Difference between revisions of "Article 58 GDPR"

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==== (a) Information request ====
 
==== (a) Information request ====
The supervisory authority can instruct the controller, processor and, if applicable, the representative to provide all information that is necessary for the performance of their tasks. Information can be provided, for example, by transmitting documents to the supervisory authority, submitting written statements or replying to questionnaires. In addition to this, Article 30(4) stipulates that the controller or processor or, if applicable, the representative shall make the record of processing activities available to the supervisory authority on request. [''Zavadil'', in Knyrim, DatKomm, Article 58 GDPR, Margin number 14 (Manz, status 1.3.2021, rdb.at) (accessed 23.4.2021)]
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The supervisory authority can instruct the controller, processor and, if applicable, the representative to provide all information that is necessary for the performance of their tasks. Information can be provided, for example, by transmitting documents to the supervisory authority, submitting written statements or replying to questionnaires. In addition to this, Article 30(4) stipulates that the controller or processor or, if applicable, the representative shall make the record of processing activities available to the supervisory authority on request.<ref>''Zavadil'', in Knyrim, DatKomm, Article 58 GDPR, Margin number 14 (Manz, status 1.3.2021, rdb.at) (accessed 23.4.2021)</ref>
  
 
==== (b) Data protection audits ====
 
==== (b) Data protection audits ====
The supervisory authorities can carry out investigations in the form of data protection audits. An audit is commonly understood to be a comprehensive qualitative examination of the effectiveness of procedures within an organization or company. [''Selmayr,'' in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 58 GDPR, Margin number 13 (Beck, 2nd edition 2018) (accessed 23.4.2021)]  The initial version of Article 58 limited the scope of the audit to the business premises of the controller [...]. After the GDPR Corrigendum OJ L 2018/127-1, however, the term “business premises” has been replaced by “premises”. It follows that private rooms (where at least a part of the processing takes place) are also included. [''Zavadil'', in Knyrim, DatKomm, Article 58 GDPR, Margin number 17-18 (Manz, status 1.3.2021, rdb.at) (accessed 23.4.2021)].
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The supervisory authorities can carry out investigations in the form of data protection audits. An audit is commonly understood to be a comprehensive qualitative examination of the effectiveness of procedures within an organization or company.<ref>''Selmayr,'' in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 58 GDPR, Margin number 13 (Beck, 2nd edition 2018) (accessed 23.4.2021)</ref>  The initial version of Article 58 limited the scope of the audit to the business premises of the controller [...]. After the GDPR Corrigendum OJ L 2018/127-1, however, the term “business premises” has been replaced by “premises”. It follows that private rooms (where at least a part of the processing takes place) are also included. <ref>''Zavadil'', in Knyrim, DatKomm, Article 58 GDPR, Margin number 17-18 (Manz, status 1.3.2021, rdb.at) (accessed 23.4.2021)</ref>
  
 
==== (c) Review of certifications ====
 
==== (c) Review of certifications ====
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==== (d) Notification of an alleged infringement ====
 
==== (d) Notification of an alleged infringement ====
In accordance with Article 58(1)(d), a DPA can inform a controller or processor about an alleged – ''i.e.'' possible, but not yet determined – infringement of the Regulation. Such a notice can be given, for example, directly in connection with a data protection audit, a data subject’s complaint or official information from another DPA. The notice establishes a presumption of a violation of the GDPR, which, however, can be rejected by the controller or the processor. [''Selmayr,'' in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 58 GDPR, Margin number 16 (Beck, 2nd edition 2018) (accessed 23.4.2021)] It seems a constructive and proportional approach which gives controllers and processors a chance to know the provisional understanding of the authority and react accordingly, making submissions or bringing the processing into compliance.
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In accordance with Article 58(1)(d), a DPA can inform a controller or processor about an alleged – ''i.e.'' possible, but not yet determined – infringement of the Regulation. Such a notice can be given, for example, directly in connection with a data protection audit, a data subject’s complaint or official information from another DPA. The notice establishes a presumption of a violation of the GDPR, which, however, can be rejected by the controller or the processor.<ref>''Selmayr,'' in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 58 GDPR, Margin number 16 (Beck, 2nd edition 2018) (accessed 23.4.2021)</ref> It seems a constructive and proportional approach which gives controllers and processors a chance to know the provisional understanding of the authority and react accordingly, making submissions or bringing the processing into compliance.
  
