Author: András Jóri

1. Each supervisory authority shall act with complete independence in performing its tasks and exercising its powers in accordance with this Regulation.
2. The member or members of each supervisory authority shall, in the performance of their tasks and exercise of their powers in accordance with this Regulation, remain free from external influence, whether direct or indirect, and shall neither seek nor take instructions from anybody.
3. Member or members of each supervisory authority shall refrain from any action incompatible with their duties and shall not, during their term of office, engage in any incompatible occupation, whether gainful or not.
4. Each Member State shall ensure that each supervisory authority is provided with the human, technical and financial resources, premises and infrastructure necessary for the effective performance of its tasks and exercise of its powers, including those to be carried out in the context of mutual assistance, cooperation and participation in the Board.
5. Each Member State shall ensure that each supervisory authority chooses and has its own staff which shall be subject to the exclusive direction of the member or members of the supervisory authority concerned.
6. Each Member State shall ensure that each supervisory authority is subject to financial control which does not affect its independence and that it has separate, public annual budgets, which may be part of the overall state or national budget.

I. Preliminary remarks

Complete independence is a sine qua non of the operation of SAs; they shall be free from external influence when performing their duties. “Complete independence” of those authorities has been thoroughly interpreted by the CJEU. In our view, the core content of the concept of “complete independence” can be described as functional, organizational, financial and personal independence; some of these terms appear in the text of the CJEU’s judgments, others in AG opinions and some can be derived from the jurisprudence of the Court.

Independence of SAs is, however, only “complete” as required by the performance of their tasks: judicial review of their decisions or financial control of their spending of public funds shall not be regarded as running counter to such independence. Arguably, the consistency mechanism regulated by Art. 63 GDPR also puts limitations to the independence of national SAs, as they are to follow uniform, EU-wide legal interpretation in certain cases.

II. Legislative history

Independence as an essential characteristic of data protection authorities has been acknowledged by primary EU law in the EU CFR, the TFEU and the TEU as well. Note, however, that these documents refer to “independent authorities” and do not use the term “complete independence”.

Art. 28 para. 1 DPD set out that “Each Member State shall provide that one or more public authorities are responsible for monitoring the application within its territory of the provisions adopted by the Member States pursuant to this Directive.” and stipulated that “These authorities shall act with complete independence in exercising the functions entrusted to them”.

Regulation (EC) 45/2001 provided for a similar provision regarding the status of the EDPS, ensuring compliance with applicable data protection law by EU institutions and bodies; however, the above Regulation provided for some detail as to what shall be regarded as the elements of independence: after referring to “complete independence” of the EDPS, Art. 44 provided that the EDPS “shall, in the performance of his or her duties, neither seek nor take instructions from anybody”, “shall refrain from any action incompatible with his or her duties and shall not, during his or her term of office, engage in any other occupation, whether gainful or not” and “shall, after his or her term of office, behave with integrity and discretion as regards the acceptance of appointments and benefits”. Art. 8 of the EU CFR sets out that compliance with data protection rules shall be “subject to control by an independent authority”. Regulation (EU) 2018/1725 (repealing Regulation (EC) No 45/2001), remarkably, provides for an almost identical provision regarding the independence of the EDPS in its Art. 55: apparently, the lawmaker did not find it necessary to follow the detailed text of the Regulation.