Article 54 GDPR: Difference between revisions

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==Commentary==
==Commentary==


Article 54 GDPR combines two very different objectives under the heading “''Establishment of the supervisory authority''(SA). Article 54(1) GDPR contains a list of the individual specifications to be made by the member states in national legislation regarding Article 51, Article 52 and Article 53 GDPR in order to ensure the establishment of an independent SA. Article 54(2) GDPR regulates the special data protection confidentiality obligation of the respective member or members of the SA. Such confidentiality obligations already existed in Article 28(7) Directive 95/46. Whereas this provisions seems to be of direct application, it does not preclude national legislation to further specify the confidentiality obligations of the members of the SA and its staff.  
Article 54 GDPR lays down the requirements for the organisational framework of supervisory authorities ("''SA''s").<ref>''Boehm'', in Kühling, Buchner, DS-GVO BDSG, Article 54 GDPR, margin number 1 (C.H. Beck 2020, 3rd Edition).</ref> However, in doing so, it combines two notably different objectives under its ambit. The first of which, under Article 54(1) GDPR, is to list the specifications to be legislated for by each Member States through their national legislation for the establishment and governance of SAs. This provision is largely repetitive of requirements outlined under other Articles of the GDPR, namely in Articles 51, 52 and 53 GDPR. The second objective, under Article 54(2) GDPR, seeks to regulate the confidentiality obligations of SA members and staff. These confidentiality obligations were already in place under Article 28(7) of the GDPR's predecessor, ''Directive 95/46/EC''.<ref>''Boehm'', in Kühling, Buchner, DS-GVO BDSG, Article 54 GDPR, margin number 2 (C.H. Beck 2020, 3rd Edition).</ref> 


===(1) Elements provided by member states law===
===(1) Elements provided by Member States law===
Article 54(1) GDPR mandates member states’ law to provide for all the elements listed below. Points (a) to (c) only clarify that the substance from Article 51 GDPR, Article 52 GDPRS and Article 53 GDPR must be regulated by member states by law.  Points (d) to (f) introduce new or additional material provisions that are not contained in other Articles.  
Article 54(1) GDPR mandates Member States to provide for all the elements listed below through their national law. A substantial number of provisions under Article 54(1) GDPR are mainly reiterations of obligations outlined under Articles 51- 53 GDPR.  


====(a) Establishment of the supervisory authority (SA)====
====(a) Establishment of the supervisory authority (SA)====
Criteria concerning the establishment of SAs are set out in [[Article 51 GDPR|Article 51(1) GDPR]] and [[Article 52 GDPR]]. Article 54(1)(a) GDPR specifies that this should be done by law.<ref>''Boehm'', in Kühling, Buchner, DS-GVO BDSG, Article 54 GDPR, margin number 7 (C.H. Beck 2020, 3rd Edition).</ref> Considering that the member state may have appointed several authorities, the law should provide for the conditions and rules regarding the establishment of each of them. Other items that should be specified by law include among others whether the SA is a monocratic or a collegial body and if it has any competences in addition to the monitoring of the enforcement of the GDPR.<ref>''Ziebarth,'' in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin numbers 7 to 10 (Nomos 2022).</ref>  
The criteria regulating the establishment of SAs are set out in [[Article 51 GDPR|Article 51(1)]] and [[Article 52 GDPR|52 GDPR]], Article 54(1)(a) GDPR repeats that these should be legislated for through a Member State's domestic law.<ref>''Boehm'', in Kühling, Buchner, DS-GVO BDSG, Article 54 GDPR, margin number 7 (C.H. Beck 2020, 3rd Edition).</ref> Under the GDPR, Member States are permitted to appoint several different types of SAs, for example, sector specific SAs.<ref>For more on this point, please refer to [[Article 51 GDPR]].</ref> In these instances, the law should provide for the conditions and rules regarding the establishment of each type. In addition, commentators have noted that the functional nature of an SA should also be legislated for through national law. For instance, Member States should legislate for whether their SAs are monocratic or collegial bodies, or whether they have any competences in addition to the monitoring of the enforcement of the GDPR.<ref>''Ziebarth,'' in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin numbers 7 to 10 (Nomos 2022).</ref>  


For more information regarding the establishment of SAs consult commentary on [[Article 51 GDPR|Article 51(1) GDPR]] and [[Article 52 GDPR]].  
For more information regarding the establishment of SAs, please refer to [[Article 51 GDPR|Article 51(1) GDPR]] and [[Article 52 GDPR]] in this Commentary.  


====(b) Qualifications and eligibility conditions for SA's members====
====(b) Qualifications and eligibility conditions for SA members====
Article 54(1)(b) GDPR is connected to [[Article 53 GDPR|Article 53(2) GDPR]] according to which the members of the SA will require qualifications, experience and skills as a prerequisite for being appointed as a member of a SA.<ref>''Boehm'', in Kühling, Buchner, DS-GVO BDSG, Article 54 GDPR, margin number 8 (C.H. Beck 2020, 3rd Edition).</ref> It clarifies that qualifications and eligibility conditions should be further specified in national law.<ref>''Ziebarth,'' in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin numbers 16 to 19 (Nomos 2022).</ref> A clear specification of qualifications, experience and skills in the law results in the pool of potential candidates to be determined by law and not subject to arbitrary political decision.<ref>''Ziebarth,'' in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin number 15 (Nomos 2022).</ref>
Article 54(1)(b) GDPR echoes [[Article 53 GDPR|Article 53(2) GDPR]], which outlines the qualificatory and experiential requirements for SA members.<ref>''Boehm'', in Kühling, Buchner, DS-GVO BDSG, Article 54 GDPR, margin number 8 (C.H. Beck 2020, 3rd Edition).</ref> However, unlike Article 53(2) GDPR, Article 54(1)(b) GDPR explicitly clarifies that these eligibility requirements are to be determined by national law.<ref>''Ziebarth,'' in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin numbers 16 to 19 (Nomos 2022).</ref>


For more information about qualifications and eligibility conditions for SA members see commentary on  [[Article 53 GDPR|Article 53(2) GDPR]].   
For more information on the eligibility requirements for SA members, please refer to [[Article 53 GDPR|Article 53(2) GDPR]].   


