Difference between revisions of "Article 60 GDPR"

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=== The Lead Supervisory Authority cooperates with the other Authorities Concerned ===
 
=== The Lead Supervisory Authority cooperates with the other Authorities Concerned ===
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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.
  
==== Primary goal: reach consensus ====
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==== Cooperation ====
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Article 60(1) obliges the lead authority to cooperate with the other authorities concerned. As soon as it learns of its responsibility under Article 56(1), the lead authority must take the initiative and, as far as it can, investigate which other supervisory authorities in the Member States could be concerned. Article 60 provides for means and specific guidelines on how the cooperation should take place. However, this catalog is not exhaustive; rather, 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. <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 seek ''consensus'' with the other authorities concerned. The black-letter of the law seems to put this obligation specifically on the LSA and not on the other authorities concerned. <ref>''Polenz'' in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 60 GDPR, margin number 5 (1st edition 2019)</ref> Above all, this requires that the supervisory authorities concerned are given sufficient opportunity to present their own legal positions in the procedure pursuant to Article 60(3) GDPR and that their positions are incorporated into the final assessment by the lead supervisory authority.<ref>''Polenz'' in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 60 GDPR, margin number 5 (1st edition 2019)</ref> The above seems to be 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 =====
 
===== Information exchange =====
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.
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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. The obligation to cooperate is particularly specified in an ''obligation to provide information to one another'' ( Art. 60, Paragraph 1, Sentence 2). Effective Union-wide enforcement of the regulation requires that all supervisory authorities concerned receive all relevant information on cross-border data processing as promptly as possible. As soon as a supervisory authority learns of such data processing, whose compatibility with the regulation it considers to be questionable, it should inform the authority which it considers to be in charge and, expediently, all other supervisory authorities whose impact it can recognize. If it is unclear or in dispute who is the lead authority, this must not mean that the required exchange of useful information is initially not carried out.  
  
 
=== Cooperation requests ===<!-- these two are instruments of the cooperation... (SR) -->
 
=== Cooperation requests ===<!-- these two are instruments of the cooperation... (SR) -->

Revision as of 11:13, 19 May 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


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

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Commentary

The Lead Supervisory Authority cooperates with the other Authorities Concerned

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.

Cooperation

Article 60(1) obliges the lead authority to cooperate with the other authorities concerned. As soon as it learns of its responsibility under Article 56(1), the lead authority must take the initiative and, as far as it can, investigate which other supervisory authorities in the Member States could be concerned. Article 60 provides for means and specific guidelines on how the cooperation should take place. However, this catalog is not exhaustive; rather, 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

The lead authority is obliged to seek consensus with the other authorities concerned. The black-letter of the law seems to put this obligation specifically on the LSA and not on the other authorities concerned. [2] Above all, this requires that the supervisory authorities concerned are given sufficient opportunity to present their own legal positions in the procedure pursuant to Article 60(3) GDPR and that their positions are incorporated into the final assessment by the lead supervisory authority.[3] The above seems to be 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

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. The obligation to cooperate is particularly specified in an obligation to provide information to one another ( Art. 60, Paragraph 1, Sentence 2). Effective Union-wide enforcement of the regulation requires that all supervisory authorities concerned receive all relevant information on cross-border data processing as promptly as possible. As soon as a supervisory authority learns of such data processing, whose compatibility with the regulation it considers to be questionable, it should inform the authority which it considers to be in charge and, expediently, all other supervisory authorities whose impact it can recognize. If it is unclear or in dispute who is the lead authority, this must not mean that the required exchange of useful information is initially not carried out.

Cooperation requests

Mutual assistance under Article 61

Joint operations under Article 62

Consensus in practice. Procedural aspects

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.

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.

Relevant and reasoned objection

[...]

Disagreement with the relevant and reasoned objection

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

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.

Final decision

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.

Dismissal

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.

Partial dismissal

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.

Enforcement

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.

Urgency procedure

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

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

References

  1. Dix in Kühling, Buchner, GDPR BDSG, Article 60 GDPR, Margin number 6 (Beck 3rd edition 2020)
  2. 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)