 
==== (e) Access to personal data and all relevant information ====
 
==== (e) Access to personal data and all relevant information ====
The powers of investigation of the data protection supervisory authorities also include a right of access to personal data and information in accordance with Article 58(1)(e) GDPR. This type of investigation includes the right to directly access to personal data, inspect internal documents, databases and procedures and therefore is wider and more incisive than the right to (request and) obtain information under Article 58(1)(a). Controllers and processors must cooperate with the DPA during the inspection. However, if the cooperation brings to a violation of the Nemo Tenetur principle, it seems possible for the investigated party to lawfully refuse such cooperation. [''Eichler'', in Wolff, Brink, BeckOK DatenschutzR, Article 35 GDPR, Marginal number 14, (Beck, Ed. 1.2.2021)]
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The powers of investigation of the data protection supervisory authorities also include a right of access to personal data and information in accordance with Article 58(1)(e) GDPR. This type of investigation includes the right to directly access to personal data, inspect internal documents, databases and procedures and therefore is wider and more incisive than the right to (request and) obtain information under Article 58(1)(a). Controllers and processors must cooperate with the DPA during the inspection. However, if the cooperation brings to a violation of the Nemo Tenetur principle, it seems possible for the investigated party to lawfully refuse such cooperation.<ref>''Eichler'', in Wolff, Brink, BeckOK DatenschutzR, Article 35 GDPR, Marginal number 14, (Beck, Ed. 1.2.2021)</ref>
  
 
==== (f) Access to premises including equipment and means ====
 
==== (f) Access to premises including equipment and means ====
Finally, data protection supervisory authorities – similarly to the European Commission and the national competition authorities in EU antitrust proceedings – are given the power to search the controller’s (or processor’s) premises in accordance with Article 58(1)(f). According to Körffer, following the Corrigendum OJ L 2018/127-1, the search is no longer restricted to the business premises. However, a judge's authorization is obvious with regard to the inviolability of the apartment and similar places. [Körffer, in Paal, Pauly, GDPR BDSG, Article 58, Marginal numbers 14 (Beck, 3rd edition 2021) (accessed 23.4.2021)]. The term “premises” includes all data processing systems and all data processing devices.
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Finally, data protection supervisory authorities – similarly to the European Commission and the national competition authorities in EU antitrust proceedings – are given the power to search the controller’s (or processor’s) premises in accordance with Article 58(1)(f). According to Körffer, following the Corrigendum OJ L 2018/127-1, the search is no longer restricted to the business premises. However, a judge's authorization is obvious with regard to the inviolability of the apartment and similar places.<ref>Körffer, in Paal, Pauly, GDPR BDSG, Article 58, Marginal numbers 14 (Beck, 3rd edition 2021) (accessed 23.4.2021)</ref> The term “premises” includes all data processing systems and all data processing devices.
  
 
=== Corrective powers (Article 58(2) GDPR) ===
 
=== Corrective powers (Article 58(2) GDPR) ===
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==== (a) Warnings ====
 
==== (a) Warnings ====
The mildest expression of the authority’s powers is the warning. The DPA issues it if an intended processing operation is “likely” to violate the GDPR. There are no specifics as to the form of the warning. It follows that it can be issued in writing or orally (although a formal approach appears sensible). The controller can react to a warning by stopping the intended processing operation or bringing it into conformity with the law. [''Selmayr,'' in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 58 GDPR, Margin number 19 (Beck, 2nd edition 2018) (accessed 23.4.2021)]
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The mildest expression of the authority’s powers is the warning. The DPA issues it if an intended processing operation is “likely” to violate the GDPR. There are no specifics as to the form of the warning. It follows that it can be issued in writing or orally (although a formal approach appears sensible). The controller can react to a warning by stopping the intended processing operation or bringing it into conformity with the law.<ref>''Selmayr,'' in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 58 GDPR, Margin number 19 (Beck, 2nd edition 2018) (accessed 23.4.2021)</ref>
  
