Show the recitals of the Regulation related to article 93 keyboard_arrow_down
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(167) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission when provided for by this Regulation. Those powers should be exercised in accordance with Regulation (EU) No 182/2011. In that context, the Commission should consider specific measures for micro, small and medium-sized enterprises.
(168) The examination procedure should be used for the adoption of implementing acts on standard contractual clauses between controllers and processors and between processors; codes of conduct; technical standards and mechanisms for certification; the adequate level of protection afforded by a third country, a territory or a specified sector within that third country, or an international organisation; standard protection clauses; formats and procedures for the exchange of information by electronic means between controllers, processors and supervisory authorities for binding corporate rules; mutual assistance; and arrangements for the exchange of information by electronic means between supervisory authorities, and between supervisory authorities and the Board.
There is no recital in the Directive related to article 93.
The GDPR
Let’s recall that several provisions of the Regulation grant implementing competency to the Commission concerning, for example, approval of codes of conduct (Article 40 (9); the definition of technical standards for the certification mechanisms (Article 43 (9)); decisions relating to the adequate nature of the level of protection in a non-EU third country (Article 44 (3)); the adoption of standard clauses for data protection (Article 46 (2), c)).
Each of the provisions conferring implementing powers to the Commission provides that the implementing acts should be adopted in accordance with the procedure referred to in article 93 (2) or, in an extreme urgency, in accordance with the procedure laid down in article 93 (3).
Article 93 refers to Article 5 or Article 8 of Regulation (EU) No. 182/2011 of Regulation (EU) No. 182/2011 of the European Parliament and the Council of 16 February 2011 establishing the rules and general principles on the modes of control by the Member States of the exercise of the powers of enforcement by the Commission, depending on whether the future Regulation refer to paragraphs 2 or 3 of article 87. Regulation 181/2011 sets out the procedure to follow when a legally binding Union act requires uniform conditions of implementation and that the implementing acts by the Commission are submitted to the control of the Member States.
Article 5 of that Regulation defines the procedure of review:
- The Chair of the Committee (committee composed of representatives of the Member States) responsible for assisting the Commission shall submit a draft implementing act to the Committee;
-The Committee shall issue an opinion by a qualified majority (qualified majority is defined in article 16 (4) of the Treaty on the European Union as being equal to at least 55% of the members of the Council, comprising at least fifteen of them and representing Member States with at least 65% of the population of the Union);
- In the case of a favourable opinion of the Committee, the Commission shall adopt the draft implementing act;
- in the case of an unfavourable opinion , two cases are possible: the Chair can either submit a modified version of the draft implementing act to the same Committee, within a period of two months from the issue of the unfavourable opinion, or submit draft implementing act, within a period of one month from the issuance of this opinion, to a Committee of appeal for a new discussion.
- in the absence of an opinion of the Committee, the Commission can, in principle, adopt the draft implementing act.
As previously indicated, certain provisions of the Regulation provide that for reasons of urgency, said implementing acts should be adopted in accordance with paragraph 3 of Article 93, which on this part refers to Article 8 of Regulation 181/2011. According to this provision, an implementing act can apply immediately, without needing to be previously submitted to a Committee, for duly justified reasons of extreme urgency. In this case, the implementing act remains in force only for a period of six months.
It is the responsibility of the Chair however to submit the implementing act to the Commission for review, not later than fourteen days after its adoption. In case of negative opinion, the Commission shall immediately repeal the act.
The Directive
The Directive included no similar provision.
Potential issues
We do not see a priori any specific implementation difficulties.
