Article 74 GDPR

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Article 74 - Tasks of the Chair
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Chapter 10: Delegated and implementing acts

Legal Text


Article 74 - Tasks of the Chair

1. The Chair shall have the following tasks:

(a) to convene the meetings of the Board and prepare its agenda;
(b) to notify decisions adopted by the Board pursuant to Article 65 to the lead supervisory authority and the supervisory authorities concerned;
(c) to ensure the timely performance of the tasks of the Board, in particular in relation to the consistency mechanism referred to in Article 63.

2. The Board shall lay down the allocation of tasks between the Chair and the deputy chairs in its rules of procedure.

Relevant Recitals

Recital 140: Secretariat and Staff of the EDPS
The Board should be assisted by a secretariat provided by the European Data Protection Supervisor. The staff of the European Data Protection Supervisor involved in carrying out the tasks conferred on the Board by this Regulation should perform its tasks exclusively under the instructions of, and report to, the Chair of the Board.

Commentary

The Regulation establishes the existence of, and governs the functioning of the Board and its Chair. Article 74 GDPR outlines the powers and tasks afforded to the Chair in relation to the running of the Board. Generally, the Regulation allows for the Board to enjoy a wide degree of autonomy,[1] which too has been extended to the Chair. For instance, paragraph two of this provision allows for the Board to lay down the allocation of tasks between the Chair and the deputy chairs in its rules of procedure.

The Board and its Chair, as the successors of the Article 29 Working Party (“WP29”), inherit the functions served by the WP29 but notably, are allocated a wider array of duties and powers. In particular, the Chair of the Board is afforded broader powers than the Chair of the WP29. Under Article 65(3) GDPR, the Chair is able to issue a casting vote in the instance of stalemate, which is a power not enjoyed by its predecessor.[2]

(1) Tasks of the Chair

Article 74(1) GDPR mandates a list of responsibilities to the Chair. Namely, these responsibilities include convening the meetings of the Board, preparing its agenda, notifying decisions adopted by the Board under Article 65 GDPR to the authorities, and ensuring the timely performance of the tasks of the Board in relation to the consistency mechanism referred to in Article 63 GDPR.  

The aforementioned tasks are supplemented by duties found in other provisions of the Regulation. In particular, the Chair represents the Board (Article 68(2) GDPR) and is responsible for directing the work of the secretariat (Article 75(2) GDPR). Other specific responsibilities arise from the consistency mechanism, which for the purposes of Articles 64 and 65 GDPR, is administered by the Chair.

Docksey clarifies that while some tasks of the Chair are purely administrative or procedural,[3] other consistency mechanism tasks are more substantive.[4] For example, the Chair may determine a “reasonable” period in which members may object to draft decisions (Article 64(3) GDPR). Together with the other supervisory authorities, the Chair has also the right to request an opinion of the EDPB on any matter of general application or producing effects in more than one Member State (Article 64(2) GDPR). Docksey notes that the “subject-matter is thus not limited to the matters listed in Article 64(1) and could concern, for example, the determination of a data breach or the validity of consent in a specific technological context […]”.[5]

(2) Allocation of Tasks

Article 74(2) GDPR allows for the Board to determine the allocation of tasks between the Chair and the deputy chairs in its Rules of Procedure (“RoP”).[6] Article 7(2) RoP provides that after each election of the Chair and, or deputy chairs, the Chair shall, after consultation with the deputy chairs, submit a proposal to the Board for the allocation of tasks among them including the acting on behalf of each other in cases of non-availability or incapacity. The RoP also foresee that the Chair might delegate the competence to sign documents to its deputy chairs. In addition, Article 7(1) RoP provides that the Chair may designate in addition to its deputy chairs, any member of a supervisory authority or of the secretariat to represent the Board externally in its place.

Decisions

→ You can find all related decisions in Category:Article 74 GDPR

References

  1. For more on this point, see Article 72 GDPR.
  2. Dix in Kühling, Buchner, DS-GVO BDSG, Article 74 GDPR, margin number 7 (C.H. Beck 2020, 3rd edition).
  3. See e.g. Articles 64(5), 65(5), 64(7) and 64(8) GDPR.
  4. Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 74 GDPR, p. 1099 (Oxford University Press 2020).
  5. Docksey, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 74 GDPR, p. 1100 (Oxford University Press 2020).
  6. For a more detailed analysis of the Board's Rules of Procedure, refer to Article 72 GDPR.