Article 54 GDPR

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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 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.

(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.

(a) Establishment of the supervisory authority (SA)

Criteria concerning the establishment of SAs are set out in Article 51(1) GDPR and Article 52 GDPR. Article 54(1)(a) GDPR specifies that this should be done by law.[1] 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.[2]

For more information regarding the establishment of SAs consult commentary on Article 51(1) GDPR and Article 52 GDPR.

(b) Qualifications and eligibility conditions for SA's members

Article 54(1)(b) GDPR is connected to 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.[3] It clarifies that qualifications and eligibility conditions should be further specified in national law.[4] 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.[5]

For more information about qualifications and eligibility conditions for SA members see commentary on Article 53(2) GDPR.

(c) The rules and procedures for the appointment of SA's 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(1) GDPR that is containing the basic rule regarding the appointment of SA members.

For more information please refer to commentary on Article 53(1) GDPR.

(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. [6] 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.[7]

(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.[8]

(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.

Member(s) of SA and staff

Member state rules governing members of SAs, i.e. the lead personnel, must be in line with provisions of Article 52(3) GDPR and 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(3) GDPR and Article 53(3)(4) GDPR with regard to member(s) of SAs.[9]

More information regarding members and staff of SAs can be found in the commentary on Article 52(2) GDPR (member(s) of SAs) and on Article 52(5) GDPR (staff of SAs).

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.[10] Additionally 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.[11] As well as Article 57 GDPR and Article 58 GDPR determining the tasks and powers of SAs.[12]

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(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(3) GDPR.[13]

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.[14] 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."[15] 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 .[16]

For example: 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.

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.[17] At the same time, it is important that the rules do not lead to a ban on all professional activity.[18]

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. [19]

Members of SAs can also be employed at the SA. Then the conditionsset out in 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.

(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.[20]

When SAs exchange information pursuant to the cooperation mechanism under Article 60, Article 61, Article 64, and Article 65 GDPR they are not bound by the prohibition to share confidential information.

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.

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].”[21]

With regard to the obligation of secrecy of DPO’s please refer to commentary on Article 38(5) GDPR.

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.

Union or member state law

Member states can regulate the obligation of confidentiality in their national legislation. Otherwise EU law applies.

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[22] and Article 56 EUDPR[23].

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.

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.

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.[24]

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.

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.[25]

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.

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 7 (C.H. Beck 2020, 3rd Edition).
  2. Ziebarth, in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin numbers 7 to 10 (Nomos 2022).
  3. Boehm, in Kühling, Buchner, DS-GVO BDSG, Article 54 GDPR, margin number 8 (C.H. Beck 2020, 3rd Edition).
  4. Ziebarth, in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin numbers 16 to 19 (Nomos 2022).
  5. Ziebarth, in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin number 15 (Nomos 2022).
  6. 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).
  7. 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).
  8. 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).
  9. See Boehm, in Kühling, Buchner, DS-GVO BDSG, Article 54 GDPR, margin numbers 14 to 16. (C.H. Beck 2020, 3rd Edition).
  10. See also Recital 121 GDPR.
  11. Selmayr, in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 11 (C.H. Beck 2017).
  12. Polenz, in Simitis, Hornung, Spiecker gen. Döhmann, Datenschutzrecht, Article 54 GDPR, margin number 13 (Nomos 2019).
  13. Selmayr, in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 11 (C.H. Beck 2017).
  14. 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.
  15. The European Ombudsman's work on revolving doors (2022), available at https://www.ombudsman.europa.eu/webpub/2022/revolving-doors/en/.
  16. Hijmans, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 54 GDPR, page 898 (Oxford University Press 2020).
  17. Selmayr, in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 11 (C.H. Beck 2017).
  18. Ziebarth, in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin number 46 (Nomos 2022).
  19. Ziebarth, in Sydow, Marsch, DS-GVO/BDSG, Article 54 GDPR, margin number 47 (Nomos 2022).
  20. Selmayr, in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 12 (C.H. Beck 2017).
  21. Hijmans, in Kuner, Bygrave, Docksey, The EU General Data Protection Regulation (GDPR): A Commentary, Article 54 GDPR, p. 899 (Oxford University Press 2020).
  22. 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.
  23. 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.
  24. Selmayr, in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 12 and 13 (C.H. Beck 2017).
  25. Selmayr, in Ehmann, Selmayr, DS-GVO Kommentar, Article 54 GDPR, margin number 14 (C.H. Beck 2017).