Article 58 GDPR

← Article 58 - Powers →
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 58 - Powers

1. Each supervisory authority shall have all of the following investigative powers:

(a) to order the controller and the processor, and, where applicable, the controller's or the processor's representative to provide any information it requires for the performance of its tasks;

(b) to carry out investigations in the form of data protection audits;

(c) to carry out a review on certifications issued pursuant to Article 42(7);

(d) to notify the controller or the processor of an alleged infringement of this Regulation;

(e) to obtain, from the controller and the processor, access to all personal data and to all information necessary for the performance of its tasks;

(f) to obtain access to any premises of the controller and the processor, including to any data processing equipment and means, in accordance with Union or Member State procedural law.

2. Each supervisory authority shall have all of the following corrective powers:

(a) to issue warnings to a controller or processor that intended processing operations are likely to infringe provisions of this Regulation;

(b) to issue reprimands to a controller or a processor where processing operations have infringed provisions of this Regulation;

(c) to order the controller or the processor to comply with the data subject's requests to exercise his or her rights pursuant to this Regulation;

(d) to order the controller or processor to bring processing operations into compliance with the provisions of this Regulation, where appropriate, in a specified manner and within a specified period;

(e) to order the controller to communicate a personal data breach to the data subject;

(f) to impose a temporary or definitive limitation including a ban on processing;

(g) to order the rectification or erasure of personal data or restriction of processing pursuant to Articles 16, 17 and 18 and the notification of such actions to recipients to whom the personal data have been disclosed pursuant to Article 17(2) and Article 19;

(h) to withdraw a certification or to order the certification body to withdraw a certification issued pursuant to Articles 42 and 43, or to order the certification body not to issue certification if the requirements for the certification are not or are no longer met;

(i) to impose an administrative fine pursuant to Article 83, in addition to, or instead of measures referred to in this paragraph, depending on the circumstances of each individual case;

(j) to order the suspension of data flows to a recipient in a third country or to an international organisation.

3. Each supervisory authority shall have all of the following authorisation and advisory powers:

(a) to advise the controller in accordance with the prior consultation procedure referred to in Article 36;

(b) to issue, on its own initiative or on request, opinions to the national parliament, the Member State government or, in accordance with Member State law, to other institutions and bodies as well as to the public on any issue related to the protection of personal data;

(c) to authorise processing referred to in Article 36(5), if the law of the Member State requires such prior authorisation;

(d) to issue an opinion and approve draft codes of conduct pursuant to Article 40(5);

(e) to accredit certification bodies pursuant to Article 43;

(f) to issue certifications and approve criteria of certification in accordance with Article 42(5);

(g) to adopt standard data protection clauses referred to in Article 28(8) and in point (d) of Article 46(2);

(h) to authorise contractual clauses referred to in point (a) of Article 46(3);

(i) to authorise administrative arrangements referred to in point (b) of Article 46(3);

(j) to approve binding corporate rules pursuant to Article 47.

4. The exercise of the powers conferred on the supervisory authority pursuant to this Article shall be subject to appropriate safeguards, including effective judicial remedy and due process, set out in Union and Member State law in accordance with the Charter.

5. Each Member State shall provide by law that its supervisory authority shall have the power to bring infringements of this Regulation to the attention of the judicial authorities and where appropriate, to commence or engage otherwise in legal proceedings, in order to enforce the provisions of this Regulation.

6. Each Member State may provide by law that its supervisory authority shall have additional powers to those referred to in paragraphs 1, 2 and 3. The exercise of those powers shall not impair the effective operation of Chapter VII.

Relevant Recitals

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Commentary

Overview

In order to ensure uniform monitoring and enforcement throughout the Union, the GDPR gives supervisory authorities in each Member State the same tasks and powers. Article 58 GDPR in comment standardizes the powers that data protection supervisory authorities can use in performing their tasks under Article 57 GDPR.

General aspects

Article 58 GDPR standardizes a comprehensive catalogue of investigative, corrective and advisory powers. Such powers result directly from the GDPR and therefore do not need implementation by Member States’ law. Under Article 70(1)(k) GDPR, the EDPB should in principle adopt guidelines regarding the concrete and consistent application of such powers.

In this regard, all DPA’s powers are important. However, under Article 83(5)(e) GDPR, non-compliance with an order or a temporary or definitive limitation on processing or the suspension of data flows by the supervisory authority pursuant to Article 58(2) GDPR or failure to provide access in violation of Article 58(1) GDPR, may result in the highest fines possible. It seems, therefore, that the legislator considers some of the powers described in Article 58 to be crucial for the functioning of DPAs and, in turns, the whole GDPR system.

(1) Investigative powers

A necessary step to enforcing the GDPR and handling data subjects’ complaints is obviously the possibility of carrying out investigations. Article 58(1) GDPR differentiates between different types of investigations.

(a) Information Request

The supervisory authority can instruct the controller, processor and, if applicable, the representative to provide all information that is necessary for the performance of their tasks. Information can be provided, for example, by transmitting documents to the supervisory authority, submitting written statements or replying to questionnaires. In addition to this, Article 30(4) GDPR stipulates that the controller or processor or, if applicable, the representative shall make the record of processing activities available to the supervisory authority on request.

