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Article 43
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Certification bodies

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(100) In order to enhance transparency and compliance with this Regulation, the establishment of certification mechanisms and data protection seals and marks should be encouraged, allowing data subjects to quickly assess the level of data protection of relevant products and services.

There is no recital in the Directive related to article 43.

The GDPR

Article 43 of the Regulation provides that the certification is issued and renewed by a certification authority with appropriate levels of expertise, after informing the supervisory authority accordingly so that the latter can exercise the powers conferred by Article 58 (2) (h).

Under the above provision, the supervisory authority has the option to withdraw or to order the certification authority to withdraw a certificate issued on the basis of Articles 42 and 43 or even to forbid the authority to issue new certification if the requirements of the said certification are not met.  

Each Member State must determine which of the competent national supervisory authority or the national accreditation body designated in accordance with Regulation No. 765/3008 of 9 July 2008 will be competent to accredit the certification bodies (paragraph 1, a) and b)).

There are various conditions required for a certification body to get accredited:

- they shall have demonstrated their independence and expertise in relation to the subject-matter of the certification to the satisfaction of the competent supervisory authority (paragraph 2, a));

- they shall have undertaken to respect the criteria referred to in Article 42 (5) and approved by the supervisory authority which is competent pursuant to Article 55 or 56 or by the Board pursuant to Article 63 (paragraph 2, b));

 - they shall have established procedures for the issuing, periodic review and withdrawal of data protection certification, seals and marks (paragraph 2, c));

- they shall have established procedures and structures to handle complaints about infringements of the certification or the manner in which the certification has been, or is being, implemented by the controller or processor, and to make those procedures and structures transparent to data subjects and the public (paragraph 2, d));

- they shall have demonstrated that their tasks and duties do not result in a conflict of interests (paragraph 2, e)).

According to paragraph 3 of Article 43, the criteria for the accreditation of the certification bodies must be approved, either by the competent supervisory authority or the European Board in application of Article 63.

In the case where the national accreditation body must issue accreditation pursuant to paragraph 1, b), the requirements listed in paragraph 2 a) to d) of Article 43 supplement those set out in Regulation (EC) No. 765/2008 and the technical rules describing the methods and procedures of the certification bodies.

The criteria and requirements for accreditation will be published by the supervisory authority in an easily accessible form and be forwarded to the European Data Protection Board. The European Data Protection Board shall collate all certification mechanisms and data protection seals in a register and shall make them publicly available by any appropriate means (paragraph 6).

Once accredited, the certification body shall be responsible for conducting proper evaluation in view of certification or revocation of certification. The accreditation shall be issued for a maximum period of five years and may be renewed on the same conditions provided that the certification body meets the requirements (paragraph 4). The certification body shall provide the competent supervisory authorities with the reasons for granting or withdrawing the requested certification (paragraph 5).

Both the supervisory authority and the national accreditation body shall revoke an accreditation of a certification body where the conditions for the accreditation are not, or are no longer, met or where actions taken by a certification body infringe this Regulation (paragraph 7).

The Commission shall be empowered to adopt delegated acts in accordance with Article 92 for the purpose of specifying the requirements to be taken into account for the data protection certification mechanisms (paragraph 8).

The Commission may adopt implementing acts laying down technical standards for certification mechanisms and data protection seals and marks, and mechanisms to promote and recognize those certification mechanisms, seals and marks (paragraph 9). Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 93 (2).

 Is there missing wording here?

The Directive

Neither the Directive nor national laws provided for a certification mechanism.

Potential issues

It will not be easy to find organizations that meet the conditions for accreditation. There is a concern also that some – which would have the competence – will be discouraged or prevented by certain conditions. The case of conflict of interest is quite illustrative: having to prove a priori, during the accreditation, that no conflicts of interest will be present thereafter in case of application for certification could exclude organizations from the business world (lawyers, consultants, etc.). It would be better to force them to waive any application with a potential to present a conflict of interest and clarify what is meant here to protect against.

Also, there are difficulties that are a matter of concern. For example, when the body must communicate to the competent supervisory authority the reasons for issuance or withdrawal. Isn’t there a risk that controllers will not to apply for certification knowing that if withdrawn, they are then at risk of having their file considered by the supervising authority?

