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== Commentary ==
== Commentary ==


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The provision provides the basic majority modalities for decisions of the EDPB and grants it autonomy in establishing its rules of procedure.
 
=== (1) Principle of Simple Majority ===
Article 72(1) GDPR establishes the principle that the EDPB shall operate by simple majority. Deviating majority requirements are only permissible insofar as they are provided for in the GDPR.
 
The procedural rule is intended to enable the EDPB to make a large number of timely decisions quickly to effectively manage the implementation of the GDPR. Unlike in other EU institutions, there are neither blocking minorities nor veto positions. A decision of the "''last member''" does not exist at the EDPB in this respect.<ref>''Brink, Wilhelm'', in BeckOK DatenschutzR, Article 72 GDPR, margin number 5 (Beck 2020, 36th ed.) (accessed 28 June 2021).</ref>
 
In principle, the majority of the voting members of the EDPB decides (according to the clear wording, the majority of the members present is not sufficient). The voting members always include the heads of the supervisory authority of each member state ([[Article 68 GDPR|Article 68(3) GDPR]]). The EDPS is a member, but has only limited voting rights pursuant to [[Article 68 GDPR|Article 68(6) GDPR]]. In this respect, the minimum number of positive votes required changes depending on the voting rights of the EDPS. The Commission, however, is never to be taken into account. First, this already follows from the fact that, according to [[Article 68 GDPR|Article 68(3) GDPR]], the Commission is not a member of the EDPB. Secondly, [[Article 68 GDPR|Article 68(5) GDPR]] explicitly states that the Commission has no voting rights. With currently 27 member states (the three EFTA states that have acceded the EDPB are not entitled to vote), 14 members or, in the case of the EDPS with voting rights, 15 members must vote in favour of a decision.
 
Notably each EDPB member is granted one vote regardless of the size of its population. This can create a risk that a majority of smaller members will win a vote despite the fact that they only represent the data protection interests of a small proportion of the European population, despite the fact that decisions affect individuals in all member states.<ref>''Nguyen'' in Gola, DS-GVO, Article 72 GDPR, margin numbers 1-2 (Beck 2018, 2<sup>nd</sup> ed.) (accessed 17 June 2021).</ref> This may arguably threaten the democratic legitimacy of the EDPB’s decisions, and creates the risk that corporations and associations will exert their influence, particularly in smaller Member States where their role in the national economy is crucial. This risk is offset by [[Article 52 GDPR|Article 52(1) GDPR]] which protects supervisory authorities from illegitimate influence.<ref>''Nguyen'' in Gola, DS-GVO, Article 72 GDPR, margin numbers 1-2 (Beck 2018, 2<sup>nd</sup> ed.) (accessed 17 June 2021).</ref>
 
The term "''decision''" is to be understood broadly.<ref>''Dix'', in Kühling/Buchner, DS-GVO BDSG, Article 72 GDPR, margin number 5 (Beck 2020, 3rd ed.) (accessed 28 June 2021).</ref>
 
In many places, the GDPR contains provisions (“''lex specialis''”) that explicitly require a simple majority, although the principle of simple majority is already contained in Article 72(1) GDPR. This is superfluous for the opinion in the consistency mechanism under [[Article 64 GDPR|Article 64(3)(2) GDPR]] and for the election of the chair and the two deputy chairs under [[Article 73 GDPR|Article 73(1) GDPR]]. In the case of the latter provision, the wording, which differs from Article 72(1) GDPR, even leads to the sometimes held view that the majority of the members present would be sufficient. This is not the case (see commentary on [[Article 73 GDPR]]). In contrast, the emphasis on the requirement of a simple majority for dispute resolution under [[Article 65 GDPR|Article 65(3)(1) GDPR]] and for consistency decisions in the urgency procedure under [[Article 66 GDPR|Article 66(4) GDPR]] is necessary, as these are in this respect backward exceptions. The actual scope of application of the principle introduced in Article 72(1) GDPR in this regard extends to the recommendations, guidelines and best practices under [[Article 70 GDPR]] (beyond lit. (t)).
 
