Difference between revisions of "Article 60 GDPR"

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<br /><center>'''Article 60 - Cooperation between the lead supervisory authority and the other supervisory authorities concerned'''</center><br />
 
<br /><center>'''Article 60 - Cooperation between the lead supervisory authority and the other supervisory authorities concerned'''</center><br />
  
<span id="1">1.   The lead supervisory authority shall cooperate with the other supervisory authorities concerned in accordance with this Article in an endeavour to reach consensus. The lead supervisory authority and the supervisory authorities concerned shall exchange all relevant information with each other.</span>
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<span id="1">1. The lead supervisory authority shall cooperate with the other supervisory authorities concerned in accordance with this Article in an endeavour to reach consensus. The lead supervisory authority and the supervisory authorities concerned shall exchange all relevant information with each other.</span>
  
<span id="2">2.   The lead supervisory authority may request at any time other supervisory authorities concerned to provide mutual assistance pursuant to Article 61 and may conduct joint operations pursuant to Article 62, in particular for carrying out investigations or for monitoring the implementation of a measure concerning a controller or processor established in another Member State.</span>
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<span id="2">2. The lead supervisory authority may request at any time other supervisory authorities concerned to provide mutual assistance pursuant to Article 61 and may conduct joint operations pursuant to Article 62, in particular for carrying out investigations or for monitoring the implementation of a measure concerning a controller or processor established in another Member State.</span>
  
<span id="3">3.   The lead supervisory authority shall, without delay, communicate the relevant information on the matter to the other supervisory authorities concerned. It shall without delay submit a draft decision to the other supervisory authorities concerned for their opinion and take due account of their views.</span>
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<span id="3">3. The lead supervisory authority shall, without delay, communicate the relevant information on the matter to the other supervisory authorities concerned. It shall without delay submit a draft decision to the other supervisory authorities concerned for their opinion and take due account of their views.</span>
  
<span id="4">4.   Where any of the other supervisory authorities concerned within a period of four weeks after having been consulted in accordance with paragraph 3 of this Article, expresses a relevant and reasoned objection to the draft decision, the lead supervisory authority shall, if it does not follow the relevant and reasoned objection or is of the opinion that the objection is not relevant or reasoned, submit the matter to the consistency mechanism referred to in Article 63.</span>
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<span id="4">4. Where any of the other supervisory authorities concerned within a period of four weeks after having been consulted in accordance with paragraph 3 of this Article, expresses a relevant and reasoned objection to the draft decision, the lead supervisory authority shall, if it does not follow the relevant and reasoned objection or is of the opinion that the objection is not relevant or reasoned, submit the matter to the consistency mechanism referred to in Article 63.</span>
  
<span id="5">5.   Where the lead supervisory authority intends to follow the relevant and reasoned objection made, it shall submit to the other supervisory authorities concerned a revised draft decision for their opinion. That revised draft decision shall be subject to the procedure referred to in paragraph 4 within a period of two weeks.</span>
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<span id="5">5. Where the lead supervisory authority intends to follow the relevant and reasoned objection made, it shall submit to the other supervisory authorities concerned a revised draft decision for their opinion. That revised draft decision shall be subject to the procedure referred to in paragraph 4 within a period of two weeks.</span>
  
<span id="6">6.   Where none of the other supervisory authorities concerned has objected to the draft decision submitted by the lead supervisory authority within the period referred to in paragraphs 4 and 5, the lead supervisory authority and the supervisory authorities concerned shall be deemed to be in agreement with that draft decision and shall be bound by it.</span>
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<span id="6">6. Where none of the other supervisory authorities concerned has objected to the draft decision submitted by the lead supervisory authority within the period referred to in paragraphs 4 and 5, the lead supervisory authority and the supervisory authorities concerned shall be deemed to be in agreement with that draft decision and shall be bound by it.</span>
  
<span id="7">7.   The lead supervisory authority shall adopt and notify the decision to the main establishment or single establishment of the controller or processor, as the case may be and inform the other supervisory authorities concerned and the Board of the decision in question, including a summary of the relevant facts and grounds. The supervisory authority with which a complaint has been lodged shall inform the complainant on the decision.</span>
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<span id="7">7. The lead supervisory authority shall adopt and notify the decision to the main establishment or single establishment of the controller or processor, as the case may be and inform the other supervisory authorities concerned and the Board of the decision in question, including a summary of the relevant facts and grounds. The supervisory authority with which a complaint has been lodged shall inform the complainant on the decision.</span>
  
<span id="8">8.   By derogation from paragraph 7, where a complaint is dismissed or rejected, the supervisory authority with which the complaint was lodged shall adopt the decision and notify it to the complainant and shall inform the controller thereof.</span>
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<span id="8">8. By derogation from paragraph 7, where a complaint is dismissed or rejected, the supervisory authority with which the complaint was lodged shall adopt the decision and notify it to the complainant and shall inform the controller thereof.</span>
  
