Article 56 GDPR

← Article 56 - Competence of the lead 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 56 - Competence of the lead supervisory authority

1. Without prejudice to Article 55, the supervisory authority of the main establishment or of the single establishment of the controller or processor shall be competent to act as lead supervisory authority for the cross-border processing carried out by that controller or processor in accordance with the procedure provided in Article 60.

2. By derogation from paragraph 1, each supervisory authority shall be competent to handle a complaint lodged with it or a possible infringement of this Regulation, if the subject matter relates only to an establishment in its Member State or substantially affects data subjects only in its Member State.

3. In the cases referred to in paragraph 2 of this Article, the supervisory authority shall inform the lead supervisory authority without delay on that matter. Within a period of three weeks after being informed the lead supervisory authority shall decide whether or not it will handle the case in accordance with the procedure provided in Article 60, taking into account whether or not there is an establishment of the controller or processor in the Member State of which the supervisory authority informed it.

4. Where the lead supervisory authority decides to handle the case, the procedure provided in Article 60 shall apply. The supervisory authority which informed the lead supervisory authority may submit to the lead supervisory authority a draft for a decision. The lead supervisory authority shall take utmost account of that draft when preparing the draft decision referred to in Article 60(3).

5. Where the lead supervisory authority decides not to handle the case, the supervisory authority which informed the lead supervisory authority shall handle it according to Articles 61 and 62.

6. The lead supervisory authority shall be the sole interlocutor of the controller or processor for the cross-border processing carried out by that controller or processor.

Relevant Recital

Recital 36: Determination of the Main Establishment

The main establishment of a controller in the Union should be the place of its central administration in the Union, unless the decisions on the purposes and means of the processing of personal data are taken in another establishment of the controller in the Union, in which case that other establishment should be considered to be the main establishment. The main establishment of a controller in the Union should be determined according to objective criteria and should imply the effective and real exercise of management activities determining the main decisions as to the purposes and means of processing through stable arrangements. That criterion should not depend on whether the processing of personal data is carried out at that location. The presence and use of technical means and technologies for processing personal data or processing activities do not, in themselves, constitute a main establishment and are therefore not determining criteria for a main establishment. The main establishment of the processor should be the place of its central administration in the Union or, if it has no central administration in the Union, the place where the main processing activities take place in the Union. In cases involving both the controller and the processor, the competent lead supervisory authority should remain the supervisory authority of the Member State where the controller has its main establishment, but the supervisory authority of the processor should be considered to be a supervisory authority concerned and that supervisory authority should participate in the cooperation procedure provided for by this Regulation. In any case, the supervisory authorities of the Member State or Member States where the processor has one or more establishments should not be considered to be supervisory authorities concerned where the draft decision concerns only the controller. Where the processing is carried out by a group of undertakings, the main establishment of the controlling undertaking should be considered to be the main establishment of the group of undertakings, except where the purposes and means of processing are determined by another undertaking.

Recital 123: Cooperation Amongst Supervisory Authorities and with the Commission

The supervisory authorities should monitor the application of the provisions pursuant to this Regulation and contribute to its consistent application throughout the Union, in order to protect natural persons in relation to the processing of their personal data and to facilitate the free flow of personal data within the internal market. For that purpose, the supervisory authorities should cooperate with each other and with the Commission, without the need for any agreement between Member States on the provision of mutual assistance or on such cooperation.

Recital 124: Lead Supervisory Authority and Cooperation

Where the processing of personal data takes place in the context of the activities of an establishment of a controller or a processor in the Union and the controller or processor is established in more than one Member State, or where processing taking place in the context of the activities of a single establishment of a controller or processor in the Union substantially affects or is likely to substantially affect data subjects in more than one Member State, the supervisory authority for the main establishment of the controller or processor or for the single establishment of the controller or processor should act as lead authority. It should cooperate with the other authorities concerned, because the controller or processor has an establishment on the territory of their Member State, because data subjects residing on their territory are substantially affected, or because a complaint has been lodged with them. Also where a data subject not residing in that Member State has lodged a complaint, the supervisory authority with which such complaint has been lodged should also be a supervisory authority concerned. Within its tasks to issue guidelines on any question covering the application of this Regulation, the Board should be able to issue guidelines in particular on the criteria to be taken into account in order to ascertain whether the processing in question substantially affects data subjects in more than one Member State and on what constitutes a relevant and reasoned objection.