However, the provision does not apply to decisions – not provided for by the GDPR – which the EDPB introduced for its own organisation within the meaning of Article 72(2) GDPR,<ref>Different view ''Dix'', in Kühling/Buchner, DS-GVO BDSG, Article 72 GDPR, margin number 5 (Beck 2020, 3rd ed.) (accessed 28 June 2021).</ref> unless this would undermine the principle of simple majority for decisions provided for in the GDPR in the broader sense. In this respect, the special case of [[Article 65 GDPR|Article 65(3)(2) GDPR]], i.e. a decision by the chair in the event of a tie, could also be applied to decisions introduced by the EDPB.<ref>Different view by ''Dix'', in Kühling/Buchner, DS-GVO BDSG, Article 72 GDPR, margin number 5 (Beck 2020, 3rd ed.) (accessed 28 June 2021) and ''Brink, Wilhelm'', in BeckOK DatenschutzR, Article 72 GDPR, margin number 12 (Beck 2020, 36th ed.) (accessed 28 June 2021).</ref> In practice, however, this question has not yet become virulent. The current rules of procedure only provide for simple majorities, e.g. when dismissing the chair and/or deputy chairs in Article 6(2) RoP, when holding extraordinary plenary meetings under Article 18(2) RoP, when exceptionally holding a secret ballot under Article 22(4) RoP and when holding a written procedure under Article 24(1) RoP.
 
In the only two exceptions to the simple majority principle provided for by the GDPR, a two-thirds majority is required. Such exceptions exist so far only for dispute resolution in the consistency mechanism under [[Article 65 GDPR|Article 65(2)(1) GDPR]] and the adoption of the EDPS’s rules of procedure under Article 72(2) GDPR.
 
=== (2) Rules of Procedure ===
Paragraph 2 grants the EDPB regulatory autonomy. It can and should decide on the introduction, amendment and abolition of rules on internal working practices and conduct.<ref>''Brink, Wilhelm'', in BeckOK DatenschutzR, Article 72 GDPR, margin number 10 (Beck 2020, 36th ed.) (accessed 28 June 2021).</ref> According to the provision, a two-thirds majority of the voting members is required for this – as an exception within the meaning of paragraph 1.
 
The GDPR does not contain detailed content requirements for the rules of procedure. [[Article 74 GDPR|Article 74(2) GDPR]] only stipulates that the allocation of tasks between the chair and the deputy chairs shall be laid down in the rules of procedure. Furthermore, [[Article 76 GDPR|Article 76(1) GDPR]] empowers the EDPB to declare discussions confidential in the rules of procedure if the Board deems it necessary.
 
The EDPB is of course not entitled to establish rules that deviate from the GDPR. Examples are the specific procedural, cooperation and information provisions of the consistency mechanism under [[Article 64 GDPR|Articles 64]] et seq. GDPR, the essential organisational decisions regarding the composition, the election of and representation by the chair and the different limited participation of the Commission and the EDPS, as well as the reporting obligations under [[Article 71 GDPR]].<ref>''Schöndorf-Haubold'', in Sydow, Europäische Datenschutzgrundverordnung, Article 72 GDPR, margin number 11 (Beck 2018, 2nd ed.) (accessed 28 June 2021).</ref>
 
The EDPB first made use of its procedural autonomy when the GDPR came into force on 25 May 2018. The Rules of Procedure have been amended several times since then, most recently on 8 October 2020 (7th version). The current version can be found at https://edpb.europa.eu/our-work-tools/our-documents/publication-type/rules-procedure_en.
 
The current Rules of Procedure are divided into eight sections:
 
1.       Legal nature, tasks and guiding principles of the EDPB (Articles 1 to 3 RoP)
 
2.       Composition of the EDPB (Articles 4 to 9 RoP)
 
3.       Adoption of documents and procedure (Articles 10 to 13 RoP)
 
4.       Secretariat and organisation (Articles 14 to 17 RoP)
 
5.       Working methods including plenary meetings (Articles 18 to 30 RoP)
 
6.       General provisions (Articles 31 to 36 RoP)
 
7.       Coordinated Supervision Committee (Article 37 RoP)
 
8.       Final provisions (Articles 38 to 39 RoP)
 
First of all, some procedural provisions should be highlighted. For example, the EDPB introduced a written and electronic voting procedure with Article 24 RoP. For its implementation, a simple majority decision of the EDPB is required (Article 24(1) RoP). This provision ensures the EDPB's flexibility and ability to act.<ref>''Brink, Wilhelm'', in BeckOK DatenschutzR, Article 72 GDPR, margin number 14 (Beck 2020, 36th ed.) (accessed 28 June 2021).</ref> The Board also made use of the authorisation in [[Article 76 GDPR|Article 76(1) GDPR]] and declared the election of the chair and the deputy chairs confidential in Article 6(1) RoP.
 