 
==== (b) Reprimands ====
 
==== (b) Reprimands ====
If the authority identifies a violation of the GDPR it may, under Article 58(2)(b), issue a reprimand to a controller or a processor. Contrary to what happens in case of a warning, the reprimand indicates that one (or more rarely, several) violation of the GDPR has already occurred. A data protection authority will issue a reprimand if the threshold for imposing a fine has not yet been reached. For these reasons, scholars have defined the reprimand as the “''little sister of the fine''” or compared it to a “yellow card” from the supervisory authority [Martini, Wenzel, „Gelbe Karte“ von der Aufsichtsbehörde: Die Verwarnung als datenschutzrechtliches Sanktionenhybrid, in PinG, 5, 92-96, (2017)]. However, if a reprimand is disregarded, the DPA can respond by exercising more stringent remedial powers and taking into account the conduct as a factor for a possible administrative fine (Article 83 GDPR).
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If the authority identifies a violation of the GDPR it may, under Article 58(2)(b), issue a reprimand to a controller or a processor. Contrary to what happens in case of a warning, the reprimand indicates that one (or more rarely, several) violation of the GDPR has already occurred. A data protection authority will issue a reprimand if the threshold for imposing a fine has not yet been reached. For these reasons, scholars have defined the reprimand as the “''little sister of the fine''” or compared it to a “yellow card” from the supervisory authority.<ref>Martini, Wenzel, „Gelbe Karte“ von der Aufsichtsbehörde: Die Verwarnung als datenschutzrechtliches Sanktionenhybrid, in PinG, 5, 92-96, (2017)</ref> However, if a reprimand is disregarded, the DPA can respond by exercising more stringent remedial powers and taking into account the conduct as a factor for a possible administrative fine (Article 83 GDPR).
  
 
==== (c) Orders to comply with data subject’s requests ====
 
==== (c) Orders to comply with data subject’s requests ====
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==== (d) Order to restore compliance ====
 
==== (d) Order to restore compliance ====
The DPA can instruct the controller or processor to bring processing operations in line with the GDPR. There is no limit to the type of instruction. The wording of the law seems to authorize whatever request which could serve the scope of (re-)establishing GDPR compliance. Measures under letter (d) include, for example, instructions to take technical and organizational measures within the meaning of Article 32, to appoint a data protection officer according to Article 37, to create and maintain a record of processing activities according to Article 30, to regulate the relationship with a processor by means of a a contract, to change the alignment of surveillance cameras, to change the use of pre-formulated consent within the meaning of Article 7 [Körffer, in Paal, Pauly, GDPR BDSG, Article 58, Marginal number 20 (Beck, 3rd edition 2021) (accessed 23.4.2021)]. In accordance with Article 83 (5) and (6), ignoring an instruction would also expose the controller to the risk of potentially high-fines.
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The DPA can instruct the controller or processor to bring processing operations in line with the GDPR. There is no limit to the type of instruction. The wording of the law seems to authorize whatever request which could serve the scope of (re)establishing GDPR compliance. Measures under letter (d) include, for example, instructions to take technical and organizational measures within the meaning of Article 32, to appoint a data protection officer according to Article 37, to create and maintain a record of processing activities according to Article 30, to regulate the relationship with a processor by means of a a contract, to change the alignment of surveillance cameras, to change the use of pre-formulated consent within the meaning of Article 7.<ref>''Körffer'', in Paal, Pauly, GDPR BDSG, Article 58, Marginal number 20 (Beck, 3rd edition 2021) (accessed 23.4.2021)</ref> In accordance with Article 83 (5) and (6), ignoring an instruction would also expose the controller to the risk of potentially high-fines.
  
 
==== (e) Communication of a data breach to the data subject ====
 
==== (e) Communication of a data breach to the data subject ====
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The most renowned (although probably not most important) remedy introduced by the GDPR is the imposition of a fine under Article 58(2) in conjunction with Article 83. Their amount, which can go to up to EUR 20 million or, if superior, up to 4 percent of its total worldwide annual turnover is determined taking into account the type of violation (Article 83(4)(5 GDPR) as well as other qualitative factors listed in Article 83(2), in particular according to the type, gravity and duration of the infringement
 
The most renowned (although probably not most important) remedy introduced by the GDPR is the imposition of a fine under Article 58(2) in conjunction with Article 83. Their amount, which can go to up to EUR 20 million or, if superior, up to 4 percent of its total worldwide annual turnover is determined taking into account the type of violation (Article 83(4)(5 GDPR) as well as other qualitative factors listed in Article 83(2), in particular according to the type, gravity and duration of the infringement
  