Recital 125: Competences of the Lead Supervisory Authority

The lead authority should be competent to adopt binding decisions regarding measures applying the powers conferred on it in accordance with this Regulation. In its capacity as lead authority, the supervisory authority should closely involve and coordinate the supervisory authorities concerned in the decision-making process. Where the decision is to reject the complaint by the data subject in whole or in part, that decision should be adopted by the supervisory authority with which the complaint has been lodged.

Recital 126: Joint Decision and Enforcement

The decision should be agreed jointly by the lead supervisory authority and the supervisory authorities concerned and should be directed towards the main or single establishment of the controller or processor and be binding on the controller and processor. The controller or processor should take the necessary measures to ensure compliance with this Regulation and the implementation of the decision notified by the lead supervisory authority to the main establishment of the controller or processor as regards the processing activities in the Union.

Recital 127: Joint Operations Regarding Local Processing

Each supervisory authority not acting as the lead supervisory authority should be competent to handle local cases where the controller or processor is established in more than one Member State, but the subject matter of the specific processing concerns only processing carried out in a single Member State and involves only data subjects in that single Member State, for example, where the subject matter concerns the processing of employees' personal data in the specific employment context of a Member State. In such cases, the supervisory authority should inform the lead supervisory authority without delay about the matter. After being informed, the lead supervisory authority should decide, whether it will handle the case pursuant to the provision on cooperation between the lead supervisory authority and other supervisory authorities concerned (‘one-stop-shop mechanism’), or whether the supervisory authority which informed it should handle the case at local level. When deciding whether it will handle the case, the lead supervisory authority should take into account whether there is an establishment of the controller or processor in the Member State of the supervisory authority which informed it in order to ensure effective enforcement of a decision vis-à-vis the controller or processor. Where the lead supervisory authority decides to handle the case, the supervisory authority which informed it should have the possibility to submit a draft for a decision, of which the lead supervisory authority should take utmost account when preparing its draft decision in that one-stop-shop mechanism.

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

In cross-border cases (Article 4(23) GDPR), several supervisory authorities (SA) could be competent according to Article 55 GDPR. For this reason, Article 56(1) GDPR establishes a specific mechanism to keep all the competent SAs involved and at the same time ensure the consistent application of the GDPR by issuing of one decision (which would otherwise be undermined in case of conflicting decisions on the same subject matter). In particular, the provision identifies a lead supervisory authority (LSA), which is the SA where the controller or the processor have their main establishment or single establishment (Article 4(16) GDPR) in the European Ecnomic Area (EEA). The LSA exercises its powers and performs its tasks in cooperation with the other SAs involved. Under Article 56(2-6) GDPR, the LSA’s competence can be lifted if the cross-border processing at stake has only a local impact. In any event, pursuant to Article 56(6) GDPR, whenever an LSA is validly appointed, it shall be the sole interlocutor of the controller or processor.

EDPB Guidelines: for Article 56(1) GDPR, please see Guidelines 8/2022 on identifying a controller or processor’s lead supervisory authority EDPB Internal Document: for Article 56(2) GDPR, please see Internal EDPB Document 1/2019 on handling cases with only local impacts under Article 56.2 GDPR

Article 56 GDPR makes a direct reference to Article 55 GDPR (Competence), Article 60 GDPR (cooperation between LSE and other SA concerned (CSA)), Article 61 GDPR (mutual assistance) and Article 62 GDPR (joint operations of SAs). Additional provisions that are closely related to Article 56 GDPR are Article 4(7) GDPR (definition of controller), Article 4(8) GDPR (definition of processor), Article 4(16) GDPR (definition of main establishment), Article 4(21) GDPR (definition of SA), Article 4(22) GDPR (definition of SA concerned(CSA)), Article 4(23) GDPR (definition of cross-border processing), Article 57 GDPR (tasks of SAs), Article 58 GDPR (powers of SAs), as well as Article 65 GDPR (dispute resolution by the board), Article 63 GDPR (consistency mechanism), Article 64 GDPR (opinion of the board), Article 66 GDPR (urgency procedure) and Article 67 GDPR (exchange of information).