====(c) The rules and procedures for the appointment of SA's members ====
====(c) The rules and procedures for the appointment of SA members ====
Additionally, member states must regulate by law the rules and procedures for the appointment of the member or members of each SA. This provision should be read in conjunction with [[Article 53 GDPR|Article 53(1) GDPR]] that is containing the basic rule regarding the appointment of SA members.
Pursuant to Article 54(1)(c) GDPR, Member States must legislate for the rules and procedures governing the appointment of SA members. This provision is, in essence, a restatement of [[Article 53 GDPR|Article 53(1) GDPR]], with the difference that Article 53(1) GDPR further stipulates that any procedure legislated for is '<nowiki/>''transparent'''.


For more information please refer to commentary on [[Article 53 GDPR|Article 53(1) GDPR]].   
For more information on the procedural requirements for the appointment of SA members, please refer to [[Article 53 GDPR|Article 53(1) GDPR]].   


====(d) Duration of the term====
====(d) Duration of the term====
According to Article 54(1)(d) each Member State is also obliged to regulate by law the term of office of the member or members of each SA. The provision specifies that the minimum term is four years. <ref>This presumably corresponds to the regular length of a legislative period in most EU Member States. It seems to create a link between data protection supervision and the parliament or, where the case, the executive branch responsible for the appointment. See ''Ziebarth,'' in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin numbers 25 to 27 (Nomos 2022).</ref> Member states are free to set longer terms. However, a term of office that is in principle for life or is to last until retirement should be excluded since subsequent Article 54(1)(e) GDPR addresses the question of reappointment and therefore assumes a limited duration of the position.<ref>''Polenz'', in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 54 GDPR, margin numbers 8 (Nomos 2019). Other views can also be found, see  ''Hijmans'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 54 GDPR, p. 897 (Oxford University Press 2020).</ref>
Pursuant to Article 54(1)(d) GDPR, each Member State is obliged to legislate for SA member(s) term of office. The provision specifies that the minimum term is four years; nonetheless, Member States are free to set longer terms.<ref>This presumably corresponds to the regular length of a legislative period in most EU Member States. It seems to create a link between data protection supervision and the parliament or, where the case, the executive branch responsible for the appointment. See ''Ziebarth,'' in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin numbers 25 to 27 (Nomos 2022).</ref> However, any attempt to legislate for a term of office that is for life or until retirement should be excluded, as Article 54(1)(e) GDPR addresses the question of reappointment. Therefore, the GDPR assumes a limited term for the position.<ref>''Polenz'', in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 54 GDPR, margin number 8 (Nomos 2019). Dissenting views can be found in ''Hijmans'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 54 GDPR, p. 897 (Oxford University Press 2020).</ref>


====(e) Reappointment====
====(e) Reappointment====
Article 54(1)(e) GDPR imparts on the member states to regulate through national law whether and how often the reappointment of the member or members of a SA is permissible. A reappointment ban (only one mandate being possible) is conceivable, but also a limitation of the number of reappointments and limitation of consecutive reappointments can be laid down in the law. The possibility of reappointment can impair the independence of a member, in particularly when the reelaction time is nearing. On the other hand, a reappointed member will have the capacity to work efficiently from the first day of the term.<ref>See ''Ziebarth,'' in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin numbers 35 to 39 (Nomos 2022). See also ''Polenz'', in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 54 GDPR, margin number 9 (Nomos 2019).</ref>   
Article 54(1)(e) GDPR mandates Member States to legislate for the reappointment of SA members. Member States are entitled to determine whether, and how often the reappointment of members is permitted. For instance, Union law does not prohibit Member States from legislating for reappointment bans, or limitations to the number of consecutive reappointments, or even for the possibility of indefinite reappointments
 
Notably though, leniency on the possibility of multiple consecutive reappointments has the capacity to undermine the independence of SA members, and by relation, the institutional integrity of SAs as independent bodies. Commentators have noted that, in particular in the context of members' re-election, allowing multiple reappointments risks candidates who have previously held office, to make concessions to the appointing body in favour of their renomination. Admittedly, the risk to independence is countered by the fact that a reappointed member will have greater experience than a candidate who has not previously held office.<ref>See ''Ziebarth,'' in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin numbers 35 to 39 (Nomos 2022). See also ''Polenz'', in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 54 GDPR, margin number 9 (Nomos 2019).</ref>   


====(f) Rules on members' occupation, prohibitions, incompatible actions and benefits====
====(f) Rules on members' occupation, prohibitions, incompatible actions and benefits====
Under Article 54(1)(f) GDPR, member states must ('shall') provide by law the conditions governing the obligations of members and staff of each SA, prohibitions on actions, occupations and benefits incompatible therewith during and after the term of office, and rules governing the cessation of employment. Such conditions must be laid down in national law. 
Under Article 54(1)(f) GDPR, Member States must ('''shall''<nowiki/>') legislate for the (i) conditions governing the obligations of members and staff of each SA, (ii) prohibitions on the actions, occupations and benefits incompatible with membership during and after their term of office, as well as (iii) the rules governing the cessation of their employment.


===== Member(s) of SA and staff =====
===== SA member(s) and staff =====
Member state rules governing members of SAs, i.e. the lead personnel, must be in line with provisions of [[Article 52 GDPR|Article 52(3) GDPR]] and [[Article 53 GDPR|Article 53(3)(4) GDPR]]. According to Article 54(1)(f) GDPR the subject matter must be regulated also for staff. However the conditions and rules for staff does not need to comply with the strict criteria provided for in [[Article 52 GDPR|Article 52(3) GDPR]] and [[Article 53 GDPR|Article 53(3)(4) GDPR]] with regard to member(s) of SAs.<ref>See ''Boehm'', in Kühling, Buchner, DS-GVO BDSG, Article 54 GDPR, margin numbers 14 to 16. (C.H. Beck 2020, 3rd Edition).</ref>
While not made explicit under Article 54(1)(f)GDPR, any domestic legislation governing the obligations and prohibitions for SA members during their term of office, must be in line with provisions of [[Article 52 GDPR|Article 52(3) GDPR]] and [[Article 53 GDPR|Articles 53(3) and 53(4) GDPR]]. These provisions expand on the conditions outlined under this Article. For instance, [[Article 52 GDPR|Article 52(3) GDPR]] prohibits SA members from engaging in any incompatible actions and occupations, while [[Article 53 GDPR|Articles 53(3) and 53(4) GDPR]] regulate the expiry of a member's term of office and dismissal.  