The supervisory authority can, but does not have to, impose fines for violations. The relevant decision is at the discretion of the supervisory authority, whereby the considerations mentioned in Article 83 are to be taken into account. The fine can be imposed in addition to or instead of further remedial measures within the meaning of Article 58(2)(a – h). [As ''Zavadil'' clarifies, the Åkerberg Fransson ECJ ruling shows that the principle ne bis in idem does not apply if a measure with a punitive nature is imposed in addition to one without a punitive nature. It is therefore permissible to impose a fine alongside an administrative measure that is not punitive. ''Zavadil'', in Knyrim, DatKomm, Article 58 GDPR, Margin number 14 (Manz, status 1.3.2021, rdb.at) (accessed 23.4.2021)]
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The supervisory authority can, but does not have to, impose fines for violations. The relevant decision is at the discretion of the supervisory authority, whereby the considerations mentioned in Article 83 are to be taken into account. The fine can be imposed in addition to or instead of further remedial measures within the meaning of Article 58(2)(a – h).<ref>As ''Zavadil'' clarifies, the Åkerberg Fransson ECJ ruling shows that the principle ne bis in idem does not apply if a measure with a punitive nature is imposed in addition to one without a punitive nature. It is therefore permissible to impose a fine alongside an administrative measure that is not punitive. ''Zavadil'', in Knyrim, DatKomm, Article 58 GDPR, Margin number 14 (Manz, status 1.3.2021, rdb.at) (accessed 23.4.2021)</ref>
  
 
==== (j) Suspension of data flows to a recipient in a third country ====
 
==== (j) Suspension of data flows to a recipient in a third country ====
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- Approval of administrative agreements for international data transfer in accordance with Article 46(3) (b) GDPR;
 
- Approval of administrative agreements for international data transfer in accordance with Article 46(3) (b) GDPR;
  
- Approval of binding corporate rules in accordance with Article 47.
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- Approval of binding corporate rules in accordance with Article 47. [CITE]
  
 
=== Appropriate safeguards (Article 58(4) GDPR) ===
 
=== Appropriate safeguards (Article 58(4) GDPR) ===
In the absence of a uniform European administrative procedural law, the powers of the data protection supervisory authorities must in principle be exercised in accordance with the national procedural law of the respective member state. National procedural law must meet certain requirements; in particular, it must provide for due process and effective judicial remedies. [Körffer, in Paal, Pauly, GDPR BDSG, Article 58, Marginal number 31 (Beck, 3rd edition 2021) (accessed 23.4.2021)]
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In the absence of a uniform European administrative procedural law, the powers of the data protection supervisory authorities must in principle be exercised in accordance with the national procedural law of the respective member state. National procedural law must meet certain requirements; in particular, it must provide for due process and effective judicial remedies. <ref>Körffer, in Paal, Pauly, GDPR BDSG, Article 58, Marginal number 31 (Beck, 3rd edition 2021) (accessed 23.4.2021)</ref>
  
 
=== DPAs in Courts (Article 58(5) GDPR) ===
 
=== DPAs in Courts (Article 58(5) GDPR) ===
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=== Additional powers provided by national law (Article 58(6) GDPR) ===
 
=== Additional powers provided by national law (Article 58(6) GDPR) ===
According to Paragraph 6, each MS can stipulate that its supervisory authority receives further powers in addition to those mentioned in Paragraphs 1-3 , provided that this not impair the effective implementation of Chapter VII of the GDPR on cooperation and coherence. Based on the express wording of Paragraph 6, it can be assumed that the supervisory authorities may be given additional powers, but that the existing powers may not be restricted. A contrary view cannot be derived from any other provision of the GDPR [''Zavadil'', in Knyrim, DatKomm, Article 58 GDPR, Margin number 56 (Manz, status 1.3.2021, rdb.at) (accessed 23.4.2021)]
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According to Paragraph 6, each MS can stipulate that its supervisory authority receives further powers in addition to those mentioned in Paragraphs 1-3 , provided that this not impair the effective implementation of Chapter VII of the GDPR on cooperation and coherence. Based on the express wording of Paragraph 6, it can be assumed that the supervisory authorities may be given additional powers, but that the existing powers may not be restricted. A contrary view cannot be derived from any other provision of the GDPR. <ref>''Zavadil'', in Knyrim, DatKomm, Article 58 GDPR, Margin number 56 (Manz, status 1.3.2021, rdb.at) (accessed 23.4.2021)</ref>
  
 
== Decisions ==
 
== Decisions ==

Latest revision as of 17:06, 23 April 2021

Article 58 - Powers
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Chapter 10: Delegated and implementing acts

Legal Text[edit | edit source]


Article 58 - Powers


1. Each supervisory authority shall have all of the following investigative powers:

(a) to order the controller and the processor, and, where applicable, the controller's or the processor's representative to provide any information it requires for the performance of its tasks;
(b) to carry out investigations in the form of data protection audits;
(c) to carry out a review on certifications issued pursuant to Article 42(7);
(d) to notify the controller or the processor of an alleged infringement of this Regulation;
(e) to obtain, from the controller and the processor, access to all personal data and to all information necessary for the performance of its tasks;
(f) to obtain access to any premises of the controller and the processor, including to any data processing equipment and means, in accordance with Union or Member State procedural law.

