Difference between revisions of "Article 57 GDPR"

From GDPRhub
Line 288: Line 288:
  
 
====(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);====
 
====(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);====
The supervisory authorities should expressly introduce data protection certification mechanisms as well as data protection seals and certification marks in accordance with Article 42(1) GDPR.
+
See comment under Article 42.
  
==== (o) where applicable, carry out a periodic review of certifications issued in accordance with Article 42(7); ====
+
====(o) where applicable, carry out a periodic review of certifications issued in accordance with Article 42(7);====
 +
See comment under Article 42.
  
==== (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 ====
+
====(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;====
 +
See comments under Article 41 and 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; ====
+
====(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;====
 +
See comments under Article 41 and 43.
  
==== (r) authorise contractual clauses and provisions referred to in Article 46(3); ====
+
====(r) authorise contractual clauses and provisions referred to in Article 46(3);====
 +
See comment under Article 46.
  
==== (s) approve binding corporate rules pursuant to Article 47; ====
+
====(s) approve binding corporate rules pursuant to Article 47;====
 +
See comment under Article 47.
  
==== (t) contribute to the activities of the Board; ====
+
====(t) contribute to the activities of the Board;====
 +
''You can help us fill this section!''
  
==== (u) keep internal records of infringements of this Regulation and of measures taken in accordance with Article 58(2); and ====
+
====(u) keep internal records of infringements of this Regulation and of measures taken in accordance with Article 58(2); and====
 +
See comment under Article 58.
  
==== (v) fulfil any other tasks related to the protection of personal data. ====
+
====(v) fulfil any other tasks related to the protection of personal data.====
 +
Article 57(1)(v) constitute the residual provision for all “''other tasks related to the protection of personal data''”. The list of tasks is therefore not exhaustive and Member States can provide for further tasks in national law. However, these should be chosen carefully with a view to the respective financial resources and the already far-reaching tasks. <ref>Kühling / Buchner / Boehm, 3rd edition 2020, GDPR Art. 57 Rn. 24</ref>
  
 
===Submission of complaints should be facilitated===
 
===Submission of complaints should be facilitated===

Revision as of 14:56, 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]

(e) provide information concerning the exercise of data subject rights;

Not only data protection authorities raise public awareness but they also provide specific guidance to every person concerned with information about the exercise of their GDPR rights. "Rights" includes both material rights (such as the right to be forgotten, Article 17) as well as procedural rights and legal enforcement options (for instance, the rights mentioned in Article 77, 78 and 80 GDPR). Article 57(1)(e) refers to the fact that several data protection supervisory authorities may have to work together for the purpose of a corresponding information campaign (e.g. by creating a joint information website or a joint leaflet). [5]

(f) handle, investigate complaints and inform the complainant of the progress and the outcome of the investigation (within a reasonable period);

Under Article 57 (1)(f) GDPR, supervisory authorities should deal with data subjects' complaints (including complaints filed in accordance with Article 80 GDPR). This implies investigating the subject matter of the complaint and informing the complainant about the progress and result of the investigation. All the above should be performed within a reasonable period of time (see also Article 77(2) and Article 78(2) GDPR). According to scholars, the provision under comment highlights a fundamental duty of the data protection authorities to process complaints quickly and efficiently and to avoid lengthy proceedings. [6]

(g) cooperate with other supervisory authorities, share information and provide mutual assistance to ensure consistent application of the GDPR across the EU and full enforcement;

DPAs must share information and cooperate with other authorities in case a processing presents transnational profiles. It seems important to highlight that this type of cooperation does not require a cross-border processing as per Article 4(21) GDPR. The inter-agency cooperation can be regarded as a necessary instrument that allows supervisory authorities to monitor and enforce the application of the GDPR throughout the Union. Such aim would be impossible without a proactive cooperation. Therefore, it is the task of every national data protection supervisory authority, to work with other supervisory authorities, also through the exchange of information, and to provide them with administrative assistance in order to ensure the uniform application and enforcement of the GDPR.