(1) Designation of the Lead Supervisory Authority (LSA) and the Cooperation Mechanism

Article 55 GDPR confirms the general rule that breaches of data protection law occurring in a given member state are investigated and possibly punished by the independent authority of that member state. However, the processing of personal data often presents transnational features due, for example, to the existence of several establishments of the data controller within the territory of the EEA ("Union"). In such circumstances, the general rule of Article 55 GDPR would require each independent authority to decide on a certain processing of personal data, with the obvious consequence of possible inconsistencies of application in case of divergent decisions. This would be in contradiction with one of the main objectives of the GDPR, namely to “ensure a consistent and high level of protection of natural persons and to remove the obstacles to flows of personal data within the Union, the level of protection of the rights and freedoms of natural persons with regard to the processing of such data should be equivalent in all Member States” (Recital 10 GDPR). In that view, Article 56 GDPR provides for an alternative decision-making procedure under two conditions: (i) the processing is of a cross-border nature, and (ii) the controller or processor has a main establishment or a single establishment in the EEA. Where these conditions are met, Article 56 GDPR, in conjunction with Article 60 GDPR and Article 65 GDPR, reserves part of the powers and tasks originally held by SAs under Article 55 GDPR for the (lead) SA where the main establishment or the single establishment of the controller or processor is located.

Without prejudice to Article 55 GDPR

“Without prejudice to” presents a clarification that the derogation from the rules of Article 55 GDPR, by Article 56(1) with the one-stop-shop mechanism with the LSA, is only partial. First, it is not applicable where processing is carried out by public authorities or private bodies under Article 55(2) GDPR. This can result in several SAs being competent with regard to a cross-border processing activity when a company is processing the same data to comply with statutory requirements and for commercial purposes.

Example: Spanish telecommunications company Y, with clients from all over Europe and the main establishment in France, is storing phone records for law enforcement purposes and to comply with its contractual obligations. With regard to the processing activities for law enforcement purposes the Spanish SA is the competent SA. For processing activities in the context of contractual services, such as billing, the French SA will act as the LSA.

Second, when the derogation from Article 55 applies, other SAs concerned are not losing their competences, but are limited in carrying them out. LSA’s competence is not exclusive. In fact, even if the LSA is in charge of directing the investigation and the decision-making process, it is still obliged to ensure dialogue with the other SAs and to take their positions into consideration as a matter of priority. Moreover, LSA’s position on substance is no stronger than that of any other CSA. In case of dispute the consistency mechanism is triggered and the EDPB adopts a binding decision under Article 65 GDPR.

Supervisory authority competent to act

Under Article 56(1) GDPR the SA of the main establishment or single establishment of the controller or the processor is (“shall be”) competent to act for cross-border processing of that controller or processor.

Cross-Border Processing

One of the conditions for triggering the competence of the LSA and the cooperation mechanism of Article 60 GDPR is the existence of a cross-border processing. The definition of cross-border processing is provided by Article 4(23) GDPR which stipulates that such a processing takes place in the context of the activities of either (a) establishments in more than one member state of a controller or processor in the EEA where the controller or processor is established in more than one member state; or (b) a single establishment of a controller or processor in the EEA which substantially affects or is likely to substantially affect data subjects in at least one other member state.

Example: Bike rental company XT has establishments in Hungary, Austria and Slovenia. Decision on processing, e.g. data that is collected, purposes for which it can be used and for how long it is stored, are made in Austria and implemented in every establsihment. Example: Company TX from Checz Republic is providing online services to customers from all over EEA and in for that purpose collecting and storing their data.

On the other hand, the processing by a controller only established in one member state which substantially only affects the individuals in this member state will not meet the conditions.

Example: A Polish company, which is a branch of a Swedish company, processess human resources data of its employees alone, the processed data relates only to its employees and any decision about the purposes and means of this processing is taken by the Polish company, e.g. the Human resources policy, and also the servers on which these data are held is in Poland. There is no cross-border processing and Article 56 of the GDPR does not apply in this case.

For more information, please, refer to the commentary to Article 4(23) GDPR.

Main Establishment

Establishment

Recital 22 GDPR, following the CJ EU ruling in Weltimmo defines “establishment” as “the effective and real exercise of activity through stable arrangements”. The legal form of such arrangements is irrelevant. The presence of only one representative can in some circumstances suffice. For more information see commentary to Article 4(16) GDPR.

Main establishment

The GDPR uses separate criteria for determining the main establishment of a processor and of a controller.

