Article 53 GDPR

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Article 53 - General conditions for the members of the supervisory authority
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Chapter 10: Delegated and implementing acts

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 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 up to the Members states to decide how the members of the supervisory authorities should be appointed,[1] in particular 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 4 authorities listed in Article 53(1) GDPR are political organisations.[2]

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.[3]

(2) Qualification, Expertise and Skills of the Members

Paragraph 2 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.

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 supervisory authority. The qualification is thus aimed at proving that theoretical knowledge has been acquired. The "experience" establishes a temporal reference by the learned in the practical activity has been applied and deepened. "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.[4]

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.[5] Apart from these minimum standards, Article 53(2) does not require Member states to test the knowledge of the members. In our view, the national law should lay down the conditions (eg. experience, or diploma) that would further define the competence and expertise of the members.

(3) End of the Mandate

This provision mentions an exhaustive list of the cases where the mandate of the supervisory authorities can end. This is of course a guarantee of independence, which is also applicable to the judges, who cannot be dismissed except for serious reasons.

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 re structuration 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 body, 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".

(4) Dismissal of Members

This provisions builds on the elements already mentioned in Article 53(3) GDPR and lays down an exhaustive list of cases where the members of the supervisory authorities can be dismissed: Serious misconduct or if the member does not longer fulfil the conditions attached to its duties. Of course, these cases should be explicitly provided in the law, and precise enough to avoid any interpretation, since the aim of this provisions is also to preserve the independence of the members. If some of these conditions are mentioned in the GDPR (see for example Article 54(1)(f) GDPR , some should be specified in the national legislation. As an example, according to Recital 121, the members of the supervisory authority should "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". Considering that such wording is only in a recital, and does not precisely mention what is a "incompatible occupation", national law should explicitly provide further details about the notion of "incompatibility", which cannot be left to the appreciation of the body deciding on the dismissal of the member: only the cases of incompatibility listed in national law can lead to a dismissal.

Decisions

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

References

  1. For examples, see FRA, Elements of independence of the data protection authorities in the EU, p.19 (available here).
  2. 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.
  3. Polenz, in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 53 GDPR, margin number 4 (NOMOS 2019).
  4. Polenz, in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 53 GDPR, margin number 6 (NOMOS 2019).
  5. Ziebarth, in Sydow, Europäische Datenschutzgrundverordnung, Article 53 GDPR, margin number 18 (Nomos 2018, 2nd ed.).