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Key words related to article 58

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(129) In order to ensure consistent monitoring and enforcement of this Regulation throughout the Union, the supervisory authorities should have in each Member State the same tasks and effective powers, including powers of investigation, corrective powers and sanctions, and authorisation and advisory powers, in particular in cases of complaints from natural persons, and without prejudice to the powers of prosecutorial authorities under Member State law, to bring infringements of this Regulation to the attention of the judicial authorities and engage in legal proceedings. Such powers should also include the power to impose a temporary or definitive limitation, including a ban, on processing. Member States may specify other tasks related to the protection of personal data under this Regulation. The powers of supervisory authorities should be exercised in accordance with appropriate procedural safeguards set out in Union and Member State law, impartially, fairly and within a reasonable time. In particular each measure should be appropriate, necessary and proportionate in view of ensuring compliance with this Regulation, taking into account the circumstances of each individual case, respect the right of every person to be heard before any individual measure which would affect him or her adversely is taken and avoid superfluous costs and excessive inconveniences for the persons concerned. Investigatory powers as regards access to premises should be exercised in accordance with specific requirements in Member State procedural law, such as the requirement to obtain a prior judicial authorisation. Each legally binding measure of the supervisory authority should be in writing, be clear and unambiguous, indicate the supervisory authority which has issued the measure, the date of issue of the measure, bear the signature of the head, or a member of the supervisory authority authorised by him or her, give the reasons for the measure, and refer to the right of an effective remedy. This should not preclude additional requirements pursuant to Member State procedural law. The adoption of a legally binding decision implies that it may give rise to judicial review in the Member State of the supervisory authority that adopted the decision.

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(63) Whereas such authorities must have the necessary means to perform their duties, including powers of investigation and intervention, particularly in cases of complaints from individuals, and powers to engage in legal proceedings; whereas such authorities must help to ensure transparency of processing in the Member States within whose jurisdiction they fall;

The GDPR

The Regulation aims, in order to ensure consistency in control and enforcement throughout the Union, that the supervisory authorities have, in each Member State, the same effective powers.

Article 58 provides quite precisely three types of powers, which the Member States must, by law, grant to their national supervisory authority:

- investigative powers (paragraph 1): to include ordering communication of information - including the processed data - needed by the supervisory authority to perform its duties (a) to carry out investigations in the form of data protection audits (b), to carry out a review on certifications issued pursuant to Article 42 (7) (c), to notify the controller or the processor of an alleged infringement of this Regulation (d); access to all personal data and to all information (e); access to any premises of the controller and the processor in compliance with Union law and national procedural law (f).

- powers to take corrective action (paragraph 2): to issue warnings to a controller or processor that intended processing operations are likely to infringe provisions of this Regulation (a), to issue reprimands to a controller or a processor in case of any infringement found (b), to order the controller or the processor to comply with the data subject's requests to exercise his or her rights  (c), to order the controller or processor to bring processing operations into compliance in a specified manner and within a specified period (d), to order the controller to communicate a personal data breach to the data subject (e), to impose a temporary or definitive limitation including a ban on processing (f), to order the rectification or erasure of personal data or restriction of processing and the notification of such actions to recipients to whom the personal data have been disclosed (g), to withdraw a certification or to order the certification body to withdraw a certification issued pursuant to Articles 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 (h), to impose an administrative fine pursuant to Article 83 (i), to order the suspension of data flows to a recipient in a third country or to an international organisation (j).

- authorisation and advisory powers (paragraph ): to advise the controller in accordance with the prior consultation procedure referred to in Article 36 (a); 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 (b); to authorise processing referred to in Article 36 (5), if the law of the Member State requires such prior authorization (c); to issue an opinion and approve draft codes of conduct (d); to accredit certification bodies (e); to issue certifications and approve criteria of certification (f); to adopt standard data protection clauses referred to in Article 28 (8) and in point (d) of Article 46 (2) (g); to authorise contractual clauses (h); to authorise administrative arrangements (i) or to approve binding corporate rules pursuant to Article 47 (j).

According to paragraph 4, the exercise of powers of the supervisory authorities must 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 of Fundamental Rights of the European Union (see developments in recital 129).

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 (paragraph 5).