More information regarding members and staff of SAs can be found in the commentary on [[Article 52 GDPR|Article 52(2) GDPR]]  (member(s) of SAs) and on [[Article 52 GDPR|Article 52(5) GDPR]] (staff of SAs).  
To clarify, the GDPR's use of the terms '<nowiki/>''members''<nowiki/>' and '''staff''<nowiki/>' differentiate between the two types of SA personnel. The former refers to SAs' lead personnel, while the latter refers to supporting staff. Under Article 54(1)(f) GDPR, rules regulating the actions of staff must also be legislated for through national law. However, these conditions are not required to comply with the strict criteria governing SA members, as provided for provided for in [[Article 52 GDPR|Article 52(3) GDPR]] and  [[Article 53 GDPR|Articles 53(3) and 53(4) GDPR]].<ref>See ''Boehm'', in Kühling, Buchner, DS-GVO BDSG, Article 54 GDPR, margin numbers 14 to 16. (C.H. Beck 2020, 3rd Edition).</ref>
 
For more information on SA members and staff, please refer to [[Article 52 GDPR|Article 52(2) GDPR]]  (SA members) and [[Article 52 GDPR|Article 52(5) GDPR]] (SA staff).  


=====Obligations=====
=====Obligations=====
With regard to this mandate, for members of SAs member states’ law must stipulate the obligation to exercise their office with integrity and independence as provided for in [[Article 52 GDPR]].<ref>See also Recital 121 GDPR.</ref> Additionally [[Article 51 GDPR|Article 51(1) GDPR]] is relevant laying down the mandate of the SAs, namely the monitoring of the application of the GDPR, in order to protect the data protection rights on the one hand, and on the other hand, to facilitate the free flow of personal data within the Union.<ref>''Selmayr'', in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 11 (C.H. Beck 2017). </ref> As well as [[Article 57 GDPR]] and [[Article 58 GDPR]] determining the tasks and powers of SAs.<ref>''Polenz'', in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 54 GDPR, margin number 13 (Nomos 2019).</ref>     
Article 54(1)(f) GDPR is not particularly specific in relation to what obligations are to be imposed upon SA members during their term of office. Elements of what constitute a member's '<nowiki/>''obligations''<nowiki/>' are found in other Articles of the GDPR. For instance, [[Article 52 GDPR]] mandates that members serve their office with integrity.<ref>See also Recital 121 GDPR.</ref> While, [[Article 51 GDPR|Article 51(1) GDPR]] outlines SAs' broad purpose of monitoring the GDPR's application, the objectives of which are to protect the right to data protection and facilitate the free flow of personal data within the Union.<ref>''Selmayr'', in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 11 (C.H. Beck 2017). </ref> Especially relevant to the interpretation of the term '<nowiki/>''obligations''' by the national legislature are [[Article 57 GDPR|Articles 57]] and [[Article 58 GDPR|58 GDPR,]] which determine the tasks and powers of SAs.<ref>''Polenz'', in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 54 GDPR, margin number 13 (Nomos 2019).</ref>     


=====Prohibitions on incompatible actions, occupations and benefits =====
=====Prohibitions on incompatible actions, occupations and benefits =====
The rules laid down by national law for members of SAs are to be linked with [[Article 52 GDPR|Article 52(3) GDPR]]. It is particularly important that the national legislation does not limit itself to reproducing the text of Articles 52(3) GDPR and 54(2)(f) GDPR, but further specifies what is to be understood as “''incompatible''”, and “''prohibited occupations, actions and benefits''”. For more information regarding conflict of interest rules please refer to commentary to [[Article 52 GDPR|Article 52(3) GDPR]].<ref>''Selmayr'', in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 11 (C.H. Beck 2017).</ref>
Any interpretation by national law on the scope and content of incompatible actions, occupations and benefits which SA members and staff are prohibited to take, are to be read in line with [[Article 52 GDPR|Article 52(3) GDPR]]. Given that GDPR is quite vague in terms of specifying what exactly '''incompatible actions, occupations and benefits''<nowiki/>' are, it is particularly important that national legislation does not limit itself to reproducing the text of Articles 52(3) GDPR and 54(1)(f) GDPR.
 
For more information on the conflict of interest rules, please refer to commentary to [[Article 52 GDPR|Article 52(3) GDPR]].  