<span id="9">9.   Where the lead supervisory authority and the supervisory authorities concerned agree to dismiss or reject parts of a complaint and to act on other parts of that complaint, a separate decision shall be adopted for each of those parts of the matter. The lead supervisory authority shall adopt the decision for the part concerning actions in relation to the controller, shall notify it to the main establishment or single establishment of the controller or processor on the territory of its Member State and shall inform the complainant thereof, while the supervisory authority of the complainant shall adopt the decision for the part concerning dismissal or rejection of that complaint, and shall notify it to that complainant and shall inform the controller or processor thereof.</span>
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<span id="9">9. Where the lead supervisory authority and the supervisory authorities concerned agree to dismiss or reject parts of a complaint and to act on other parts of that complaint, a separate decision shall be adopted for each of those parts of the matter. The lead supervisory authority shall adopt the decision for the part concerning actions in relation to the controller, shall notify it to the main establishment or single establishment of the controller or processor on the territory of its Member State and shall inform the complainant thereof, while the supervisory authority of the complainant shall adopt the decision for the part concerning dismissal or rejection of that complaint, and shall notify it to that complainant and shall inform the controller or processor thereof.</span>
  
<span id="10">10.   After being notified of the decision of the lead supervisory authority pursuant to paragraphs 7 and 9, the controller or processor shall take the necessary measures to ensure compliance with the decision as regards processing activities in the context of all its establishments in the Union. The controller or processor shall notify the measures taken for complying with the decision to the lead supervisory authority, which shall inform the other supervisory authorities concerned.</span>
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<span id="10">10. After being notified of the decision of the lead supervisory authority pursuant to paragraphs 7 and 9, the controller or processor shall take the necessary measures to ensure compliance with the decision as regards processing activities in the context of all its establishments in the Union. The controller or processor shall notify the measures taken for complying with the decision to the lead supervisory authority, which shall inform the other supervisory authorities concerned.</span>
  
<span id="11">11.   Where, in exceptional circumstances, a supervisory authority concerned has reasons to consider that there is an urgent need to act in order to protect the interests of data subjects, the urgency procedure referred to in Article 66 shall apply.</span>
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<span id="11">11. Where, in exceptional circumstances, a supervisory authority concerned has reasons to consider that there is an urgent need to act in order to protect the interests of data subjects, the urgency procedure referred to in Article 66 shall apply.</span>
  
<span id="12">12.   The lead supervisory authority and the other supervisory authorities concerned shall supply the information required under this Article to each other by electronic means, using a standardised format.</span>
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<span id="12">12. The lead supervisory authority and the other supervisory authorities concerned shall supply the information required under this Article to each other by electronic means, using a standardised format.</span>
  
== Relevant Recitals==
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==Relevant Recitals==
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<span id="r124">
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<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;"><div>'''Recital 124:''' title </div>
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Where the processing of personal data takes place in the context of the activities of an establishment of a controller or a processor in the Union and the controller or processor is established in more than one Member State, or where processing taking place in the context of the activities of a single establishment of a controller or processor in the Union substantially affects or is likely to substantially affect data subjects in more than one Member State, the supervisory authority for the main establishment of the controller or processor or for the single establishment of the controller or processor should act as lead authority. It should cooperate with the other authorities concerned, because the controller or processor has an establishment on the territory of their Member State, because data subjects residing on their territory are substantially affected, or because a complaint has been lodged with them. Also where a data subject not residing in that Member State has lodged a complaint, the supervisory authority with which such complaint has been lodged should also be a supervisory authority concerned. Within its tasks to issue guidelines on any question covering the application of this Regulation, the Board should be able to issue guidelines in particular on the criteria to be taken into account in order to ascertain whether the processing in question substantially affects data subjects in more than one Member State and on what constitutes a relevant and reasoned objection.
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<span id="r125">
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<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;"><div>'''Recital 125:''' title </div>
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The lead authority should be competent to adopt binding decisions regarding measures applying the powers conferred on it in accordance with this Regulation. In its capacity as lead authority, the supervisory authority should closely involve and coordinate the supervisory authorities concerned in the decision-making process. Where the decision is to reject the complaint by the data subject in whole or in part, that decision should be adopted by the supervisory authority with which the complaint has been lodged.
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<span id="r130">
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<div class="toccolours mw-collapsible mw-collapsed" style="border-width: 0px" overflow:auto;"><div>'''Recital 130:''' title </div>
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Where the supervisory authority with which the complaint has been lodged is not the lead supervisory authority, the lead supervisory authority should closely cooperate with the supervisory authority with which the complaint has been lodged in accordance with the provisions on cooperation and consistency laid down in this Regulation. In such cases, the lead supervisory authority should, when taking measures intended to produce legal effects, including the imposition of administrative fines, take utmost account of the view of the supervisory authority with which the complaint has been lodged and which should remain competent to carry out any investigation on the territory of its own Member State in liaison with the competent supervisory authority.
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</div></div>
  