In organisational terms, in particular the end of the term of office of the chair and the deputy chairs was regulated, thus filling the corresponding gaps in the GDPR (see commentary on [[Article 73 GDPR]]).
 
Furthermore, so-called expert subgroups were introduced by Articles 25 and 26 RoP. These are mainly to prepare the meetings of the Board. They consist of members of the EDPB (i.e. also the EDPS) and are to be supported by staff of the Secretariat, Article 25(4) RoP.
 
Finally, the EDPB has also made use of another power not contained in the GDPR. Article 62 of Regulation (EU) 2018/1725 provides that the EDPS and national supervisory authorities shall conduct coordinated supervision to ensure effective supervision of large-scale IT systems and of Union bodies, offices and agencies. To this end, the EDPB's Rules of Procedure provide for the establishment of the coordinated supervision committee in Article 37 RoP. This body is autonomous, which is shown in particular by the fact that it adopts its own rules of procedure under Article 37(3) RoP.<ref>''Brink, Wilhelm'', in BeckOK DatenschutzR, Article 72 GDPR, margin number 13 (Beck 2020, 36th ed.) (accessed 28 June 2021).</ref>
 
It is sometimes argued that the EDPB can also determine details of its operational arrangements on an ad hoc basis by means of separate resolutions. A determination in the rules of procedure would not be necessary if it is not a general determination of procedures for the future. This view is justified by the open wording of Article 72(2) GDPR. The wording also leads to the conclusion that ad hoc decisions on procedures do not require a two-thirds majority.<ref>''Dix'', in Kühling/Buchner, DS-GVO BDSG, Article 72 GDPR, margin number 6 (Beck 2020, 3rd ed.) (accessed 28 June 2021).</ref> This view is to be agreed with. The part of the sentence on the organisation of operational arrangements could be understood as a simple concretisation of the term “''rules of procedure''”. However, this is not convincing, as the functions of such rules are uniformly known in Union law.


== Decisions ==
== Decisions ==

Revision as of 14:01, 9 July 2021

Article 72 - Procedure
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Chapter 10: Delegated and implementing acts

Legal Text


Article 72 - Procedure


1. The Board shall take decisions by a simple majority of its members, unless otherwise provided for in this Regulation.

2. The Board shall adopt its own rules of procedure by a two-thirds majority of its members and organise its own operational arrangements.

Relevant Recitals

Recital 72: EDPB Guidance on Profiling

Profiling is subject to the rules of this Regulation governing the processing of personal data, such as the legal grounds for processing or data protection principles. The European Data Protection Board established by this Regulation (the ‘Board’) should be able to issue guidance in that context.

Recital 77: Guidance on Risk Assessments

Guidance on the implementation of appropriate measures and on the demonstration of compliance by the controller or the processor, especially as regards the identification of the risk related to the processing, their assessment in terms of origin, nature, likelihood and severity, and the identification of best practices to mitigate the risk, could be provided in particular by means of approved codes of conduct, approved certifications, guidelines provided by the Board or indications provided by a data protection officer. The Board may also issue guidelines on processing operations that are considered to be unlikely to result in a high risk to the rights and freedoms of natural persons and indicate what measures may be sufficient in such cases to address such risk.

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.

Recital 139: EDPB Status and Composition

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

The provision provides the basic majority modalities for decisions of the EDPB and grants it autonomy in establishing its rules of procedure.

(1) Principle of Simple Majority

Article 72(1) GDPR establishes the principle that the EDPB shall operate by simple majority. Deviating majority requirements are only permissible insofar as they are provided for in the GDPR.

The procedural rule is intended to enable the EDPB to make a large number of timely decisions quickly to effectively manage the implementation of the GDPR. Unlike in other EU institutions, there are neither blocking minorities nor veto positions. A decision of the "last member" does not exist at the EDPB in this respect.[1]

In principle, the majority of the voting members of the EDPB decides (according to the clear wording, the majority of the members present is not sufficient). The voting members always include the heads of the supervisory authority of each member state (Article 68(3) GDPR). The EDPS is a member, but has only limited voting rights pursuant to Article 68(6) GDPR. In this respect, the minimum number of positive votes required changes depending on the voting rights of the EDPS. The Commission, however, is never to be taken into account. First, this already follows from the fact that, according to Article 68(3) GDPR, the Commission is not a member of the EDPB. Secondly, Article 68(5) GDPR explicitly states that the Commission has no voting rights. With currently 27 member states (the three EFTA states that have acceded the EDPB are not entitled to vote), 14 members or, in the case of the EDPS with voting rights, 15 members must vote in favour of a decision.

