Author: Eva Souhrada-Kirchmayer
- Each supervisory authority shall have all of the following investigative powers:
(a) 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;
(b) to carry out investigations in the form of data protection audits;
(c) to carry out a review on certifications issued pursuant to Art. 42 para.7;
(d) to notify the controller or the processor of an alleged infringement of this Regulation;
(e) to obtain, from the controller and the processor, access to all personal data and to all information necessary for the performance of its tasks;
(f) 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.
Each supervisory authority shall have all of the following corrective powers:
(a) to issue warnings to a controller or processor that intended processing operations are likely to infringe provisions of this Regulation;
(b) to issue reprimands to a controller or a processor where processing operations have infringed provisions of this Regulation;
(c) 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;
(d) 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;
(e) to order the controller to communicate a personal data breach to the data subject;
(f) to impose a temporary or definitive limitation including a ban on processing;
(g) to order the rectification or erasure of personal data or restriction of processing pursuant to Arts. 16, 17 and 18 and the notification of such actions to recipients to whom the personal data have been disclosed pursuant to Art. 17 para. 2 and Art. 19;
(h) to withdraw a certification or to order the certification body to withdraw a certification issued pursuant to Arts. 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;
(i) to impose an administrative fine pursuant to Art. 83, in addition to, or instead of measures referred to in this paragraph, depending on the circumstances of each individual case;
(j) to order the suspension of data flows to a recipient in a third country or to an international organisation.
Each supervisory authority shall have all of the following authorisation and advisory powers:
(a) to advise the controller in accordance with the prior consultation procedure referred to in Art. 36;
(b) 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;
(c) to authorise processing referred to in Art. 36 para. 5, if the law of the Member State requires such prior authorisation;
(d) to issue an opinion and approve draft codes of conduct pursuant to Art. 40 para. 5;
(e) to accredit certification bodies pursuant to Art. 43;
(f) to issue certifications and approve criteria of certification in accordance with Art. 42 para. 5;
(g) to adopt standard data protection clauses referred to in Art. 28 para. 8 and in point (d) of Art. 46 para. 2;
(h) to authorise contractual clauses referred to in point (a) of Art. 46 para. 3;
(i) to authorise administrative arrangements referred to in point (b) of Art. 46 para. 3;
(j) to approve binding corporate rules pursuant to Art. 47.
- The exercise of the powers conferred on the supervisory authority pursuant to this Article shall be subject to appropriate safeguards, including effective judicial remedy and due process, set out in Union and Member State law in accordance with the Charter.
- Each Member State shall provide by law that its supervisory authority shall have the power to bring infringements of this Regulation to the attention of the judicial authorities and where appropriate, to commence or engage otherwise in legal proceedings, in order to enforce the provisions of this Regulation.
- Each Member State may provide by law that its supervisory authority shall have additional powers to those referred to in paras. 1, 2 and 3. The exercise of those powers shall not impair the effective operation of Chapter VII.
I. Introduction
Art. 58 contains a comprehensive catalogue of 26 powers available to the SAs to fulfil the tasks assigned to them by Art. 57. These are divided into three categories: investigative powers (para. 1), corrective powers (para. 2) and authorisation and advisory powers (para. 3). From recital 129 it can be seen that, according to the intention of the Union legislator, the SAs should have the same tasks and effective powers in each Member State so that uniform monitoring and enforcement of the GDPR is ensured. These powers derive in part from Art. 58 and partly from a conjunction with other articles of the GDPR to which reference is made (e.g. Arts. 16 to 19, 42 or 83). Only in the case of the right to inspect (para. 1 lit. f) the possibility of concretisation is provided by the procedural law of the Member States.
Art. 58 must be read in conjunction with Art. 57, which stipulates the tasks of the SAs. The powers according to Art. 58 are those needed to give effect to the tasks enshrined in Art. 57. Without a task under Art. 57, there is no action for the SA to take. Furthermore Art. 58 is relevant for understanding Arts. 60 to 62, which deal with cross-border cooperation between SAs. As mentioned above, it was the clear intention of the legislator to provide all SAs with identical minimum tasks and powers, which should facilitate cooperation. Art. 58 para. 3 is an opening clause for Member States to provide for additional powers to those powers mentioned in para. 1 to para. 3. However, the exercise of those powers shall not impair the effective operation between the SAs.
II. Legislative history
Art. 28 para. 3 DPD already provided that each SA shall in particular be endowed with investigative powers, effective powers of intervention and the power to engage in legal proceedings where national provisions transposing the DPD have been violated or the power to bring these violations to the attention of the judicial authorities. However, due to the nature of a directive, Member States had a discretion when transposing this provision into their national laws; hence, the powers of the SAs differed substantially between the Member States.
In the deliberations on the GDPR, the Council suggested that the powers should be standardized directly in the GDPR, but that the Member States should be given a regulatory mandate in this regard. This could not prevail in the trialogue (see also recital 129 sentence 1, which emphasizes the importance of uniform powers for each Member State) but led to the opening clause in para. 6. In addition, para. 1 lit. f contains an opening clause for procedural law in the Member States for access to the premises of the controller and the processor. Paras. 4 and 5 also provide for regulatory powers for the Member States. Para. 4 was only added by the Council; in para. 5, the Council successfully added the need for corresponding national regulations. Finally, para. 6 was only added in the trialogue.
III. Analysis
Para. 1 contains investigative powers. The investigative powers serve in particular to monitor compliance with the GDPR. They can be exercised on the basis of complaints, a notice or other knowledge, as well as without cause. The reason for this is that investigations can bring to light facts that are beyond the perception and knowledge of the data subjects or the public. Therefore, in the interests of effective protection of fundamental rights, it must be possible to exercise investigative powers ex officio.
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