 
== Commentary ==
 
== Commentary ==
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The lead supervisory authority shall cooperate with the other supervisory authorities concerned in accordance with this article in an endeavour to reach consensus. The wording of the provision indicates that a lead supervisory authority has already been identified under Article 56 and that all the requirements set forth therein are met.
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=== (1) The lead supervisory authority shall cooperate with the other supervisory authorities concerned ===
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Article 60(1) requires the lead authority (“LSA”) to cooperate with the other authorities concerned. As soon as the LSA learns of its responsibility under Article 56(1), it must take the initiative and identify the other supervisory authorities concerned (“CSA”).
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Under Article 60, the “lead supervisory authority and the supervisory authorities concerned shall exchange all relevant information with each other”. However, information exchange shall not constitute the only type of cooperation. Instead, all types of cooperation that are “''in accordance with this article''” are not only permitted but encouraged.
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Finally, the ''duty to cooperate'' is not one-sided but naturally applies also the other authorities concerned.<ref>''Dix'' in Kühling, Buchner, GDPR BDSG, Article 60 GDPR, Margin number 6 (Beck 3rd edition 2020)</ref>
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==== Consensus ====
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The lead authority is obliged to reach a ''consensus'' with the other authorities concerned.<ref>The letter of the law seems to put this obligation specifically on the LSA rather than single CSAs. See ''Polenz'' in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 60 GDPR, margin number 5 (1st edition 2019)</ref> Supervisory authorities concerned shall therefore be given adequate information and sufficient opportunity to present their legal positions (Article 60(3) GDPR), which, as long as possible, shall be incorporated into the LSA’s final assessment. <ref>''Polenz'' in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 60 GDPR, margin number 5 (1st edition 2019)</ref>The above seems confirmed by Recital 125, which specifies that “''the supervisory authority should closely involve and coordinate the supervisory authorities concerned in the decision-making process''”.
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==== Information exchange ====
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The GDPR seems to put a particular focus on the information exchange obligation. Effective Union-wide enforcement requires that all supervisory authorities concerned, including the LSA, receive and share all relevant information on cross-border data processing as promptly as possible. The above stays true even when the identity of the lead supervisory authority is still unclear: the required exchange of information must take place in any case (see Article 61 and Article 62).
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=== (2) The lead supervisory authority may request cooperation ===
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According to Paragraph 2, the lead supervisory authority may request other supervisory authorities to provide mutual assistance pursuant to Article 61 and conduct joint operations pursuant to Article 62. In fact, before issuing a binding decision, it may (and usually will) be necessary for the lead and the other supervisory authorities concerned to first exercise investigative powers in their territory towards the main branch and the other branches of the controller or processor. Cooperation is also crucial in later procedural steps for “monitoring the implementation of a measure concerning a controller or processor established in another Member State”.<ref>''Polenz'' in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 60 GDPR, margin number 8 (1st edition 2019)</ref>
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=== (3) Draft decision and relevant reasoned objection ===
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Paragraph 3 sets out the practical background of the cooperation mechanism. The lead supervisory authority communicates the relevant information on the matter to the other supervisory authorities concerned and, without delay, provide them with a draft decision for their opinion, which shall be taken into “due account”. In other words, under Article 60(1), the LSA must adequately address the positions of the other supervisory authorities and integrate them into the decision-making process.<ref>Paragraphs 3 to 10 contain a completely new, relatively complex two-phases decision-making procedure. The first (or preparatory) phase regulates how information, draft decisions and objections are exchanged among authorities (Paragraphs 3 to 6). The second phase, which consists of the actual decision-making stage (including enforcement), is regulated by following Paragraphs 6 to 10. ''Polenz'' in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 60 GDPR, margin number 9 (1st edition 2019)</ref>
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==== CSA’s objection ====
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Under Article 4(24) GDPR, any CSA can submit an “''objection to a draft decision''” which must be “'''''relevant and reasoned'''''” and focus on “''as to whether there is an '''infringement of this Regulation''', or whether '''envisaged action''' in relation to the controller or processor complies with this Regulation, which clearly demonstrates the '''significance of the risks''' posed by the draft decision as regards the '''fundamental rights and freedoms''' of data subjects and, where applicable, the '''free flow of personal data''' within the Union''”.<ref>The EDPB provided guidance for the notion of the terms “''relevant and reasoned''”, including what should be considered when assessing whether an objection “''clearly demonstrates the significance of the risks posed by the draft decision''” (Article 4(24) GDPR). See, EDPB, Guidelines 9/2020 on relevant and reasoned objection under Regulation 2016/679 (8.10.2020) ([https://edpb.europa.eu/our-work-tools/documents/public-consultations/2020/guidelines-092020-relevant-and-reasoned_en available here])</ref>
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An objection submitted by a CSA should indicate each part of the draft decision that is considered deficient, erroneous or lacking some necessary elements, either by referring to specific articles/paragraphs or by other clear indication and showing why such issues are to be deemed “relevant” as further explained below. Therefore, the objection aims, first of all, at pointing out how and why according to the CSA the draft decision does not appropriately address the situation of infringement of the GDPR and/or does not envision appropriate action towards the controller or processor. The proposals for amendments put forward by the objection should aim to remedy these errors.
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===== Relevant =====
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For the objection to be considered as “relevant”, there must be a direct connection between the objection and the draft decision at issue. More specifically, the objection needs to concern either whether there is an infringement of the GDPR or whether the envisaged action in relation to the controller or processor complies with the GDPR. An objection should only be considered relevant if it relates to the specific legal and factual content of the draft decision. Raising only abstract or broad comments or objections cannot be considered relevant in this context.<ref>See, EDPB, Guidelines 9/2020 on relevant and reasoned objection under Regulation 2016/679 (8.10.2020)</ref>
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===== Reasoned =====
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In order for the objection to be “reasoned”, it needs to include clarifications and arguments as to why an amendment of the decision is proposed(i.e. the alleged legal / factual mistakes of the draft decision). It also needs to demonstrate how the change would lead to a different conclusion as to whether there is an infringement of the GDPR or whether the envisaged action in relation to the controller or processor complies with the GDPR.
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The CSA should provide sound reasoning for its objection, particularly by reference to legal arguments (relying on EU law and/or relevant national law and including, e.g. legal provisions, guidelines, case law) or factual arguments, where applicable. The CSA should present the fact(s) allegedly leading to a different conclusion regarding the infringement of the GDPR by the controller/processor or the aspect of the decision that, in their view, is deficient/erroneous.
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In order for an objection to be adequately reasoned, it should be coherent, clear, precise and detailed in explaining the reasons for objection. It should set forth, clearly and precisely, the essential facts on which the CSA based its assessment and the link between the envisaged consequences of the draft decision (if it was to be issued ‘as is’)and the significance of the anticipated risks. Moreover, the CSA should indicate which parts of the draft decision they disagree with. In cases where the objection is based on the opinion that the LSA failed to investigate an essential fact of the case entirely, or an additional violation of the GDPR, it would be sufficient for the CSA to present such arguments in a conclusive and substantiated manner. <ref>See, EDPB, Guidelines 9/2020 on relevant and reasoned objection under Regulation 2016/679 (8.10.2020)</ref>
  
