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

Pursuant to Article 55(1) GDPR, the Supervisory Authority (“SA”) has jurisdiction on the territory of its Member State. This rule echoes the provision in Article 3(1) GDPR on the territorial application of the GDPR. In particular, the SA’s jurisdiction applies to the processing of personal data carried out in the context of the activities of an establishment of the controller in that Member State. With respect to that establishment, therefore, the SAs may perform the tasks and exercise the powers conferred by the GDPR. Article 55(2) GDPR confirms the above rule for processing carried out in the public interest and for the exercise of an official task of the SA (Article 6(1)(c) and (e) GDPR), with the only clarification that the cooperation mechanism of Article 56 does not apply in these cases. Finally, Article 55(3) GDPR excludes SAs from supervising the work of the courts in the exercise of their judicial function.

(1) Competence of the Supervisory Authority

Article 55(1) GDPR expresses a basic principle of public international law: a State has the power to enforce the law within its national borders through the authorities with which it has entrusted itself. In terms of data protection, under Article 55(1) GDPR, the competence of the national SA follows the principle of establishment expressed in Article 3 GDPR.

In particular, if a controller has an establishment within a Member State, the authority of that State will have jurisdiction over it, regardless of where the processing is carried out. The competence of a SA on a territory of its own Member State includes’ among the others, “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”.

However, it should be pointed out that Article 55 GDPR has an important derogation, provided for in the subsequent Article 56 GDPR (the so-called, “one-stop shop procedure”). The latter applies when a cross-border processing of data takes place and the main establishment of the controller (or its single establishment within the European Union) is located in another Member State. In such cases, the SA competence is assigned to the authority of the main establishment.

(2) Responsibility Regarding Processing 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.

This provision applies to public authorities when they perform their public duties by virtue of Article 6(1)(c)(e) GDPR. Any other activities that would not be performing public tasks, such as commercial activities, are not subject to Article 55(2) GDPR. Also, private entities performing tasks under a legal obligation or under 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.

(3) Processing by the Judiciary in Their Judicial Capacity

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.

Moreover, Article 80 of the Law Enforcement Directive (Directive (EU) 2016/680) states that courts and other independent judicial authorities should always be subject to independent supervision. 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. However, Article 55(3) GDPR does not define what the term “acting in their judicial capacity” determines.  Whereas the processing of the data of the staff hired by a court remains subject to the supervision of the SA, it remains unclear whether that is the case with the publication of a court’s decisions on its website.

In this context, a preliminary ruling is pending before the CJEU. The referring court asks the CJEU whether Article 55(3) GDPR must be interpreted as meaning that “processing operations of courts acting in their judicial capacity” can be understood to mean the “provision by a judicial authority of access to procedural documents containing personal data, where such access is granted by making copies of those procedural documents available to a journalist”.

Decisions

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