The GDPR

Article 54 requires that Member States provide by law the conditions of establishment of the supervisory authorities. Each Member State sets the terms of appointment of the members both in regards to the appointment procedure and to the skills required, the term of office, and the prohibitions of employment or activities.

Thus, each Member State must provide by law (Art. 54 (1)):

- the establishment of each supervisory authority (a);

- the qualifications and eligibility conditions required to be appointed as member of each supervisory authority (b);

- the rules and procedures for the appointment of the member or members of each supervisory authority (c);

- the duration of the term of the member or members of each supervisory authority (that cannot be less than four years) and whether and, if so, for how many terms the member or members of each supervisory authority is eligible for reappointment (e); The duration of the first appointment after the entry of the Regulation in force may be less than 4 years where that is necessary to protect the independence of the supervisory authority by means of a staggered appointment procedure (d);

- the conditions governing the obligations of the member or members and staff of each supervisory authority, prohibitions on actions, occupations and benefits incompatible therewith during and after the term of office and rules governing the cessation of employment (f).

Finally, the last paragraph of Article 54 imposes that the member or members and the staff of each supervisory authority shall be subject to a duty of professional secrecy both during and after their term of office, with regard to any confidential information which has come to their knowledge in the course of the performance of their tasks or exercise of their powers as already provided by the Directive in its Article 28 (7).  This duty of professional secrecy is applied in particular with respect to reporting by natural persons of infringements of this Regulation (paragraph 2).

The Directive

As already indicated, the Directive says very little about the terms of appointment and the status applicable to the members of the supervisory authority as well as the modes for establishment of the supervisory authorities; at most, Article 28 (7) of the Directive imposed an obligation on the Member States to ensure that the members and staff of the supervisory authority, even after their employment has ended, are to be subject to a duty of professional secrecy with regard to confidential information to which they have access.

Potential issues

We do not see a priori any specific implementation difficulties.

European Union

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Article 29 Working Party

Guidelines on the Lead Supervisory Authority - wp244rev.01 (5 April 2017)

(Endorsed by the EDPB)

Identifying a lead supervisory authority is only relevant where a controller or processor is carrying out the cross-border processing of personal data. Article 4(23) of the General Data Protection Regulation (GDPR) defines ‘cross-border processing’ as either the:

- processing of personal data which takes place in the context of the activities of establishments in more than one Member State of a controller or processor in the Union where the controller or processor is established in more than one Member State; or the

- processing of personal data which takes place in the context of the activities of a single establishment of a controller or processor in the Union but which substantially affects or is likely to substantially affect data subjects in more than one Member State.

This means that where an organisation has establishments in France and Romania, for example, and the processing of personal data takes place in the context of their activities, then this will constitute cross-border processing.

Alternatively, the organisation may only carry out processing activity in the context of its establishment in France. However, if the activity substantially affects – or is likely to substantially affect - data subjects in France and Romania then this will also constitute crossborder processing.

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European Union

CJEU caselaw

C-518/07 (9 March 2010) - Commission v Germany

1.      Declares that, by making the authorities responsible for monitoring the processing of personal data by non-public bodies and undertakings governed by public law which compete on the market (öffentlich-rechtliche Wettbewerbsunternehmen) in the different Länder subject to State scrutiny, and by thus incorrectly transposing the requirement that those authorities perform their functions ‘with complete independence’, the Federal Republic of Germany failed to fulfil its obligations under the second subparagraph of Article 28(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

2.      Orders the Federal Republic of Germany to pay the costs of the Commission;

3.      Orders the European Data Protection Supervisor (EDPS) to bear his own costs.

Opinion of Advocate general 

Judgment of the Court

C-614/10 (16 October 2012) -  Commission v Austria

1.      Declares that, by failing to take all of the measures necessary to ensure that the legislation in force in Austria meets the requirement of independence with regard to the Datenschutzkommission (Data Protection Commission), more specifically by laying down a regulatory framework under which

–        the managing member of the Datenschutzkommission is a federal official subject to supervision,

–        the office of the Datenschutzkommission is integrated with the departments of the Federal Chancellery, and

–        the Federal Chancellor has an unconditional right to information covering all aspects of the work of the Datenschutzkommission,

the Republic of Austria has failed to fulfil its obligations under the second subparagraph of Article 28(1) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;

2.      Orders the Republic of Austria to pay the costs incurred by the European Commission;

3.      Orders the Federal Republic of Germany and the European Data Protection Supervisor to bear their own respective costs.

Opinion of Advocate general 

Judgment of the Court

C-230/14 (1 October 2015) - Weltimmo

1.      Article 4(1)(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as permitting the application of the law on the protection of personal data of a Member State other than the Member State in which the controller with respect to the processing of those data is registered, in so far as that controller exercises, through stable arrangements in the territory of that Member State, a real and effective activity — even a minimal one — in the context of which that processing is carried out.

In order to ascertain, in circumstances such as those at issue in the main proceedings, whether that is the case, the referring court may, in particular, take account of the fact (i) that the activity of the controller in respect of that processing, in the context of which that processing takes place, consists of the running of property dealing websites concerning properties situated in the territory of that Member State and written in that Member State’s language and that it is, as a consequence, mainly or entirely directed at that Member State, and (ii) that that controller has a representative in that Member State, who is responsible for recovering the debts resulting from that activity and for representing the controller in the administrative and judicial proceedings relating to the processing of the data concerned.

By contrast, the issue of the nationality of the persons concerned by such data processing is irrelevant.

2.      Where the supervisory authority of a Member State, to which complaints have been submitted in accordance with Article 28(4) of Directive 95/46, reaches the conclusion that the law applicable to the processing of the personal data concerned is not the law of that Member State, but the law of another Member State, Article 28(1), (3) and (6) of that directive must be interpreted as meaning that that supervisory authority will be able to exercise the effective powers of intervention conferred on it in accordance with Article 28(3) of that directive only within the territory of its own Member State. Accordingly, it cannot impose penalties on the basis of the law of that Member State on the controller with respect to the processing of those data who is not established in that territory, but should, in accordance with Article 28(6) of that directive, request the supervisory authority within the Member State whose law is applicable to act.

3.      Directive 95/46 must be interpreted as meaning that the term ‘adatfeldolgozás’ (technical manipulation of data), used in the Hungarian version of that directive, in particular in Articles 4(1)(a) and 28(6) thereof, must be understood as having the same meaning as that of the term ‘adatkezelés’ (data processing).

Opinion of Advocate general 

Judgment of the Court

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