===== During and after the term of office =====
===== During and after the term of office =====
Member states must adopt appropriate conflict of interest rules for the time during the term in office, as well as rules addressing the issue of "revolving doors" and other incompatibilities for the time after member(s) and staff stop working at a SA.<ref>[[Article 52 GDPR|Article 52(3) GDPR]] is already containing rules on conflict of interest for members of SAs. Article 54(1)(f) GDPR is widening the scope by obliging the member states to adopt national rules on this subject matter for members of SAs and for staff, as well as on the issue of revolving doors.</ref> When an official moves to the private sector, this can present a risk to the integrity of SA because "''valuable inside knowledge can move into the private sector, or because former officials may lobby their former colleagues or existing officials may be influenced by possible future employment."''<ref>The European Ombudsman's work on revolving doors (2022), available at https://www.ombudsman.europa.eu/webpub/2022/revolving-doors/en/.</ref> It is not compatible with the requirement that the "''authorities should remain above any suspicion of partiality''" if a data protection officer starts working for an entity he was supervising directly after leaving the SA .<ref>''Hijmans'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 54 GDPR, page 898 (Oxford University Press 2020).</ref><blockquote>For example:
Member States must adopt appropriate conflict of interest rules for the time during the term in office, as well as for after. In particular, Member States should regulate against the issue of '<nowiki/>''revolving doors''<nowiki/>'. This term refers to the movement of high-level personnel from public roles to those in the private sector, in particular to industries impacted by the work undertaken by those individuals while holding public office.<ref>[[Article 52 GDPR|Article 52(3) GDPR]] is already containing rules on conflict of interest for members of SAs. Article 54(1)(f) GDPR is widening the scope by obliging the member states to adopt national rules on this subject matter for members of SAs and for staff, as well as on the issue of revolving doors.</ref> The European Ombudsman has highlighted that the movement of public officials to the private sector presents risks to the integrity of public bodies, as '<nowiki/>''valuable inside knowledge can move into the private sector, or because former officials may lobby their former colleagues or existing officials may be influenced by possible future employment.'''<ref>The European Ombudsman's work on revolving doors (2022), available at https://www.ombudsman.europa.eu/webpub/2022/revolving-doors/en/.</ref> The level of independence required of SAs as public bodies is extremely high. Consequently, even the risk of partiality is sufficient to undermine it.<ref>For more on this point, please refer to [[Article 52 GDPR]]. </ref> Therefore, it would be incompatible with the principle of independence if an SA member were to work for a private entity which was under the SA's scrutiny, immediately after their term of office with the SA ended.<ref>''Hijmans'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 54 GDPR, page 898 (Oxford University Press 2020).</ref>


A data protection supervisor was investigating an alleged violation of GDPB by company X while working at the SA. No infringement of GDPR is found. Two weeks later the officers term in office ends and one week later he becomes the DPO of the company X.  </blockquote>A possible solution could be a “cooling off” period specified after the end of the term of office as data protection supervisor, whereby periods of 18-24 months can be viewed as a minimum standard.<ref>''Selmayr'', in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 11 (C.H. Beck 2017).</ref> At the same time, it is important that the rules do not lead to a ban on all professional activity.<ref>''Ziebarth,'' in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin number 46 (Nomos 2022).</ref>   
A possible solution to curb potential conflicts of interest could be a '<nowiki/>''cooling off''<nowiki/>' period after the end of a member's term of office. Commentators suggest that periods of 18-24 months should be be viewed as a minimum standard.<ref>''Selmayr'', in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 11 (C.H. Beck 2017).</ref> At the same time, it is important that any '''cooling off''<nowiki/>' periods do not lead to a ban on all professional activities.<ref>''Ziebarth,'' in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin number 46 (Nomos 2022).</ref>   


===== Cessation of employment rules =====
===== Cessation of employment rules =====
Cessation of employment rules concern in particularly staff of SAs. Member states are free to regulate it. In this regard, the GDPR does not contain any specific requirements. Naturally, these rules should not impair the independence of the SA, as required by [[Article 52 GDPR]]. <ref>''Ziebarth,'' in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin number 47 (Nomos 2022).</ref>
Member States are free to regulate for the rules concerning members' and staff's cessation of employment. In this regard, the GDPR does not contain any specific requirements. Naturally, these rules should not infringe upon SAs' independence, as required by [[Article 52 GDPR]]. <ref>''Ziebarth,'' in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin number 47 (Nomos 2022).</ref> However, if SA members are legally employed with the SA, any conditions set out by [[Article 53 GDPR|Articles 53(3) and 53(4) GDPR]] regulating members' end of term or dismissal must also be taken into account by the laws governing their cessation of employment. 


Members of SAs can also be employed at the SA. Then the conditionsset out in [[Article 53 GDPR|Article 53(3)(4) GDPR]] regarding the end of term of members of SAs must be taken into account. For more information regarding the conditions for the end of term of members of SAs please refer to commentary on [[Article 53 GDPR]].       
For more information regarding the conditions regulating SA members' end of term, please refer to [[Article 53 GDPR]].       


===(2) Duty of professional secrecy===
===(2) Duty of professional secrecy===
The provision evidently prohibits any member or staff of a SA to share the confidential information with a third party or to disclose it to the public without prior authorisation. The duty to keep information confidential is of the essence for a trust-based exercise of the investigative powers of SAs. Similar obligations exist regarding competition authorities and other regulatory bodies supervising economic operators.<ref>''Selmayr'', in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 12 (C.H. Beck 2017).</ref>
The second paragraph of Article 54 GDPR prohibits any member or staff of an SA from sharing confidential information with a third party, or disclosing it to the public without prior authorisation.  


When SAs exchange information pursuant to the cooperation mechanism under [[Article 60 GDPR|Article 60]], [[Article 61 GDPR|Article 61]], [[Article 64 GDPR|Article 64]], and [[Article 65 GDPR]] they are not bound by the prohibition to share confidential information.
The duty of professional secrecy, is at its core an essential element of SAs' investigative powers. In broader terms, the duty of professional secrecy applies as a general principle to the information obtained by SAs in the course of the fulfilment of their role as a supervisory body under Union law. Similar obligations apply to members of competition authorities and other Union regulatory bodies, for instance members of the Commission or European Central Bank.<ref>''Selmayr'', in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 12 (C.H. Beck 2017).</ref> Notably, the duty of professional secrecy does not extend to SAs' cooperation mechanism under [[Article 60 GDPR|Articles 60]], [[Article 61 GDPR|61]], [[Article 64 GDPR|64]], and [[Article 65 GDPR|65 GDPR]].