Finally, the Member States may provide by law that its supervisory authority shall have additional powers and the exercise of those powers shall not impair the effective operation of Chapter VII relating to the cooperation and the consistency (paragraph 6).

The Directive

Article 28 of the Directive provided for two types of powers given to supervisory authorities: a power of consultation of the national authorities drawing up administrative measures or regulations relating to the protection of the rights and freedoms of individuals with regard to the personal data processing (paragraph 2); effective powers of control expressed in investigative powers, effective powers of intervention and powers to engage in legal proceedings (paragraph 3).

However. A wide space for manoeuvring was left to Member States so that eventually, the powers of national supervisory authorities could differ widely from one Member State to another.

Potential issues

The powers provided to the national supervisory authorities are considerable - including sanctions - and probably will change the relationship profoundly between them and the controllers or the processors, in particular, where the authorities were previously organized as mere advisory and conciliation bodies. Thus they acquire coercive powers similar to those of the administrative authorities such as the competition authorities, with the well-known fear that they generate for the enterprises. They are therefore established for the future as real "policemen" of the data protection.

This extension of powers will necessarily involve a dramatic strengthening of human and financial resources available to existing authorities if we are to prevent these from remaining a dead letter. This will certainly raise some reluctance from the Member States, but will undoubtedly allow for the protection to be taken much more seriously than at present. In any event, the status of these authorities may change profoundly and give them institutional importance that they did not have before.

It should be noted that the Member States will retain discretion as to the application of fines to public authorities and organizations (see the comments on Article 83).

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Summary

European Union

European Union

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Article 29 Working Party

Guidelines on the application and setting of administrative fines - wp253 (3 October 2017)

(Endorsed by the EDPB)

The EU has completed a comprehensive reform of data protection regulation in Europe. The reform rests on several pillars (key components): coherent rules, simplified procedures, coordinated actions, user involvement, more effective information and stronger enforcement powers.

Data controllers and data processors have increased responsibilities to ensure that personal data of the individuals is protected effectively. Supervisory authorities have powers to ensure that the principles of the General Data Protection Regulation (hereafter ‘the Regulation’) as well as the rights of the individuals concerned are upheld according to the wording and the spirit of the Regulation.

Consistent enforcement of the data protection rules is central to a harmonized data protection regime. Administrative fines are a central element in the new enforcement regime introduced by the Regulation, being a powerful part of the enforcement toolbox of the supervisory authorities together with the other measures provided by article 58.

This document is intended for use by the supervisory authorities to ensure better application and enforcement of the Regulation and expresses their common understanding of the provisions of article 83 of the Regulation as well as its interplay with articles 58 and 70 and their corresponding recitals.

In particular, according to article 70, (1) (e), the European Data Protection Board (hereafter ‘EDPB’) is empowered to issue guidelines, recommendations and best practices in order to encourage consistent application of this Regulation and article 70, (1), (k) specifies the provision for guidelines concerning the setting of administrative fines.

These guidelines are not exhaustive, neither will they provide explanations about the differences between administrative, civil or criminal law systems when imposing administrative sanctions in general.

In order to achieve a consistent approach to the imposition of the administrative fines, which adequately reflects all of the principles in these guidelines, the EDPB has agreed on a common understanding of the assessment criteria in article 83 (2) of the Regulation and therefore the EDPB and individual supervisory authorities agree on using this Guideline as a common approach.

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Summary

European Union

European Union

CJEU caselaw

C-230/14 (1 october 2015) - Weltimmo

1.      Article 4(1)(a) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as permitting the application of the law on the protection of personal data of a Member State other than the Member State in which the controller with respect to the processing of those data is registered, in so far as that controller exercises, through stable arrangements in the territory of that Member State, a real and effective activity — even a minimal one — in the context of which that processing is carried out.

In order to ascertain, in circumstances such as those at issue in the main proceedings, whether that is the case, the referring court may, in particular, take account of the fact (i) that the activity of the controller in respect of that processing, in the context of which that processing takes place, consists of the running of property dealing websites concerning properties situated in the territory of that Member State and written in that Member State’s language and that it is, as a consequence, mainly or entirely directed at that Member State, and (ii) that that controller has a representative in that Member State, who is responsible for recovering the debts resulting from that activity and for representing the controller in the administrative and judicial proceedings relating to the processing of the data concerned.

