Author:Indra Spiecker gen. Döhmann

 

The Commission may adopt implementing acts of general scope in order to specify the arrangements for the exchange of information by electronic means between supervisory authorities, and between supervisory authorities and the Board, in particular the standardised format referred to in Art. 64.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Art. 93 para. 2.

 

I. Aim, history, systematic

Art. 67 empowers the Comm to adopt implementing acts (Art. 291 TFEU) to specify the arrangements for the electronic exchange of information between the parties involved in the consistency procedure (with the exception of the Comm; → mn. 5). The purpose of the exchange of information by electronic means is the efficient handling of the individual procedural steps in order to prevent delays in the procedure, for example due to postal delays in international transfers.[1] In practice, the exchange of information already takes place mostly by electronic means; in view of the strict deadlines in Art. 64 and 65, a speedy, timely and easily accessible transmission of information is urgently necessary.[2]

However, there are no specific rules on data formats or transmission protocols; of course, EU law must be complied with, especially the requirements of the GDPR itself. Therefore, the Comm should be given the possibility to technically design the exchange of information, including standardised formats, and thus enable further automation of information processing within the EDPB.[3] Overall, the regulation is intended to promote the digitalisation of communication and administrative processes.[4] To a certain extent, the regulation can be seen as a service of the Comm for the EDPB and the supervisory authorities; however, it should not be mistaken that procedural requirements can also influenced by setting seemingly formal standards (→ mn. 4).

Art. 62 para. 1 Comm-P provided the Comm with much more extensive options of implementing acts with regard to the consistency mechanism, which was also due to the strong role of the Comm provided in the Comm-P as a whole. The current Art. 67 corresponded to Art. 62 para. 1 lit. d Comm-P. After vehement criticism of the Comm’s strong position[5], the norm was considerably shortened in the course of both the Parl-R and the Council-R and most of the competences initially granted to the Comm were deleted. The Parl-R, unlike the Council-R, mentioned for the first time in general terms implementing acts “of general application”; the Council-R changed this to “of general scope”; this was adopted into the text of Art. 67 after the removal of other authorisations for implementing acts within the scope of the consistency mechanism. In all versions, the Comm was not mentioned as a communication partner (→ mn. 1).

It is unclear whether the rule applies exclusively to the consistency mechanism or whether it also refers to Section 1 and the cooperation between the supervisory authorities according to Art. 60. The systematic position of the norm argues in favour of application only to the consistency mechanism (Art. 63-67) and not also to the cooperation between the supervisory authorities. The position in the second section suggests also that only the consistency mechanism is meant; the mention of a separate legal basis for implementing acts in Art. 61 para. 9 also could be seen as argument that Art. 67 should not be seen as a general power of the Comm to organise communication between the supervisory authorities and with the EDPB.[6] Art. 60 para. 12 does not contradict this finding; it merely stipulates the exchange by electronic means; it cannot be deduced from this provision that it should be specified by an implementing act according to Art. 67. In fact, the supervisory authorities follow the already established electronic procedure for pragmatic reasons if the Comm makes use of its power, but could also refrain from doing so in order to ensure their independence (→ mn. 5).

 

II. Content

Only the Comm is entitled to issue implementing acts on the structure of the electronic exchange of information.[7] In these acts, it can in particular determine the standardised format according to Art. 64 (in substance: paras. 4-8) but is not limited to this because of the wording (“in particular”). However, Art. 67 cannot be interpreted that it concealed a general power to specify the procedure by the Comm.[8] Art. 67 only allows an influence on the technical side of the communication process. And even here it must be taken into account that this may have an effect on the procedure, as technology may determine normative standards (“code is law”). The limits are difficult to determine in detail (→ mn. 1).[9]

 

 

 

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[1] Klabunde in Ehmann/Selmayr Art. 67 mn. 1.

[2] Cf. also Körffer in Paal/Pauly Art. 67 mn. 3; Hullen in Plath DS‑GVO Art. 67 mn. 1.

[3] Klabunde in Ehmann/Selmayr Art. 67 mn. 3.

[4] Cf. also Hullen in Plath DS‑GVO Art. 67 mn. 1.

[5] Cf. Kahler, RDV 2013, 69 (71).

[6] Different Marsch in BeckOK DatenschutzR Art. 67 mn. 1 as well as Klabunde in Ehmann/Selmayr Art. 67 mn. 8.

[7] On the legal policy criticism of the norm cf. Marsch in BeckOK DatenschutzR Art. 67 mn. 3.

[8] In the same way Schöndorf-Haubold in Sydow Art. 67 mn. 6.

[9] About the problem of translating into the languages of the Member States cf. Van Eecke/Šimkus, ‘Art. 67’ in Kuner/Bygrave/Docksey, C. 3. p. 1036 et seq.