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.

Recital 118:

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:

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.

Recital 118:

Each supervisory authority should be provided with the financial and human resources, premises and infrastructure necessary for the effective performance of their tasks, including those related to mutual assistance and cooperation with other supervisory authorities throughout the Union. Each supervisory authority should have a separate, public annual budget, which may be part of the overall state or national budget.

Recital 118:

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 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. Only convention 108 of the Council of Europe did not require that Supervisory Authorities ("SA") are established by the contracting countries. However, the modernised Convention 108 (Article 15) now refers to the requirement of an independent authority.

In terms of Article 52 GDPR, three landmark cases of the CJEU had an influence its wording:

- In Commission vs. Germany, the Court decided that Germany did not correctly implement Article 28(1) of Directive 95/46 (DPD), 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 Directive 95/46 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 found that Austria failed to comply with Article 28 Directive 95/46 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.

- In 2014, in Commission vs. Hungary, the Court found that the complete independence of the SA was not guaranteed due to the premature termination of the mandate of the Commissioner for the protection of personal data, at the occasion of a re structuration of the SA.

(1) Complete Independence

Article 52(1) GDPR refers to the complete independence as reflected in Article 8(3) CFR, and Article 16 TFEU.

According to the Court, complete independence means that the decision-making power is totally independent of any direct or indirect external influence on the supervisory authority. This covers the so-called functional and organisational independence.

The SAs must act independently in any action they are taking. That covers not only decisions but also all tasks and powers referred to in Article 58 GDPR.

(2) Freedom from External Influence

The second paragraph should be read in the light of the case law of the CJEU, in the three cases mentioned above: the SAs must be able to act objectively and impartially and free form of influence that might have an effect on their decision, tasks and powers.

Direct influence refers to instructions given to a SA, on whatever aspect of its work. Indirect influence covers means that SA must remain above all suspicion of partiality. The mere possibility to exercise a political influence over their decisions is enough to conclude to the absence of independence of the SA.

Beside that functional influence, the organisation for the SA should also ensure its independence towards any influence. In the Austria case mentioned above, the fact that the SA was integrated within the department of the Chancellery led the CJEU to conclude that the SA lacked of independence.

Similarly, the restructuring of a SA, leading to the early termination of the mandate of the commissioner in charge without objective justification, was a violation of the requirement of complete independence under the DPD.

(3) Prohibition Against Incompatible Actions

Article 53 GDPR does not list 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.

(4), (5) Sufficient Resources

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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