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Summary

European Union

European Union

European data protection board (EDPB)

Guidelines in accordance with Articles 42 and 43 of the Regulation - 1/2018 (4 June 2019)

Before the adoption of the GDPR, the Article 29 Working Party established that certification could play an important role in the accountability framework for data protection. In order for certification to provide reliable evidence of data protection compliance, clear rules setting forth requirements for the provision of certification should be in place. Article 42 of the GDPR provides the legal basis for the development of such rules.

Certification mechanisms can improve transparency for data subjects, but also in business-to-business relations, for example between controllers and processors. Recital 100 of the GDPR states that the establishment of certification mechanisms can enhance transparency and compliance with the Regulation and allow data subjects to assess the level of data protection of relevant products and services.

The GDPR does not introduce a right to or an obligation of certification for controllers and processors; as per Article 42(3), certification is a voluntary process to assist in demonstrating compliance with the GDPR. Member States and supervisory authorities are called to encourage the establishment of certification mechanisms and will determine the stakeholder engagement in the certification process and lifecycle.

The primary aim of these guidelines is to identify overarching requirements and criteria that may be relevant to all types of certification mechanisms issued in accordance with Articles 42 and 43 of the GDPR. To this end, the guidelines:

  • explore the rationale for certification as an accountability tool
  • explain the key concepts of the certification provisions in Articles 42 and 43
  • and explain the scope of what can be certified under Articles 42 and 43 and the purpose of certification
  • facilitate that the outcome of certification is meaningful, unambiguous, as reproducible as possible and comparable regardless of the certifier (comparability)

Link

Guidelines on the accreditation of certification bodies under Article 43 of the General Data Protection Regulation (2016/679) - 4/2018 (4 June 2019)

The General Data Protection Regulation (Regulation (EU) 2016/679) (‘the GDPR’), which comes into effect on 25 May 2018, provides a modernised, accountability and fundamental rights based compliance framework for data protection in Europe. A range of measures to facilitate compliance with the provisions of the GDPR are central to this new framework. These include mandatory requirements in specific circumstances (including the appointment of Data Protection Officers and carrying out data protection impact assessments) and voluntary measures such as codes of conduct and certification mechanisms.

2. As part of establishing certification mechanisms and data protection seals and marks, Article 43(1) of the GDPR requires Member States ensure that certification bodies issuing certification under Article 42(1) are accredited by either or both, the competent supervisory authority or the national accreditation body. If accreditation is carried out by the national accreditation body in accordance with ISO/IEC 17065/2012, the additional requirements established by the competent supervisory authority must also be applied.

3. Meaningful certification mechanisms can enhance compliance with the GDPR and transparency for data subjects and in business to business (B2B) relations, for example between controllers and processors. Data controllers and processors will benefit from an independent third-party attestation for the purpose of demonstrating compliance of their processing operations.

4. In this context, the European Data Protection Board (EDPB)recognizes that it is necessary to provide guidelines in relation to accreditation. The particular value and purpose of accreditation lies in the fact that it provides an authorative statement of the competence of certification bodies that allows the generation of trust in the certification mechanism.

5. The aim of the guidelines is to provide guidance on how to interpret and implement the provisions of Article 43 of the GDPR. In particular, they aim to help Member States, supervisory authorities and national accreditation bodies establish a consistent, harmonised baseline for the accreditation of certification bodies that issue certification in accordance with the GDPR.

Link

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Regulation
1e 2e

Art. 43

1.   Without prejudice to the tasks and powers of the competent supervisory authority under Articles 57 and 58, certification bodies which have an appropriate level of expertise in relation to data protection shall, after informing the supervisory authority in order to allow it to exercise its powers pursuant to point (h) of Article 58(2) where necessary, issue and renew certification. Member States shall ensure that those certification bodies are accredited by one or both of the following:

a) the supervisory authority which is competent pursuant to Article 55 or 56;

b) the national accreditation body named in accordance with Regulation (EC) No 765/2008 of the European Parliament and of the Council in accordance with EN-ISO/IEC 17065/2012 and with the additional requirements established by the supervisory authority which is competent pursuant to Article 55 or 56.