Main establishment of the controller

As a general rule, as per Article 4(16)(a) GDPR, the main establishment of a controller is the place of its central administration in the EEA. This is however a rebuttable presumption, since another establishment can also be the main establishment, according to Article 4(16) GDPR, when the decisions on the purposes and means of the processing of personal data are taken in another establishment in the EEA and the latter establishment has the power to have such decisions implemented.

For more information, see commentary on Article 4(16) GDPR and EDPB Guidelines 8/2022 on identifying a controller or processor’s lead supervisory authority.

Main establishment of the processor

The main establishment of a processor with establishments in more than one member state is the place of its central administration. In cases where the processor has no central administration in the EEA, the GDPR provides that its main establishment is the place where the main processing activities take place in the EEA (i) in the context of the activities of an establishment of the processor and (ii) to the extent that the processor is subject to specific obligations under the GDPR. The first qualification “implies that the processing of personal data does not need to be carried out 'by' the relevant establishment itself, rather that it is sufficient if the processing is carried out 'in the context of the activities' of the establishment." The second qualification confirms the scope of application of the GDPR to processors.

For more information, refer to commentary on Article 4(16) GDPR and EDPB Guidelines 8/2022 on identifying a controller or processor’s lead supervisory authority.

Main establishment of group undertakings

In the case of a group of undertaking with a headquarter in the EEA, the main establishment will be presumed to be the decision-making center relating to the processing of personal data. However, if the decisions relating to the processing are taken by another establishment of the controller in the Union, the latter should be considered the main establishment.

Identifying the lead supervisory authority (LSA)

General principles

If a controller or a processor has establishments in more than one member state, identifying its “main establishment” is the first step to recognize the LSA in a cross-border processing. The EDPB stresses that the GDPR does not allow “forum shopping”. It is a role of the SAs to properly define the main establishment according to objective criteria and subsequently determine the LSA.

EDPB provided following, not exhaustive list of questions to determine a controller’s main establishment: Where are decisions about the purposes and means of the processing given final “sign off”? Where are decisions about business activities that involve data processing made? Where does the power to have decisions implemented effectively lie? Where is the Director (or Directors) with overall management responsibility for the cross-border processing located? Where is the controller or processor registered as a company, if in a single territory?”.

The conclusion of the location of the main establishment cannot be based only on a statement of the organisation under review. The controllers and processors have to demonstrate where the relevant processing decisions are taken and where there is the power to implement such decisions. SAs can rebut the controller's analysis based on an objective examination of the relevant facts, requesting further information where required. The burden of proof is with the controllers and processors. Therefore the designation of one of several establishments in different member states as the main establishment in the organizational chart is not sufficient to establish the LSA competence under Article 65(1) GDPR.

Example: Company X has designated a mailbox company in Estonia in organisational chart as its central administration, while all decisions regarding cross-border processing are made and enforced by its establishment located in France. The LSA is the French SA and not the Estonian SA. 

The main establishment is determined for each cross-border processing activity separately. This means that where different establishments are in charge of making decisions about different categories of cross-border processing, for example one for processing of customers’ data for advertising purposes and another for processing of employees’ data, and can also enforce their decisions, different LSAs will be in charge for each cathegory of cross-border processing.

Example: Bike rental company XT has establishments in Germany, Austria and Hungary. Exclusively the establishment in Hungary is in charge of advertising, and the establishment in Austria for all decisions related to human resources. In this case the LSA for processing related to advertising is the Hungarian SA and for processing of employees data the Austrian SA.

Companies can avoid situations leading to competence of different LSAs for different cross-border processing activities by putting one undertaking in charge of all decisions that are of data-protection relevance.

Identifying the LSA in specific cases of cross-border processing

Cases involving both controller and processor

In cases involving both the controller and the processor, the competent LSA remains the SA of the controller, if there is one. In such a case, the SA of the processor will be a concerned SA as per Article 4(22) GDPR. However, this is not the case if the draft decision concerns only the controller (Recital 36 GDPR). In cases where the processor is acting for several controllers, it may then be subject to the competence of several SAs.

Cases involving joint controllers

The GDPR does not address the situation of joint controllership and does not define specific criteria to determine the LSA. However, according to Article 26(1) GDPR, the controllers have to in a transparent manner determine their respective responsibilities for compliance with the obligations under the GDPR. EDPB considers that agreement between the controller could designate the establishment having the power to implement decisions about the processing with respect to the joint controllership. This could also be supported by the wording of Recital 79 GDPR, which implies that the agreement regarding the allocation of responsibilities among controllers should also concern the monitoring and the measures of the SAs. However, this seems in contradiction with the aim expressed by the EDPB to avoid forum shopping.

