On February 20, 2023, the European Commission launched an initiative to further specify procedural aspects relating to the enforcement of the GDPR (“ procedural initiative”). The aim of the procedural initiative is to clarify the administrative procedure that applies in cross-border investigations and enforcement under the GDPR. These rules are expected to clarify and complement the existing rules on cooperation and dispute resolution under GDPR Articles 60 and 65.
This procedural initiative was announced in the Commission’s work program for 2023, and the text of the proposal is not yet available. The European Commission is expecting to publish a draft regulation on procedural rules relating to the enforcement of the GDPR in Q2 2023.
The European Commission’s procedural initiative follows the European Data Protection Board’s (“EDPB”) statement on enforcement cooperation of April 28, 2022 and letter issued to Commissioner Didier Reynders on October 10, 2022. In the latter, the EDPB shared a list of procedural aspects that should be harmonized at the EU level to better enforce the GDPR. In particular, the EDPB is focused on improving cooperation among supervisory authorities (“SAs”) with respect to cross-border data protection cases and enforcement actions.
Since the entry into force of the GDPR, cross-border investigations and enforcement actions have been in the hands of SAs in each EU member state. However, there have been increased debates on the effectiveness of individual SAs in enforcing GDPR rules and principles, and handling cross-border cases. (By contrast, under the newly adopted Digital Markets Act and Digital Services Act, the European Commission has centralized enforcement powers that it can exercise).
In a report on the “Overview of regulatory strategies of European Data Protection Authorities for 2023 and beyond” (“the FPF Report”) published by Future of Privacy Forum in February 2023, most SAs across the EU have expressed an interest in:
- having closer cooperation on strategic cases – e.g., cases with structural or recurring problem in several Member States, cases related to the intersection of data protection with other legal fields, cases affecting a large number of data subjects in several Member States, and cases where high risks can be assumed; and
- receiving assistance from the EDPB’s Support Pool of Experts on a range of data protection-related topics going from anonymization techniques, personal data breaches, biometrics, and policy monitoring, among others.
The FPF Report mentions that the EDPB recommends the harmonization of procedural aspects of GDPR enforcement, with a focus on “the (i) status and rights of the parties to the administrative procedures, (ii) procedural deadlines, (iii) requirements for admissibility or dismissal of complaints, (iv) investigative powers of SAs, and (v) the overall implementation of the cooperation procedure”.
Recent examples of increased cooperation between SAs to enforce data protection law include the EDPB’s Cookie Taskforce (see our previous blog post) and EDPB’s Coordinated Enforcement Framework report on the public sector’s use of cloud-based services (see our previous blog post).
This latest development that the EU Commission is preparing a regulation to clarify certain procedural aspects to enforcing the GDPR is part of this broader trend. The procedural initiative is still in its early stages since the European Commission is currently preparing the proposal before publishing it on its website.
Covington’s Data Privacy and Cybersecurity Team will continue to monitor the EU Commission’s procedural initiative. Our team is happy to assist with any inquiries relating to the GDPR, and other tech regulatory matters.