The obligation of confidentiality is intertwined with the right to access one's file under the right to good administration (Article 41(2)(b) CFR) and the right to access to documents (Article 42 CFR and Regulation 1049/2001), but also with the right to data protection. Access to documents can be limited on the basis of the obligation of confidentiality and/or the protection of personal data of individuals. Balancing these rights can however be difficult in practice since the right to be heard implies that the complainant can access the file, which in turn could include confidential information.
The general duty of professional secrecy finds its footing in primary Union law, under Article 339 of the Treaty on the Functioning of the European Union ("''TFEU''").<ref>''Selmayr'', in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 12 (C.H. Beck 2017).</ref> Transparency considerations arise in relation to the duty of professional secrecy, especially in the context of public access to documents. For instance, access to documents can lawfully be restricted on confidentiality grounds, in particular when they concern the protection of personal data of individuals or the protection of trade secrets. As a result, the duty of professional secrecy is intertwined with the right of access under the right to good administration found in Article 41(2)(b) of the Charter of Fundamental Rights of the European Union ("''CFR''"),<ref>This provision notes that the right of good administration includes ''<nowiki/>'the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy''<nowiki/>'.</ref> and the right of public access under Article 42 CFR and Regulation 1049/2001.<ref>Article 42 CFR notes that '''[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium''.'</ref> In relation to these conflicting interests, commentators have noted that the obligation of secrecy should ''“not unduly restrict the transparency of DPA [SA] performance, one of the main elements of public accountability of DPAs [SAs].”''<ref>''Hijmans'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 54 GDPR, p. 899 (Oxford University Press 2020).</ref>


Obligation of secrecy should also ''“not unduly restrict the transparency of DPA [SA] performance, one of the main elements of public accountability of DPAs [SAs].”''<ref>''Hijmans'', in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 54 GDPR, p. 899 (Oxford University Press 2020).</ref>
The duty of professional secrecy arises in other provisions of the GDPR, namely under [[Article 38 GDPR|Article 38(5) GDPR]] in relation to data protection officers ("''DPO"''). For the interpretation of the duty of professional secrecy in regard to DPOs, please refer to [[Article 38 GDPR|Article 38(5) GDPR]].
 
With regard to the obligation of secrecy of DPO’s please refer to commentary on [[Article 38 GDPR|Article 38(5) GDPR]].


==== Members and the staff of supervisory authority (SA) ====
==== Members and the staff of supervisory authority (SA) ====
The obligation of confidentiality only applies to the staff and the members of the SA. Thus, subject to restrictions under national law, nothing appears to prevent the parties to the proceedings (including the complainant) from sharing the information obtained from the SA.
The duty of professional secrecy only applies to SA staff and members. Thus, nothing prevents the parties to the proceedings (including the complainant) from sharing the information obtained from the SA, subject to restrictions under national law.


==== Union or member state law ====
==== Union or Member State law ====
Member states can regulate the obligation of confidentiality in their national legislation. Otherwise EU law applies.  
Member states may further regulate the duty of professional secrecy through their national legislation. In any case, EU law applies as a minimum threshold, thus Member States may regulate for more stringent requirements but not for less.  


===== Union law =====
===== Union law =====
According to Article 339 TFEU officials and holders of public office at EU level are ''"required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components."'' Other relevant legislation include Article 17 of the EU Staff Regulations<ref>Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, available [https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01962R0031-20140501 here].</ref> and Article 56 EUDPR<ref>Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC, available [https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32018R1725 here].</ref>.
Article 339 TFEU establishes that '''[t]he members of the institutions of the Union, the members of committees, and the officials and other servants of the Union shall be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components.''<nowiki/>' Other relevant legislative provisions include Article 17 of the EU Staff Regulations,<ref>Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, available [https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01962R0031-20140501 here].</ref> and Article 56 of Regulation (EU) 2018/1725 ("''EUDPR''").<ref>Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC, available [https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32018R1725 here].</ref>


===== National law =====
===== National law =====
In general, secrecy obligations exist in regulations of each meber state for professionals, which handle confidential information on a regular basis, such as doctors, lawyers and public officials.  
Generally, Member States regulate for sector specific confidentiality obligations. In particular, these regulations apply to professionals which handle confidential information on a regular basis, such as doctors, lawyers and public officials. As noted above, Member States may choose to further regulate the confidentiality obligations applying to SAs. 


==== Duty of professional secrecy ====
==== Duty of professional secrecy ====
Duty of professional secrecy applies to any confidential information which has come to their knowledge in the course of the performance of their tasks or exercise of their powers.
The duty of professional secrecy applies to any confidential information which SA members and staff have come into contact with in the course of the performance of their tasks or exercise of their powers.


===== Confidential information =====
===== Confidential information =====
As recognised by the CJEU, information should be considered as confidential if it fulfills the following conditions: (i) The information is known only to a limited number of people; (ii) disclosure of the information can cause serious harm to the person who has provided it or to third parties; (iii) the interests likely to be harmed by disclosure must, objectively, be worthy of protection. The test of Article 339 TFEU requires a reinforced protection for business secrets.<ref>''Selmayr'', in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 12 and 13 (C.H. Beck 2017).</ref>
The CJEU clarified, in ''Bank Austria Creditanstalt v Commission'', that information will be considered confidential if it fulfils the following three conditions: (i) if the information is known only to a limited number of people; (ii) disclosure of the information can cause serious harm to the person who has provided it or to third parties; and (iii) the interests likely to be harmed by disclosure must, objectively, be worthy of protection.<ref>[https://curia.europa.eu/juris/liste.jsf?language=en&num=T-198/03 Case T-198/03], ''Bank Austria Creditanstalt v Commission'', para 71.                                </ref> Commentators have noted that the test of Article 339 TFEU requires a reinforced protection for business secrets.<ref>''Selmayr'', in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 12 and 13 (C.H. Beck 2017).</ref>


===== ''In the course of the performance of their tasks or exercise of their powers'' =====
===== ''In the course of the performance of their tasks or exercise of their powers'' =====
Information is only protected if it has come to the knowledge of a member or an employee of a SA ''in the course of the performance of their tasks or exercise of their powers''. Considering the broad dimension of powers under [[Article 58 GDPR]], this protection will apply to a large range of information.
Information is only protected if it has come to the knowledge of a member or an employee of a SA '''in the course of the performance of their tasks or exercise of their powers''<nowiki/>'. Given the broad nature of the tasks and powers afforded to SAs under [[Article 57 GDPR|Articles 57]] and [[Article 58 GDPR|58 GDPR]], the duty of professional secrecy applies to all confidential information that SA members and staff come into contact with in the course of their duties, which considering the extent of SAs' work is not an insignificant amount.


