Independent Supervisory Authorities Under GDPR

Independent Supervisory Authorities Under GDPR

The EU’s General Data Protection Regulation (“GDPR”) is an incredibly useful framework to protect personal data. However, all rules are only as good as our ability to enforce them, a legal framework alone cannot protect personal data. As such, independent enforcement agencies are required to put the regulations into practice. These independent supervisory authorities are commonly referred to as the Data Protection Authorities (“DPA”) or Supervisory Authorities. They are such an integral part of GDPR that the regulation dedicates an entire Chapter to regulating this type of entity. Therefore, the goal of this article is to provide cursory knowledge regarding the functions and powers of the DPAs.

What are DPAs?

DPAs are independent public authorities that supervise the application of data protection laws, be it the GDPR or their own national laws and regulations. DPAs also provide advice on data protection and handle complaints regarding data violations. There is a DPA in every EU Member State.

What are the Tasks of a DPA?

Pursuant to the GDPR, each DPA shall have the following tasks in its territory[1]:

• monitor and enforce the application of this Regulation;
• promote public awareness and understanding of the risks, rules, safeguards and rights in relation to processing. Activities addressed specifically to children shall receive specific attention;
• advise, in accordance with Member State law, the national parliament, the government, and other institutions and bodies on legislative and administrative measures relating to the protection of natural persons’ rights and freedoms with regard to processing;
• promote the awareness of controllers and processors of their obligations under this Regulation;
• upon request, provide information to any data subject concerning the exercise of their rights under this Regulation and, if appropriate, cooperate with the supervisory authorities in other Member States to that end;
• handle complaints lodged by a data subject, or by a body, organisation or association in accordance with Article 80, and investigate, to the extent appropriate, the subject matter of the complaint and inform the complainant of the progress and the outcome of the investigation within a reasonable period, in particular if further investigation or coordination with another supervisory authority is necessary;
• cooperate with, including sharing information and providing mutual assistance to, other supervisory authorities with a view to ensuring the consistency of application and enforcement of this Regulation;
• conduct investigations on the application of this Regulation, including on the basis of information received from another supervisory authority or other public authority;
• monitor relevant developments, insofar as they have an impact on the protection of personal data, in particular the development of information and communication technologies and commercial practices;
• adopt standard contractual clauses referred to in Article 28(8) and in point (d) of Article 46(2);
• establish and maintain a list in relation to the requirement for data protection impact assessment pursuant to Article 35(4);
• give advice on the processing operations referred to in Article 36(2);
• encourage the drawing up of codes of conduct pursuant to Article 40(1) and provide an opinion and approve such codes of conduct which provide sufficient safeguards, pursuant to Article 40(5);
• encourage the establishment of data protection certification mechanisms and of data protection seals and marks pursuant to Article 42(1), and approve the criteria of certification pursuant to Article 42(5);
• where applicable, carry out a periodic review of certifications issued in accordance with Article 42(7);
• draft and publish the requirements for accreditation of a body for monitoring codes of conduct pursuant to Article 41 and of a certification body pursuant to Article 43;
• conduct the accreditation of a body for monitoring codes of conduct pursuant to Article 41 and of a certification body pursuant to Article 43;
• authorise contractual clauses and provisions referred to in Article 46(3);
• approve binding corporate rules pursuant to Article 47;
• contribute to the activities of the Board;
• keep internal records of infringements of this Regulation and of measures taken in accordance with Article 58(2); and
• fulfill any other tasks related to the protection of personal data.

What are the Powers of a DPA?

Under GDPR, a DPA has many powers which can be classified into 03 categories:

Investigative Powers (the DPA exercises power to investigate and determine if there has been an infringement of the GDPR and its national data protection law and the particulars of such infringements):[2]

• to order the controller and the processor, and, where applicable, the controller’s or the processor’s representative to provide any information it requires for the performance of its tasks;
• to carry out investigations in the form of data protection audits;
• to carry out a review on certifications issued pursuant to Article 42(7);
• to notify the controller or the processor of an alleged infringement of this Regulation;
• to obtain, from the controller and the processor, access to all personal data and to all information necessary for the performance of its tasks;
• to obtain access to any premises of the controller and the processor, including to any data processing equipment and means, in accordance with Union or Member State procedural law.

