Article 36 GDPR
Legal Text
1. The controller shall consult the supervisory authority prior to processing where a data protection impact assessment under Article 35 indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk.
2. Where the supervisory authority is of the opinion that the intended processing referred to in paragraph 1 would infringe this Regulation, in particular where the controller has insufficiently identified or mitigated the risk, the supervisory authority shall, within period of up to eight weeks of receipt of the request for consultation, provide written advice to the controller and, where applicable to the processor, and may use any of its powers referred to in Article 58. That period may be extended by six weeks, taking into account the complexity of the intended processing. The supervisory authority shall inform the controller and, where applicable, the processor, of any such extension within one month of receipt of the request for consultation together with the reasons for the delay. Those periods may be suspended until the supervisory authority has obtained information it has requested for the purposes of the consultation.
3. When consulting the supervisory authority pursuant to paragraph 1, the controller shall provide the supervisory authority with:
- (a) where applicable, the respective responsibilities of the controller, joint controllers and processors involved in the processing, in particular for processing within a group of undertakings;
- (b) the purposes and means of the intended processing;
- (c) the measures and safeguards provided to protect the rights and freedoms of data subjects pursuant to this Regulation;
- (d) where applicable, the contact details of the data protection officer;
- (e) the data protection impact assessment provided for in Article 35; and
- (f) any other information requested by the supervisory authority.
4. Member States shall consult the supervisory authority during the preparation of a proposal for a legislative measure to be adopted by a national parliament, or of a regulatory measure based on such a legislative measure, which relates to processing.
5. Notwithstanding paragraph 1, Member State law may require controllers to consult with, and obtain prior authorisation from, the supervisory authority in relation to processing by a controller for the performance of a task carried out by the controller in the public interest, including processing in relation to social protection and public health.
Relevant Recitals
In order to enhance compliance with this Regulation where processing operations are likely to result in a high risk to the rights and freedoms of natural persons, the controller should be responsible for the carrying-out of a data protection impact assessment to evaluate, in particular, the origin, nature, particularity and severity of that risk. The outcome of the assessment should be taken into account when determining the appropriate measures to be taken in order to demonstrate that the processing of personal data complies with this Regulation. Where a data-protection impact assessment indicates that processing operations involve a high risk which the controller cannot mitigate by appropriate measures in terms of available technology and costs of implementation, a consultation of the supervisory authority should take place prior to the processing.
Directive 95/46/EC provided for a general obligation to notify the processing of personal data to the supervisory authorities. While that obligation produces administrative and financial burdens, it did not in all cases contribute to improving the protection of personal data. Such indiscriminate general notification obligations should therefore be abolished, and replaced by effective procedures and mechanisms which focus instead on those types of processing operations which are likely to result in a high risk to the rights and freedoms of natural persons by virtue of their nature, scope, context and purposes. Such types of processing operations may be those which in, particular, involve using new technologies, or are of a new kind and where no data protection impact assessment has been carried out before by the controller, or where they become necessary in the light of the time that has elapsed since the initial processing.
Where a data protection impact assessment indicates that the processing would, in the absence of safeguards, security measures and mechanisms to mitigate the risk, result in a high risk to the rights and freedoms of natural persons and the controller is of the opinion that the risk cannot be mitigated by reasonable means in terms of available technologies and costs of implementation, the supervisory authority should be consulted prior to the start of processing activities. Such high risk is likely to result from certain types of processing and the extent and frequency of processing, which may result also in a realisation of damage or interference with the rights and freedoms of the natural person. The supervisory authority should respond to the request for consultation within a specified period. However, the absence of a reaction of the supervisory authority within that period should be without prejudice to any intervention of the supervisory authority in accordance with its tasks and powers laid down in this Regulation, including the power to prohibit processing operations. As part of that consultation process, the outcome of a data protection impact assessment carried out with regard to the processing at issue may be submitted to the supervisory authority, in particular the measures envisaged to mitigate the risk to the rights and freedoms of natural persons.
The processor should assist the controller, where necessary and upon request, in ensuring compliance with the obligations deriving from the carrying out of data protection impact assessments and from prior consultation of the supervisory authority.
A consultation of the supervisory authority should also take place in the course of the preparation of a legislative or regulatory measure which provides for the processing of personal data, in order to ensure compliance of the intended processing with this Regulation and in particular to mitigate the risk involved for the data subject.