===== ''Reporting by natural persons of infringements'' =====
===== ''Reporting by natural persons of infringements'' =====
Such confidentiality shall also apply in particular to reporting of infringements of the GDPR by natural persons. That is due to the core activity of the SA: it should pay particular attention to the protection of the holders of fundamental rights, whose rights could be impaired if their names were disclosed to the public.<ref>''Selmayr'', in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 14 (C.H. Beck 2017).</ref>
The duty of professional secrecy, in particular, applies to the reporting of GDPR infringements by natural persons. Considering that protecting the fundamental rights and freedoms of natural persons is a central component of SAs' role, they must pay particular attention to the protection of the holders of those fundamental rights.<ref>''Selmayr'', in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 14 (C.H. Beck 2017).</ref>  
 
==== During and after their term of office ====
==== During and after their term of office ====
The obligation of confidentiality also applies after the end of the activity. In this case, a specific duration of the duty of confidentiality should be determined in each individual case based on the need for protection of the information and the consequences to be expected from disclosure.
The duty of professional secrecy applies both during and following an SA member's or staff's term of office. There is no specific duration for which the duty of professional secrecy continues to apply after the expiry of the term of office. The period of time should be determined on a case-by-case basis, taking into account the sensitivity of the information concerned and the potential consequences to be expected from disclosure.
==Decisions==
==Decisions==
→ You can find all related decisions in [[:Category:Article 54 GDPR]]
→ You can find all related decisions in [[:Category:Article 54 GDPR]]

Latest revision as of 13:19, 30 October 2023

Article 54 - Rules on the establishment of the supervisory authority
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Chapter 10: Delegated and implementing acts

Legal Text



Article 54 - Rules on the establishment of the supervisory authority

1. Each Member State shall provide by law for all of the following:

(a) the establishment of each supervisory authority;
(b) the qualifications and eligibility conditions required to be appointed as member of each supervisory authority;
(c) the rules and procedures for the appointment of the member or members of each supervisory authority;
(d) the duration of the term of the member or members of each supervisory authority of no less than four years, except for the first appointment after 24 May 2016, part of which may take place for a shorter period where that is necessary to protect the independence of the supervisory authority by means of a staggered appointment procedure;
(e) whether and, if so, for how many terms the member or members of each supervisory authority is eligible for reappointment;
(f) the conditions governing the obligations of the member or members and staff of each supervisory authority, prohibitions on actions, occupations and benefits incompatible therewith during and after the term of office and rules governing the cessation of employment.

2. The member or members and the staff of each supervisory authority shall, in accordance with Union or Member State law, be subject to a duty of professional secrecy both during and after their term of office, with regard to any confidential information which has come to their knowledge in the course of the performance of their tasks or exercise of their powers. During their term of office, that duty of professional secrecy shall in particular apply to reporting by natural persons of infringements of this Regulation.

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 54 GDPR lays down the requirements for the organisational framework of supervisory authorities ("SAs").[1] However, in doing so, it combines two notably different objectives under its ambit. The first of which, under Article 54(1) GDPR, is to list the specifications to be legislated for by each Member States through their national legislation for the establishment and governance of SAs. This provision is largely repetitive of requirements outlined under other Articles of the GDPR, namely in Articles 51, 52 and 53 GDPR. The second objective, under Article 54(2) GDPR, seeks to regulate the confidentiality obligations of SA members and staff. These confidentiality obligations were already in place under Article 28(7) of the GDPR's predecessor, Directive 95/46/EC.[2]

(1) Elements provided by Member States law

Article 54(1) GDPR mandates Member States to provide for all the elements listed below through their national law. A substantial number of provisions under Article 54(1) GDPR are mainly reiterations of obligations outlined under Articles 51- 53 GDPR.

(a) Establishment of the supervisory authority (SA)

The criteria regulating the establishment of SAs are set out in Article 51(1) and 52 GDPR, Article 54(1)(a) GDPR repeats that these should be legislated for through a Member State's domestic law.[3] Under the GDPR, Member States are permitted to appoint several different types of SAs, for example, sector specific SAs.[4] In these instances, the law should provide for the conditions and rules regarding the establishment of each type. In addition, commentators have noted that the functional nature of an SA should also be legislated for through national law. For instance, Member States should legislate for whether their SAs are monocratic or collegial bodies, or whether they have any competences in addition to the monitoring of the enforcement of the GDPR.[5]

For more information regarding the establishment of SAs, please refer to Article 51(1) GDPR and Article 52 GDPR in this Commentary.

(b) Qualifications and eligibility conditions for SA members

Article 54(1)(b) GDPR echoes Article 53(2) GDPR, which outlines the qualificatory and experiential requirements for SA members.[6] However, unlike Article 53(2) GDPR, Article 54(1)(b) GDPR explicitly clarifies that these eligibility requirements are to be determined by national law.[7]

For more information on the eligibility requirements for SA members, please refer to Article 53(2) GDPR.

(c) The rules and procedures for the appointment of SA members

Pursuant to Article 54(1)(c) GDPR, Member States must legislate for the rules and procedures governing the appointment of SA members. This provision is, in essence, a restatement of Article 53(1) GDPR, with the difference that Article 53(1) GDPR further stipulates that any procedure legislated for is 'transparent'.

For more information on the procedural requirements for the appointment of SA members, please refer to Article 53(1) GDPR.

(d) Duration of the term

Pursuant to Article 54(1)(d) GDPR, each Member State is obliged to legislate for SA member(s) term of office. The provision specifies that the minimum term is four years; nonetheless, Member States are free to set longer terms.[8] However, any attempt to legislate for a term of office that is for life or until retirement should be excluded, as Article 54(1)(e) GDPR addresses the question of reappointment. Therefore, the GDPR assumes a limited term for the position.[9]

(e) Reappointment

Article 54(1)(e) GDPR mandates Member States to legislate for the reappointment of SA members. Member States are entitled to determine whether, and how often the reappointment of members is permitted. For instance, Union law does not prohibit Member States from legislating for reappointment bans, or limitations to the number of consecutive reappointments, or even for the possibility of indefinite reappointments.