(b) Data Protection Audits

The supervisory authorities can carry out investigations in the form of data protection audits. An audit is commonly understood to be a comprehensive qualitative examination of the effectiveness of procedures within an organization or company. The initial version of Article 58 GDPR limited the scope of the audit to the business premises of the controller [...]. After the Corrigendum of the GDPR, however, the term “business premises” has been replaced by “premises”. It follows that private rooms, where at least a part of the processing takes place, are also included.

(c) Review of Certifications

Under Article 58(1)(c) GDPR a supervisory authority can review certifications issued in accordance with Article 42(7) GDPR as well as the activities of accredited certification bodies within the meaning of Article 43(1) GDPR.

(d) Notification of an Alleged Infringement

In accordance with Article 58(1)(d) GDPR, a DPA can inform a controller or processor about an alleged – i.e. possible, but not yet determined – infringement of the Regulation. Such a notice can be given, for example, directly in connection with a data protection audit, a data subject’s complaint or official information from another DPA. The notice establishes a presumption of a violation of the GDPR, which, however, can be rejected by the controller or the processor. It seems a constructive and proportional approach which gives controllers and processors a chance to know the provisional understanding of the authority and react accordingly, making submissions or bringing the processing into compliance.

(e) Access to Personal Data and All Relevant Information

The powers of investigation of the data protection supervisory authorities also include a right of access to personal data and information in accordance with Article 58(1)(e) GDPR. This type of investigation includes the right to directly access to personal data, inspect internal documents, databases and procedures and therefore is wider and more incisive than the right to (request and) obtain information under Article 58(1)(a) GDPR. Controllers and processors must cooperate with the DPA during the inspection. However, if the cooperation brings to a violation of the Nemo Tenetur principle, it seems possible for the investigated party to lawfully refuse such cooperation.

(f) Access to Premises Including Equipment and Means

Finally, data protection supervisory authorities – similarly to the European Commission and the national competition authorities in EU antitrust proceedings – are given the power to search the controller’s (or processor’s) premises in accordance with Article 58(1)(f) GDPR. According to Körffer, the search is no longer restricted to the business premises but a judge's authorization is obvious with regard to the inviolability of the apartment and similar places. The term “premises” includes all data processing systems and all data processing devices.

(2) Corrective Powers

The corrective powers provided for in Article 58(2) enable the supervisory authorities to restore GDPR-compliant conditions in the event of violations. For this purpose, Article 58(2) GDPR builds a system of powers which should be proportionally used having in mind the type of envisaged violation and the risks for the data subjects. In doing so, a data protection authority has to decide at its due discretion whether exercising a milder remedial power is sufficient to ensure the application and enforcement of the GDPR; or whether they want a higher escalation level must trigger.

(a) Warnings

The mildest expression of the authority’s powers is the warning. The DPA issues it if an intended processing operation is “likely” to violate the GDPR. There are no specifics as to the form of the warning. It follows that it can be issued in writing or orally (although a formal approach appears sensible). The controller can react to a warning by stopping the intended processing operation or bringing it into conformity with the law.

(b) Reprimands

If the authority identifies a violation of the GDPR it may, under Article 58(2)(b) GDPR, issue a reprimand to a controller or a processor. Contrary to what happens in case of a warning, the reprimand indicates that one (or more rarely, several) violation of the GDPR has already occurred. A data protection authority will issue a reprimand if the threshold for imposing a fine has not yet been reached. For these reasons, scholars have defined the reprimand as the “little sister of the fine” or compared it to a “yellow card” from the supervisory authority. However, if a reprimand is disregarded, the DPA can respond by exercising more stringent remedial powers and taking into account the conduct as a factor for a possible administrative fine (Article 83 GDPR).

(c) Orders to Comply with Data Subject’s Requests

Article 58(2)(c) GDPR serves as a second-level remedy in case a controller violates the rights of the data subject. Should that happen, the DPA can then instruct the controller or the processor to comply with the data subject’s request regarding the right to information (Article 13, 14 GDPR), access (Article 15 GDPR), rectification (Article 16 GDPR), erasure (Article 17 GDPR), restriction (Article 18 GDPR), notification (Article 19 GDPR) or data portability (Article 20 GDPR). In these cases, the DPA acts through an “order”. In accordance with Article 83(5)(6) GDPR, ignoring it would expose the controller to a high-fines scenario.

(d) Order to Restore Compliance

The DPA can instruct the controller or processor to bring processing operations in line with the GDPR. There is no limit to the type of instruction. The wording of the law seems to authorize whatever request which could serve the scope of (re)establishing GDPR compliance. Measures include, for example, instructions to take technical and organizational measures within the meaning of Article 32 GDPR, to appoint a data protection officer according to Article 37 GDPR, to create and maintain a record of processing activities according to Article 30 GDPR, to regulate the relationship with a processor by means of a a contract, to change the alignment of surveillance cameras, to change the use of pre-formulated consent within the meaning of Article 7 GDPR. In accordance with Article 83(5)(6) GDPR, ignoring an instruction would also expose the controller to the risk of potentially high-fines.

