The GDPR

As provided for in the Directive, Article 51 requires the Member States to set up one or several independent supervisory authorities responsible for the monitoring of the application of the Regulation.

The supervisory authority is defined in article 4 (21), as "an independent public authority which is established by a Member State pursuant to Article 51”.

The final version of the Regulation specifies that these authorities are intended, on the one hand, to protect the fundamental rights and freedoms of natural persons in relation to processing, and on the other, facilitate the free flow of personal data within the Union (paragraph 1).

According to paragraph 2, each supervisory authority shall contribute to the consistent application of the Regulations throughout the Union. For that purpose, the supervisory authorities shall cooperate with each other and with the Commission in accordance with Chapter VII.

It should be noted that the Regulation expressly allows the Member States to create several control authorities (paragraph 3). In this case, the Member State shall designate the supervisory authority which is to represent those authorities on the European Data Protection Board. The Member State shall also set out the mechanism to ensure compliance by other authorities with the rules relating to the consistency mechanism referred to in Article 63.

All the provisions adopted by a Member State under Chapter VI must be notified to the Commission no later than two years after the entry into force of the Regulation, that is, the 20th day following its publication in the Official Journal of the European Union (Art. 99). Any subsequent changes must be notified to the Commission without delay.

The Directive

The Directive contained an essential element of data protection: the establishment in each Member State of a supervisory authority responsible for monitoring the application of the personal data protection legislation on its territory.

The second paragraph of Article 28 of the Directive already stated that the tasks entrusted to these authorities should be carried out independently.

The Member States have each created a national supervisory authority for the protection of personal data

Potential issues

We do not see a priori any specific implementation difficulties.

Group 29

Guidelines for identifying a controller or processor’s lead supervisory authority (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.

Link

CJEU caselaw

C-518/07 (9 March 2010)

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)

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)

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

C-210/16 (5 June 2018)

1. Articles 4 and 28 of Directive 95/46 must be interpreted as meaning that, where an undertaking established outside the European Union has several establishments in different Member States, the supervisory authority of a Member State is entitled to exercise the powers conferred on it by Article 28(3) of that directive with respect to an establishment of that undertaking situated in the territory of that Member State even if, as a result of the division of tasks within the group, first, that establishment is responsible solely for the sale of advertising space and other marketing activities in the territory of that Member State and, second, exclusive responsibility for collecting and processing personal data belongs, for the entire territory of the European Union, to an establishment situated in another Member State.

2. Article 4(1)(a) and Article 28(3) and (6) of Directive 95/46 must be interpreted as meaning that, where the supervisory authority of a Member State intends to exercise with respect to an entity established in the territory of that Member State the powers of intervention referred to in Article 28(3) of that directive, on the ground of infringements of the rules on the protection of personal data committed by a third party responsible for the processing of that data whose seat is in another Member State, that supervisory authority is competent to assess, independently of the supervisory authority of the other Member State, the lawfulness of such data processing and may exercise its powers of intervention with respect to the entity established in its territory without first calling on the supervisory authority of the other Member State to intervene.

Opinion of Advocate general

Judgment of the Court