Article 68 GDPR

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Article 68 - European Data Protection Board
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Chapter 10: Delegated and implementing acts

Legal Text


Article 68 - European Data Protection Board

1. The European Data Protection Board (the ‘Board’) is hereby established as a body of the Union and shall have legal personality.

2. The Board shall be represented by its Chair.

3. The Board shall be composed of the head of one supervisory authority of each Member State and of the European Data Protection Supervisor, or their respective representatives.

4. Where in a Member State more than one supervisory authority is responsible for monitoring the application of the provisions pursuant to this Regulation, a joint representative shall be appointed in accordance with that Member State's law.

5. The Commission shall have the right to participate in the activities and meetings of the Board without voting right. The Commission shall designate a representative. The Chair of the Board shall communicate to the Commission the activities of the Board.

6. In the cases referred to in Article 65, the European Data Protection Supervisor shall have voting rights only on decisions which concern principles and rules applicable to the Union institutions, bodies, offices and agencies which correspond in substance to those of this Regulation.

Relevant Recitals

Recital 139: EDPB
In order to promote the consistent application of this Regulation, the Board should be set up as an independent body of the Union. To fulfil its objectives, the Board should have legal personality. The Board should be represented by its Chair. It should replace the Working Party on the Protection of Individuals with Regard to the Processing of Personal Data established by Directive 95/46/EC. It should consist of the head of a supervisory authority of each Member State and the European Data Protection Supervisor or their respective representatives. The Commission should participate in the Board's activities without voting rights and the European Data Protection Supervisor should have specific voting rights. The Board should contribute to the consistent application of this Regulation throughout the Union, including by advising the Commission, in particular on the level of protection in third countries or international organisations, and promoting cooperation of the supervisory authorities throughout the Union. The Board should act independently when performing its tasks.

Commentary

Article 68 GDPR addresses the nature, legal status, and internal composition of the European Data Protection Board (“EDPB”). The EDPB replaces the Article 29 Working Party (“WP29”), the former advisory body established under Directive 95/46/EC. Notably, the powers granted to the EDPB are far grater than those afforded to its predecessor. The WP29 was constrained to a purely advisory role. However, the EDPB in contrast, has been afforded a wide array duties, including the power to adopt binding decisions pursuant to Article 65 GDPR (Article 70(1)(t) GDPR).[1] Article 68 GDPR is the first of nine Articles (Articles 68-76 GDPR) governing the EDPB set forth in Section 3 of Chapter VII GDPR.

(1) EU Body with Legal Personality

Article 68(1) GDPR, in addition to Recital 139 GDPR, establish the EDPB as a body of the Union with legal personality. The objectives behind granting the EDPB legal personality were rooted in the perceived defficiencies of the WP29. The WP29, likewise acted as an independent body, but as noted, was not granted legal personality.[2] The WP29's lack of legal personality contributed to what was generally seen as a fragmented application and interpretation of Directive 95/46/EC by supervisory authorities (“SA”).[3] As Docksey notes, imbuing the EDPB with legal personality serves to “strengthen[s] [its] nature […] as a governing body in its own right, deriving its legitimacy directly from legislation rather than by delegation from the Commission. In practical terms it means that the Board may take action before the Courts.”[4]

Having legal personality allows for the EDPB to make legally binding decisions, pursuant to Articles 65 and 70 GDPR.[5] The EDPB’s status as an Union body is significant in terms of accountability, as consequently, it is subject to the oversight of bodies in the European Union's regulatory framework, helping to ensure its political and legal accountability. For example, the EDPB’s decisions may be appealed to the General Court, and its compliance with data protection rules is supervised by the EDPS.[6] The independent nature of the EDPB is addressed further in the commentary on Article 69 GDPR.

(2) Chair

The EDPB will be represented by a Chair, who fulfils both a public role – that is, representing the Board and its SAs at conferences, press meetings and so forth – as well as a formal role – that is, representing the Board legally, for example at discussions of the European parliament.[7] This contrasts with the WP29, which had a public role only. Articles 73 and 74 GDPR contain provisions on the Chair’s appointment and tasks.