By contrast, the issue of the nationality of the persons concerned by such data processing is irrelevant.

2.      Where the supervisory authority of a Member State, to which complaints have been submitted in accordance with Article 28(4) of Directive 95/46, reaches the conclusion that the law applicable to the processing of the personal data concerned is not the law of that Member State, but the law of another Member State, Article 28(1), (3) and (6) of that directive must be interpreted as meaning that that supervisory authority will be able to exercise the effective powers of intervention conferred on it in accordance with Article 28(3) of that directive only within the territory of its own Member State. Accordingly, it cannot impose penalties on the basis of the law of that Member State on the controller with respect to the processing of those data who is not established in that territory, but should, in accordance with Article 28(6) of that directive, request the supervisory authority within the Member State whose law is applicable to act.

3.      Directive 95/46 must be interpreted as meaning that the term ‘adatfeldolgozás’ (technical manipulation of data), used in the Hungarian version of that directive, in particular in Articles 4(1)(a) and 28(6) thereof, must be understood as having the same meaning as that of the term ‘adatkezelés’ (data processing).

Opinion of Advocate general 

Judgment of the Court 

C-311/18 (19 December 2019) - Facebook Ireland et Schrems

1.   Article 2(1) and (2) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), must be interpreted as meaning that that regulation applies to the transfer of personal data for commercial purposes by an economic operator established in a Member State to another economic operator established in a third country, irrespective of whether, at the time of that transfer or thereafter, that data is liable to be processed by the authorities of the third country in question for the purposes of public security, defence and State security.

2.   Article 46(1) and Article 46(2)(c) of Regulation 2016/679 must be interpreted as meaning that the appropriate safeguards, enforceable rights and effective legal remedies required by those provisions must ensure that data subjects whose personal data are transferred to a third country pursuant to standard data protection clauses are afforded a level of protection essentially equivalent to that guaranteed within the European Union by that regulation, read in the light of the Charter of Fundamental Rights of the European Union. To that end, the assessment of the level of protection afforded in the context of such a transfer must, in particular, take into consideration both the contractual clauses agreed between the controller or processor established in the European Union and the recipient of the transfer established in the third country concerned and, as regards any access by the public authorities of that third country to the personal data transferred, the relevant aspects of the legal system of that third country, in particular those set out, in a non-exhaustive manner, in Article 45(2) of that regulation.

3.   Article 58(2)(f) and (j) of Regulation 2016/679 must be interpreted as meaning that, unless there is a valid European Commission adequacy decision, the competent supervisory authority is required to suspend or prohibit a transfer of data to a third country pursuant to standard data protection clauses adopted by the Commission, if, in the view of that supervisory authority and in the light of all the circumstances of that transfer, those clauses are not or cannot be complied with in that third country and the protection of the data transferred that is required by EU law, in particular by Articles 45 and 46 of that regulation and by the Charter of Fundamental Rights, cannot be ensured by other means, where the controller or a processor has not itself suspended or put an end to the transfer.

4.   Examination of Commission Decision 2010/87/EU of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EU of the European Parliament and of the Council, as amended by Commission Implementing Decision (EU) 2016/2297 of 16 December 2016 in the light of Articles 7, 8 and 47 of the Charter of Fundamental Rights has disclosed nothing to affect the validity of that decision.

5.   Commission Implementing Decision (EU) 2016/1250 of 12 July 2016 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the EU-US Privacy Shield is invalid.

Opinion of Advocate general

Judgment of the Court

C-210/16 (7 June 2018) - Wirtschaftsakademie Schleswig-Holstein

1.      Article 2(d) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data must be interpreted as meaning that the concept of ‘controller’ within the meaning of that provision encompasses the administrator of a fan page hosted on a social network.

2.      Articles 4 and 28 of Directive 95/46 must be interpreted as meaning that, where an undertaking established outside the European Union has several establishments in different Member States, the supervisory authority of a Member State is entitled to exercise the powers conferred on it by Article 28(3) of that directive with respect to an establishment of that undertaking situated in the territory of that Member State even if, as a result of the division of tasks within the group, first, that establishment is responsible solely for the sale of advertising space and other marketing activities in the territory of that Member State and, second, exclusive responsibility for collecting and processing personal data belongs, for the entire territory of the European Union, to an establishment situated in another Member State.