Commentary
Overview
Directive 95/46/EC (the DPD) imposed a general obligation to notify the DPA of an operation which processed personal data. The rationale behind the provision was that the DPAs would conduct an assessment prior to the start of the processing operation and thereby manage the potentially high risks of certain operations. However, this general notification obligation did not always lead to a higher level of protection of personal data, but it produced significant administrative and financial burdens.[1] Furthermore, the introduction of DPIAs and DPOs filled this role to a large extent. Article 36 must therefore be read as one step of a larger framework of obligations in line with the accountability principle, and especially closely connected to Article 35.[2]
Conditions triggering the prior consultation
In principle, the controller needs to consult the DPA after having conducted a DPIA but prior to processing.[3] However, there can be exceptional cases when a controller needs to consult the DPA after the start of the processing operation. Such a situation could occur when technical or organizational changes alter the risk assessment and lead to residual risks which cannot be mitigated by the controller.[4]
With regards to the mitigating measures, some processing operations can be envisioned where the controllers are unable to sufficiently mitigate the risks, for example because of technical aspects. Some commentators give the example of blockchain technology, and propose that a consultation in this case would have the role of assessing the processing operation in line with the principle of proportionality.[5]
However, other cases can arise in which controllers could technically take measures to sufficiently mitigate the residual risks but choose not to. In such situations, it can be technically possible to take appropriate measures but controllers decide that the costs would be too high and refrain from implementing the necessary steps. Some commentators emphasise that controllers would then risk that the DPA arrives at a different result after weighing the risks of the processing operation against the economic interests of the controllers in choosing not to take the appropriate mitigating measures.[6] As a consequence the DPA could prohibit the controller from moving forward with the processing operation, de facto making the prior consultation procedure work as an authorisation.[7]
Substantive aspects
During the consultation process, the DPA would first need to assess whether the controller has correctly identified the risks as well as the appropriate mitigating measures. In this context, the DPA must look at both legal aspects and the latest available technologies that would help mitigate the risks.[8] In addition, the DPA would need to look at the broader societal context of the processing operation and decide whether the potentially high risks it entails are proportionate even in absence of appropriate mitigation measures.[9]
Procedural aspects
According to Article 36(2), the DPA has to provide written advice to the controller within six weeks, which can be extended by another six weeks if the processing operation is especially complex. Article 36(3) lays down which documents need to be provided by the controller. Furthermore, the DPO will need to act as contact point throughout the consultation process.[10]
A contested point about the nature of the consultation procedure is whether the advice of the DPA is indeed merely an advice, or whether it can be seen as an approval on moving forward with the processing operation.[11] In this context, questions would also relate to whether the result of the consultation procedure can be seen as legally binding and therefore subject covered by Article 78. With regards to consultations in the context of legislative initiatives based on Article 36(4), it is still disputed whether the outcome of the procedure rather resembles that of Article 58(3)(a) or 58(3)(b).[12]
[1] Recital 89 GDPR.
[2] Ceclilia Alvarez Rigaudias and Alessandro Spina, ‘Article 36. Prior consultation’ in Christopher Kuner, Lee A. Bygrave, Christopher Docksey, and and Laura Dreachsler (eds.), The EU General Data Protection Regulation (GDPR) – A Commentary (Oxford University Press), 682; Silke Jandt, ‘Art. 36 Vorherige Konsultation’ in Jürgen Kühling and Benedikt Buchner (eds.), Datenschutz-Grundverordnung/BDSG Kommentar, 707.
[3] Article 36(1) GDPR.
[4] Rigaudias and Spina (n2) 684.
[5] Ibid.; The DPA would then assess whether the operation is necessary and proportionate in a democratic society (suitable to achieving a legitimate aim, the least intrusive yet equally effective mean, as well as properly balancing the risks to individuals against the interest of the controller and society).
[6] Jandt (n2) 709.
[7] Ibid.
[8] Ibid 710; See also Recitals 84 and 94 GDPR.
[9] Rigaudias and Spina (n2) 685.
[10] Article 39(1)(e) GDPR.
[11] Rigaudias and Spina (n2) 686; See also Jandt (n2) 709.
[12] Ibid.
Decisions
→ You can find all related decisions in Category:Article 36 GDPR