Notably each EDPB member is granted one vote regardless of the size of its population. This can create a risk that a majority of smaller members will win a vote despite the fact that they only represent the data protection interests of a small proportion of the European population, despite the fact that decisions affect individuals in all member states.[2] This may arguably threaten the democratic legitimacy of the EDPB’s decisions, and creates the risk that corporations and associations will exert their influence, particularly in smaller Member States where their role in the national economy is crucial. This risk is offset by Article 52(1) GDPR which protects supervisory authorities from illegitimate influence.[3]

The term "decision" is to be understood broadly.[4]

In many places, the GDPR contains provisions (“lex specialis”) that explicitly require a simple majority, although the principle of simple majority is already contained in Article 72(1) GDPR. This is superfluous for the opinion in the consistency mechanism under Article 64(3)(2) GDPR and for the election of the chair and the two deputy chairs under Article 73(1) GDPR. In the case of the latter provision, the wording, which differs from Article 72(1) GDPR, even leads to the sometimes held view that the majority of the members present would be sufficient. This is not the case (see commentary on Article 73 GDPR). In contrast, the emphasis on the requirement of a simple majority for dispute resolution under Article 65(3)(1) GDPR and for consistency decisions in the urgency procedure under Article 66(4) GDPR is necessary, as these are in this respect backward exceptions. The actual scope of application of the principle introduced in Article 72(1) GDPR in this regard extends to the recommendations, guidelines and best practices under Article 70 GDPR (beyond lit. (t)).

However, the provision does not apply to decisions – not provided for by the GDPR – which the EDPB introduced for its own organisation within the meaning of Article 72(2) GDPR,[5] unless this would undermine the principle of simple majority for decisions provided for in the GDPR in the broader sense. In this respect, the special case of Article 65(3)(2) GDPR, i.e. a decision by the chair in the event of a tie, could also be applied to decisions introduced by the EDPB.[6] In practice, however, this question has not yet become virulent. The current rules of procedure only provide for simple majorities, e.g. when dismissing the chair and/or deputy chairs in Article 6(2) RoP, when holding extraordinary plenary meetings under Article 18(2) RoP, when exceptionally holding a secret ballot under Article 22(4) RoP and when holding a written procedure under Article 24(1) RoP.

In the only two exceptions to the simple majority principle provided for by the GDPR, a two-thirds majority is required. Such exceptions exist so far only for dispute resolution in the consistency mechanism under Article 65(2)(1) GDPR and the adoption of the EDPS’s rules of procedure under Article 72(2) GDPR.

(2) Rules of Procedure

Paragraph 2 grants the EDPB regulatory autonomy. It can and should decide on the introduction, amendment and abolition of rules on internal working practices and conduct.[7] According to the provision, a two-thirds majority of the voting members is required for this – as an exception within the meaning of paragraph 1.

The GDPR does not contain detailed content requirements for the rules of procedure. Article 74(2) GDPR only stipulates that the allocation of tasks between the chair and the deputy chairs shall be laid down in the rules of procedure. Furthermore, Article 76(1) GDPR empowers the EDPB to declare discussions confidential in the rules of procedure if the Board deems it necessary.

The EDPB is of course not entitled to establish rules that deviate from the GDPR. Examples are the specific procedural, cooperation and information provisions of the consistency mechanism under Articles 64 et seq. GDPR, the essential organisational decisions regarding the composition, the election of and representation by the chair and the different limited participation of the Commission and the EDPS, as well as the reporting obligations under Article 71 GDPR.[8]

The EDPB first made use of its procedural autonomy when the GDPR came into force on 25 May 2018. The Rules of Procedure have been amended several times since then, most recently on 8 October 2020 (7th version). The current version can be found at https://edpb.europa.eu/our-work-tools/our-documents/publication-type/rules-procedure_en.

