Difference between revisions of "Article 57 GDPR"

From GDPRhub
Line 265: Line 265:
 
The filing of complaints should be facilitated. This means that the DPA should be able to provide simple and intuitive solutions for uploading and filing the complaint as well as relevant attachments. The provision expressly mentions a "''complaint submission form''" which should be easy to understand and access to. The provision, however, does not exclude "''other means of communications''", such as the e-mail. In order to facilitate the filing, the DPA IT systems should should be able to receive the complaints with the least number of obstacles possible. It should allow the upload of the most commonly used files format, <ref>BeckOK DatenschutzR / Eichler, 35th Ed. 1.2.2021, GDPR Art. 57 Rn. 41-43</ref> and avoid setting unreasonable restrictions on the amount of files that can be uploaded and their dimension.
 
The filing of complaints should be facilitated. This means that the DPA should be able to provide simple and intuitive solutions for uploading and filing the complaint as well as relevant attachments. The provision expressly mentions a "''complaint submission form''" which should be easy to understand and access to. The provision, however, does not exclude "''other means of communications''", such as the e-mail. In order to facilitate the filing, the DPA IT systems should should be able to receive the complaints with the least number of obstacles possible. It should allow the upload of the most commonly used files format, <ref>BeckOK DatenschutzR / Eichler, 35th Ed. 1.2.2021, GDPR Art. 57 Rn. 41-43</ref> and avoid setting unreasonable restrictions on the amount of files that can be uploaded and their dimension.
  
===DPAs tasks shall be performed free of charge===
+
===DPAs tasks shall be performed free of charge (for the data subject)===
<br />
+
The right to file a complaint is granted free of charge. This supports the idea that of data protection as a fundamental right that must be enforced without undue hindrance by both controllers and DPAs. On the other side, since controllers and processors are not mentioned, it seems reasonable to conclude that the DPA may charge them with some fees for the performance of their tasks. <ref>Ehmann / Selmayr, General Data Protection Regulation
 +
 
 +
2nd edition 2018</ref>
 
===Exception: Manifestly unfounded or excessive requests===
 
===Exception: Manifestly unfounded or excessive requests===
 +
Article 57(4) provides for an exception to the "free of charge" principle. In particular, if the requests are manifestly unfounded or excessive, in particular if they are repetitive, the authority may charge a reasonable fee or refuse to act on the request. This is to prevent the activity of a supervisory authority from being seriously impaired or even paralyzed by troublemakers who make nonsensical or repeated requests. However, since the task of the supervisory authorities is to protect fundamental rights, this exception rule may only be used in clearly defined situations. <ref>Ehmann / Selmayr / Selmayr, 2nd edition. 2018, GDPR Art. 57 nn. 22-24. Paal / Pauly / ''Körffer,'' DS-GVO / BDSG, Art. 57 DS-GVO Rn. 31 also advocates a cautious application of the exception to the principle of free of charge.</ref> The above exception may limit the protection of the data subject's right to file a complaint. For this reason, Article 57(4) provides that the data protection supervisory authority bears the burden of proof and must demonstrate that a request is manifestly unfounded or excessive.
  
 
==Decisions==
 
==Decisions==

Revision as of 08:20, 16 April 2021

Article 57 - Tasks
Gdpricon.png
Chapter 10: Delegated and implementing acts

Legal Text


Article 57 - Tasks


1. Without prejudice to other tasks set out under this Regulation, each supervisory authority shall on its territory:

(a) monitor and enforce the application of this Regulation;
(b) promote public awareness and understanding of the risks, rules, safeguards and rights in relation to processing. Activities addressed specifically to children shall receive specific attention;
(c) advise, in accordance with Member State law, the national parliament, the government, and other institutions and bodies on legislative and administrative measures relating to the protection of natural persons' rights and freedoms with regard to processing;
(d) promote the awareness of controllers and processors of their obligations under this Regulation;
(e) upon request, provide information to any data subject concerning the exercise of their rights under this Regulation and, if appropriate, cooperate with the supervisory authorities in other Member States to that end;
(f) handle complaints lodged by a data subject, or by a body, organisation or association in accordance with Article 80, and investigate, to the extent appropriate, the subject matter of the complaint and inform the complainant of the progress and the outcome of the investigation within a reasonable period, in particular if further investigation or coordination with another supervisory authority is necessary;
(g) cooperate with, including sharing information and provide mutual assistance to, other supervisory authorities with a view to ensuring the consistency of application and enforcement of this Regulation;
(h) conduct investigations on the application of this Regulation, including on the basis of information received from another supervisory authority or other public authority;
(i) monitor relevant developments, insofar as they have an impact on the protection of personal data, in particular the development of information and communication technologies and commercial practices;
(j) adopt standard contractual clauses referred to in Article 28(8) and in point (d) of Article 46(2);
(k) establish and maintain a list in relation to the requirement for data protection impact assessment pursuant to Article 35(4);
(l) give advice on the processing operations referred to in Article 36(2);
(m) encourage the drawing up of codes of conduct pursuant to Article 40(1) and provide an opinion and approve such codes of conduct which provide sufficient safeguards, pursuant to Article 40(5);
(n) encourage the establishment of data protection certification mechanisms and of data protection seals and marks pursuant to Article 42(1), and approve the criteria of certification pursuant to Article 42(5);
(o) where applicable, carry out a periodic review of certifications issued in accordance with Article 42(7);
(p) draft and publish the criteria for accreditation of a body for monitoring codes of conduct pursuant to Article 41 and of a certification body pursuant to Article 43;
(q) conduct the accreditation of a body for monitoring codes of conduct pursuant to Article 41 and of a certification body pursuant to Article 43;
(r) authorise contractual clauses and provisions referred to in Article 46(3);
(s) approve binding corporate rules pursuant to Article 47;
(t) contribute to the activities of the Board;
(u) keep internal records of infringements of this Regulation and of measures taken in accordance with Article 58(2); and
(v) fulfil any other tasks related to the protection of personal data.

