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.
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
C-210/16 (5 June 2018) - Wirtschaftsakademie Schleswig-Holstein
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
C-252/21 (4 July 2023), Meta Platforms e.a. (General terms and conditions of use of a social network)
1. Article 51 et seq. of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), as well as Article 4(3) TEU
must be interpreted as meaning that, subject to compliance with its duty of sincere cooperation with the supervisory authorities, a competition authority of a Member State can find, in the context of the examination of an abuse of a dominant position by an undertaking within the meaning of Article 102 TFEU, that that undertaking’s general terms of use relating to the processing of personal data and the implementation thereof are not consistent with that regulation, where that finding is necessary to establish the existence of such an abuse.
In view of this duty of sincere cooperation, the national competition authority cannot depart from a decision by the competent national supervisory authority or the competent lead supervisory authority concerning those general terms or similar general terms. Where it has doubts as to the scope of such a decision, where those terms or similar terms are, simultaneously, under examination by those authorities, or where, in the absence of an investigation or decision by those authorities, the competition authority takes the view that the terms in question are not consistent with Regulation 2016/679, it must consult and seek the cooperation of those supervisory authorities in order to dispel its doubts or to determine whether it must wait for them to take a decision before starting its own assessment. In the absence of any objection on their part or of any reply within a reasonable time, the national competition authority may continue its own investigation;
2. Article 9(1) of Regulation 2016/679
must be interpreted as meaning that, where the user of an online social network visits websites or apps to which one or more of the categories referred to in that provision relate and, as the case may be, enters information into them when registering or when placing online orders, the processing of personal data by the operator of that online social network, which entails the collection – by means of integrated interfaces, cookies or similar storage technologies – of data from visits to those sites and apps and of the information entered by the user, the linking of all those data with the user’s social network account and the use of those data by that operator, must be regarded as ‘processing of special categories of personal data’ within the meaning of that provision, which is in principle prohibited, subject to the derogations provided for in Article 9(2), where that data processing allows information falling within one of those categories to be revealed, irrespective of whether that information concerns a user of that network or any other natural person;
3. Article 9(2)(e) of Regulation 2016/679
must be interpreted as meaning that, where the user of an online social network visits websites or apps to which one or more of the categories set out in Article 9(1) of that regulation relate, the user does not manifestly make public, within the meaning of the first of those provisions, the data relating to those visits collected by the operator of that online social network via cookies or similar storage technologies;
Where he or she enters information into such websites or apps or where he or she clicks or taps on buttons integrated into those sites and apps, such as the ‘Like’ or ‘Share’ buttons or buttons enabling the user to identify himself or herself on those sites or apps using login credentials linked to his or her social network user account, his or her telephone number or email address, that user manifestly makes public, within the meaning of Article 9(2)(e), the data thus entered or resulting from the clicking or tapping on those buttons only in the circumstance where he or she has explicitly made the choice beforehand, as the case may be on the basis of individual settings selected with full knowledge of the facts, to make the data relating to him or her publicly accessible to an unlimited number of persons;
4. Point (b) of the first subparagraph of Article 6(1) of Regulation 2016/679
must be interpreted as meaning that the processing of personal data by the operator of an online social network, which entails the collection of data of the users of such a network from other services of the group to which that operator belongs or from visits by those users to third-party websites or apps, the linking of those data with the social network account of those users and the use of those data, can be regarded as necessary for the performance of a contract to which the data subjects are party, within the meaning of that provision, only on condition that the processing is objectively indispensable for a purpose that is integral to the contractual obligation intended for those users, such that the main subject matter of the contract cannot be achieved if that processing does not occur;
5. Point (f) of the first subparagraph of Article 6(1) of Regulation 2016/679
must be interpreted as meaning that the processing of personal data by the operator of an online social network, which entails the collection of data of the users of such a network from other services of the group to which that operator belongs or from visits by those users to third-party websites or apps, the linking of those data with the social network account of those users and the use of those data, can be regarded as necessary for the purposes of the legitimate interests pursued by the controller or by a third party, within the meaning of that provision, only on condition that the operator has informed the users from whom the data have been collected of a legitimate interest that is pursued by the data processing, that such processing is carried out only in so far as is strictly necessary for the purposes of that legitimate interest and that it is apparent from a balancing of the opposing interests, having regard to all the relevant circumstances, that the interests or fundamental freedoms and rights of those users do not override that legitimate interest of the controller or of a third party;
6. Point (c) of the first subparagraph of Article 6(1) of Regulation 2016/679
must be interpreted as meaning that the processing of personal data by the operator of an online social network, which entails the collection of data of the users of such a network from other services of the group to which that operator belongs or from visits by those users to third-party websites or apps, the linking of those data with the social network account of those users and the use of those data, is justified, under that provision, where it is actually necessary for compliance with a legal obligation to which the controller is subject, pursuant to a provision of EU law or the law of the Member State concerned, where that legal basis meets an objective of public interest and is proportionate to the legitimate aim pursued and where that processing is carried out only in so far as is strictly necessary;
7. Points (d) and (e) of the first subparagraph of Article 6(1) of Regulation 2016/679
must be interpreted as meaning that the processing of personal data by the operator of an online social network, which entails the collection of data of the users of such a network from other services of the group to which that operator belongs or from visits by those users to third-party websites or apps, the linking of those data with the social network account of those users and the use of those data, cannot, in principle and subject to verification by the referring court, be regarded as necessary in order to protect the vital interests of the data subject or of another natural person, within the meaning of point (d), or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller, within the meaning of point (e);
8. Point (a) of the first subparagraph of Article 6(1) and Article 9(2)(a) of Regulation 2016/679
must be interpreted as meaning that the fact that the operator of an online social network holds a dominant position on the market for online social networks does not, as such, preclude the users of such a network from being able validly to consent, within the meaning of Article 4(11) of that regulation, to the processing of their personal data by that operator. This is nevertheless an important factor in determining whether the consent was in fact validly and, in particular, freely given, which it is for that operator to prove.
Décision of the Court
Opinion of the advocate general
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