Article 31 GDPR

← Article 31 - Cooperation with 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 31 - Cooperation with the supervisory authority

The controller and the processor and, where applicable, their representatives, shall cooperate, on request, with the supervisory authority in the performance of its tasks.

Relevant Recitals

Recital 80: Designated Representative

Where a controller or a processor not established in the Union is processing personal data of data subjects who are in the Union whose processing activities are related to the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union, or to the monitoring of their behaviour as far as their behaviour takes place within the Union, the controller or the processor should designate a representative, unless the processing is occasional, does not include processing, on a large scale, of special categories of personal data or the processing of personal data relating to criminal convictions and offences, and is unlikely to result in a risk to the rights and freedoms of natural persons, taking into account the nature, context, scope and purposes of the processing or if the controller is a public authority or body. The representative should act on behalf of the controller or the processor and may be addressed by any supervisory authority. The representative should be explicitly designated by a written mandate of the controller or of the processor to act on its behalf with regard to its obligations under this Regulation. The designation of such a representative does not affect the responsibility or liability of the controller or of the processor under this Regulation. Such a representative should perform its tasks according to the mandate received from the controller or processor, including cooperating with the competent supervisory authorities with regard to any action taken to ensure compliance with this Regulation. The designated representative should be subject to enforcement proceedings in the event of non-compliance by the controller or processor.

Recital 82: Maintenance and Availability of Records

In order to demonstrate compliance with this Regulation, the controller or processor should maintain records of processing activities under its responsibility. Each controller and processor should be obliged to cooperate with the supervisory authority and make those records, on request, available to it, so that it might serve for monitoring those processing operations.

Commentary

Article 31 stipulates a legal obligation for controllers and processors to cooperate with the supervisory authority.

Cooperation

Article 31 GDPR establishes a legal obligation for controllers and processors, including their representatives, to cooperate with DPA “in the exercise of its tasks” on request.

On request

The recipients of the provision are obligated to cooperate with the supervisory authority solely upon its request. They are not required to take proactive measures unless explicitly specified in the Regulation, such as in Articles 33 and 36. The supervisory authority has an obligation to formulate requests in a clear and specific manner, ensuring that the recipients of the request understand the expectations set by the authority. Naturally, cooperation entails that the recipients of the request promptly respond to written inquiries from the supervisory authority within a reasonable timeframe.

Shall cooperate

The controller and the processor and, where applicable, their representatives, shall cooperate, on request, with the supervisory authority in the performance of its tasks. In general terms, the content of the obligation to cooperate is therefore initially based on the - very wide - tasks and powers of the supervisory authority.

The majority of such tasks and powers are listed in Articles 57 and 58 GDPR. For instance, under Article 57(1) GDPR, each supervisory authority shall, among the others, “monitor and enforce the application of this Regulation” as well as “conduct investigations on the application of this Regulation”. Article 58(1) GDPR requires the controller and the processor “to provide any information it requires for the performance of its tasks”. In addition to these general clauses, the GDPR includes specific cases of cooperation with the supervisory authority. For instance, further cooperation obligations arise from Article 30(4), which requires the provision of records of processing activities upon request, and Article 33(1) and (2), which mandate the obligation to report a data breach.

The tasks and powers outlined in Articles 57 and 58 as well as in other specific provisions of the GDPR (see above) always involve a certain degree of cooperation. On the controller's side, this encompasses both obligations to actively collaborate with the authority or passively tolerate a certain action, depending on the specific task or power being carrying out. For instance, Article 58(1)(a) regarding the provision of information implies a duty to actively cooperate, while Article 58(1)(e) regarding access to personal data establishes an obligation to simply tolerate the presence of the authority's staff. The distinction holds some significance as it allows for an important differentiation. There seems to be no doubt regarding the obligation to tolerate - meaning not being able to oppose - any visits or inspections conducted by the data protection authority (e.g., Article 51(1)(b) of the GDPR). Simultaneously, there are no doubts that, from an active standpoint, the controller or processor is required to provide all documentary evidence necessary to demonstrate compliance with the GDPR. This includes, demonstrating the implementation of suitable technical and organizational measures as per Article 24 of the GDPR, submitting the processing register in accordance with Article 30(4) of the GDPR, documenting the completion or non-completion of a data protection impact assessment as per Article 35 of the GDPR, disclosing the rationale behind the non-appointment of a data protection officer, sharing details on measures taken in line with Article 25 (data protection by default or design) or reasons for the absence of such measures, divulging the involvement of processors, providing information on implemented data security measures, and specifying whether data has been obtained directly from the data subject.

Beyond these specific cases, we enter a gray area. This is a zone where, on one hand, we can still speak of a duty to cooperate with the supervisory authority, while on the other hand, elements come into play that may conflict with GDPR compliance. For example, the right to not be compelled to make statements that contain self-incriminating elements.

In Orkem, the CJEU clarifies that “documents, even with incriminating content, must be delivered”.

Violations of this obligation are punishable under Article 83(4)(a) GDPR, but proactive and good-faith behaviours can be taken into consideration by the DPA while deciding the amount of the administrative fine (Article 83(2)(f) GDPR).

On request

Decisions

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