2. Each supervisory authority shall have all of the following corrective powers:

(a) to issue warnings to a controller or processor that intended processing operations are likely to infringe provisions of this Regulation;
(b) to issue reprimands to a controller or a processor where processing operations have infringed provisions of this Regulation;
(c) to order the controller or the processor to comply with the data subject's requests to exercise his or her rights pursuant to this Regulation;
(d) to order the controller or processor to bring processing operations into compliance with the provisions of this Regulation, where appropriate, in a specified manner and within a specified period;
(e) to order the controller to communicate a personal data breach to the data subject;
(f) to impose a temporary or definitive limitation including a ban on processing;
(g) to order the rectification or erasure of personal data or restriction of processing pursuant to Articles 16, 17 and 18 and the notification of such actions to recipients to whom the personal data have been disclosed pursuant to Article 17(2) and Article 19;
(h) to withdraw a certification or to order the certification body to withdraw a certification issued pursuant to Articles 42 and 43, or to order the certification body not to issue certification if the requirements for the certification are not or are no longer met;
(i) to impose an administrative fine pursuant to Article 83, in addition to, or instead of measures referred to in this paragraph, depending on the circumstances of each individual case;
(j) to order the suspension of data flows to a recipient in a third country or to an international organisation.

3. Each supervisory authority shall have all of the following authorisation and advisory powers:

(a) to advise the controller in accordance with the prior consultation procedure referred to in Article 36;
(b) to issue, on its own initiative or on request, opinions to the national parliament, the Member State government or, in accordance with Member State law, to other institutions and bodies as well as to the public on any issue related to the protection of personal data;
(c) to authorise processing referred to in Article 36(5), if the law of the Member State requires such prior authorisation;
(d) to issue an opinion and approve draft codes of conduct pursuant to Article 40(5);
(e) to accredit certification bodies pursuant to Article 43;
(f) to issue certifications and approve criteria of certification in accordance with Article 42(5);
(g) to adopt standard data protection clauses referred to in Article 28(8) and in point (d) of Article 46(2);
(h) to authorise contractual clauses referred to in point (a) of Article 46(3);
(i) to authorise administrative arrangements referred to in point (b) of Article 46(3);
(j) to approve binding corporate rules pursuant to Article 47.

4. The exercise of the powers conferred on the supervisory authority pursuant to this Article shall be subject to appropriate safeguards, including effective judicial remedy and due process, set out in Union and Member State law in accordance with the Charter.

5. Each Member State shall provide by law that its supervisory authority shall have the power to bring infringements of this Regulation to the attention of the judicial authorities and where appropriate, to commence or engage otherwise in legal proceedings, in order to enforce the provisions of this Regulation.

6. Each Member State may provide by law that its supervisory authority shall have additional powers to those referred to in paragraphs 1, 2 and 3. The exercise of those powers shall not impair the effective operation of Chapter VII.

Relevant Recitals[edit | edit source]

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Commentary[edit | edit source]

Overview[edit | edit source]

In order to ensure uniform monitoring and enforcement throughout the Union, the GDPR gives supervisory authorities in each Member State the same tasks and powers. Article 58 GDPR in comment standardizes the powers that data protection supervisory authorities can use in performing their tasks under Article 57.

General aspects[edit | edit source]

Article 58 GDPR standardizes a comprehensive catalog of investigative, corrective and advisory powers. Such powers result directly from the GDPR and therefore do not need implementation by Member States’ law. Under Article 70(1)(k) GDPR, the EDPB should in principle adopt guidelines regarding the concrete and consistent application of such powers.[1]

All powers are equal, but some powers are more equal than others[edit | edit source]

All DPA’s powers are important. However, under Article 83(5)(e) GDPR, “non-compliance with an order or a temporary or definitive limitation on processing or the suspension of data flows by the supervisory authority pursuant to Article 58(2) or failure to provide access in violation of Article 58(1)” [emphasis added], may result in the highest fines possible.[2] It seems, therefore, that the legislator considers some of the powers described in Article 58 to be crucial for the functioning of DPAs and, in turns, the whole GDPR system.

