Article 53 GDPR

← Article 53 - General conditions for the members of the supervisory authority →

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 53 - General conditions for the members of the supervisory authority

1. Member States shall provide for each member of their supervisory authorities to be appointed by means of a transparent procedure by:

— their parliament;

— their government;

— their head of State; or

— an independent body entrusted with the appointment under Member State law.

2. Each member shall have the qualifications, experience and skills, in particular in the area of the protection of personal data, required to perform its duties and exercise its powers.

3. The duties of a member shall end in the event of the expiry of the term of office, resignation or compulsory retirement, in accordance with the law of the Member State concerned.

4. A member shall be dismissed only in cases of serious misconduct or if the member no longer fulfils the conditions required for the performance of the duties.

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 121: General Conditions for the Member(s) of Supervisory Authorities

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 53 GDPR regulates, for the first time by means of a European law, the manner of appointment of the members of the supervisory authority (SA), the qualities required to hold office, certain elements relating to the termination of office and the minimum conditions for removal in the event of misconduct. The provision, which partly integrates Articles 51, 52, 54 GDPR, has different characteristics depending on the different paragraphs. In some cases, it is directly applicable as a provision of an EU regulation, in others, it requires legislative intervention by the member states.

(1) Authority appointing the members of the supervisory authority

In line with the specificities of the different constitutional and organisational rules, this provision leaves the decision on how the members of the supervisory authorities should be appointed up to the members states.^[1]

Transparent procedure

Irrespective of which body makes the appointment, the procedure must be transparent. The GDPR does not provide any further information on how this should be structured. However, as a minimum requirement of transparency, publicity of the selection process should be fully adopted. The procedure should also show that several alternatives have been considered and evaluated according to the criteria specified by the GDPR.^[2]

Example:

Appointing body

naming in particular a procedure by the parliament, the government, the head of state or an independent body. It is regrettable that the appointment procedure will therefore always imply a political decision, since the four authorities listed in Article 53(1) GDPR are political organisations.^[3]

(2) Qualification, expertise and skills of the member(s)

Article 52(2) GDPR stipulates that each SA member shall have the qualifications, experience and skills, in particular in the area of the protection of personal data, required to perform its duties and exercise its powers. These competence requirements serve two purposes. On the one hand, at least in theory, they enable the SA to equip itself with qualified staff according to the respective competences (legal department, technical department and PR). On the other hand, they act as a minimum barrier against appointments of a purely political nature, without adequate professional preparation.^[4] Apart from these minimum standards, Article 53(2) does not require member states to test the knowledge of the members.

Qualifications

The “qualification” includes the educational background, such as the completion of vocational training, the completion of a course of study, the acquisition of additional qualifications, and further training certificates in relation to the activities of the SA. The qualification is thus aimed at proving that theoretical knowledge has been acquired.

Experience

The “experience” establishes a temporal reference in that what was learned has been applied and deepened in the practical activity.

Expertise

“Expertise” concerns the acquisition of practical knowledge and the necessary interdisciplinarity, which can be demonstrated, for example, by the performance of supervisory tasks and the exercise of supervisory powers. Regular participation in practice-relevant projects would be another proof of expertise.^[5]

(3) End of the mandate

Article 53(3) GDPR regulates the coming to an end of the duties of SA members. Normally, this happens “in the event of the expiry of the term of office”. The term of office is dealt with in Article 54(1) GDPR, as an obligation for the member states to include a provision in their national laws. The other cases bringing to an end of the mandate are the voluntary resignation or compulsory retirement. It should be highlighted that resignation should be voluntary, so not pressured by government or parliament.^[6] Finally, it seems worth recalling that real or alleged internal reorganisations of the SA do not fall within the mandatory cases under Article 53(3) GDPR and therefore do not justify the termination of the mandate.^[7]

Case law: Example:

(4) Dismissal of members

Under Article 53(4) GDPR, an SA member can be dismissed only in two cases: serious misconduct or if they no longer fulfill the conditions required for the performance of the duties. The GDPR does not specify what these two important requirements entail nor is it clear which authority is responsible for deciding on removal or what procedural safeguards are in place, if any. These elements should be explicitly provided by member state law and be precise enough to avoid any misleading interpretation or arbitrariness.

Example:

Decisions

→ You can find all related decisions in Category: Article 53 GDPR

References

↑ For examples, see FRA, Elements of independence of the data protection authorities in the EU, p.19 (available here).
↑ Polenz, in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 53 GDPR, margin number 4 (NOMOS 2019).
↑ In fact, independent bodies can also be appointed by entities of a political nature. In this case, therefore, it cannot be ruled out that the appointment of the SA member be inspired by some political criteria.
↑ Ziebarth, in Sydow, Europäische Datenschutzgrundverordnung, Article 53 GDPR, margin number 18 (Nomos 2018, 2nd edition).
↑ Polenz, in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 53 GDPR, margin number 6 (NOMOS 2019).
↑ Rightfully, Hijmans, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 53 GDPR, p. 890 (Oxford University Press 2020).
↑ In this respect, reference should be made to Commission vs. Hungary, where 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 restructuration of the SA. Beside the Commission v. Hungary judgement of the CJEU, the Garai case is also interesting in this regard. It concerned the early dismissal of the members of the national regulatory authority (NRA) for electronic communications in Spain. The CJEU concluded that the dismissal of the members before the end of their mandates due to the merging between different regulatory bodies was against the requirement of independence of the NRA in the "absence of any rules guaranteeing that such dismissals do not jeopardise the independence and impartiality of such members".

[1] For examples, see FRA, Elements of independence of the data protection authorities in the EU, p.19 (available here).

[2] Polenz, in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 53 GDPR, margin number 4 (NOMOS 2019).

[3] In fact, independent bodies can also be appointed by entities of a political nature. In this case, therefore, it cannot be ruled out that the appointment of the SA member be inspired by some political criteria.

[4] Ziebarth, in Sydow, Europäische Datenschutzgrundverordnung, Article 53 GDPR, margin number 18 (Nomos 2018, 2nd edition).

[5] Polenz, in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 53 GDPR, margin number 6 (NOMOS 2019).

[6] Rightfully, Hijmans, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 53 GDPR, p. 890 (Oxford University Press 2020).

[7] In this respect, reference should be made to Commission vs. Hungary, where 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 restructuration of the SA. Beside the Commission v. Hungary judgement of the CJEU, the Garai case is also interesting in this regard. It concerned the early dismissal of the members of the national regulatory authority (NRA) for electronic communications in Spain. The CJEU concluded that the dismissal of the members before the end of their mandates due to the merging between different regulatory bodies was against the requirement of independence of the NRA in the "absence of any rules guaranteeing that such dismissals do not jeopardise the independence and impartiality of such members".

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