=== The Lead Supervisory Authority cooperates with the other Authorities Concerned ===
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===== Infringement of the GDPR =====
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The CSA’s objections to the draft decision must be justified and motivated through reference to evidence and facts that support the objection, by having regard to the facts and evidence (the ‘relevant information’ referred to in Article 60.3) provided by the LSA. These requirements should apply to each specific infringement and to each specific provision in question (e.g.if the draft decision says that the controller infringed Articles 6, 7, and 14 GDPR, and the CSA disagrees on whether there is an infringement of Article7 and 14 and considers that there is an infringement of Article 13 GDPR).
  
==== Primary goal: reach consensus ====
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In some circumstances, the objection could go as far as identifying gaps in the draft decision justifying the need for further investigation by the LSA. For instance, if the investigation carried out by the LSA unjustifiably fails to cover some of the issues raised by the complainant or resulting from an infringement reported by a CSA, a relevant and reasoned objection may be raised based on the failure of the LSA to handle the complaint properly and in safeguarding the rights of the data subject.<ref>See, EDPB, Guidelines 9/2020 on relevant and reasoned objection under Regulation 2016/679 (8.10.2020)</ref>
  
===== Information exchange =====
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===== Other requirements =====
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For the other requirements foreseen in Article 4(24) GDPR please see the relevant provision in the Commentary.
  
=== Cooperation requests ===
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=== (4) Objection is rejected ===
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Following the submission of the draft decision, the concerned supervisory authorities (CSAs) may raise a relevant and reasoned objection within four weeks. If the LSA does not follow the relevant and reasoned objection or believes that the objection is not reasoned or relevant, the matter is referred to the attention of the EDPB which will decide it following Article 63 and Article 65(1)(a) GDPR. It then becomes incumbent upon the Board to adopt a binding decision on whether the objection is “''relevant and reasoned''” and, in general, if it meets the requirements outlined in Article 4(24) GDPR.
  
==== Mutual assistance under Article 61 ====
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=== (5) Objection is accepted ===
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Where the lead supervisory authority intends to follow one or more relevant and reasoned objections made by one or more CSAs, it shall submit to the other supervisory authorities concerned a revised draft decision for their opinion as foreseen in Paragraph 4. However, in this case, the CSAs only have two weeks to express their opinion.
  
==== Joint operations under Article 62 ====
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=== (6) Agreement on the draft decision ===
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Where none of the other supervisory authorities concerned has objected to the draft decision submitted by the lead supervisory authority within the period referred to in paragraphs 4 and 5, the lead supervisory authority and the supervisory authorities concerned shall be deemed to agree with that draft decision and shall be bound by it. In this case, the decision becomes final.
  
=== Consensus in practice. Procedural aspects ===
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=== (7) Notification of the final decision ===
The lead supervisory authority shall, without delay, communicate the relevant information on the matter to the other supervisory authorities concerned. It shall without delay submit a draft decision to the other supervisory authorities concerned for their opinion and take due account of their views.
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The lead supervisory authority shall adopt and notify the decision to the main establishment or single establishment of the controller or processor, as the case may be and inform the other supervisory authorities concerned and the Board of the decision in question, including a summary of the relevant facts and grounds. The supervisory authority with which a complaint has been lodged shall inform the complainant on the decision.  
  