2.   Certification bodies referred to in paragraph 1 shall be accredited in accordance with that paragraph only where they have:

a) demonstrated their independence and expertise in relation to the subject-matter of the certification to the satisfaction of the competent supervisory authority;

b) undertaken to respect the criteria referred to in Article 42(5) and approved by the supervisory authority which is competent pursuant to Article 55 or 56 or by the Board pursuant to Article 63;

c) established procedures for the issuing, periodic review and withdrawal of data protection certification, seals and marks;

d) established procedures and structures to handle complaints about infringements of the certification or the manner in which the certification has been, or is being, implemented by the controller or processor, and to make those procedures and structures transparent to data subjects and the public; and

e) demonstrated, to the satisfaction of the competent supervisory authority, that their tasks and duties do not result in a conflict of interests.

3.   The accreditation of certification bodies as referred to in paragraphs 1 and 2 of this Article shall take place on the basis of criteria approved by the supervisory authority which is competent pursuant to Article 55 or 56 or by the Board pursuant to Article 63. In the case of accreditation pursuant to point (b) of paragraph 1 of this Article, those requirements shall complement those envisaged in Regulation (EC) No 765/2008 and the technical rules that describe the methods and procedures of the certification bodies.

4.   The certification bodies referred to in paragraph 1 shall be responsible for the proper assessment leading to the certification or the withdrawal of such certification without prejudice to the responsibility of the controller or processor for compliance with this Regulation. The accreditation shall be issued for a maximum period of five years and may be renewed on the same conditions provided that the certification body meets the requirements set out in this Article.

5.   The certification bodies referred to in paragraph 1 shall provide the competent supervisory authorities with the reasons for granting or withdrawing the requested certification.

6.   The requirements referred to in paragraph 3 of this Article and the criteria referred to in Article 42(5) shall be made public by the supervisory authority in an easily accessible form. The supervisory authorities shall also transmit those requirements and criteria to the Board. The Board shall collate all certification mechanisms and data protection seals in a register and shall make them publicly available by any appropriate means.

7.   Without prejudice to Chapter VIII, the competent supervisory authority or the national accreditation body shall revoke an accreditation of a certification body pursuant to paragraph 1 of this Article where the conditions for the accreditation are not, or are no longer, met or where actions taken by a certification body infringe this Regulation.

8.   The Commission shall be empowered to adopt delegated acts in accordance with Article 92 for the purpose of specifying the requirements to be taken into account for the data protection certification mechanisms referred to in Article 42(1).

9.   The Commission may adopt implementing acts laying down technical standards for certification mechanisms and data protection seals and marks, and mechanisms to promote and recognise those certification mechanisms, seals and marks. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 93(2).
1st proposal close

No specific provision
2nd proposal close

Art. 39a

1. Without prejudice to the tasks and powers of the competent supervisory authority under Articles 52 and 53, the certification shall be issued and renewed by a certification body which has an appropriate level of expertise in relation to data protection. Each Member State shall provide whether these certification bodies are accredited by:

(a) the supervisory authority which is competent according to Article 51 or 51a; and/or

(b) the National Accreditation Body named in accordance with Regulation (EC) 765/2008 of the European parliament and the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products in compliance with EN-ISO/IEC 17065/2012 and with the additional requirements established by the supervisory authority which is competent according to Article 51 or 51a.

2. The certification body referred to in paragraph 1 may be accredited for this purpose only if:

(a) it has demonstrated its independence and expertise in relation to the subject-matter of the certification to the satisfaction of the competent supervisory authority;

(aa) it has und ertaken to respect the criteria referred to in paragraph 2a of Article 39 and approved by the supervisory authority which is competent according to Article 51 or 51a or , pursuant to Article 57, the European Data Protection Board;

(b) it has established procedures for the issue, periodic review and withdrawal of data protection seals and marks;

(c) it has established procedures and structures to deal with complaints about infringements of the certification or the manner in which the certification has been, or is being, implemented by the controller or processor, and to make these procedures and structures transparent to data subjects and the public;

(d) it demonstrates to the satisfaction of the competent supervisory authority that its tasks and duties do not result in a conflict of interests.