3.      Article 4(1)(a) and Article 28(3) and (6) of Directive 95/46 must be interpreted as meaning that, where the supervisory authority of a Member State intends to exercise with respect to an entity established in the territory of that Member State the powers of intervention referred to in Article 28(3) of that directive, on the ground of infringements of the rules on the protection of personal data committed by a third party responsible for the processing of that data whose seat is in another Member State, that supervisory authority is competent to assess, independently of the supervisory authority of the other Member State, the lawfulness of such data processing and may exercise its powers of intervention with respect to the entity established in its territory without first calling on the supervisory authority of the other Member State to intervene.

Opinion of Advocate general

Judgment of the Court

C-645/19 (15 June 2021) - Facebook Ireland Ltd e.a. c. Gegevensbeschermingsautoriteit

1) Article 55(1), Articles 56 to 58 and Articles 60 to 66 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), read together with Articles 7, 8 and 47 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that a supervisory authority of a Member State which, under the national legislation adopted in order to transpose Article 58(5) of that regulation, has the power to bring any alleged infringement of that regulation to the attention of a court of that Member State and, where necessary, to initiate or engage in legal proceedings, may exercise that power in relation to an instance of cross‑border data processing even though it is not the ‘lead supervisory authority’, within the meaning of Article 56(1) of that regulation, with respect to that data processing, provided that that power is exercised in one of the situations where Regulation 2016/679 confers on that supervisory authority a competence to adopt a decision finding that such processing is in breach of the rules contained in that regulation and that the cooperation and consistency procedures laid down by that regulation are respected.

2) Article 58(5) of Regulation 2016/679 must be interpreted as meaning that, in the event of cross-border data processing, it is not a prerequisite for the exercise of the power of a supervisory authority of a Member State, other than the lead supervisory authority, to initiate or engage in legal proceedings, within the meaning of that provision, that the controller or processor with respect to the cross-border processing of personal data against whom such proceedings are brought has a main establishment or another establishment on the territory of that Member State.

3) Article 58(5) of Regulation 2016/679 must be interpreted as meaning that the power of a supervisory authority of a Member State, other than the lead supervisory authority, to bring any alleged infringement of that regulation to the attention of a court of that Member State and, where appropriate, to initiate or engage in legal proceedings, within the meaning of that provision, may be exercised both with respect to the main establishment of the controller which is located in that authority’s own Member State and with respect to another establishment of that controller, provided that the object of the legal proceedings is a processing of data carried out in the context of the activities of that establishment and that that authority is competent to exercise that power, in accordance with the terms of the answer to the first question referred.

4) Article 58(5) of Regulation 2016/679 must be interpreted as meaning that, where a supervisory authority of a Member State which is not the ‘lead supervisory authority’, within the meaning of Article 56(1) of that regulation, has brought a legal action, the object of which is an instance of cross-border processing of personal data, before 25 May 2018, that is, before the date when that regulation became applicable, that action may, from the perspective of EU law, be continued on the basis of the provisions of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, which remains applicable in relation to infringements of the rules laid down in that directive committed up to the date when that directive was repealed. That action may, in addition, be brought by that authority with respect to infringements committed after that date, on the basis of Article 58(5) of Regulation 2016/679, provided that that action is brought in one of the situations where, exceptionally, that regulation confers on a supervisory authority of a Member State which is not the ‘lead supervisory authority’ a competence to adopt a decision finding that the processing of data in question is in breach of the rules contained in that regulation with respect to the protection of the rights of natural persons as regards the processing of personal data, and that the cooperation and consistency procedures laid down by that regulation are respected, which it is for the referring court to determine.

5) Article 58(5) of Regulation 2016/679 must be interpreted as meaning that that provision has direct effect, with the result that a national supervisory authority may rely on that provision in order to bring or continue a legal action against private parties, even where that provision has not been specifically implemented in the legislation of the Member State concerned.

Opinion of Advocate General

Judgment of the Court

C-306/21 (20 October 2022) - Koalitsia "Demokratichna Bulgaria - Obedinenie"

Article 2(2)(a) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) must be interpreted as meaning that the processing of personal data in the context of the organisation of elections in a Member State is not excluded from the scope of that regulation.