Investigative powers (Article 58(1) GDPR)[edit | edit source]

A necessary step to enforcing the GDPR and handling data subjects’ complaints is obviously the possibility of carrying out investigations. Article 58(1) differentiates between different types of investigations.

(a) Information request[edit | edit source]

The supervisory authority can instruct the controller, processor and, if applicable, the representative to provide all information that is necessary for the performance of their tasks. Information can be provided, for example, by transmitting documents to the supervisory authority, submitting written statements or replying to questionnaires. In addition to this, Article 30(4) stipulates that the controller or processor or, if applicable, the representative shall make the record of processing activities available to the supervisory authority on request.[3]

(b) Data protection audits[edit | edit source]

The supervisory authorities can carry out investigations in the form of data protection audits. An audit is commonly understood to be a comprehensive qualitative examination of the effectiveness of procedures within an organization or company.[4] The initial version of Article 58 limited the scope of the audit to the business premises of the controller [...]. After the GDPR Corrigendum OJ L 2018/127-1, however, the term “business premises” has been replaced by “premises”. It follows that private rooms (where at least a part of the processing takes place) are also included. [5]

(c) Review of certifications[edit | edit source]

Under Article 58(1)(c) GDPR a supervisory authority can review certifications issued in accordance with Article 42(7) as well as the activities of accredited certification bodies within the meaning of Article 43(1) GDPR.

(d) Notification of an alleged infringement[edit | edit source]

In accordance with Article 58(1)(d), a DPA can inform a controller or processor about an alleged – i.e. possible, but not yet determined – infringement of the Regulation. Such a notice can be given, for example, directly in connection with a data protection audit, a data subject’s complaint or official information from another DPA. The notice establishes a presumption of a violation of the GDPR, which, however, can be rejected by the controller or the processor.[6] It seems a constructive and proportional approach which gives controllers and processors a chance to know the provisional understanding of the authority and react accordingly, making submissions or bringing the processing into compliance.

(e) Access to personal data and all relevant information[edit | edit source]

The powers of investigation of the data protection supervisory authorities also include a right of access to personal data and information in accordance with Article 58(1)(e) GDPR. This type of investigation includes the right to directly access to personal data, inspect internal documents, databases and procedures and therefore is wider and more incisive than the right to (request and) obtain information under Article 58(1)(a). Controllers and processors must cooperate with the DPA during the inspection. However, if the cooperation brings to a violation of the Nemo Tenetur principle, it seems possible for the investigated party to lawfully refuse such cooperation.[7]

(f) Access to premises including equipment and means[edit | edit source]

Finally, data protection supervisory authorities – similarly to the European Commission and the national competition authorities in EU antitrust proceedings – are given the power to search the controller’s (or processor’s) premises in accordance with Article 58(1)(f). According to Körffer, following the Corrigendum OJ L 2018/127-1, the search is no longer restricted to the business premises. However, a judge's authorization is obvious with regard to the inviolability of the apartment and similar places.[8] The term “premises” includes all data processing systems and all data processing devices.

Corrective powers (Article 58(2) GDPR)[edit | edit source]

The corrective powers provided for in Article 58(2) enable the supervisory authorities to restore GDPR-compliant conditions in the event of violations. For this purpose, Article 58(2) builds a system of powers which should be proportionally used having in mind the type of envisaged violation and the risks for the data subjects. In doing so, a data protection authority has to decide at its due discretion whether exercising a milder remedial power is sufficient to ensure the application and enforcement of the GDPR; or whether they want a higher escalation level36 must trigger.

(a) Warnings[edit | edit source]

The mildest expression of the authority’s powers is the warning. The DPA issues it if an intended processing operation is “likely” to violate the GDPR. There are no specifics as to the form of the warning. It follows that it can be issued in writing or orally (although a formal approach appears sensible). The controller can react to a warning by stopping the intended processing operation or bringing it into conformity with the law.[9]

(b) Reprimands[edit | edit source]

If the authority identifies a violation of the GDPR it may, under Article 58(2)(b), issue a reprimand to a controller or a processor. Contrary to what happens in case of a warning, the reprimand indicates that one (or more rarely, several) violation of the GDPR has already occurred. A data protection authority will issue a reprimand if the threshold for imposing a fine has not yet been reached. For these reasons, scholars have defined the reprimand as the “little sister of the fine” or compared it to a “yellow card” from the supervisory authority.[10] However, if a reprimand is disregarded, the DPA can respond by exercising more stringent remedial powers and taking into account the conduct as a factor for a possible administrative fine (Article 83 GDPR).