3. The accreditation of the certification bodies referred to in paragraph 1 shall take place on the basis of criteria approved by the supervisory authority which is competent according to Article 51 or 51a or,pursuant to Article 57, the European Data Protection Board. In case of an accreditation pursuant to point (b) of paragraph 1, these requirements complement those envisaged in Regulation 765/2008 and the technical rules that describe the methods and procedures of the certification bodies.

4. The certification body referred to in paragraph 1 shall be responsible for the proper assessment leading to the certification or the withdrawal of such certification without prejudice to the responsibility of the controller or processor for compliance with this Regulation. The accreditation is issued for a maximum period of five years and can be renewed in the same conditions as long as the body meets the requirements.

5. The certification body referred to in paragraph 1 shall provide the competent supervisory authority with the reasons for granting or withdrawing the requested certification.

6. The requirements referred to in paragraph 3 and the criteria referred to in paragraph 2a of Article 39 shall be made public by the supervisory authority in an easily accessible form. The supervisory authorities shall also transmit these to the European Data Protection Board. The European Data Protection Board shall collect all certification mechanisms and data protection seals in a register and shall make them publicly available through any appropriate means, such as through the European E-Justice Portal.

6a. Without prejudice to the provisions of Chapter VIII, the competent supervisory authority or the National Accreditation Body shall revoke the accreditation it granted to a certification body referred to in paragraph 1 if the conditions for accreditation are not, or no longer, met or actions taken by the body are not in compliance with this Regulation.

7. The Commission shall be empowered to adopt delegated acts in accordance with Article 86, for the purpose of (...) specifying the criteria and requirements to be taken into account for the data protection certification mechanisms referred to in paragraph 1 (...).

7a. The European Data Protection Board shall give an opinion to the Commission on the criteria and requirements referred to in paragraph 7.

8. The Commission may lay down technical standards for certification mechanisms and data protection seals and marks and mechanisms to promote and recognize certification mechanisms and data protection seals and marks. Those implementing acts shall be adopted in accordance with the examination procedure set out in Article 87(2).
Directive close

No specific provision
Poland
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visibility Old law

Starting from May 25, 2018 GDPR came into force and is fully applicable in Poland. 

The Act on Protection of Personal Data of 29th August 1997 [unified text: Journal of Laws 2015, item 2135, 2281] is not in force since May 25, 2018. It was replaced by new regulation - The Act on Personal Data Protection of 10th May 2018, which implements GDPR in Poland. 

Chapter 3. of The Act on Personal Data Protection of 10th May 2018 [Conditions and procedure for granting accreditation to a certification body]

Article 12 [Rules for granting accreditation]

1. Accreditation of entities applying for the right to carry out certification in the field of the protection of personal data, as referred to in Article 43 of Regulation (EU) 2016/679, hereinafter “accreditation”, shall be granted by the Polish Centre for Accreditation.

2. Accreditation shall be granted in accordance with the rules set out in Article 43(1) to (7) of Regulation (EU) 2016/679.

3. The provisions of Chapter 4 of the Act of 13 April 2016 on conformity assessment and market surveillance systems (Journal of Laws of 2019, item 544) shall apply to the granting of accreditation, with the exception of Article 24(4) to (7) and Article 25(1) and (2) insofar as they relate to limiting the scope of accreditation and its suspension.

Article 13 [Publication by the President of the Office of accreditation criteria]

The President of the Office shall make available, on his/her official website in the Public Information Bulletin, the accreditation criteria referred to in Article 43(3) of Regulation (EU) 2016/679.

Article 14 [Obligation to inform of accreditation granted]

1. The Polish Centre for Accreditation shall inform the President of the Office of any accreditation granted.

2. Information on the accreditation granted shall include:

  1. identification of the entity to which the accreditation was granted;
  2. an indication of the scope of the accreditation granted and the period of its validity.

3. The Polish Centre for Accreditation shall inform the President of the Office of any withdrawal of accreditation.

4. Information on the withdrawal of accreditation shall include:

  1. identification of the entity whose accreditation was withdrawn;
  2. an indication of the reason justifying the withdrawal of accreditation.

5. The President of the Office and the Polish Centre for Accreditation may conclude a cooperation agreement on monitoring the activities of certification bodies and on the mutual exchange of information concerning those bodies.
Old law close

No (special) provision in Poland.
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