Notably though, leniency on the possibility of multiple consecutive reappointments has the capacity to undermine the independence of SA members, and by relation, the institutional integrity of SAs as independent bodies. Commentators have noted that, in particular in the context of members' re-election, allowing multiple reappointments risks candidates who have previously held office, to make concessions to the appointing body in favour of their renomination. Admittedly, the risk to independence is countered by the fact that a reappointed member will have greater experience than a candidate who has not previously held office.[10]

(f) Rules on members' occupation, prohibitions, incompatible actions and benefits

Under Article 54(1)(f) GDPR, Member States must ('shall') legislate for the (i) conditions governing the obligations of members and staff of each SA, (ii) prohibitions on the actions, occupations and benefits incompatible with membership during and after their term of office, as well as (iii) the rules governing the cessation of their employment.

SA member(s) and staff

While not made explicit under Article 54(1)(f)GDPR, any domestic legislation governing the obligations and prohibitions for SA members during their term of office, must be in line with provisions of Article 52(3) GDPR and Articles 53(3) and 53(4) GDPR. These provisions expand on the conditions outlined under this Article. For instance, Article 52(3) GDPR prohibits SA members from engaging in any incompatible actions and occupations, while Articles 53(3) and 53(4) GDPR regulate the expiry of a member's term of office and dismissal.

To clarify, the GDPR's use of the terms 'members' and 'staff' differentiate between the two types of SA personnel. The former refers to SAs' lead personnel, while the latter refers to supporting staff. Under Article 54(1)(f) GDPR, rules regulating the actions of staff must also be legislated for through national law. However, these conditions are not required to comply with the strict criteria governing SA members, as provided for provided for in Article 52(3) GDPR and Articles 53(3) and 53(4) GDPR.[11]

For more information on SA members and staff, please refer to Article 52(2) GDPR (SA members) and Article 52(5) GDPR (SA staff).

Obligations

Article 54(1)(f) GDPR is not particularly specific in relation to what obligations are to be imposed upon SA members during their term of office. Elements of what constitute a member's 'obligations' are found in other Articles of the GDPR. For instance, Article 52 GDPR mandates that members serve their office with integrity.[12] While, Article 51(1) GDPR outlines SAs' broad purpose of monitoring the GDPR's application, the objectives of which are to protect the right to data protection and facilitate the free flow of personal data within the Union.[13] Especially relevant to the interpretation of the term 'obligations' by the national legislature are Articles 57 and 58 GDPR, which determine the tasks and powers of SAs.[14]

Prohibitions on incompatible actions, occupations and benefits

Any interpretation by national law on the scope and content of incompatible actions, occupations and benefits which SA members and staff are prohibited to take, are to be read in line with Article 52(3) GDPR. Given that GDPR is quite vague in terms of specifying what exactly 'incompatible actions, occupations and benefits' are, it is particularly important that national legislation does not limit itself to reproducing the text of Articles 52(3) GDPR and 54(1)(f) GDPR.

For more information on the conflict of interest rules, please refer to commentary to Article 52(3) GDPR.

During and after the term of office

Member States must adopt appropriate conflict of interest rules for the time during the term in office, as well as for after. In particular, Member States should regulate against the issue of 'revolving doors'. This term refers to the movement of high-level personnel from public roles to those in the private sector, in particular to industries impacted by the work undertaken by those individuals while holding public office.[15] The European Ombudsman has highlighted that the movement of public officials to the private sector presents risks to the integrity of public bodies, as 'valuable inside knowledge can move into the private sector, or because former officials may lobby their former colleagues or existing officials may be influenced by possible future employment.'[16] The level of independence required of SAs as public bodies is extremely high. Consequently, even the risk of partiality is sufficient to undermine it.[17] Therefore, it would be incompatible with the principle of independence if an SA member were to work for a private entity which was under the SA's scrutiny, immediately after their term of office with the SA ended.[18]

A possible solution to curb potential conflicts of interest could be a 'cooling off' period after the end of a member's term of office. Commentators suggest that periods of 18-24 months should be be viewed as a minimum standard.[19] At the same time, it is important that any 'cooling off' periods do not lead to a ban on all professional activities.[20]

Cessation of employment rules

Member States are free to regulate for the rules concerning members' and staff's cessation of employment. In this regard, the GDPR does not contain any specific requirements. Naturally, these rules should not infringe upon SAs' independence, as required by Article 52 GDPR. [21] However, if SA members are legally employed with the SA, any conditions set out by Articles 53(3) and 53(4) GDPR regulating members' end of term or dismissal must also be taken into account by the laws governing their cessation of employment.

For more information regarding the conditions regulating SA members' end of term, please refer to Article 53 GDPR.

(2) Duty of professional secrecy

The second paragraph of Article 54 GDPR prohibits any member or staff of an SA from sharing confidential information with a third party, or disclosing it to the public without prior authorisation.

The duty of professional secrecy, is at its core an essential element of SAs' investigative powers. In broader terms, the duty of professional secrecy applies as a general principle to the information obtained by SAs in the course of the fulfilment of their role as a supervisory body under Union law. Similar obligations apply to members of competition authorities and other Union regulatory bodies, for instance members of the Commission or European Central Bank.[22] Notably, the duty of professional secrecy does not extend to SAs' cooperation mechanism under Articles 60, 61, 64, and 65 GDPR.

The general duty of professional secrecy finds its footing in primary Union law, under Article 339 of the Treaty on the Functioning of the European Union ("TFEU").[23] Transparency considerations arise in relation to the duty of professional secrecy, especially in the context of public access to documents. For instance, access to documents can lawfully be restricted on confidentiality grounds, in particular when they concern the protection of personal data of individuals or the protection of trade secrets. As a result, the duty of professional secrecy is intertwined with the right of access under the right to good administration found in Article 41(2)(b) of the Charter of Fundamental Rights of the European Union ("CFR"),[24] and the right of public access under Article 42 CFR and Regulation 1049/2001.[25] In relation to these conflicting interests, commentators have noted that the obligation of secrecy should “not unduly restrict the transparency of DPA [SA] performance, one of the main elements of public accountability of DPAs [SAs].”[26]

The duty of professional secrecy arises in other provisions of the GDPR, namely under Article 38(5) GDPR in relation to data protection officers ("DPO"). For the interpretation of the duty of professional secrecy in regard to DPOs, please refer to Article 38(5) GDPR.

