Article 69 GDPR

← Article 69 - Independence →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 69 - Independence

1. The Board shall act independently when performing its tasks or exercising its powers pursuant to Articles 70 and 71.

2. Without prejudice to requests by the Commission referred to in point (b) of Article 70(1) and in Article 70(2), the Board shall, in the performance of its tasks or the exercise of its powers, neither seek nor take instructions from anybody.

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 69 GDPR seeks to guarantee the Board's independence in its functioning as a Union Body. In practice, this provision establishes that other Union bodies may not interfere in the EDPB's functioning. This arrangement stands in stark contrast to that of the Board's predecessor, the Article 29 Working Party (“WP29”), in which the Commission held voting rights.

(1) The Board shall act independently

The establishment of the Board as a free-standing body goes beyond simply a normative assertion of independence. The wording of the Article provides that the Board shall "act independently," indicating that the EDPB must act autonomously in relation to the fulfilment of its functions. Importantly, the Board's independence does not exclude its actions from the scrutiny of other Union bodies, it still remains accountable to them. Nonetheless, the scrutiny of any such external bodies may only come following an action taken by the Board, they may not interfere in the performance of the Board's tasks and exercise of its powers.

The right to supervision by an independent authority is laid down in Article 8(3) of the Charter of Fundamental Rights of the European Union ("CFR"), Article 16(2) Treaty on the Functioning of the European Union ("TFEU"), and Article 39 Treaty on the European Union ("TEU"). The CJEU has also defined this right as an “essential component” of the fundamental right to data protection.However, the wording of Article 69 GDPR may suggest that it takes a less stringent position regarding the EDPB’s independence in comparison with that of national supervisory authorities. Under Article 52(2) GDPR national supervisory authorities must “act with complete independence,” while Article 69 simply provides that the Board shall "act independently." The disparity in the wording of these two Articles indicates that the independence of the EDPB is not absolute. For instance, the Board relies on the European Data Protection Supervisor ("EDPS") for facilities, staff, and budget, and pursuant to Article 68(6) GDPR, the EDPS holds limited voting rights in the Board on issues of dispute resolution.

This reading is supported by the Court in Commission v Germany, which interpreted the phrase “complete independence” in the context of Directive 95/46/EC. Here, the Court emphasised that the use of the “adjective ‘complete’ [...] implies a decision-making power independent of any direct or indirect external influence on the supervisory authority.” On the other hand, some commentators contend that this linguistic difference is immaterial. In particular, the word “complete” is omitted where primary law refers to independent supervisory authorities, yet in practice this omission does not affect their level of independence.

(2) The Board shall neither seek nor take instructions from any body

The second paragraph of Article 69 lays down the manner in which the Board exercises its independence, providing that the Board shall not seek nor take instructions from any body in the fulfilment of its duties. While the Board is not permitted to seek instructions from or depend on external bodies, this requirement does not exclude the Board from consulting external experts where needed. However, any such consultation must be made transparent within the framework of Article 76 GDPR regulating confidentiality.

Notably thought, Article 69(2) GDPR establishes that this requirement is without prejudice to instances where the Commission seeks advice from the Board on issues related to the protection of personal data in the Union, including advice regarding proposed amendments to the GDPR (pursuant to Article 70(1)(b) GDPR).

Although not explicitly mentioned in Article 69(2) GDPR, the requirement that the Board shall not seek nor take instructions from any body also applies without prejudice to situations where the Commission requests an opinion from the EDPB on instances outlined by Article 64(2) GDPR. These instances concern matters “of general application” or which “produc[e] effects in more than one member state, 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” (Article 64(2) GDPR). Commentators note that such requests for advice and opinions, which the EDPB cannot refuse, may impede the performance of its tasks where they fall outwith the scope delimitated by Article 64(2). Nevertheless, the Board is not obliged to address these requests within a particular time frame or hierarchical order.

Article 68(5) GDPR and Recital 139 provide that while the Commission does not enjoy voting rights, it may participate in EDPB activities and meetings. It has been argued that “in view of the high standard of independence required under Article 8(3) of the Charter, care must be taken” here, particularly regarding meetings concerning cases “where the Commission has a specific interest in the executive of the European Union.”

Decisions

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