2. Each supervisory authority shall facilitate the submission of complaints referred to in point (f) of paragraph 1 by measures such as a complaint submission form which can also be completed electronically, without excluding other means of communication.

3. The performance of the tasks of each supervisory authority shall be free of charge for the data subject and, where applicable, for the data protection officer.

4. Where requests are manifestly unfounded or excessive, in particular because of their repetitive character, the supervisory authority may charge a reasonable fee based on administrative costs, or refuse to act on the request. The supervisory authority shall bear the burden of demonstrating the manifestly unfounded or excessive character of the request.

Relevant Recitals

You can help us fill this section!

Commentary

Tasks of the Authority

Article 57 contains a detailed, albeit not exhaustive, list of mandatory tasks assigned to the supervisory authorities. The provision does not provide for a closed list, as other tasks and responsibilities may arise from other provisions included in the GDPR ("Without prejudice to other tasks set out under this Regulation"). The aim of the detailed regulation is to create an equivalent level of data protection within the EU through a uniform implementation framework (Recital 123 ,129 and Article 57(1)(g)(h) GDPR).[1]

(a) monitor and enforce the application of this Regulation;

According to Article 57(1)(a), the supervisory authorities must monitor and enforce the application of the GDPR. The collocation of this task (letter a) demonstrate that monitoring and enforcement are the supervisory authorities' core activities. The following tasks can be understood as a manifestation of this delicate task. [2]

(b) promote public awareness and understanding of the risks, rules, safeguards and rights;

Raising public awareness is now explicitly regulated as a task. The GDPR expressly assigns the supervisory authorities the task of making the public aware not only of the risks associated with data processing but also of safeguards and protections that the GDPR afford to data subjects and children.

(c) advise Member States and other public bodies on legislative and administrative measures when necessary;

The wording includes general, preventive advice to the bodies mentioned on which measures should be taken to ensure an appropriate level of data protection. A confirmation to this can be found in Article 36(4) which stipulates that Member States shall consult the supervisory authority during the preparation of a legislative measure which relates to processing of personal data. [3] The advisory activities of the supervisory authorities are intended to make data processing transparent and enable the addressees of the advisory service to conduct legal and administrative activities in accordance with data protection.

(d) promote the awareness of controllers and processors of their obligations under this Regulation;

Supervisory authorities should not only shed light on legislative proposals and administrative measures, but also on those actors whose actions are governed by the GDPR: controllers and processors. In practice, this task can be carried out, for example, through training courses, official statements as well as through direct contacts with the obligated parties in the event of obvious difficulties in interpreting new and controversial provisions. [4]

Submission of complaints should be facilitated

The data subject's right to file a complaint and seek protection following an infringement of the GDPR is widely mentioned and protected throughout the Regulation. Data subjects are informed about the existence of the right to complaint (Article12(4) and Article 13(2)(d) and (e) GDPR). The supervisory authorities deal with every complaint, investigating it to an appropriate extent and informing the complainant about the progress and result of the investigation (Article 57(1)(f) GDPR).

The filing of complaints should be facilitated. This means that the DPA should be able to provide simple and intuitive solutions for uploading and filing the complaint as well as relevant attachments. The provision expressly mentions a "complaint submission form" which should be easy to understand and access to. The provision, however, does not exclude "other means of communications", such as the e-mail. In order to facilitate the filing, the DPA IT systems should should be able to receive the complaints with the least number of obstacles possible. It should allow the upload of the most commonly used files format, [5] and avoid setting unreasonable restrictions on the amount of files that can be uploaded and their dimension.

DPAs tasks shall be performed free of charge (for the data subject)

The right to file a complaint is granted free of charge. This supports the idea that of data protection as a fundamental right that must be enforced without undue hindrance by both controllers and DPAs. On the other side, since controllers and processors are not mentioned, it seems reasonable to conclude that the DPA may charge them with some fees for the performance of their tasks. [6]

Exception: Manifestly unfounded or excessive requests

Article 57(4) provides for an exception to the "free of charge" principle. In particular, if the requests are manifestly unfounded or excessive, in particular if they are repetitive, the authority may charge a reasonable fee or refuse to act on the request. This is to prevent the activity of a supervisory authority from being seriously impaired or even paralyzed by troublemakers who make nonsensical or repeated requests. However, since the task of the supervisory authorities is to protect fundamental rights, this exception rule may only be used in clearly defined situations. [7] The above exception may limit the protection of the data subject's right to file a complaint. For this reason, Article 57(4) provides that the data protection supervisory authority bears the burden of proof and must demonstrate that a request is manifestly unfounded or excessive.

Decisions

→ You can find all related decisions in Category:Article 57 GDPR

References

  1. BeckOK DatenschutzR / Eichler GDPR Art. 57 Rn. 1-3
  2. Kühling / Buchner / Boehm GDPR Art. 57 Rn. 9
  3. BeckOK DatenschutzR / Eichler GDPR Art. 57 Rn. 9-11
  4. Kühling / Buchner / Boehm GDPR Art. 57 Rn. 14-19
  5. BeckOK DatenschutzR / Eichler, 35th Ed. 1.2.2021, GDPR Art. 57 Rn. 41-43
  6. Ehmann / Selmayr, General Data Protection Regulation 2nd edition 2018
  7. Ehmann / Selmayr / Selmayr, 2nd edition. 2018, GDPR Art. 57 nn. 22-24. Paal / Pauly / Körffer, DS-GVO / BDSG, Art. 57 DS-GVO Rn. 31 also advocates a cautious application of the exception to the principle of free of charge.