Article 73 GDPR

← Article 73 - Chair →
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 73 - Chair

1. The Board shall elect a chair and two deputy chairs from amongst its members by simple majority.

2. The term of office of the Chair and of the deputy chairs shall be five years and be renewable once.

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 73 GDPR establishes the hierarchical framework of the Board. The purpose of this provision is primarily to regulate the election procedure and term of office of the Chair and its two deputy chairs, establishing that the election procedure is through simple majority and that the term of office is five years. For the role of the Chair, refer to Articles 68 and 74 GDPR.

(1) Chair, deputy chairs and their election

The Chair is the representative of the EDPB and is sometimes referred to as the “mouthpiece of the data protection supervisory authorities in Europe”. As was the case with the Article 29 Working Party (“WP29”), the Chair is assisted by two deputy chairs. The advantage of this arrangement is that it allows for three Member State supervisory authorities to participate in a decisive position on the Board. All members of the Board are entitled to stand for election. Pursuant to Article 68(3) GDPR, Board members are the heads of Member State supervisory authorities and the European Data Protection Supervisor ("EDPS"). The Commission has the right to participate in the activities and meetings of the EDPB (Article 68(5)(1) GDPR), but is not a member.

Legally, it is possible for the EDPS to stand as an electoral candidate for Chair; however, in actuality this would be impracticable for two reasons. Firstly, the EDPS holds limited voting rights under Article 68(6) GPDR. Secondly, there is an organisational separation between the secretariat and the EDPS for the purposes of to Articles 75(2) and 75(3) GDPR. The independence of the EDPB vis-à-vis the EDPS can be ensured more easily if the EDPS, who provides the secretariat to the Board, does not also chair the EDPB. Otherwise, if the EDPS were to stand Chair of the Board, under Article 75(4) GDPR, it would have to conclude an internal agreement with the EDPB. The active right to vote corresponds to a right of passive suffrage; meaning that all members of the EDPB, but not the three acceded EFTA states, can vote.

The simple majority requirement aligns with those under Article 72(1) GDPR. Various commentators have taken the position that the term simple majority is to mean a simple majority of the voting members of the Committee present. The proponents of this view argue that a deviating majority requirement is intended to prevent the any attempted obstruction to the EDPB's ability to act if several members do not attend the election. This reading should be rejected.

A simple majority requirement is needed for the election of the Chair and two deputy chairs, but also for all other decisions taken by the Board. It is not apparent why the principle laid down in Article 72(1) GDPR should be deviated from. Article 72(1) GDPR stipulates that the Board shall take decisions by a simple majority of its members, unless otherwise provided for. Nothing in the wording of Article 73(1) GDPR would suggest an intended derogation from Article 72(1) GDPR, the provision makes no reference to the physical presence of members. Furthermore, the simple majority principle under Article 72(1) GDPR would have applied regardless of Article 73(1) GDPR. In addition, the GDPR explicitly legislates for a simple majority procedure elsewhere, namely in Article 64(3)(2) GDPR. Consequently, it is unlikely that legislators would have intended the term simple majority to mean a simple majority of the voting members present.

Furthermore, the view of the authors cited above is based on the understanding of the term under German constitutional law, which interprets simple majority to mean a majority of the members present. In contrast, there is no uniform Union law understanding of the term. In addition, a historical argument applies. The Chair and deputy chairs of the WP29 were also elected with a simple majority in the sense of Article 72(1) GDPR. It is unclear why this should now be deviated from without any explicit instruction within the legislative text to do so. In support of our reading, is the fact that the Chair of the EDPB is vested with broader powers than the Chair of its predecessor. In particular, the EDPB Chair is authorised to make a casting vote in accordance with Article 65(3) GDPR. In this respect, their election would require a higher ascription to democratic principles rather than lower.If the reading of the term simple majority were to be taken in the sense of German constitutional law, it would be possible for the Chair to be elected by one present member, if the rest were not present. Such an outcome could not be intended by the legislature.

Finally, the EDPB's own internal procedures are in support of the view expressed here. Article 5(1) Rules of Procedure (“RoP”) provides that the election of the Chair and the deputy chairs shall be by secret ballot, "by simple majority of members entitled to vote that are present or represented through delegation." Article 5(1) RoP provides that voting members are not needed to be present, and may be represented through delegation instead.

(2) Term of Office

Article 73(2) GDPR stipulates that a term of office is five years, with the possibility of renewal once. In total, elected persons can thus hold office for a maximum period of ten years. The limited term of office not only ensures that the Chair itself rotates, but also that the representation of the Member States holding important offices change regularly. The entire GDPR contains only one (indirect) provision on the termination of the Chair/deputy chairs, namely by expiry of the term of office in Article 73(2) GDPR. The EDPB has made use of its rules of procedure autonomy and has also laid down three further termination variants in Article 6(1) RoP: (1) the end of the term of office at the SA; (2) resignation; (3) dismissal pursuant to Article 6(2) RoP. In this context, the term “SA” refers to both the national SAs and the EDPS, whose mandate under Article 42 of Regulation (EC) No 45/2001 may end in particular at the end of a (renewable) five-year term. According to Article 6(2) of the RoP, the dismissal of the Chair or a deputy chair can be made by a resolution passed by a simple majority of the EDPB members.

Decisions

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