Article 55 GDPR

← Article 55 - Competence →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 55 - Competence

1. Each supervisory authority shall be competent for the performance of the tasks assigned to and the exercise of the powers conferred on it in accordance with this Regulation on the territory of its own Member State.

2. Where processing is carried out by public authorities or private bodies acting on the basis of point (c) or (e) of Article 6(1), the supervisory authority of the Member State concerned shall be competent. In such cases Article 56 does not apply.

3. Supervisory authorities shall not be competent to supervise processing operations of courts acting in their judicial capacity.

Relevant Recitals

Recital 20: Respect to the Independence of the Judiciary

While this Regulation applies, inter alia, to the activities of courts and other judicial authorities, Union or Member State law could specify the processing operations and processing procedures in relation to the processing of personal data by courts and other judicial authorities. The competence of the supervisory authorities should not cover the processing of personal data when courts are acting in their judicial capacity, in order to safeguard the independence of the judiciary in the performance of its judicial tasks, including decision-making. It should be possible to entrust supervision of such data processing operations to specific bodies within the judicial system of the Member State, which should, in particular ensure compliance with the rules of this Regulation, enhance awareness among members of the judiciary of their obligations under this Regulation and handle complaints in relation to such data processing operations.

Recital 122: Competence of Supervisory Authorities

Each supervisory authority should be competent on the territory of its own Member State to exercise the powers and to perform the tasks conferred on it in accordance with this Regulation. This should cover in particular the processing in the context of the activities of an establishment of the controller or processor on the territory of its own Member State, the processing of personal data carried out by public authorities or private bodies acting in the public interest, processing affecting data subjects on its territory or processing carried out by a controller or processor not established in the Union when targeting data subjects residing on its territory. This should include handling complaints lodged by a data subject, conducting investigations on the application of this Regulation and promoting public awareness of the risks, rules, safeguards and rights in relation to the processing of personal data.

Recital 128: No Lead Supervisory Authority for Processing Carried Out by Public Authorities or Private Bodies in the Public Interest

The rules on the lead supervisory authority and the one-stop-shop mechanism should not apply where the processing is carried out by public authorities or private bodies in the public interest. In such cases the only supervisory authority competent to exercise the powers conferred to it in accordance with this Regulation should be the supervisory authority of the Member State where the public authority or private body is established.

Commentary

Article 55 is a rule on jurisdiction setting out rules regarding competences of national supervisory authorities ("SAs"). Pursuant to Article 55(1) GDPR, the SA has jurisdiction on the territory of its member state. In particular, the SA’s jurisdiction applies to the processing of personal data carried out in the context of the activities of an establishment of the controller in that member state. Article 55(2) GDPR governs the competences of SAs regarding processing carried out by public authorities or private bodies acting in the public interest. Paragraph 3 clarifies that SAs are not competent to supervise the work of the courts in the exercise of their judicial function.

Competences of SAs in cases of cross-border processing are governed by Article 56 GDPR. Cross-border processing is defined in Article 4(23) GDPR.

(1) Competence of the Supervisory Authority

Article 55(1) GDPR is limiting the jurisdiction of a SA to the territory of its own state. It expresses a basic principle of public international law, the principle of sovereignty: a state has the power to enforce the law within its national borders through the authorities with which it has entrusted itself. “It also confirms the role of SA as enforcement authorities, having competence on national territory equal to other public bodies and judicial authorities.”

At the same time, in accordance with the principle of sovereignty each state is prohibited to exercise power or authority on the territory of another state.

Each supervisory authority (SA)

According to Article 51 GDPR each member states must establish at least one SA responsible to monitor the application of the GDPR. If several SAs co-exist in one member state, each SA does not need to be competent for the whole territory of the state. It is a question of national law, how the jurisdiction is divided between SAs within a state.

Is competent

The competence of a SA on the territory of its own member state extend to all of its tasks and powers.

In the digital environment the place of processing of data and the place where the effects of this processing on individuals shows are not necessarily the same. In Recital 122 GDPR takes this into account with regard to competences of SAs. It specifies that SAs should in particular have jurisdiction over:

• processing in the context of the activities of an establishment on the territory of its own Member State,
• processing carried out by public authorities or private bodies acting in the public interest (see (2) Responsibility Regarding Processing in the Public Interest bellow),
• processing affecting data subjects on its territory and
• processing carried out by a controller or processor not established in the Union when targeting data subjects residing on its territory.

