Article 93
Committee procedure

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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. 

Regulation
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Art. 93

1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

3. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.

1st proposal close

Art. 87

1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

3. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.

2nd proposal close

Art. 87

1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

3. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.

Directive close

Art. 31

1. The Commission shall be assisted by a committee composed of the representatives of the Member States and chaired by the representative of the Commission.

2. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter.

The opinion shall be delivered by the majority laid down in Article 148 (2) of the Treaty. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote.

The Commission shall adopt measures which shall apply immediately. However, if these measures are not in accordance with the opinion of the committee, they shall be communicated by the Commission to the Council forthwith. It that event:

- the Commission shall defer application of the measures which it has decided for a period of three months from the date of communication,

- the Council, acting by a qualified majority, may take a different decision within the time limit referred to in the first indent.

54. International co-operation

(1) The Commissioner—

(a) shall continue to be the designated authority in the United Kingdom for the purposes of Article 13 of the Convention, and

(b) shall be the supervisory authority in the United Kingdom for the purposes of the Data Protection Directive [F1 and the Data Protection Framework Decision].

(2) The [F2 Secretary of State] may by order make provision as to the functions to be discharged by the Commissioner as the designated authority in the United Kingdom for the purposes of Article 13 of the Convention.

(3) The [F2 Secretary of State] may by order make provision as to co-operation by the Commissioner with the European Commission and with supervisory authorities in other EEA States in connection with the performance of their respective duties and, in particular, as to—

(a) the exchange of information with supervisory authorities in other EEA States or with the European Commission, F3...

(b) the exercise within the United Kingdom at the request of a supervisory authority in another EEA State, in cases excluded by section 5 from the application of the other provisions of this Act, of functions of the Commissioner specified in the order [F4, and

(c) the exercise within the United Kingdom at the request of a supervisory authority in another EEA State, in cases falling within the scope of the Data Protection Framework Decision as it applies to that State, of functions of the Commissioner specified in the order. ]

(4) The Commissioner shall also carry out any data protection functions which the [F2 Secretary of State] may by order direct him to carry out for the purpose of enabling Her Majesty’s Government in the United Kingdom to give effect to any international obligations of the United Kingdom.

(5) The Commissioner shall, if so directed by the [F2 Secretary of State] , provide any authority exercising data protection functions under the law of a colony specified in the direction with such assistance in connection with the discharge of those functions as the [F2 Secretary of State] may direct or approve, on such terms (including terms as to payment) as the [F2 Secretary of State] may direct or approve.

(6) Where the European Commission makes a decision for the purposes of Article 26(3) or (4) of the Data Protection Directive under the procedure provided for in Article 31(2) of the Directive, the Commissioner shall comply with that decision in exercising his functions under paragraph 9 of Schedule 4 or, as the case may be, paragraph 8 of that Schedule.

(7) The Commissioner shall inform the European Commission and the supervisory authorities in other EEA States—

(a) of any approvals granted for the purposes of paragraph 8 of Schedule 4, and

(b) of any authorisations granted for the purposes of paragraph 9 of that Schedule.

(8) In this section—

“the Convention” means the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data which was opened for signature on 28th January 1981;

[F5 “the Data Protection Framework Decision” means the Council Framework Decision 2008/977/ JHA of 27th November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters; ]

“data protection functions” means functions relating to the protection of individuals with respect to the processing of personal information. 

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