Where any of the other supervisory authorities concerned within a period of four weeks after having been consulted in accordance with paragraph 3 of this Article, expresses a relevant and reasoned objection to the draft decision.
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=== (8) Dismissal ===
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By derogation from paragraph 7, where a complaint is dismissed or rejected, the supervisory authority with which the complaint was lodged shall adopt the decision and notify it to the complainant and shall inform the controller thereof. This provision facilitates the data subject who might intend to file an appeal before a national court.
  
==== Relevant and reasoned objection ====
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=== (9) Partial dismissal ===
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Where the lead supervisory authority and the supervisory authorities concerned agree to dismiss or reject parts of a complaint and to act on other parts of that complaint, a separate decision shall be adopted for each of those parts of the matter.  
  
==== Disagreement with the relevant and reasoned objection ====
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On the one hand, the LSA adopts the decision for the part concerning actions about the controller, notifies it to the main establishment or single establishment of the controller or processor on the territory of its Member State and informs the complainant.  
The lead supervisory authority shall, if it does not follow the relevant and reasoned objection or is of the opinion that the objection is not relevant or reasoned, submit the matter to the consistency mechanism referred to in Article 63 (LINK).
 
  
==== Agreement with the relevant and reasoned objection ====
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On the other hand, the supervisory authority of the complainant adopts the decision for the part concerning dismissal or rejection, notifies it to the complainant and informs the controller or processor.
Where the lead supervisory authority intends to follow the relevant and reasoned objection made, it shall submit to the other supervisory authorities concerned a revised draft decision for their opinion. That revised draft decision shall be subject to the procedure referred to in paragraph 4 within a period of two weeks.
 
  
Where none of the other supervisory authorities concerned has objected to the draft decision submitted by the lead supervisory authority within the period referred to in paragraphs 4 and 5, the lead supervisory authority and the supervisory authorities concerned shall be deemed to be in agreement with that draft decision and shall be bound by it.
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=== (10) Enforcement ===
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After being notified of the decision of the LSA according to paragraphs 7 and 9, the controller or processor shall take the necessary measures to ensure compliance for all its establishments in the Union. The controller or processor shall notify the measures taken for complying with the decision to the lead supervisory authority, which shall inform the other supervisory authorities concerned.
  
=== Enforcement of the decision (7) ===
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=== (11) Urgency procedure ===
The lead supervisory authority shall adopt and notify the decision to the main establishment or single establishment of the controller or processor, as the case may be and inform the other supervisory authorities concerned and the Board of the decision in question, including a summary of the relevant facts and grounds. The supervisory authority with which a complaint has been lodged shall inform the complainant on the decision.
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Where, in exceptional circumstances, a supervisory authority concerned has reasons to consider that there is an urgent need to act in order to protect the interests of data subjects, the urgency procedure referred to in Article 66 shall apply.
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==== Exceptional circumstances ====
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''You can help us fill this section!''
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==== Urgent need ====
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''You can help us fill this section!''
  
==== Dismissal (8) ====
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=== (12) Forms of communication: electronic means and standardised format ===
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The lead supervisory authority and the other supervisory authorities concerned shall supply the information required under this Article to each other by electronic means, using a standardised format.
  
 
== Decisions ==
 
== Decisions ==

Latest revision as of 13:36, 21 July 2021

Article 60 - Cooperation between the lead supervisory authority and the other supervisory authorities concerned
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Chapter 10: Delegated and implementing acts

Legal Text[edit | edit source]


Article 60 - Cooperation between the lead supervisory authority and the other supervisory authorities concerned


1. The lead supervisory authority shall cooperate with the other supervisory authorities concerned in accordance with this Article in an endeavour to reach consensus. The lead supervisory authority and the supervisory authorities concerned shall exchange all relevant information with each other.

2. The lead supervisory authority may request at any time other supervisory authorities concerned to provide mutual assistance pursuant to Article 61 and may conduct joint operations pursuant to Article 62, in particular for carrying out investigations or for monitoring the implementation of a measure concerning a controller or processor established in another Member State.

3. The lead supervisory authority shall, without delay, communicate the relevant information on the matter to the other supervisory authorities concerned. It shall without delay submit a draft decision to the other supervisory authorities concerned for their opinion and take due account of their views.

4. Where any of the other supervisory authorities concerned within a period of four weeks after having been consulted in accordance with paragraph 3 of this Article, expresses a relevant and reasoned objection to the draft decision, the lead supervisory authority shall, if it does not follow the relevant and reasoned objection or is of the opinion that the objection is not relevant or reasoned, submit the matter to the consistency mechanism referred to in Article 63.

5. Where the lead supervisory authority intends to follow the relevant and reasoned objection made, it shall submit to the other supervisory authorities concerned a revised draft decision for their opinion. That revised draft decision shall be subject to the procedure referred to in paragraph 4 within a period of two weeks.

6. Where none of the other supervisory authorities concerned has objected to the draft decision submitted by the lead supervisory authority within the period referred to in paragraphs 4 and 5, the lead supervisory authority and the supervisory authorities concerned shall be deemed to be in agreement with that draft decision and shall be bound by it.