Recital 122 GDPR follows same concepts as Article 3 GDPR determining the scope of the GDPR, but the list is not limiting the competences of SAs to listed situations. With regard to competences of SAs Article 3 GDPR cannot be directly applied as it is dealing with the territorial scope of the GDPR and not with the question of competences of national SAs.

Linking of competences to the establishment

A national SA has jurisdiction when an establishment of a controller or a processor is on its territory and processing is taking place in the context of the activity of this establishment. The concept of establishment was developed by the CJEU and requires a  real and effective activity exercised through stable arrangements. Existence of a separate legal entity or a specific legal form is not required.

The processing in question must be linked with the establishment to the extent that it can be considered to take place in the context of activities of the establishment. This means that processing does not need to be carried out by the establishment concerned itself but a link between the activity of the establishment and data processing must exist.

Both concepts are further discussed in Article 4 GDPR.

Common misunderstanding: SAs is only competent to investigate the processing of data by controllers established and registered in its member state.

Competence for public authorities

Competence for processing by public authorities or private bodies acting in the public interest is addressed and further discussed in Article 55(2) Responsibility Regarding Processing in the Public Interest bellow.

In particular, if a controller has an establishment within a Member State, the authority of that State will have jurisdiction over it, regardless of where the processing is carried out. The competence of a SA on a territory of its own Member State includes’ among the others, “handling complaints lodged by a data subject, conducting investigations on the application of this Regulation and promoting public awareness of the risks, rules, safeguards and rights in relation to the processing of personal data”.

Competence due to affect on data subjects on its territory

When processing affects only data subjects on the territory of the SAs where the complaint was lodged and the processor has an establishment there, SA is responsible to investigate and decide in the case. On the other hand, processing of data can affect data subjects in several member states. In such cases SAs have to act and handle cases in accordance with the rules on allocation of competences between the lead supervisory authority (LSA) and other supervisory authorities and other rules on allocation of competences and cooperation between SAs laid down in the consistency procedure and the cooperation procedure in Article 65 GDPR andArticle 60 GDPR to Article 67 GDPR. SAs are under the duty of sincere and effective cooperation and have to respect the allocation of competences.

In particularly, data subjects in several member states are affected in situations of cross-border processing. The procedure is led by SA of the main establishment of the processor - the lead supervisory authority (LSA). LSA is competent to lead the investigation and issue the final decision against the controller. SAs of all states whose residents are affected by processing can participate in the investigation and decision making as SAs concerned. Additionally, the SA with which the complaint was lodged is also competent for issuing a decision rejecting the complaint or any parts thereof. In situations where a complaint was lodged with a SA by one of its residents who was affected and the processor has no establishment in this state, the SA will have to ask the SA of the establishment of the controller for cooperation in accordance with Article 61 and Article 62. A final decision establishing a violation and imposing corrective measures and a fine should be issued by the national SA where the controller is established.

Case law: In case C-230/14, Weltimmo, CJEU stated that a SA cannot impose penalties outside the territory of its own member state but it can examine a complaint and exercise investigative powers against a company established in another member state which was directing its activities to residents of its state. For finding an infringement and imposing penalties the SA must request cooperation of SA of the establishment in accordance with the rules on cooperation.

Competence due to processing carried out by a controller not established in the Union when targeting data subjects residing in the Union (market principle)

A national SA has also jurisdiction when a controller and processor, which is not established in any of the member state, is processing the data of its residents in relation to offering goods or services or through monitoring their behavior. This refers to situations when GDPR is applicable according to Article 3(2) GDPR. For more information regarding conditions for applicability of GDPR in this circumstances see commentary to Article 3(2) GDPR.

In this situations, several SAs can be competent to act in parallel, each concerning the data processing of their residents. SAs may use the consistency mechanism to implement and apply the GDPR throughout the Union in a consistent manner.

