Article 64 GDPR

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Article 64 - Opinion of the Board
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Chapter 10: Delegated and implementing acts

Legal Text


Article 64 - Opinion of the Board


1. The Board shall issue an opinion where a competent supervisory authority intends to adopt any of the measures below. To that end, the competent supervisory authority shall communicate the draft decision to the Board, when it:

(a) aims to adopt a list of the processing operations subject to the requirement for a data protection impact assessment pursuant to Article 35(4);
(b) concerns a matter pursuant to Article 40(7) whether a draft code of conduct or an amendment or extension to a code of conduct complies with this Regulation;
(c) aims to approve the criteria for accreditation of a body pursuant to Article 41(3) or a certification body pursuant to Article 43(3);
(d) aims to determine standard data protection clauses referred to in point (d) of Article 46(2) and in Article 28(8);
(e) aims to authorise contractual clauses referred to in point (a) of Article 46(3); or
(f) aims to approve binding corporate rules within the meaning of Article 47.

2. Any supervisory authority, the Chair of the Board or the Commission may request that any matter of general application or producing effects in more than one Member State be examined by the Board with a view to obtaining an opinion, in particular where a competent supervisory authority does not comply with the obligations for mutual assistance in accordance with Article 61 or for joint operations in accordance with Article 62.

3. In the cases referred to in paragraphs 1 and 2, the Board shall issue an opinion on the matter submitted to it provided that it has not already issued an opinion on the same matter. That opinion shall be adopted within eight weeks by simple majority of the members of the Board. That period may be extended by a further six weeks, taking into account the complexity of the subject matter. Regarding the draft decision referred to in paragraph 1 circulated to the members of the Board in accordance with paragraph 5, a member which has not objected within a reasonable period indicated by the Chair, shall be deemed to be in agreement with the draft decision.

4. Supervisory authorities and the Commission shall, without undue delay, communicate by electronic means to the Board, using a standardised format any relevant information, including as the case may be a summary of the facts, the draft decision, the grounds which make the enactment of such measure necessary, and the views of other supervisory authorities concerned.

5. The Chair of the Board shall, without undue, delay inform by electronic means:

(a) the members of the Board and the Commission of any relevant information which has been communicated to it using a standardised format. The secretariat of the Board shall, where necessary, provide translations of relevant information; and
(b) the supervisory authority referred to, as the case may be, in paragraphs 1 and 2, and the Commission of the opinion and make it public.

6. The competent supervisory authority shall not adopt its draft decision referred to in paragraph 1 within the period referred to in paragraph 3.

7. The supervisory authority referred to in paragraph 1 shall take utmost account of the opinion of the Board and shall, within two weeks after receiving the opinion, communicate to the Chair of the Board by electronic means whether it will maintain or amend its draft decision and, if any, the amended draft decision, using a standardised format.

8. Where the supervisory authority concerned informs the Chair of the Board within the period referred to in paragraph 7 of this Article that it does not intend to follow the opinion of the Board, in whole or in part, providing the relevant grounds, Article 65(1) shall apply.

Relevant Recitals

Recital 136: Opinion of the Board

In applying the consistency mechanism, the Board should, within a determined period of time, issue an opinion, if a majority of its members so decides or if so requested by any supervisory authority concerned or the Commission. The Board should also be empowered to adopt legally binding decisions where there are disputes between supervisory authorities. For that purpose, it should issue, in principle by a two-thirds majority of its members, legally binding decisions in clearly specified cases where there are conflicting views among supervisory authorities, in particular in the cooperation mechanism between the lead supervisory authority and supervisory authorities concerned on the merits of the case, in particular whether there is an infringement of this Regulation.

Overview

Section 2 of Chapter VII GDPR introduces a so-called “consistency mechanism” to ensure the consistent application of the GDPR by the supervisory authorities. In order to empower the European Data Protection Board (EDPB) to fulfil this task, Article 64 includes an opinion procedure which can be triggered in two types of situations. First, when a supervisory authority prepares a draft decision in a selected range of cases that require EDPB’s opinion (Article 64(1) GDPR). Second, when a supervisory authority, the EDPB Chair or the Commission request the EDPB to issue an opinion on any other matter (Article 64(2) GDPR).

