Author: Eva Souhrada-Kirchmayer
- Each Member State shall provide by law for all of the following:
(a) the establishment of each supervisory authority;
(b) the qualifications and eligibility conditions required to be appointed as member of each supervisory authority;
(c) the rules and procedures for the appointment of the member or members of each supervisory authority;
(d) the duration of the term of the member or members of each supervisory authority of no less than four years, except for the first appointment after 24 May 2016, part of which may take place for a shorter period where that is necessary to protect the independence of the supervisory authority by means of a staggered appointment procedure;
(e) whether and, if so, for how many terms the member or members of each supervisory authority is eligible for reappointment;
(f) the conditions governing the obligations of the member or members and staff of each supervisory authority, prohibitions on actions, occupations and benefits incompatible therewith during and after the term of office and rules governing the cessation of employment.
- The member or members and the staff of each supervisory authority shall, in accordance with Union or Member State law, be subject to a duty of professional secrecy both during and after their term of office, with regard to any confidential information which has come to their knowledge in the course of the performance of their tasks or exercise of their powers. During their term of office, that duty of professional secrecy shall in particular apply to reporting by natural persons of infringements of this Regulation.
I. Introduction
Art. 54 para. 1 is inextricably linked to the concept of independence of SAs. It primarily sets out the duties imposed on Member States having regard to the creation of SAs, as well as the conditions (such as appointment or duration of term) of their members. In this context, it can be fairly argued that Art. 54 para. 1 strengthens national enforcement and autonomy; albeit domestic authorities must exercise their discretion in accordance with the objectives pursued by EU law.
Art. 54 para. 2 is concerned with confidentiality, namely professional secrecy of the SA and its members. While this provision is probably not expressly directed to promoting independence of the SAs, it seems to be aimed at enhancing effectiveness of the overall functioning of the SAs.
II. Structure and legislative history
Art. 54 para. 1 – to which there was no equivalent in the DPD – is in a direct systematic relationship to Art. 51 to Art. 53. Unless complete, i.e. directly applicable, regulations for the establishment and independence of the national data protection SAs are already in place, Art. 54 para. 1 obliges the Member States to issue the necessary specifications.
Art. 28 para. 1 DPD at least stipulated that one or more public bodies in each Member State should be obliged to supervise the data protection regulations. Furthermore, the members and employees of the SAs should be subject to professional secrecy (Art. 28 para. 7 DPD). An extension to Art. 28 para. 7 DPD is made by Art. 54 para. 2 by the fact that a provision under Union law can now also order confidentiality.
Art. 54 was inspired by Regulation 45/2001, in particular Arts. 42 and 43 thereof, on the appointment and regulation and general conditions governing the performance of the EDPS duties, staff and financial resources.[1] Art. 44 thereof dealt with situations that may be incompatible with the nature of the SAs, in particular, the requirement that they act with complete independence.
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[1]Hijmans, ‘Art. 54’, in Kuner/Bygrave/Docksey, 897.