Members and the staff of supervisory authority (SA)

The duty of professional secrecy only applies to SA staff and members. Thus, nothing prevents the parties to the proceedings (including the complainant) from sharing the information obtained from the SA, subject to restrictions under national law.

Union or Member State law

Member states may further regulate the duty of professional secrecy through their national legislation. In any case, EU law applies as a minimum threshold, thus Member States may regulate for more stringent requirements but not for less.

Union law

Article 339 TFEU establishes that '[t]he members of the institutions of the Union, the members of committees, and the officials and other servants of the Union shall be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components.' Other relevant legislative provisions include Article 17 of the EU Staff Regulations,[27] and Article 56 of Regulation (EU) 2018/1725 ("EUDPR").[28]

National law

Generally, Member States regulate for sector specific confidentiality obligations. In particular, these regulations apply to professionals which handle confidential information on a regular basis, such as doctors, lawyers and public officials. As noted above, Member States may choose to further regulate the confidentiality obligations applying to SAs.

Duty of professional secrecy

The duty of professional secrecy applies to any confidential information which SA members and staff have come into contact with in the course of the performance of their tasks or exercise of their powers.

Confidential information

The CJEU clarified, in Bank Austria Creditanstalt v Commission, that information will be considered confidential if it fulfils the following three conditions: (i) if the information is known only to a limited number of people; (ii) disclosure of the information can cause serious harm to the person who has provided it or to third parties; and (iii) the interests likely to be harmed by disclosure must, objectively, be worthy of protection.[29] Commentators have noted that the test of Article 339 TFEU requires a reinforced protection for business secrets.[30]

In the course of the performance of their tasks or exercise of their powers

Information is only protected if it has come to the knowledge of a member or an employee of a SA 'in the course of the performance of their tasks or exercise of their powers'. Given the broad nature of the tasks and powers afforded to SAs under Articles 57 and 58 GDPR, the duty of professional secrecy applies to all confidential information that SA members and staff come into contact with in the course of their duties, which considering the extent of SAs' work is not an insignificant amount.

Reporting by natural persons of infringements

The duty of professional secrecy, in particular, applies to the reporting of GDPR infringements by natural persons. Considering that protecting the fundamental rights and freedoms of natural persons is a central component of SAs' role, they must pay particular attention to the protection of the holders of those fundamental rights.[31]

During and after their term of office

The duty of professional secrecy applies both during and following an SA member's or staff's term of office. There is no specific duration for which the duty of professional secrecy continues to apply after the expiry of the term of office. The period of time should be determined on a case-by-case basis, taking into account the sensitivity of the information concerned and the potential consequences to be expected from disclosure.

Decisions

→ You can find all related decisions in Category:Article 54 GDPR

References

  1. Boehm, in Kühling, Buchner, DS-GVO BDSG, Article 54 GDPR, margin number 1 (C.H. Beck 2020, 3rd Edition).
  2. Boehm, in Kühling, Buchner, DS-GVO BDSG, Article 54 GDPR, margin number 2 (C.H. Beck 2020, 3rd Edition).
  3. Boehm, in Kühling, Buchner, DS-GVO BDSG, Article 54 GDPR, margin number 7 (C.H. Beck 2020, 3rd Edition).
  4. For more on this point, please refer to Article 51 GDPR.
  5. Ziebarth, in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin numbers 7 to 10 (Nomos 2022).
  6. Boehm, in Kühling, Buchner, DS-GVO BDSG, Article 54 GDPR, margin number 8 (C.H. Beck 2020, 3rd Edition).
  7. Ziebarth, in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin numbers 16 to 19 (Nomos 2022).
  8. This presumably corresponds to the regular length of a legislative period in most EU Member States. It seems to create a link between data protection supervision and the parliament or, where the case, the executive branch responsible for the appointment. See Ziebarth, in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin numbers 25 to 27 (Nomos 2022).
  9. Polenz, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 54 GDPR, margin number 8 (Nomos 2019). Dissenting views can be found in Hijmans, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 54 GDPR, p. 897 (Oxford University Press 2020).
  10. See Ziebarth, in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin numbers 35 to 39 (Nomos 2022). See also Polenz, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 54 GDPR, margin number 9 (Nomos 2019).
  11. See Boehm, in Kühling, Buchner, DS-GVO BDSG, Article 54 GDPR, margin numbers 14 to 16. (C.H. Beck 2020, 3rd Edition).
  12. See also Recital 121 GDPR.
  13. Selmayr, in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 11 (C.H. Beck 2017).
  14. Polenz, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 54 GDPR, margin number 13 (Nomos 2019).
  15. Article 52(3) GDPR is already containing rules on conflict of interest for members of SAs. Article 54(1)(f) GDPR is widening the scope by obliging the member states to adopt national rules on this subject matter for members of SAs and for staff, as well as on the issue of revolving doors.
  16. The European Ombudsman's work on revolving doors (2022), available at https://www.ombudsman.europa.eu/webpub/2022/revolving-doors/en/.
  17. For more on this point, please refer to Article 52 GDPR.
  18. Hijmans, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 54 GDPR, page 898 (Oxford University Press 2020).
  19. Selmayr, in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 11 (C.H. Beck 2017).
  20. Ziebarth, in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin number 46 (Nomos 2022).
  21. Ziebarth, in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin number 47 (Nomos 2022).
  22. Selmayr, in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 12 (C.H. Beck 2017).
  23. Selmayr, in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 12 (C.H. Beck 2017).
  24. This provision notes that the right of good administration includes 'the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy'.
  25. Article 42 CFR notes that '[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.'
  26. Hijmans, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 54 GDPR, p. 899 (Oxford University Press 2020).
  27. Regulation No 31 (EEC), 11 (EAEC), laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, available here.
  28. Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC, available here.
  29. Case T-198/03, Bank Austria Creditanstalt v Commission, para 71.
  30. Selmayr, in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 12 and 13 (C.H. Beck 2017).
  31. Selmayr, in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 14 (C.H. Beck 2017).