7. The lead supervisory authority shall adopt and notify the decision to the main establishment or single establishment of the controller or processor, as the case may be and inform the other supervisory authorities concerned and the Board of the decision in question, including a summary of the relevant facts and grounds. The supervisory authority with which a complaint has been lodged shall inform the complainant on the decision.

8. By derogation from paragraph 7, where a complaint is dismissed or rejected, the supervisory authority with which the complaint was lodged shall adopt the decision and notify it to the complainant and shall inform the controller thereof.

9. Where the lead supervisory authority and the supervisory authorities concerned agree to dismiss or reject parts of a complaint and to act on other parts of that complaint, a separate decision shall be adopted for each of those parts of the matter. The lead supervisory authority shall adopt the decision for the part concerning actions in relation to the controller, shall notify it to the main establishment or single establishment of the controller or processor on the territory of its Member State and shall inform the complainant thereof, while the supervisory authority of the complainant shall adopt the decision for the part concerning dismissal or rejection of that complaint, and shall notify it to that complainant and shall inform the controller or processor thereof.

10. After being notified of the decision of the lead supervisory authority pursuant to paragraphs 7 and 9, the controller or processor shall take the necessary measures to ensure compliance with the decision as regards processing activities in the context of all its establishments in the Union. The controller or processor shall notify the measures taken for complying with the decision to the lead supervisory authority, which shall inform the other supervisory authorities concerned.

11. Where, in exceptional circumstances, a supervisory authority concerned has reasons to consider that there is an urgent need to act in order to protect the interests of data subjects, the urgency procedure referred to in Article 66 shall apply.

12. The lead supervisory authority and the other supervisory authorities concerned shall supply the information required under this Article to each other by electronic means, using a standardised format.

Relevant Recitals[edit | edit source]

Recital 124: title

Where the processing of personal data takes place in the context of the activities of an establishment of a controller or a processor in the Union and the controller or processor is established in more than one Member State, or where processing taking place in the context of the activities of a single establishment of a controller or processor in the Union substantially affects or is likely to substantially affect data subjects in more than one Member State, the supervisory authority for the main establishment of the controller or processor or for the single establishment of the controller or processor should act as lead authority. It should cooperate with the other authorities concerned, because the controller or processor has an establishment on the territory of their Member State, because data subjects residing on their territory are substantially affected, or because a complaint has been lodged with them. Also where a data subject not residing in that Member State has lodged a complaint, the supervisory authority with which such complaint has been lodged should also be a supervisory authority concerned. Within its tasks to issue guidelines on any question covering the application of this Regulation, the Board should be able to issue guidelines in particular on the criteria to be taken into account in order to ascertain whether the processing in question substantially affects data subjects in more than one Member State and on what constitutes a relevant and reasoned objection.

Recital 125: title

The lead authority should be competent to adopt binding decisions regarding measures applying the powers conferred on it in accordance with this Regulation. In its capacity as lead authority, the supervisory authority should closely involve and coordinate the supervisory authorities concerned in the decision-making process. Where the decision is to reject the complaint by the data subject in whole or in part, that decision should be adopted by the supervisory authority with which the complaint has been lodged.

Recital 130: title

Where the supervisory authority with which the complaint has been lodged is not the lead supervisory authority, the lead supervisory authority should closely cooperate with the supervisory authority with which the complaint has been lodged in accordance with the provisions on cooperation and consistency laid down in this Regulation. In such cases, the lead supervisory authority should, when taking measures intended to produce legal effects, including the imposition of administrative fines, take utmost account of the view of the supervisory authority with which the complaint has been lodged and which should remain competent to carry out any investigation on the territory of its own Member State in liaison with the competent supervisory authority.

Commentary[edit | edit source]

The lead supervisory authority shall cooperate with the other supervisory authorities concerned in accordance with this article in an endeavour to reach consensus. The wording of the provision indicates that a lead supervisory authority has already been identified under Article 56 and that all the requirements set forth therein are met.

(1) The lead supervisory authority shall cooperate with the other supervisory authorities concerned[edit | edit source]

Article 60(1) requires the lead authority (“LSA”) to cooperate with the other authorities concerned. As soon as the LSA learns of its responsibility under Article 56(1), it must take the initiative and identify the other supervisory authorities concerned (“CSA”).

Under Article 60, the “lead supervisory authority and the supervisory authorities concerned shall exchange all relevant information with each other”. However, information exchange shall not constitute the only type of cooperation. Instead, all types of cooperation that are “in accordance with this article” are not only permitted but encouraged.

Finally, the duty to cooperate is not one-sided but naturally applies also the other authorities concerned.[1]

Consensus[edit | edit source]

The lead authority is obliged to reach a consensus with the other authorities concerned.[2] Supervisory authorities concerned shall therefore be given adequate information and sufficient opportunity to present their legal positions (Article 60(3) GDPR), which, as long as possible, shall be incorporated into the LSA’s final assessment. [3]The above seems confirmed by Recital 125, which specifies that “the supervisory authority should closely involve and coordinate the supervisory authorities concerned in the decision-making process”.

