charter of Fundamental Rights (CFR) but rather that the monitoring of personal data by the judiciary should be entrusted to specific bodies within the judicial system of the Member State.

Courts

Even if Article 55(3) GDPR only mention courts, it seems obvious that other judicial bodies – such as the prosecutor office – should be subject to independent supervision separate from the SA. This is confirmed by Article 80 of the Law Enforcement Directive (Directive (EU) 2016/680) that states that courts and other independent judicial authorities should always be subject to independent supervision.

Supervisory authority (SA) is (not) competent

Courts are not totally exempt from control by SAs. They are exempt only when they are acting in their judicial capacity, but not regarding activities that are outside their judicial capacity.

Case law: CJ EU considered in case C-245/20 - Autoriteit Persoonsgegevens that processing of personal data carried out in the context of a court's communication policy on cases falls outside the competence of a SA.

On the other hand, activities of judicial administration, such as practices, procedures and offices that deal with the management of the system of the courts are subject to the control by a SA. Thus, processing of the data of the staff hired by a court remains subject to the supervision of the SA.

Acting in judicial capacity

Case law: In case C-245/20 - Autoriteit Persoonsgegevens CJ EU clarified that processing operations carried out by courts ‘acting in their judicial capacity’ must be understood, as not being limited to the processing of data in specific cases, but as referring, more broadly, to all processing operations carried out by courts in the course of their judicial activity whose supervision by a SA would be likely, whether directly or indirectly, to have an influence on the independence of their members or to weigh on their decisions.

Decisions

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