(e) Communication of a Data Breach to the Data Subject

According to Article 58(2)(e) GDPR of the GDPR, the DPA can instruct the controller to notify persons afftected by a data brach which triggers the notification obligations under Articles 33, 34 GDPR.

(f) Ban on Processing

The data protection supervisory authority can also order a restriction or ban on data processing in accordance with Article 58(2)(f) GDPR. The restriction on data processing can be temporary or permanent. These measures are strict and should be considered only if the controller or processor has shown a particularly disrespectful contempt, as it happens when a previous warning, reprimand or order has been issued and the recipient has disregarded it, taking no action.

(g) Order to Rectify or Erase Personal Data

Article 58(2)(g) GDPR authorizes the data protection supervisory authority to order a correction or deletion of data or a restriction of data processing. This especially comes into consideration if previously an instruction or other order has been disregarded.

(h) Withdrawal of Certification

If a data protection supervisory authority comes to the conclusion that the prerequisites of a previously issued certification are no longer met it may, in accordance with Article 42(7) GDPR, revoke the certification. If the certification is granted by a certification body, the supervisory authority can do so in accordance with Article 58(2) GDPR instruct the body to revoke the certification or not to issue it.

(i) Administrative Fine

The most renowned (although probably not most important) remedy introduced by the GDPR is the imposition of a fine under Article 58(2) GDPR in conjunction with Article 83 GDPR. Their amount, which can go to up to EUR 20 million or, if superior, up to 4 % of its total worldwide annual turnover is determined taking into account the type of violation (Article 83(4)(5) GDPR) as well as other qualitative factors listed in Article 83(2) GDPR, in particular according to the type, gravity and duration of the infringement

The supervisory authority can, but does not have to, impose fines for violations. The relevant decision is at the discretion of the supervisory authority, whereby the considerations mentioned in Article 83 are to be taken into account. The fine can be imposed in addition to or instead of further remedial measures within the meaning of Article 58(2)(a)-(h) GDPR.

(j) Suspension of Data Flows to a Recipient in a Third Country

A final remedy is provided for in Article 58(2)(j) GDPR. According to this, a data protection supervisory authority can order the suspension of data transfer to a third country or to an international organization if the third country or international organization concerned does not or no longer offers an appropriate level of protection within the meaning of Article 45 GDPR.

(3) Advisory Powers

The authorization and advisory powers in Article 58(3) GDPR supplement the investigative and corrective measures DPAs are afforded with. Article 58(3) GDPR lists all those cases in which authorization or approval from a supervisory authority is a prerequisite for acting in accordance with the GDPR. In these cases, the DPA carries out a prior check in order to preventively ensure the application and enforcement of the GDPR. In detail, this concerns the following powers (cf. Article 58 (3) lit. c-j GDPR):

- Approval of processing that is particularly risky for the fundamental data protection right, provided that a member state has made use of the optional specification clause (Article 36(5) GDPR);

- Opinion on and approval of drafts for rules of conduct in accordance with Article 40(5) GDPR and, where relevant, Article 64(1)(b) GDPR;

- Accreditation of certification bodies in accordance with Article 43 GDPR;

- Issuing of certifications in accordance with Article 42(5), if relevant, in accordance with Article 64(1)(c) GDPR;

- Standard contractual clauses in accordance with Article 28(8) GDPR and, if the case, Article 46(2) GDPR;

- Approval of standard contractual clauses for international data transfer in accordance with Article 46(3)(a) GDPR and Article 64(1)(e) GDPR;

- Approval of administrative agreements for international data transfer in accordance with Article 46(3) (b) GDPR;

- Approval of binding corporate rules in accordance with Article 47 GDPR.

(4) Appropriate Safeguards

In the absence of a uniform European administrative procedural law, the powers of the data protection supervisory authorities must in principle be exercised in accordance with the national procedural law of the respective member state. National procedural law must meet certain requirements; in particular, it must provide for due process and effective judicial remedies.

(5) DPAs in Courts

This provision contains an opening clause that must be filled out by the legislators of the member states. According to this, supervisory authorities must always have the power to bring violations of the GDPR to court. Specifying national legal provisions must decide whether a data protection supervisory authority itself has a right of action or whether it has to involve the national judicial authorities, which in turn have to initiate judicial proceedings. The GDPR allows the member states to insert the enforcement powers of the national data protection supervisory authorities into the national legal system [CITE].

(6) Additional Powers Provided by National Law

According to paragraph 6, each MS can stipulate that its supervisory authority receives further powers in addition to those mentioned in paragraphs 1-3, provided that this not impair the effective implementation of Chapter VII of the GDPR on cooperation and coherence. Based on the express wording of paragraph 6, it can be assumed that the supervisory authorities may be given additional powers, but that the existing powers may not be restricted. A contrary view cannot be derived from any other provision of the GDPR.

Decisions

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