In this situations the main question is how to enforce a decision when a violation of GDPR is established. In particularly, how corrective measures and fines can be enforced, since the controller or processor are located outside the territory and thus outside the reach of any member state, especially in situations when a controller has not designated a representative on  the territory of the European Union (in breach of Article 27(1) GDPR). In such situations s SA may ask the competent authorities of the country of the processor for cooperation under an international agreement between the countries. It may also order that the data has to remain within the Union and cannot be transferred to a third country.

Performance of tasks and the exercise of powers

SA’s tasks and powers include “handling complaints lodged by a data subject, conducting investigations on the application of this Regulation and promoting public awareness of the risks, rules, safeguards and rights in relation to the processing of personal data”. Tasks of SAs are listed in Article 57 GDPR. Powers of SAs are listed in Article 58 GDPR.

On the territory of its own member state

The jurisdiction of a SA and its coercive power is limited to the territory of its own state. This means that a SA of one member state cannot investigate on the territory of another state.

Example: French DPA can conduct an investigation on the premises of a controller, if the premises is located in France. At the same time the French DPA cannot on its own conduct an investigation on the premises of a processor, if the premises is located in Spain.

It also means that a decision issued by a SA cannot be enforced in another state.

Example: If the Austrian SA would issue a decision by which it would ban further processing of data and impose a 150.000 EUR fine against a controller from France that has no establishment in Austria the Austrian authority would not have the power or any means to force the controller to comply with the decision and pay the fine since it is not on the territory of Austria.

At the same time according to the CJEU case law “the law should make it possible for individuals to enforce their right to protection” Therefore the GDPR has provided a cooperation and consistency mechanism between SAs under Article 56 GDPR and Articles 60 to 67 GDPR, which should result in final decisions being issued by the national SA of the establishment of the controller.

No rule on applicable law

The GDPR in several provisions mandates the states to adopt more specific national rules on data protection, such as on special categories of data (Article 9 GDPR) or human resources data (Article . It is not evident which national law is applicable in such instances as GDPR does not contain any rules on applicable law for data processed within the EU. The SA of one state may have to apply the national rules of another state in such cases. OUP, xxx

(2) Responsibility Regarding Processing in the Public Interest

Article 55(2) GDPR regulates the SA’s competence in case of processing carried out by public authorities or private bodies complying with a legal obligation or performing a task in the public interest. The provision confirms the competence of the SA in whose Member State the public authority or private body is located. In such cases, Article 56 GDPR will not apply and the only competent SA to exercise its powers should be the one where the public authority or private body is established. This rule thus establishes the exclusive jurisdiction of the national SA.

This provision applies to public authorities when they perform their public duties by virtue of Article 6(1)(c)(e) GDPR. Any other activities that would not be performing public tasks, such as commercial activities, are not subject to Article 55(2) GDPR. Also, private entities performing tasks under a legal obligation or under the public interest will not be subject to the cooperation mechanism. That would imply that the obligation of air carriers to retain data or data retention obligation of electronic communication providers would not be subject to the one-stop shop procedure.

(3) Processing by the Judiciary in Their Judicial Capacity

In order to protect the independence of the judiciary, Article 55(3) GDPR exempts SAs from supervising the activities of courts and other judicial authorities when they are acting in their judicial capacity. That does not mean that their activities are not subject to the GDPR, since this would be contrary to Article 8(3) of the Charter of Fundamental Rights (CFR) but rather that the monitoring of personal data by the judiciary should be entrusted to specific bodies within the judicial system of the Member State.

Moreover, Article 80 of the Law Enforcement Directive (Directive (EU) 2016/680) states that courts and other independent judicial authorities should always be subject to independent supervision. Even if Article 55(3) GDPR only mention courts, it seems obvious that other judicial bodies – such as the prosecutor office – should be subject to independent supervision separate from the SA. However, Article 55(3) GDPR does not define what the term “acting in their judicial capacity” determines.  Whereas the processing of the data of the staff hired by a court remains subject to the supervision of the SA, it remains unclear whether that is the case with the publication of a court’s decisions on its website.

In this context, a preliminary ruling is pending before the CJEU. The referring court asks the CJEU whether Article 55(3) GDPR must be interpreted as meaning that “processing operations of courts acting in their judicial capacity” can be understood to mean the “provision by a judicial authority of access to procedural documents containing personal data, where such access is granted by making copies of those procedural documents available to a journalist”.

Decisions

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