Corrective Powers (once an infringement has been identified, the DPA can exercise its power to enforce data protection regulations on relevant entities):[3]

• to issue warnings to a controller or processor that intended processing operations are likely to infringe provisions of this Regulation;
• to issue reprimands to a controller or a processor where processing operations have infringed provisions of this Regulation;
• to order the controller or the processor to comply with the data subject’s requests to exercise his or her rights pursuant to this Regulation;
• to order the controller or processor to bring processing operations into compliance with the provisions of this Regulation, where appropriate, in a specified manner and within a specified period;
• to order the controller to communicate a personal data breach to the data subject;
• to impose a temporary or definitive limitation including a ban on processing;
• to order the rectification or erasure of personal data or restriction of processing pursuant to Articles 16, 17 and 18 and the notification of such actions to recipients to whom the personal data have been disclosed pursuant to Article 17(2) and Article 19;
• to withdraw a certification or to order the certification body to withdraw a certification issued pursuant to Articles 42 and 43, or to order the certification body not to issue certification if the requirements for the certification are not or are no longer met;
• to impose an administrative fine pursuant to Article 83, in addition to, or instead of measures referred to in this paragraph, depending on the circumstances of each individual case;
• to order the suspension of data flows to a recipient in a third country or to an international organisation.

Authorization and Advisory Powers[4]:

• to advise the controller in accordance with the prior consultation procedure referred to in Article 36;
• to issue, on its own initiative or on request, opinions to the national parliament, the Member State government or, in accordance with Member State law, to other institutions and bodies as well as to the public on any issue related to the protection of personal data;
• to authorise processing referred to in Article 36(5), if the law of the Member State requires such prior authorisation;
• to issue an opinion and approve draft codes of conduct pursuant to Article 40(5);
• to accredit certification bodies pursuant to Article 43;
• to issue certifications and approve criteria of certification in accordance with Article 42(5);
• to adopt standard data protection clauses referred to in Article 28(8) and in point (d) of Article 46(2);
• to authorise contractual clauses referred to in point (a) of Article 46(3);
• to authorise administrative arrangements referred to in point (b) of Article 46(3);
• to approve binding corporate rules pursuant to Article 47.

How to Identify which DPA You Have to Work With?

If your organization is established in only one country and processes the personal data of data subjects within that country, naturally, your supervisory authority shall be the DPA of that country.

If your organization carries out cross-border processing of personal data which is identified as:[5]

• 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 that 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.

then you will need to identify a lead supervisory authority. If your organization has multiple establishments in different EU countries, your lead supervisory authority shall be the DPA of the country in which your organization has its main establishment (“principal place of business”). The main establishment is defined as:[6]

• as regards a controller with establishments in more than one Member State, the place of its central administration in the Union, unless the decisions on the purposes and means of the processing of personal data are taken in another establishment of the controller in the Union and the latter establishment has the power to have such decisions implemented, in which case the establishment having taken such decisions is to be considered to be the main establishment;
• as regards a processor with establishments in more than one Member State, the place of its central administration in the Union, or, if the processor has no central administration in the Union, the establishment of the processor in the Union where the main processing activities in the context of the activities of an establishment of the processor take place to the extent that the processor is subject to specific obligations under this Regulation.

You will only have to work with your lead supervisory authority since the GDPR allows for cooperation between different DPAs via the “one-stop-shop” mechanism. This mechanism allows for the controller or processor to only work with a single DPA even if they conduct cross-border data processing. The lead supervisory authority shall cooperate with concerned supervisory authorities to resolve the issue. If the DPAs cannot reach an agreement on the matter, the case shall be referred to the European Data Protection Board (“EDPB”) which will issue a binding decision on the matter. This mechanism greatly increases the efficiency and convenience of resolving issues relating to cross-border data processing. Enterprises, especially SMEs, also greatly benefit from the reduced administrative burden.

The one-stop-shop mechanism also applies to processors. In cases involving both controllers and processors, however, the competent lead supervisory authority shall be that of the data controller whereas the supervisory authority of the processor would as act a concerned supervisory authority. So if a processor works with multiple different controllers in different EEA countries, it would have to deal with multiple supervisory authorities.

For companies not established in the EEA, the one-stop-shop mechanism would not apply. Data controllers and processors outside of the EEA offering goods or services to, or monitoring the behavior of, data subjects in the EEA must appoint an EU representative. However, such representatives shall not trigger the one-stop-shop mechanism like with establishments in the EEA. This means that controllers without any establishments in the EEA must deal separately with different local supervisory authorities in every EEA country they are active.

PrivacyCompliance prides itself on its team of experts having achieved numerous internationally recognized certifications such as CIPM, CIPP/E, CISA, CISM, CRISC®, ISO27001 Lead Auditor, etc. With tried-and-tested knowledge and capacity, PrivacyCompliance is confident in being able to provide in-depth and comprehensive solutions on personal data compliance and protection.

[1]             GDPR, Art 57(1).

[2]             GDPR, Art 58(1).

[3]             GDPR, Art 58(2).

[4]             GDPR, Art 58(3).

[5]             GDPR, Art 4(23).

[6]             GDPR, Art 4(16).