Author: Eva Souhrada-Kirchmayer
- Member States shall provide for each member of their supervisory authorities to be appointed by means of a transparent procedure by:
— their parliament;
— their government;
— their head of State; or
— an independent body entrusted with the appointment under Member State law.
- Each member shall have the qualifications, experience and skills, in particular in the area of the protection of personal data, required to perform its duties and exercise its powers.
- The duties of a member shall end in the event of the expiry of the term of office, resignation or compulsory retirement, in accordance with the law of the Member State concerned.
- A member shall be dismissed only in cases of serious misconduct or if the member no longer fulfils the conditions required for the performance of the duties.
I. Introduction
Art. 53 GDPR is aimed at enhancing independence of SAs by clarifying the conditions regarding their members. It combines autonomy of Member States, in the sense of discretion in setting out the scheme (creation, organisation and structure) applying to SAs, with the conditions guaranteeing independence of SAs and their members. Art. 53 is strongly linked to Art. 54 GDPR, demanding Member States to clarify via domestic legal provisions issues addressed by Art. 53.
As will be analysed below in more detail, independence of the SAs and their members is safeguarded via the setting out of the conditions related to: the appointment of the SA’s members that need be transparent (Art. 53 para. 1); certain requirements and, in particular, ‘qualifications, experience and skills’ (Art. 53 para. 2); termination (Art. 53 para. 3); and reasons for dismissal (Art. 53 para. 4). As noted in literature, some of these conditions appear to resemble those applying to the judiciary.
II. Legislative history
Art. 53 does not have a real predecessor in the DPD, which in Art. 28 only regulated the tasks, powers and independence of the SAs. However, the text of Art. 53 GDPR is to a certain extent based on Art. 42 of the Regulation 45/2001, which laid down the requirements for the appointment of the EDPS, including the procedure for appointment, personal qualifications, ending of the term and dismissal.
Art. 53 had changed in some points during the legislative process compared to Art. 48 of the Comm-P. The provisions on the term of office in particular are likely to have been clarified in response to case law of the CJEU. The EP did not propose any changes; whereas the Council successfully proposed two further possibilities of appointment in para. 1, namely, on the one hand, by the head of state and, on the other hand, by an independent body. In addition, the Council added the explicit requirement of a transparent procedure. The formulation of para. 2 is also essentially based on the Council’s remarks. The specification of the required qualification was still missing in the Comm-P. Finally, the Council successfully proposed the reference in para. 3 to the law of the Member States and the deletion of Art. 48 para. 5 of the Comm-P, which would have stipulated that a member of the SA, after the end of his/her term of office or resignation, would continue to exercise his/her function until a new member is appointed; this question can now be addressed by the Member States.
III. Analysis
Art. 53 regulates the appointment mechanism and general requirements for the members of the SA. The conditions for these members with regard to their appointment, the professional requirements for the person to be appointed and the reasons for the termination of the term of office must be specifically regulated by the Member States in accordance with Art. 54 para. 1 lit. b to lit. f.
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