Cases where decisions are made outside EU/EEA

Some difficulties may arise when none of the EEA establishments are making decisions about the processing (even with a headquarter in the EEA). In such a case, significantly called “borderline cases” by the EDPB, the GDPR does not provide for a clear answer. While the GDPR wants to encourage the non EU controller to be established in the EEA to benefit from the one-stop shop, forum shopping should be avoided and it would be too easy to pretend that decision-making is made in the EEA while the decisions are actually taken in another establishment outside of the EEA. The idea of the one-stop shop is to provide a single SA as interlocutor for the controller and to facilitate the dialogue with the main establishment making the decisions on the processing. When the latter is located outside EEA, such controller cannot profit from the one-stop-shop mechanism for cross-border processing and must deal with local SAs in every member state concerned.

Conflict of competence between supervisory authorities (SAs)

In case of “conflicting views” on which of the SA concerned is the LSA, the EDPB adopts a decision under the dispute resolution mechanism (Article 65(1)(b) GDPR). It seems that the decision on a conflicting view can only be taken within a specific procedure under Article 65(1)(b) GDPR and conflicting views on the LSA cannot be addressed via a reasoned objection within a procedure under Article 65(1)(a) GDPR. In its decision on the dispute resolution mechanism in case Twitter, the EDPB considered “that a disagreement on the competence of the supervisory authority acting as LSA to issue a decision in the specific case should not be raised through an objection pursuant to Article 60(4) GDPR and falls outside of the scope of Article 4(24) GDPR.”

Change of main establishment

GDPR does not address change of main establishment in the course of cooperation and consistency mechanism, the EDPB considers that “the lead competence can switch to another SA until a final decision is made by the LSA”. Thus, its competence is not definite until the very end of the procedure. The EDPB stressed that to prevent “forum shopping”, “SAs should exercise effective control over the notion of main establishment in order to reduce the risk that controllers or processors artificially change their main establishment for the purpose of changing the competent authority to handle the case”. While EDPB guidelines are useful, there are doubts about the chosen solution and its effectiveness. At the same time this solution prevents problems of enforceability of LSA decisions in another member state, which would emerge if the competence would be linked to the time when the complaint was lodged.

(2) Derogation for cases of a local nature

Article 56(2) GDPR introduces an exception (“by derogation”)  to the general competence of the SA of the main establishment for cases of cross-border processing. Article 56(2) GDPR provides that a SA which is not the LSA is to be competent to (a) handle a complaint lodged with it concerning a cross-border processing of personal data or (b) a possible infringement of the GDPR, if the subject matter (i) relates only to an establishment in its own member state or (ii) substantially affects data subjects only in that member state. In particular, a case is local in nature if the controller is established in more than one member state, but the subject matter of the specific processing concerns only processing carried out in a single state and involves only data subjects in that state, for example, where the subject matter concerns the processing of employees' personal data in the specific employment context of a member state (Recital 127).

Example: Due to repeated thefts occurring in a store located in France, of a retail company established in several member states, the Italian headquarters decides to use video surveillance for the store in France. Since the Italian establishment determines the purposes and means of this monitoring system, this is a cross-border processing and the controller’s main establishment is in Italy. If a French employee (or a customer) lodges a complaint regarding the use of the surveillance-camera with the French SA, the SA may find that this case is of local nature, since no other establishment, except the French, makes use of video-surveillance.

On the contrary, the resolution of a case of video surveillance systems implemented in stores in more than one member states, as a matter of general policy, which infringes GDPR’s provisions, for example due to allegedly excessive retention period of the video surveillance data, is not only relating to the establishment located in one member state. According to the EDPB "[t]o be considered as a local case, the actual impact of it should be limited to data subjects residing in the SA’s [m]ember [s]tate."

Example: An online retail company sells products that can be delivered throughout EEA. The website provides information about the processing of personal data in many languages used in the EEA. The Islandic linguistic version is incomplete and this language is spoken only in a single member state Iceland. In this situation, the case could be considered as having only local impacts in the SA’s territory.

If the SA considers that the case is likely to impact individuals in another member state, it should consider that this is not a local case.

Example: An online order form from a retail company requires that all customers (located in several member states) provide information that is not necessary to deliver the products. The subject matter of the case as well as the resolution of this case will substantially affect data subjects in severalmember states.

