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===(1) The Board Shall Act Independently===
===(1) The Board Shall Act Independently===
The right to supervision by an independent authority is laid down in Article 8(3) of the Charter, Article 16(2) of the TFEU, and Article 39 of the TEU. The CJEU has also defined this right as an “essential component” of the fundamental right to data protection.<ref>CJEU, 9 March 2010, Commission and Federal Republic of Germany, C-518/07, margin number 23 (available here https://curia.europa.eu/juris/document/document.jsf;jsessionid=8420BFF36DF4F104091DB5C7A1C2E74D?text=&docid=79752&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=2589415); ''Docksey'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1056 (Oxford University Press 2020).</ref>  
The right to supervision by an independent authority is laid down in Article 8(3) of the Charter, Article 16(2) TFEU, and Article 39 TEU. The CJEU has also defined this right as an “''essential component''” of the fundamental right to data protection.<ref>CJEU, 9 March 2010, Commission and Federal Republic of Germany, C-518/07, margin number 23 (available [https://curia.europa.eu/juris/document/document.jsf;jsessionid=8420BFF36DF4F104091DB5C7A1C2E74D?text=&docid=79752&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=2589415 here]); ''Docksey'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1056 (Oxford University Press 2020).</ref>


The GDPR arguably takes a slightly less strict approach to the EDPB’s independence (which must ‘act independently’) compared to national supervisory authorities’ independence (which must ‘act with '''complete''' independence’ (Article 52(2) GDPR) (emphasis added). This is supported by the Court in ''Commission v Germany'', which interpreted the phrase ‘complete independence’ in the context of Directive 95/46/EC, emphasising that the “adjective ‘complete’ [...] implies a decision-making power independent of any direct or indirect external influence on the supervisory authority.<ref>CJEU, 9 March 2010, Commission and Federal Republic of Germany, C-518/07, margin number 19 (available here <nowiki>https://curia.europa.eu/juris/document/document.jsf;jsessionid=8420BFF36DF4F104091DB5C7A1C2E74D?text=&docid=79752&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=2589415</nowiki>); ''Docksey'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1061 (Oxford University Press 2020).</ref> On the other hand, some commentators contend this linguistic difference is immaterial; in particular, the word ‘complete’ is omitted where primary law refers to independent supervisory authorities, yet this does not affect their level of independence.<ref>''Docksey'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1059 (Oxford University Press 2020); ''Brink, Wilhelm'', in Wolff, Brink, DS-GVO, Article 69 GDPR, margin numbers 4-6 (Beck 2019, 35th ed.) (accessed 30 April 2021); ''Dix'' in Kühling, Buchner, DS-GVO BDSG, Article 69 GDPR, margin number 4 (Beck 2020, 3rd ed.) (accessed 30 April 2021).</ref>
The GDPR arguably takes a slightly less strict approach to the EDPB’s independence (which must “''act independently''”) compared to national supervisory authorities’ independence (which must ''act with complete independence''(Article 52(2) GDPR) (emphasis added). This is supported by the Court in ''Commission v Germany'', which interpreted the phrase “''complete'' ''independence''” in the context of Directive 95/46/EC, emphasising that the “''adjective ‘complete’ [...] implies a decision-making power independent of any direct or indirect external influence on the supervisory authority.''”<ref>CJEU, 9 March 2010, Commission and Federal Republic of Germany, C-518/07, margin number 19 (available [https://curia.europa.eu/juris/document/document.jsf;jsessionid=8420BFF36DF4F104091DB5C7A1C2E74D?text=&docid=79752&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=2589415 here]); ''Docksey'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1061 (Oxford University Press 2020).</ref> On the other hand, some commentators contend this linguistic difference is immaterial; in particular, the word “''complete''” is omitted where primary law refers to independent supervisory authorities, yet this does not affect their level of independence.<ref>''Docksey'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1059 (Oxford University Press 2020); ''Brink, Wilhelm'', in Wolff, Brink, DS-GVO, Article 69 GDPR, margin numbers 4-6 (C.H. C.H. Beck 2019, 35th edition) ''Dix'' in Kühling, Buchner, DS-GVO BDSG, Article 69 GDPR, margin number 4 (C.H. Beck 2020, 3rd edition).</ref>