The remaining paragraphs of Article 64(3-8) lay down substantive rules and a detailed procedure for the EDPB’s opinions.

Commentary

A mandatory opinion of the Board

Article 64(1) lays down a list of cases that require a mandatory opinion by the EDPB in view of their nature – there is a considerable need for a harmonised implementation of the issues they deal with across the EU.[1]

These issues are: the adoption of a list of the processing operations subject to the requirement for a data protection impact assessment; a decision on whether a draft code of conduct is compliant with the GDPR; a decision which will approve requirements for accreditation or certification bodies; a decision which will determine standard data protection clauses; a decision that will authorise contractual clauses; or a decision approving binding corporate rules.

If one of the situations listed in this paragraph has been triggered, a supervisory authority that intends to issue a decision on it shall submit a draft decision to the EDPB to obtain an opinion. The validity of the relevant supervisory authority’s decision will depend on the opinion of the EDPB.

The opinions of the EDPB are not directly binding on the supervisory authorities. However, the supervisory authorities are obliged to notify the EDPB if they intend to deviate from the opinion in order to ensure a possibility to trigger a binding dispute resolution procedure in accordance with Article 65 GDPR.[2]

An optional opinion of the Board

Article 64(2) allows any supervisory authority, the EDPB Chair or the Commission to request the EDPB to issue an opinion in cases which are not included in the list from paragraph 1, but which address issues having a general application or producing effects in more than one Member State. This provision potentially allows for a wide array of issues to be brought up before the EDPB depending on the interpretation of Article 64(2).  

The EDPB, however, seems to have adopted a narrow interpretation of this provision requiring the issue at stake to be an abstract, substantive, and legal issue that is independent of any particular case or cases.[3] The refusal by the EDPB to issue an opinion in cases which fulfil the necessary criteria, shall take a form of a formal decision by the EDPB. A supervisory authority will then be able to submit such a decision for the review of the legality of such a decision to the CJEU.[4]

Conditions for the adoption of the opinion and timeline

Article 64(3) provides that the EDPB shall adopt an opinion within eight weeks by a simple majority vote. In more complex cases, this period may be extended by another six weeks, allowing for 14 weeks in total. The Chair of the EDPB makes decisions about the extension either on its own initiative or at the request of at least 1/3 of the Board’s members [EDPB Rules of Procedure, p. 11].

Prior to the adoption of the opinion, the EDPB shall evaluate whether the request fulfils the requirements of the paragraph 1 and paragraph 2, and whether the EDPB has not already issued an opinion on the same matter in the past. The EDPB Secretariat prepares a draft opinion and presents it for approval to the Board. The EDPB Chair can also invite a rapporteur and expert subgroups to assist with the preparation of the draft opinion.[5]

The Board may adopt an opinion in favour of a draft decision submitted to the EDPB under Article 64(1) if none of the members of the Board objected to it (a “non-objection-procedure”). However, if at least one member of the Board objects to the draft decision that shall immediately trigger the obligation of the EPDB to examine the objection and prepare an opinion on the draft decision. When objecting, members of the Board should provide reasons for their objections.[6]

Communication and information obligations

Articles 64(4) and 64(5) contain the rules on communication between the EDPB, the supervisory authorities, and the Commission. The rules require the respective applicant to provide all relevant information to the EDPB without undue delay and by electronic means. After analysing the submitted documents, the EDPB secretariat may request to provide additional information to complete the file.[7]

Article 64(5) contains a comprehensive information obligation on the Chair of the EDPB with regard to the draft opinion. The Chair shall communicate any relevant information received from the supervisory authority or from the Commission, along with the adopted opinion to the EDPB members. The opinion shall be made public.