The current Rules of Procedure are divided into eight sections:

1.       Legal nature, tasks and guiding principles of the EDPB (Articles 1 to 3 RoP)

2.       Composition of the EDPB (Articles 4 to 9 RoP)

3.       Adoption of documents and procedure (Articles 10 to 13 RoP)

4.       Secretariat and organisation (Articles 14 to 17 RoP)

5.       Working methods including plenary meetings (Articles 18 to 30 RoP)

6.       General provisions (Articles 31 to 36 RoP)

7.       Coordinated Supervision Committee (Article 37 RoP)

8.       Final provisions (Articles 38 to 39 RoP)

First of all, some procedural provisions should be highlighted. For example, the EDPB introduced a written and electronic voting procedure with Article 24 RoP. For its implementation, a simple majority decision of the EDPB is required (Article 24(1) RoP). This provision ensures the EDPB's flexibility and ability to act.[9] The Board also made use of the authorisation in Article 76(1) GDPR and declared the election of the chair and the deputy chairs confidential in Article 6(1) RoP.

In organisational terms, in particular the end of the term of office of the chair and the deputy chairs was regulated, thus filling the corresponding gaps in the GDPR (see commentary on Article 73 GDPR).

Furthermore, so-called expert subgroups were introduced by Articles 25 and 26 RoP. These are mainly to prepare the meetings of the Board. They consist of members of the EDPB (i.e. also the EDPS) and are to be supported by staff of the Secretariat, Article 25(4) RoP.

Finally, the EDPB has also made use of another power not contained in the GDPR. Article 62 of Regulation (EU) 2018/1725 provides that the EDPS and national supervisory authorities shall conduct coordinated supervision to ensure effective supervision of large-scale IT systems and of Union bodies, offices and agencies. To this end, the EDPB's Rules of Procedure provide for the establishment of the coordinated supervision committee in Article 37 RoP. This body is autonomous, which is shown in particular by the fact that it adopts its own rules of procedure under Article 37(3) RoP.[10]

It is sometimes argued that the EDPB can also determine details of its operational arrangements on an ad hoc basis by means of separate resolutions. A determination in the rules of procedure would not be necessary if it is not a general determination of procedures for the future. This view is justified by the open wording of Article 72(2) GDPR. The wording also leads to the conclusion that ad hoc decisions on procedures do not require a two-thirds majority.[11] This view is to be agreed with. The part of the sentence on the organisation of operational arrangements could be understood as a simple concretisation of the term “rules of procedure”. However, this is not convincing, as the functions of such rules are uniformly known in Union law.

Decisions

→ You can find all related decisions in Category:Article 72 GDPR

References

  1. Brink, Wilhelm, in BeckOK DatenschutzR, Article 72 GDPR, margin number 5 (Beck 2020, 36th ed.) (accessed 28 June 2021).
  2. Nguyen in Gola, DS-GVO, Article 72 GDPR, margin numbers 1-2 (Beck 2018, 2nd ed.) (accessed 17 June 2021).
  3. Nguyen in Gola, DS-GVO, Article 72 GDPR, margin numbers 1-2 (Beck 2018, 2nd ed.) (accessed 17 June 2021).
  4. Dix, in Kühling/Buchner, DS-GVO BDSG, Article 72 GDPR, margin number 5 (Beck 2020, 3rd ed.) (accessed 28 June 2021).
  5. Different view Dix, in Kühling/Buchner, DS-GVO BDSG, Article 72 GDPR, margin number 5 (Beck 2020, 3rd ed.) (accessed 28 June 2021).
  6. Different view by Dix, in Kühling/Buchner, DS-GVO BDSG, Article 72 GDPR, margin number 5 (Beck 2020, 3rd ed.) (accessed 28 June 2021) and Brink, Wilhelm, in BeckOK DatenschutzR, Article 72 GDPR, margin number 12 (Beck 2020, 36th ed.) (accessed 28 June 2021).
  7. Brink, Wilhelm, in BeckOK DatenschutzR, Article 72 GDPR, margin number 10 (Beck 2020, 36th ed.) (accessed 28 June 2021).
  8. Schöndorf-Haubold, in Sydow, Europäische Datenschutzgrundverordnung, Article 72 GDPR, margin number 11 (Beck 2018, 2nd ed.) (accessed 28 June 2021).
  9. Brink, Wilhelm, in BeckOK DatenschutzR, Article 72 GDPR, margin number 14 (Beck 2020, 36th ed.) (accessed 28 June 2021).
  10. Brink, Wilhelm, in BeckOK DatenschutzR, Article 72 GDPR, margin number 13 (Beck 2020, 36th ed.) (accessed 28 June 2021).
  11. Dix, in Kühling/Buchner, DS-GVO BDSG, Article 72 GDPR, margin number 6 (Beck 2020, 3rd ed.) (accessed 28 June 2021).