Article 73 GDPR

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Article 73 - Chair
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Chapter 10: Delegated and implementing acts

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

According to this regulation, the EDPB has a chair and two deputy chairs. The provision also specifies the election modalities. In particular, it stipulates that the majority of its members decides. Finally, the term of office is five years and can be renewed once.

(1) Chair, Deputy Chairs and their Election

For the role of the chair, please refer to Articles 68(2) and 74 GDPR and the respective commentaries. He or she is the representative of the EDPB and is sometimes referred to as the "mouthpiece of the data protection supervisory authorities in Europe".[1] As was already the case with the WP29, two deputy chairs are envisaged for the board. This has the advantage that three member supervisory authorities (or two and the EDPS) can participate in a decisive position of the EDPB. In addition, this makes it possible to share the not inconsiderable workload. After all, at least two members of the chair always still head their respective member state supervisory authority.[2]

All members of the EDPB are entitled to stand for election. According to Article 68(3) GDPR, these are the heads of the supervisory authorities of the member states (but not the three acceded EFTA countries) and the EDPS. The Commission only has a right to participate in the activities and meetings of the EDPB (Article 68(5)(1) GDPR), but is not a member. The legally possible election of the EDPS as chair is variously assessed as impracticable. First, this is justified by the limited voting rights under Article 68(6) GPDR. Secondly, the organisational separation between the secretariat and the EDPS according to Article 75(2) and (3) GDPR is pointed out: the independence of the EDPB vis-à-vis the EDPS could be ensured more easily if the EDPS, who ultimately provides the secretariat according to Article 75(1) GDPR, did not also chair the EDPB. Otherwise, the EDPS, as chair of the EDPB, would have to conclude an agreement under Article 75(4) GDPR as an "in-itself transaction".[3]

The active right to vote corresponds to the passive suffrage, i.e. all members of the EDPB (but not the three acceded EFTA states) can vote.

The requirements for the "simple majority" are congruent with those from Article 72(1) GDPR.[4] Another view, according to which only the majority of the votes cast should be decisive here as an exception,[5] must be rejected. In support of this view, it is argued that the deviating majority requirement is intended to prevent the potential inability of the body to act if several members do not attend the election.[6]

However, this problem does not specifically arise for the election of the chair, but also for other decisions under the GDPR. In particular, the EDPB would be practically incapable of acting without rules of procedure as well. For their adoption, however, even a two-thirds majority is required. Moreover, it is not apparent why the principle laid down in Article 72(1) GDPR should be deviated from. The omission of the addition of "its members" after "simple majority" seems to be a drafting error. This can be explained by the fact that "from amongst its members" already precedes "by simple majority", so that the addition of "of its members" may have seemed redundant at first glance. The fact that Article 73(1) GDPR regulates majority requirements at all is not an indication of an intended derogation from Article 72(1) GDPR. Admittedly, the majority principle of Article 72(1) GDPR would have applied anyway without the majority provision in Article 73(1) GDPR. However, the GDPR also explicitly requires a "simple majority" (in the sense of Article 72(1) GDPR) elsewhere, namely in the case of the opinion in the consistency mechanism under Article 64(3)(2) GDPR (cf. commentary on Article 72 GDPR).

Furthermore, the view of the authors cited above is based on the understanding of the term "simple majority" under German constitutional law, which according to it means "majority of the members present". In contrast, there is no uniform Union law understanding of this term, and only this understanding is relevant here. 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 not obvious why this should now be deviated from without comment. This is all the more true in view of the fact that the chair of the EDPB is vested with broader powers than the chair of the predecessor institution. In particular, the EDPB chair is authorised to make a casting vote in accordance with Article 65(3) GDPR.[7] In this respect, his election would require a higher level of democratic legitimacy rather than a lower one. Furthermore, the GDPR does not contain any provisions on a quorum of the EDPB. In fact, according to the view to be rejected, an election of the chair by only one member would thus be possible, which cannot be intended. Finally, the EDPB has also endorsed the view expressed here with the introduction of (declaratory) Article 5(1) RoP.

The election of the chair and the deputy chairs shall be by secret ballot. This is stipulated in Article 5(1) RoP in exercise of the explicit authorisation in Article 76(1) GDPR.

(2) Term of Office

Paragraph 2 of the provision stipulates that a term of office is 5 years, with the possibility of renewal once. In total, elected persons can thus hold office for a maximum period of 10 years.

The limited term of office not only ensures that the chair itself rotates. Rather, it also means that the representation of the member states in the holding of important offices changes regularly.[8]

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 supervisory authority; (2) resignation; (3) dismissal pursuant to Article 6(2) RoP. In this context, the term "supervisory authority" refers to both the national supervisory authorities 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.[9] 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

→ You can find all related decisions in Category:Article 73 GDPR

References

  1. Nguyen, in Gola, DS-GVO, 2nd ed. 2018, Article 73 GDPR, margin number 1 (Beck 2018, 2nd ed.) (accessed 28 June 2021); Brink, Wilhelm, in BeckOK DatenschutzR, Article 73 GDPR, margin number 2 (Beck 2020, 36th ed.) (accessed 28 June 2021).
  2. Brink, Wilhelm, in BeckOK DatenschutzR, Article 73 GDPR, margin number 4 (Beck 2020, 36th ed.) (accessed 28 June 2021).
  3. Dix, in Kühling/Buchner, DS-GVO BDSG, Article 73 GDPR, margin number 5 (Beck 2020, 3rd ed.) (accessed 28 June 2021); agreeing Brink, Wilhelm, in BeckOK DatenschutzR, Article 73 GDPR, margin number 9 (Beck 2020, 36th ed.) (accessed 28 June 2021).
  4. Brink, Wilhelm, in BeckOK DatenschutzR, Article 73 GDPR, margin number 12 (Beck 2020, 36th ed.) (accessed 28 June 2021); Körffer, in Paal/Pauly, DS-GVO, Article 73 GDPR, margin number 2 (Beck 2021, 3rd ed.) (accessed 28 June 2021); Schiedermair, in Simitis/Hornung/Spiecker gen. Döhmann, Datenschutzrecht, Article 73 GDPR, margin number 3 (Beck 2019, 1st ed.) (accessed 28 June 2021).
  5. Nguyen, in Gola, DS-GVO, 2nd ed. 2018, Article 73 GDPR, margin number 2 (Beck 2018, 2nd ed.) (accessed 28 June 2021); Dix, in Kühling/Buchner, DS-GVO BDSG, Article 73 GDPR, margin number 5 (Beck 2020, 3rd ed.) (accessed 28 June 2021); Regenhardt, in Sydow, Europäische Datenschutzgrundverordnung, Article 73 GDPR, margin number 6 (Beck 2018, 2nd ed.) (accessed 28 June 2021).
  6. Nguyen, in Gola, DS-GVO, 2nd ed. 2018, Article 73 GDPR, margin number 2 (Beck 2018, 2nd ed.) (accessed 28 June 2021).
  7. Cf. Regenhardt, in Sydow, Europäische Datenschutzgrundverordnung, Article 73 GDPR, margin number 6 (Beck 2018, 2nd ed.) (accessed 28 June 2021).
  8. Regenhardt, in Sydow, Europäische Datenschutzgrundverordnung, Article 73 GDPR, margin number 8 (Beck 2018, 2nd ed.) (accessed 28 June 2021).
  9. Cf. Dix, in Kühling/Buchner, DS-GVO BDSG, Article 73 GDPR, margin number 6 (Beck 2020, 3rd ed.) (accessed 28 June 2021).