In order to act independently, the EDPB must not depend on external bodies. As highlighted by Kühling and Buchner, the EDPB may still consult external experts, however this must be made transparent within the framework of Article 76 GDPR on confidentiality.<ref>''Dix'' in Kühling, Buchner, DS-GVO BDSG, Article 69 GDPR, margin number 5 (Beck 2020, 3rd ed.) (accessed 30 April 2021).</ref> In addition, the EDPB’s independence is not affected by fact that it relies on the EDPS for facilities, staff, and budget, nor the fact that, as established in Article 68(5) GDPR, it is subject to the same controls as other EU bodies.<ref>''Docksey'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1046 (Oxford University Press 2020); ''Dix'' in Kühling, Buchner, DS-GVO BDSG, Article 69 GDPR, margin number 4 (Beck 2020, 3rd ed.) (accessed 30 April 2021).</ref>
In order to act independently, the EDPB must not depend on external bodies. As highlighted by Dix, the EDPB may still consult external experts, however this must be made transparent within the framework of Article 76 GDPR on confidentiality.<ref>''Dix'' in Kühling, Buchner, DS-GVO BDSG, Article 69 GDPR, margin number 5 (C.H. Beck 2020, 3rd edition).</ref> In addition, the EDPB’s independence is not affected by the fact that it relies on the EDPS for facilities, staff, and budget, nor the fact that, as established in Article 68(5) GDPR, it is subject to the same controls as other EU bodies.<ref>''Docksey'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1046 (Oxford University Press 2020); ''Dix'' in Kühling, Buchner, DS-GVO BDSG, Article 69 GDPR, margin number 4 (C.H. Beck 2020, 3rd edition).</ref>


===(2) The Board Shall Neither Seek nor Take Instructions from Any Body ===
===(2) The Board Shall Neither Seek nor Take Instructions from Any Body ===
Article 69(2) GDPR provides that the EDPB shall not seek nor take instructions from any body. This requirement is without prejudice to situations where the Commission seeks advice from the EDPB on issues related to the protection of personal data in the Union, including on any proposed amendment to the GDPR (under Article 70(1)(b) GDPR), as well as the time limit the Commission may indicate regarding such advice (under Article 70(2) GDPR).  
Article 69(2) GDPR provides that the EDPB shall not seek nor take instructions from any body. This requirement is without prejudice to situations where the Commission seeks advice from the EDPB on issues related to the protection of personal data in the Union, including on any proposed amendment to the GDPR (under Article 70(1)(b) GDPR), as well as the time limit the Commission may indicate regarding such advice (under Article 70(2) GDPR).  


Although not explicitly mentioned in Article 69(2), the requirement also applies without prejudice to situations where the Commission requests an opinion from the EDPB on matters "of general application" or "producing 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).<ref>''Dix'' in Kühling, Buchner, DS-GVO BDSG, Article 69 GDPR, margin number 6 (Beck 2020, 3rd ed.) (accessed 30 April 2021).</ref>
Although not explicitly mentioned in Article 69(2) GDPR, the requirement also applies without prejudice to situations where the Commission requests an opinion from the EDPB on matters “''of general application''” or “''producing 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).<ref>''Dix'' in Kühling, Buchner, DS-GVO BDSG, Article 69 GDPR, margin number 6 (C.H. Beck 2020, 3rd edition).</ref>


Kühling and Buchner note such requests for advice and opinions, which the EDPB cannot refuse, may impede the performance of its tasks where they “exceed a certain scope.” However, the EDPB is “not required to deal with [the requests] in any particular order or time limit.”<ref>''Dix'' in Kühling, Buchner, DS-GVO BDSG, Article 69 GDPR, margin number 6 (Beck 2020, 3rd ed.) (accessed 30 April 2021).</ref>  
Dix notes that such requests for advice and opinions, which the EDPB cannot refuse, may impede the performance of its tasks where they “''exceed a certain scope''.” However, the EDPB is “''not required to deal with'' [the requests] ''in any particular order or time limit''.”<ref>''Dix'' in Kühling, Buchner, DS-GVO BDSG, Article 69 GDPR, margin number 6 (C.H. Beck 2020, 3rd edition).</ref>


Article 68(5) establishes that whilst the Commission does not enjoy voting rights, it may participate in EDPB activities and meetings. According to Docksey, “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.”<ref>''Docksey'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1066 (Oxford University Press 2020).</ref>  
Article 68(5) GDPR establishes that whilst the Commission does not enjoy voting rights, it may participate in EDPB activities and meetings. According to Docksey, “''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''.”<ref>''Docksey'', in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1066 (Oxford University Press 2020).</ref>
 
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==Decisions==
==Decisions==

Revision as of 07:56, 29 April 2022

Article 69 - Independence
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Chapter 10: Delegated and implementing acts

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 guarantees the EDPB’s independence in performing its tasks and exercising its powers.