Information exchange[edit | edit source]

The GDPR seems to put a particular focus on the information exchange obligation. Effective Union-wide enforcement requires that all supervisory authorities concerned, including the LSA, receive and share all relevant information on cross-border data processing as promptly as possible. The above stays true even when the identity of the lead supervisory authority is still unclear: the required exchange of information must take place in any case (see Article 61 and Article 62).

(2) The lead supervisory authority may request cooperation[edit | edit source]

According to Paragraph 2, the lead supervisory authority may request other supervisory authorities to provide mutual assistance pursuant to Article 61 and conduct joint operations pursuant to Article 62. In fact, before issuing a binding decision, it may (and usually will) be necessary for the lead and the other supervisory authorities concerned to first exercise investigative powers in their territory towards the main branch and the other branches of the controller or processor. Cooperation is also crucial in later procedural steps for “monitoring the implementation of a measure concerning a controller or processor established in another Member State”.[4]

(3) Draft decision and relevant reasoned objection[edit | edit source]

Paragraph 3 sets out the practical background of the cooperation mechanism. The lead supervisory authority communicates the relevant information on the matter to the other supervisory authorities concerned and, without delay, provide them with a draft decision for their opinion, which shall be taken into “due account”. In other words, under Article 60(1), the LSA must adequately address the positions of the other supervisory authorities and integrate them into the decision-making process.[5]

CSA’s objection[edit | edit source]

Under Article 4(24) GDPR, any CSA can submit an “objection to a draft decision” which must be “relevant and reasoned” and focus on “as to whether there is an infringement of this Regulation, or whether envisaged action in relation to the controller or processor complies with this Regulation, which clearly demonstrates the significance of the risks posed by the draft decision as regards the fundamental rights and freedoms of data subjects and, where applicable, the free flow of personal data within the Union”.[6]

An objection submitted by a CSA should indicate each part of the draft decision that is considered deficient, erroneous or lacking some necessary elements, either by referring to specific articles/paragraphs or by other clear indication and showing why such issues are to be deemed “relevant” as further explained below. Therefore, the objection aims, first of all, at pointing out how and why according to the CSA the draft decision does not appropriately address the situation of infringement of the GDPR and/or does not envision appropriate action towards the controller or processor. The proposals for amendments put forward by the objection should aim to remedy these errors.

Relevant[edit | edit source]

For the objection to be considered as “relevant”, there must be a direct connection between the objection and the draft decision at issue. More specifically, the objection needs to concern either whether there is an infringement of the GDPR or whether the envisaged action in relation to the controller or processor complies with the GDPR. An objection should only be considered relevant if it relates to the specific legal and factual content of the draft decision. Raising only abstract or broad comments or objections cannot be considered relevant in this context.[7]

Reasoned[edit | edit source]

In order for the objection to be “reasoned”, it needs to include clarifications and arguments as to why an amendment of the decision is proposed(i.e. the alleged legal / factual mistakes of the draft decision). It also needs to demonstrate how the change would lead to a different conclusion as to whether there is an infringement of the GDPR or whether the envisaged action in relation to the controller or processor complies with the GDPR.

The CSA should provide sound reasoning for its objection, particularly by reference to legal arguments (relying on EU law and/or relevant national law and including, e.g. legal provisions, guidelines, case law) or factual arguments, where applicable. The CSA should present the fact(s) allegedly leading to a different conclusion regarding the infringement of the GDPR by the controller/processor or the aspect of the decision that, in their view, is deficient/erroneous.

In order for an objection to be adequately reasoned, it should be coherent, clear, precise and detailed in explaining the reasons for objection. It should set forth, clearly and precisely, the essential facts on which the CSA based its assessment and the link between the envisaged consequences of the draft decision (if it was to be issued ‘as is’)and the significance of the anticipated risks. Moreover, the CSA should indicate which parts of the draft decision they disagree with. In cases where the objection is based on the opinion that the LSA failed to investigate an essential fact of the case entirely, or an additional violation of the GDPR, it would be sufficient for the CSA to present such arguments in a conclusive and substantiated manner. [8]

Infringement of the GDPR[edit | edit source]

The CSA’s objections to the draft decision must be justified and motivated through reference to evidence and facts that support the objection, by having regard to the facts and evidence (the ‘relevant information’ referred to in Article 60.3) provided by the LSA. These requirements should apply to each specific infringement and to each specific provision in question (e.g.if the draft decision says that the controller infringed Articles 6, 7, and 14 GDPR, and the CSA disagrees on whether there is an infringement of Article7 and 14 and considers that there is an infringement of Article 13 GDPR).

In some circumstances, the objection could go as far as identifying gaps in the draft decision justifying the need for further investigation by the LSA. For instance, if the investigation carried out by the LSA unjustifiably fails to cover some of the issues raised by the complainant or resulting from an infringement reported by a CSA, a relevant and reasoned objection may be raised based on the failure of the LSA to handle the complaint properly and in safeguarding the rights of the data subject.[9]

Other requirements[edit | edit source]

For the other requirements foreseen in Article 4(24) GDPR please see the relevant provision in the Commentary.