(h) conduct investigations on the application of this Regulation, including on the basis of information received from another supervisory authority or other public authority;

The DPA can obviously carry out ex officio investigations to ensure compliance with the GDPR. To start the investigation, a data protection authority can obtain the information out of its own initiative or from another supervisory authority (e.g. in accordance with Article 60(1) and Article 61(1) of the GDPR). Relevant information can also be obtained by another authority (e.g. a competition SA, consumer protection or telecommunications authority). In any of these cases, the DPA can start an investigation.

(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;

Another activity DPAs are tasked with is to follow any development relevant to data protection field. In particular, the DPA shall be updated on new communication technologies and business practices. This seems to be necessary in order to adequately carry out the other tasks, particularly monitoring and advice. To do so, the supervisory authorities shall be given appropriate human and technical resources (Article 52(4) GDPR).

(j) adopt standard contractual clauses referred to in Article 28(8) and in point (d) of Article 46(2);

Supervisory authorities can adopt standard contractual clauses in accordance with Article 28(8) and Article 46(2)(d) GDPR. Both cases trigger the coherence procedure before the EDPB according to Article 63, 64(1)(d) GDPR.

(k) establish and maintain a list in relation to the requirement for data protection impact assessment pursuant to Article 35(4);

Every DPA shall establish and maintain a list of the processing operations for which according a data protection impact assessment must always be carried out (Article 35(1) GDPR). On the other side, maintaining a negative list for cases where a DPIA is not needed is not a mandatory task. However, according to Article 35(5), a DPA may also establish and make public a list of the kind of processing operations for which no data protection impact assessment is required. These lists are also to be submitted to the EDPS.

(l) give advice on the processing operations referred to in Article 36(2);

If the supervisory authority is of the opinion that the intended processing referred to in Article 36(1) would infringe the Regulation, it can provide written advice to the controller and, where applicable to the processor, and may use any of its powers referred to in Article 58. In these cases, the data protection officers of the responsible parties act as a contact point for the supervisory authorities in accordance with Article 39(1)(e) GDPR.

(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);

Supervisory authorities promote according to Art.40 para.1 (→ Art. 40Rn. 7 ) the elaboration of rules of conduct. What the funding should consist of is not specifically regulated. A pragmatic approach consists in the publication of checklists for the creation of rules of conduct. On the other hand, it is correctly argued that, if the encouragement to develop codes of conduct takes place, regulators must have sufficient resources for these time-consuming and labor-intensive processes. The approval procedure is set out in Article 40(5). Rules of conduct that affect processing activities in several Member States must be submitted to the EDPB in accordance with Article 40(7) GDPR. The coherence procedure according to Art.64(1)(b) applies.

(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);

See comment under Article 42.

(o) where applicable, carry out a periodic review of certifications issued in accordance with Article 42(7);

See comment under Article 42.

(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;

See comments under Article 41 and 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;

See comments under Article 41 and 43.

(r) authorise contractual clauses and provisions referred to in Article 46(3);

See comment under Article 46.

(s) approve binding corporate rules pursuant to Article 47;

See comment under Article 47.

(t) contribute to the activities of the Board;

You can help us fill this section!

(u) keep internal records of infringements of this Regulation and of measures taken in accordance with Article 58(2); and

See comment under Article 58.

(v) fulfil any other tasks related to the protection of personal data.

Article 57(1)(v) constitute the residual provision for all “other tasks related to the protection of personal data”. The list of tasks is therefore not exhaustive and Member States can provide for further tasks in national law. However, these should be chosen carefully with a view to the respective financial resources and the already far-reaching tasks. [7]

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, [8] 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. [9]

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. [10] 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. Ehmann / Selmayr / Selmayr, 2nd edition 2018, GDPR Art. 57, marginal numbers 12-15
  6. Ehmann / Selmayr, General Data Protection Regulation, 2nd edition 2018, nn. 6-11
  7. Kühling / Buchner / Boehm, 3rd edition 2020, GDPR Art. 57 Rn. 24
  8. BeckOK DatenschutzR / Eichler, 35th Ed. 1.2.2021, GDPR Art. 57 Rn. 41-43
  9. Ehmann / Selmayr, General Data Protection Regulation 2nd edition 2018
  10. 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.