(1) The Board Shall Act Independently

The right to supervision by an independent authority is laid down in Article 8(3) of the Charter, Article 16(2) TFEU, and Article 39 TEU. The CJEU has also defined this right as an “essential component” of the fundamental right to data protection.[1]

The GDPR arguably takes a slightly less strict approach to the EDPB’s independence (which must “act independently”) compared to national supervisory authorities’ independence (which must “act with complete independence” (Article 52(2) GDPR) (emphasis added). This is supported by the Court in Commission v Germany, which interpreted the phrase “complete independence” in the context of Directive 95/46/EC, emphasising that the “adjective ‘complete’ [...] implies a decision-making power independent of any direct or indirect external influence on the supervisory authority.[2] On the other hand, some commentators contend this linguistic difference is immaterial; in particular, the word “complete” is omitted where primary law refers to independent supervisory authorities, yet this does not affect their level of independence.[3]

In order to act independently, the EDPB must not depend on external bodies. As highlighted by Dix, the EDPB may still consult external experts, however this must be made transparent within the framework of Article 76 GDPR on confidentiality.[4] In addition, the EDPB’s independence is not affected by the fact that it relies on the EDPS for facilities, staff, and budget, nor the fact that, as established in Article 68(5) GDPR, it is subject to the same controls as other EU bodies.[5]

(2) The Board Shall Neither Seek nor Take Instructions from Any Body

Article 69(2) GDPR provides that the EDPB shall not seek nor take instructions from any body. This requirement is without prejudice to situations where the Commission seeks advice from the EDPB on issues related to the protection of personal data in the Union, including on any proposed amendment to the GDPR (under Article 70(1)(b) GDPR), as well as the time limit the Commission may indicate regarding such advice (under Article 70(2) GDPR).

Although not explicitly mentioned in Article 69(2) GDPR, the requirement also applies without prejudice to situations where the Commission requests an opinion from the EDPB on matters “of general application” or “producing 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).[6]

Dix notes that such requests for advice and opinions, which the EDPB cannot refuse, may impede the performance of its tasks where they “exceed a certain scope.” However, the EDPB is “not required to deal with [the requests] in any particular order or time limit.”[7]

Article 68(5) GDPR establishes that whilst the Commission does not enjoy voting rights, it may participate in EDPB activities and meetings. According to Docksey, “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.”[8]

Decisions

→ You can find all related decisions in Category:Article 69 GDPR

References

  1. CJEU, 9 March 2010, Commission and Federal Republic of Germany, C-518/07, margin number 23 (available here); Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1056 (Oxford University Press 2020).
  2. CJEU, 9 March 2010, Commission and Federal Republic of Germany, C-518/07, margin number 19 (available here); Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1061 (Oxford University Press 2020).
  3. Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1059 (Oxford University Press 2020); Brink, Wilhelm, in Wolff, Brink, DS-GVO, Article 69 GDPR, margin numbers 4-6 (C.H. C.H. Beck 2019, 35th edition) Dix in Kühling, Buchner, DS-GVO BDSG, Article 69 GDPR, margin number 4 (C.H. Beck 2020, 3rd edition).
  4. Dix in Kühling, Buchner, DS-GVO BDSG, Article 69 GDPR, margin number 5 (C.H. Beck 2020, 3rd edition).
  5. Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1046 (Oxford University Press 2020); Dix in Kühling, Buchner, DS-GVO BDSG, Article 69 GDPR, margin number 4 (C.H. Beck 2020, 3rd edition).
  6. Dix in Kühling, Buchner, DS-GVO BDSG, Article 69 GDPR, margin number 6 (C.H. Beck 2020, 3rd edition).
  7. Dix in Kühling, Buchner, DS-GVO BDSG, Article 69 GDPR, margin number 6 (C.H. Beck 2020, 3rd edition).
  8. Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 68 GDPR, p. 1066 (Oxford University Press 2020).