Compliance with or deviation from the adopted opinion

Article 64(paragraphs 6-8) put forward the rules for supervisory authorities during and after the adoption of the opinion by the EDPB. The supervisory authority which submitted its draft decision to the EDPB according to Article 64(1) shall inform the EDPB within two weeks after receiving the opinion whether they will maintain or amend their draft decision. If the latter is the case, they should send to the EDPB the amended draft of the decision.

If the supervisory authority decides not to uphold the opinion of the EDPB, they shall notify the EDPB about the reasons not to do so. In this case, any supervisory authority or the European Commission may initiate the dispute resolution procedure (according to Article 65(1)(c) GDPR).

If the dispute resolution procedure is not triggered, the supervisory authority may decide to deviate from the EDPB’s opinion in whole or in part providing the reasons. However, the provisions leave it open to decide how long the supervisory authority shall wait to see whether the dispute resolution procedure is initiated before it issues a final decision.[8]

When the opinion of the EDPB is mandatory (in cases listed under Article 64(1)), the legality of a subsequent measure taken by the supervisory authority in question will depend on the validity of the opinion of the EDPB. Consequently, a failure to obtain a valid opinion from the EDPB will lead to an illegal draft decision which is not effective.[9]

The obligation of the supervisory authority to notify the EDPB about upholding the opinion enables the EDPB to monitor the uniformity of the GDPR enforcement across the Member States.[10]

Other

Historical documents reveal that the early drafts of the GDPR foresaw the extended powers of final decision of the European Commission with regard to the enforcement of the GDPR by means of implementing acts. However, as some authors indicate, granting the Commission such powers was seen as a violation of the independence of the supervisory authorities. Therefore, the final decision-making powers and the Commission’s role within the consistency mechanism were significantly reduced, leaving to the Commission the power to request from the EDPB to issue an opinion (Article 64(2)).[11]


Decisions

→ You can find all related decisions in Category:Article 64 GDPR

References

  1. Caspar in Kühling / Buchner / GDPR Article 64, margin number 8b (Beck 2020, 3rd ed.) (accessed 4.5.2021).
  2. Marsch in BeckOK Datenschutzrecht, Wolff/Brink DS-GVO Article 64 margin number 4 (35. Ed. 1.2.2021) (accessed 4.5.2021)
  3. Caspar in Kühling / Buchner / GDPR Article 64, margin number 8b (Beck 2020, 3rd ed.) (accessed 4.5.2021).
  4. Caspar in Kühling / Buchner / GDPR Article 64, margin numbers 7-12 (Beck 2020, 3rd ed.) (accessed 4.5.2021).
  5. European Data Protection Board (EDPB) Rules of Procedure, Version 7, adopted on 25 May 2018. As last modified and adopted on 8 October 2020, p. 11 (accessed 4.5.2021)
  6. European Data Protection Board (EDPB) Rules of Procedure, Version 7, adopted on 25 May 2018. As last modified and adopted on 8 October 2020, p. 11 (accessed 4.5.2021)
  7. European Data Protection Board (EDPB) Rules of Procedure, Version 7, adopted on 25 May 2018. As last modified and adopted on 8 October 2020, p. 10 (accessed 4.5.2021)
  8. Marsch in BeckOK Datenschutzrecht, Wolff/Brink DS-GVO Article 64 margin numbers 19-20.1 (35. Ed. 1.2.2021) (accessed 4.5.2021)
  9. Caspar in Kühling / Buchner / GDPR Article 64, margin number 24 (Beck 2020, 3rd ed.) (accessed 4.5.2021).
  10. Caspar in Kühling / Buchner / GDPR Article 64, margin number 23 (Beck 2020, 3rd ed.) (accessed 4.5.2021).
  11. Marsch in BeckOK Datenschutzrecht, Wolff/Brink DS-GVO Article 63 margin numbers 3-3.1 (35. Ed. 1.2.2021) (accessed 4.5.2021)