(4) Objection is rejected[edit | edit source]

Following the submission of the draft decision, the concerned supervisory authorities (CSAs) may raise a relevant and reasoned objection within four weeks. If the LSA does not follow the relevant and reasoned objection or believes that the objection is not reasoned or relevant, the matter is referred to the attention of the EDPB which will decide it following Article 63 and Article 65(1)(a) GDPR. It then becomes incumbent upon the Board to adopt a binding decision on whether the objection is “relevant and reasoned” and, in general, if it meets the requirements outlined in Article 4(24) GDPR.

(5) Objection is accepted[edit | edit source]

Where the lead supervisory authority intends to follow one or more relevant and reasoned objections made by one or more CSAs, it shall submit to the other supervisory authorities concerned a revised draft decision for their opinion as foreseen in Paragraph 4. However, in this case, the CSAs only have two weeks to express their opinion.

(6) Agreement on the draft decision[edit | edit source]

Where none of the other supervisory authorities concerned has objected to the draft decision submitted by the lead supervisory authority within the period referred to in paragraphs 4 and 5, the lead supervisory authority and the supervisory authorities concerned shall be deemed to agree with that draft decision and shall be bound by it. In this case, the decision becomes final.

(7) Notification of the final decision[edit | edit source]

The lead supervisory authority shall adopt and notify the decision to the main establishment or single establishment of the controller or processor, as the case may be and inform the other supervisory authorities concerned and the Board of the decision in question, including a summary of the relevant facts and grounds. The supervisory authority with which a complaint has been lodged shall inform the complainant on the decision.

(8) Dismissal[edit | edit source]

By derogation from paragraph 7, where a complaint is dismissed or rejected, the supervisory authority with which the complaint was lodged shall adopt the decision and notify it to the complainant and shall inform the controller thereof. This provision facilitates the data subject who might intend to file an appeal before a national court.

(9) Partial dismissal[edit | edit source]

Where the lead supervisory authority and the supervisory authorities concerned agree to dismiss or reject parts of a complaint and to act on other parts of that complaint, a separate decision shall be adopted for each of those parts of the matter.

On the one hand, the LSA adopts the decision for the part concerning actions about the controller, notifies it to the main establishment or single establishment of the controller or processor on the territory of its Member State and informs the complainant.

On the other hand, the supervisory authority of the complainant adopts the decision for the part concerning dismissal or rejection, notifies it to the complainant and informs the controller or processor.

(10) Enforcement[edit | edit source]

After being notified of the decision of the LSA according to paragraphs 7 and 9, the controller or processor shall take the necessary measures to ensure compliance for all its establishments in the Union. The controller or processor shall notify the measures taken for complying with the decision to the lead supervisory authority, which shall inform the other supervisory authorities concerned.

(11) Urgency procedure[edit | edit source]

Where, in exceptional circumstances, a supervisory authority concerned has reasons to consider that there is an urgent need to act in order to protect the interests of data subjects, the urgency procedure referred to in Article 66 shall apply.

Exceptional circumstances[edit | edit source]

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Urgent need[edit | edit source]

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(12) Forms of communication: electronic means and standardised format[edit | edit source]

The lead supervisory authority and the other supervisory authorities concerned shall supply the information required under this Article to each other by electronic means, using a standardised format.

Decisions[edit | edit source]

→ You can find all related decisions in Category:Article 60 GDPR

References[edit | edit source]

  1. Dix in Kühling, Buchner, GDPR BDSG, Article 60 GDPR, Margin number 6 (Beck 3rd edition 2020)
  2. The letter of the law seems to put this obligation specifically on the LSA rather than single CSAs. See Polenz in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 60 GDPR, margin number 5 (1st edition 2019)
  3. Polenz in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 60 GDPR, margin number 5 (1st edition 2019)
  4. Polenz in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 60 GDPR, margin number 8 (1st edition 2019)
  5. Paragraphs 3 to 10 contain a completely new, relatively complex two-phases decision-making procedure. The first (or preparatory) phase regulates how information, draft decisions and objections are exchanged among authorities (Paragraphs 3 to 6). The second phase, which consists of the actual decision-making stage (including enforcement), is regulated by following Paragraphs 6 to 10. Polenz in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 60 GDPR, margin number 9 (1st edition 2019)
  6. The EDPB provided guidance for the notion of the terms “relevant and reasoned”, including what should be considered when assessing whether an objection “clearly demonstrates the significance of the risks posed by the draft decision” (Article 4(24) GDPR). See, EDPB, Guidelines 9/2020 on relevant and reasoned objection under Regulation 2016/679 (8.10.2020) (available here)
  7. See, EDPB, Guidelines 9/2020 on relevant and reasoned objection under Regulation 2016/679 (8.10.2020)
  8. See, EDPB, Guidelines 9/2020 on relevant and reasoned objection under Regulation 2016/679 (8.10.2020)
  9. See, EDPB, Guidelines 9/2020 on relevant and reasoned objection under Regulation 2016/679 (8.10.2020)