Also a case about a cross-border processing that is in line with the GDPR but infringes the national legislation could have only local impacts.

Example: The Italian main establishment of a company decides to implement video-surveillance in each of its establishments. The French national law about video-surveillance in public space provides that the images should not be stored more than one month, and the retention period of data is excessive only according to this national law, the resolution of the case would be only relating to the local establishment and would concern only data subjects in France.

The competence of local SAs in local cases reflects one of the principles of the GDPR, namely the principle of proximity as an important aspect of the protection of individuals rights. Nevertheless, the local SA will handle a case with a subject matter of a local nature only, if the LSA does not decide to handle it (see below).

(3) Involvement of the lead supervisory authority (LSA)

Under Article 56(3) GDPR, in the event of a “local case” under Article 56(2) GDPR, the SA must inform the LSA “without delay” on that matter. The LSA must respond within a period of three weeks whether or not it will handle the case. To make this decision, the (L)SA will take into account of the presence of an establishment of the controller or processor in the member state of which the SA informed it. The existence of an establishment in the member state of the local SA is to be taken into account, “in order to ensure effective enforcement of a decision vis-à-vis the controller or processor.” According to the EDPB Internal Document 1/2019 the (L)SA should also take into account wether the case raises a new matter of principe which has not yet been resolved at the European level. In its Internal Document the EDPB clarifies that a matter has been addressed at European level, when it has been decided on the merits, either by the LSA following the cooperation procedure, or by the European Data Protection Board (EDPB) or by the case law of the CJ EU or the European Court of Human Rights.

In the event that the LSA does not decide within the three week period whether it will handle the case the local SA can trigger the mutual assistance procedure under Article 61 GDPR, in order to receive an answer from the LSA. Followed by a request to obtaining an opinion from the EDPB under Article 64(2) GDPR, if the LSA does not comply with the obligations for mutual assistance within one month.

(4) Lead supervisory authority (LSA) takes the lead in a case of a local nature

If the LSA decides to handle the case, the one-stop shop procedure introduced in Article 60 GDPR is triggered. However, the SA which informed the LSA about the subject matter may submit to the LSA a draft for a decision and the LSA shall take utmost account of that draft, "except where there are specific, overriding reasons preventing it." The local SA remains in a strong position since it can still suggest a draft decision to the LSA, which is in general competent to issue such decisions.

For more information see commentary to Article 60 GDPR.

(5) Local supervisory authority handles the case of a local nature

If the LSA decides not to handle the case, Article 56(5) GDPR provides that the SA which raised the exception handles it according to Article 61 GDPR and Article 62 GDPR. Those provisions require the SAs to comply with the rules on mutual assistance and cooperation within the framework of joint operations, in order to ensure effective cooperation between the authorities concerned. EDPB Internal Document 1/2019 forsees that the local SA exercises its full range of powers pursuant to Article 58 GDPR, including the corrective powers. Also, "when the cross-border case is handled “locally”, the LSA is not the sole interlocutor of the controller or processor" as provided for in Article 56(6) GDPR (see below).

(6) The lead supervisory authority (LSA) as the sole interlocutor of the controller or the processor

Article 56(6) GDPR provides that the LSA is the sole interlocutor of the controller or the processor. That means that, in case of cross-border processing, the communication should exclusively take place with the LSA, to avoid that the controller or processor would have multiple discussions with several SAs. In additon to relief from bureaucratic burdens, the "[e]xclusive contacts with a controller or processor are a means to streamline the procedure."

At the same time, in relation to other CSAs, the LSA "must exercise such competence within a framework of close cooperation with the other supervisory authorities concerned."

Article 56 GDPR does not specify whether the LSA remains the sole interlocutor of the controller or processor where the local SA is handling the case under Article 56(5) GDPR. The EDPB Internal Document 1/2019 suggests that "when the cross-border case is handled “locally”, the LSA is not the sole interlocutor of the controller or processor". However, not all scholars share this view. A pragmatic approach would definitively avoid communication issues with the controller or processor.

This provision is not determining data subject's contact point. According to Article 77(1) GDPR, the data subject can contact a SA of his choice when filing a complaint and the SA whit which the complaint was lodged stays his pont of contact throughout the procedure.

Decisions

→ You can find all related decisions in Category:Article 56 GDPR