(c) Orders to comply with data subject’s requests[edit | edit source]

Article 58(2)(c) serves as a second-level remedy in case a controller violates the rights of the data subject. Should that happen, the DPA can then instruct the controller or the processor to comply with the data subject’s request regarding the right to information (Article 13, 14), access (Article 15), rectification (Article 16), erasure (Article 17), restriction (Article 18), notification (Article 19) or data portability (Article 20). In these cases, the DPA acts through an “order”. In accordance with Article 83 (5) and (6), ignoring it would expose the controller to a high-fines scenario.

(d) Order to restore compliance[edit | edit source]

The DPA can instruct the controller or processor to bring processing operations in line with the GDPR. There is no limit to the type of instruction. The wording of the law seems to authorize whatever request which could serve the scope of (re)establishing GDPR compliance. Measures under letter (d) include, for example, instructions to take technical and organizational measures within the meaning of Article 32, to appoint a data protection officer according to Article 37, to create and maintain a record of processing activities according to Article 30, to regulate the relationship with a processor by means of a a contract, to change the alignment of surveillance cameras, to change the use of pre-formulated consent within the meaning of Article 7.[11] In accordance with Article 83 (5) and (6), ignoring an instruction would also expose the controller to the risk of potentially high-fines.

(e) Communication of a data breach to the data subject[edit | edit source]

According to Article 58(2)(e) of the GDPR, the DPA can instruct the controller to notify persons afftected by a data brach which triggers the notification obligations under Article 33 and 34 GDPR.

(f) Ban on processing[edit | edit source]

The data protection supervisory authority can also order a restriction or ban on data processing in accordance with Article 58(2)(f) GDPR. The restriction on data processing can be temporary or permanent. These measures are strict and should be considered only if the controller or processor has shown a particularly disrespectful contempt, as it happens when a previous warning, reprimand or order has been issued and the recipient has disregarded it, taking no action.

(g) Order to rectify or erase personal data[edit | edit source]

Article 58(2)(g) authorizes the data protection supervisory authority to order a correction or deletion of data or a restriction of data processing. This especially comes into consideration if previously an instruction or other order has been disregarded.

(h) Withdrawal of certification[edit | edit source]

If a data protection supervisory authority comes to the conclusion that the prerequisites of a previously issued certification are no longer met it may, in accordance with Article 42(7), revoke the certification. If the certification is granted by a certification body, the supervisory authority can do so in accordance with Article 58(2) instruct the body to revoke the certification or not to issue it.

(i) Administrative fine[edit | edit source]

The most renowned (although probably not most important) remedy introduced by the GDPR is the imposition of a fine under Article 58(2) in conjunction with Article 83. Their amount, which can go to up to EUR 20 million or, if superior, up to 4 percent of its total worldwide annual turnover is determined taking into account the type of violation (Article 83(4)(5 GDPR) as well as other qualitative factors listed in Article 83(2), in particular according to the type, gravity and duration of the infringement

The supervisory authority can, but does not have to, impose fines for violations. The relevant decision is at the discretion of the supervisory authority, whereby the considerations mentioned in Article 83 are to be taken into account. The fine can be imposed in addition to or instead of further remedial measures within the meaning of Article 58(2)(a – h).[12]

(j) Suspension of data flows to a recipient in a third country[edit | edit source]

A final remedy is provided for in Article 58(2)(j) GDPR. According to this, a data protection supervisory authority can order the suspension of data transfer to a third country or to an international organization if the third country or international organization concerned does not or no longer offers an appropriate level of protection within the meaning of Article 45 GDPR.

Advisory powers (Article 58(3) GDPR)[edit | edit source]

The authorization and advisory powers in Article 58(3) supplement the investigative and corrective measures DPAs are afforded with. Article 58(3) lists all those cases in which authorization or approval from a supervisory authority is a prerequisite for acting in accordance with the GDPR. In these cases, the DPA carries out a prior check in order to preventively ensure the application and enforcement of the GDPR. In detail, this concerns the following powers (cf. Art. 58 Para. 3 lit. cj ):

- Approval of processing that is particularly risky for the fundamental data protection right, provided that a member state has made use of the optional specification clause (Article 36(5) GDPR);

- Opinion on and approval of drafts for rules of conduct in accordance with Article 40(5) and, where relevant, Article 64(1)(b) GDPR;

- Accreditation of certification bodies in accordance with Article 43;

- Issuing of certifications in accordance with Article 42(5), if relevant, in accordance with Article 64(1)(c);