(3) National Supervisory Authorities

Whilst the WP29 comprised of “members” of the national SAs, Article 68(3) GDPR requires the Board to be composed of the heads of the national SAs. As noted by Docksey, this “emphasizes that the Board is intended to be a high-level body” and “significantly increases the ‘self-binding’ effect on national authorities of discussions and decisions by their heads at the Board.”[8] Beyond being the head of a national SA, the GDPR does not establish rules on the eligibility and qualifications required to be a Board member. This contrasts with the rules regarding SA members in Article 53 GDPR.[9] Whilst not explicitly stated, it can be inferred that all ordinary EDPB members will have the right to vote. This is because Article 68(5) GDPR outlines that the Commission can participate in the Board’s activities and meetings, just without voting rights.[10] The EEA/EFTA SAs are also members of the EDPB. Although they generally have the same rights and obligations as member state authorities, they do not have the right to vote, or to stand for election as deputy chairs.[11]

(4) Joint Representative

Under Article 68(4) GDPR, where a Member State has multiple SAs, these should be represented by a joint representative appointed in accordance with that Member State’s law. The GDPR does not set out procedures for appointing a joint representative, which are instead governed by national law.[12]

(5) European Commission

Whilst the Commission may participate in the EDPB’s meetings and activities, it is not a member and does not enjoy voting rights. Docksey notes that this right to participation is somewhat “remarkable,” and underscores the EDPB’s independent nature.[13] This is discussed further in the commentary on Article 69 GDPR.

(6) EDPS

The EDPS’ voting rights in the board are limited to dispute resolution decisions under Article 65 GDPR concerning principles and rules applicable to the Union institutions, bodies, offices and agencies - that is, those established under Regulation (EU) 2018/1725. This setup is a compromise between, on the one-hand, the notion that the EDPS should not be able to vote on decisions that are not of its concern, and on the other, the notion that the EDPS should be treated the same as any other SA.[14] Indeed, in practice, it arguably makes little difference, since the principles and rules under Regulation 2018/1725 correspond in substance to those of the GDPR. The EDPS is thus likely to be able to vote in many cases.[15]

Decisions

→ You can find all related decisions in Category:Article 68 GDPR

References

  1. Schiedermair, in Spiecker gen. Döhmann et al., General Data Protection Regulation, Article 68 GDPR, margin number 3 (C.H. Beck 2023, 1st edition).
  2. Albrecht in Ehmann, Selmayr, Article 68 GDPR, margin number 1 (C.H. C.H. Beck 2018, 2nd edition).
  3. Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1046 (Oxford University Press 2020).
  4. Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1046 (Oxford University Press 2020).
  5. Schiedermair, in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 68 GDPR, margin number 5 (C.H. Beck 2019, 1st edition).
  6. Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1046 (Oxford University Press 2020); Article 263 TFEU.
  7. Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1047 (Oxford University Press 2020).
  8. Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1047 (Oxford University Press 2020).
  9. Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1047 (Oxford University Press 2020).
  10. Albrecht in Ehmann, Selmayr, Article 68 GDPR, margin number 7 (C.H. Beck 2018, 2nd edition).
  11. Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1049 (Oxford University Press 2020).
  12. Schiedermair, in Simitis, Hornung, Spiecker, Datenschutzrecht, Article 68 GDPR, margin number 8 (C.H. Beck 2019, 1st edition).
  13. Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1050 (Oxford University Press 2020).
  14. Dix, in Kühling, Buchner, DS-GVO BDSG, Article 68 GDPR, margin number 12 (C.H. Beck 2020, 3rd edition); Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1049 (Oxford University Press 2020).
  15. Dix, in Kühling, Buchner, DS-GVO BDSG, Article 68 GDPR, margin number 12 (C.H. Beck 2020, 3rd edition).