- Standard contractual clauses in accordance with Article 28(8) and, if the case, Article 46(2) GDPR;

- Approval of standard contractual clauses for international data transfer in accordance with Article 46(3)(a) and Article 64(1)(e);

- Approval of administrative agreements for international data transfer in accordance with Article 46(3) (b) GDPR;

- Approval of binding corporate rules in accordance with Article 47. [CITE]

Appropriate safeguards (Article 58(4) GDPR)[edit | edit source]

In the absence of a uniform European administrative procedural law, the powers of the data protection supervisory authorities must in principle be exercised in accordance with the national procedural law of the respective member state. National procedural law must meet certain requirements; in particular, it must provide for due process and effective judicial remedies. [13]

DPAs in Courts (Article 58(5) GDPR)[edit | edit source]

This provision contains an opening clause that must be filled out by the legislators of the member states. According to this, supervisory authorities must always have the power to bring violations of the GDPR to court. Specifying national legal provisions must decide whether a data protection supervisory authority itself has a right of action or whether it has to involve the national judicial authorities, which in turn have to initiate judicial proceedings. The GDPR allows the member states to insert the enforcement powers of the national data protection supervisory authorities into the national legal system [CITE].

Additional powers provided by national law (Article 58(6) GDPR)[edit | edit source]

According to Paragraph 6, each MS can stipulate that its supervisory authority receives further powers in addition to those mentioned in Paragraphs 1-3 , provided that this not impair the effective implementation of Chapter VII of the GDPR on cooperation and coherence. Based on the express wording of Paragraph 6, it can be assumed that the supervisory authorities may be given additional powers, but that the existing powers may not be restricted. A contrary view cannot be derived from any other provision of the GDPR. [14]

Decisions[edit | edit source]

→ You can find all related decisions in Category:Article 58 GDPR

References[edit | edit source]

  1. Zavadil, in Knyrim, DatKomm, Article 58 GDPR, Margin number 3 (Manz, status 1.3.2021, rdb.at) (accessed 23.4.2021)
  2. Feiler, Forgó, EU-DSGVO, Article 83 GDPR, Margin number 17 (Verlag 2016).
  3. Zavadil, in Knyrim, DatKomm, Article 58 GDPR, Margin number 14 (Manz, status 1.3.2021, rdb.at) (accessed 23.4.2021)
  4. Selmayr, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 58 GDPR, Margin number 13 (Beck, 2nd edition 2018) (accessed 23.4.2021)
  5. Zavadil, in Knyrim, DatKomm, Article 58 GDPR, Margin number 17-18 (Manz, status 1.3.2021, rdb.at) (accessed 23.4.2021)
  6. Selmayr, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 58 GDPR, Margin number 16 (Beck, 2nd edition 2018) (accessed 23.4.2021)
  7. Eichler, in Wolff, Brink, BeckOK DatenschutzR, Article 35 GDPR, Marginal number 14, (Beck, Ed. 1.2.2021)
  8. Körffer, in Paal, Pauly, GDPR BDSG, Article 58, Marginal numbers 14 (Beck, 3rd edition 2021) (accessed 23.4.2021)
  9. Selmayr, in Ehmann, Selmayr, Datenschutz-Grundverordnung, Article 58 GDPR, Margin number 19 (Beck, 2nd edition 2018) (accessed 23.4.2021)
  10. Martini, Wenzel, „Gelbe Karte“ von der Aufsichtsbehörde: Die Verwarnung als datenschutzrechtliches Sanktionenhybrid, in PinG, 5, 92-96, (2017)
  11. Körffer, in Paal, Pauly, GDPR BDSG, Article 58, Marginal number 20 (Beck, 3rd edition 2021) (accessed 23.4.2021)
  12. As Zavadil clarifies, the Åkerberg Fransson ECJ ruling shows that the principle ne bis in idem does not apply if a measure with a punitive nature is imposed in addition to one without a punitive nature. It is therefore permissible to impose a fine alongside an administrative measure that is not punitive. Zavadil, in Knyrim, DatKomm, Article 58 GDPR, Margin number 14 (Manz, status 1.3.2021, rdb.at) (accessed 23.4.2021)
  13. Körffer, in Paal, Pauly, GDPR BDSG, Article 58, Marginal number 31 (Beck, 3rd edition 2021) (accessed 23.4.2021)
  14. Zavadil, in Knyrim, DatKomm, Article 58 GDPR, Margin number 56 (Manz, status 1.3.2021, rdb.at) (accessed 23.4.2021)