Article 6(1)(e) and Article 58 of Regulation 2016/679 must be interpreted as meaning that those provisions do not preclude the competent authorities of a Member State from adopting an administrative measure of general application which provides for the limitation or, where appropriate, the prohibition of video recording during the vote count at polling stations in elections in that Member State.

Judgment of the Court

C-807/21 (5 December 2023) - Deutsche Wohnen SE v. Staatsanwaltschaft Berlin

1.      Article 58(2)(i) and Article 83(1) to (6) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)

must be interpreted as precluding national legislation under which an administrative fine may be imposed on a legal person in its capacity as controller in respect of an infringement referred to in Article 83(4) to (6) only in so far as that infringement has previously been attributed to an identified natural person.

2.      Article 83 of Regulation 2016/679

must be interpreted as meaning that an administrative fine may be imposed pursuant to that provision only where it is established that the controller, which is both a legal person and an undertaking, intentionally or negligently committed an infringement referred to in Article 83(4) to (6) thereof.

Opinion of the Advocate General

Judgment of the Court

C-46/23 (14 mars 2024) - Újpesti Polgármesteri Hivatal

1.      Article 58(2)(d) and (g) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), must be interpreted as meaning that the supervisory authority of a Member State is entitled, in the exercise of its corrective powers foreseen under those provisions, to order the controller or processor to erase unlawfully processed personal data, even though no request to that end has been made by the data subject with a view to exercising his or her rights pursuant to Article 17(1) of that regulation.

2.      Article 58(2) of Regulation 2016/679 must be interpreted as meaning that the power of the supervisory authority of a Member State to order the erasure of unlawfully processed personal data may apply both to data collected from the data subject and to data originating from another source.

Judgment of the Court

C-768/21 (26 September 2024) - Land Hessen 

Article 57(1)(a) and (f), Article 58(2) and Article 77(1) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), must be interpreted as meaning that when a breach of personal data has been established, the supervisory authority is not required to exercise a corrective power, in particular the power to impose an administrative fine, under that Article 58(2) where such action is not appropriate, necessary or proportionate to remedy the shortcoming found and to ensure that that regulation is fully enforced.

Opinion of Advocate General 

Judgment of the Court

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Regulation
1e 2e

Art. 58

1.   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 Article 42(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.

2.   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 Articles 16, 17 and 18 and the notification of such actions to recipients to whom the personal data have been disclosed pursuant to Article 17(2) and Article 19;

(h) to withdraw a certification or to order the certification body to withdraw a certification issued pursuant to Articles 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 Article 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.

3.   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 Article 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 Article 36(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 Article 40(5);

(e) to accredit certification bodies pursuant to Article 43;

(f) to issue certifications and approve criteria of certification in accordance with Article 42(5);

(g) to adopt standard data protection clauses referred to in Article 28(8) and in point (d) of Article 46(2);

(h) to authorise contractual clauses referred to in point (a) of Article 46(3);

(i) to authorise administrative arrangements referred to in point (b) of Article 46(3);

(j) to approve binding corporate rules pursuant to Article 47.

4.   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.

5.   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.

6.   Each Member State may provide by law that its supervisory authority shall have additional powers to those referred to in paragraphs 1, 2 and 3. The exercise of those powers shall not impair the effective operation of Chapter VII.
1st proposal close

Art. 53 

1.           Each supervisory authority shall have the power:

(a)     to notify the controller or the processor of an alleged breach of the provisions governing the processing of personal data, and, where appropriate, order the controller or the processor to remedy that breach, in a specific manner, in order to improve the protection of the data subject;

(b)     to order the controller or the processor to comply with the data subject's requests to exercise the rights provided by this Regulation;

(c)     to order the controller and the processor, and, where applicable, the representative to provide any information relevant for the performance of its duties;

(d)     to ensure the compliance with prior authorisations and prior consultations referred to in Article 34;

(e)     to warn or admonish the controller or the processor;

(f)      to order the rectification, erasure or destruction of all data when they have been processed in breach of the provisions of this Regulation and the notification of such actions to third parties to whom the data have been disclosed;

(g)     to impose a temporary or definitive ban on processing;

(h)     to suspend data flows to a recipient in a third country or to an international organisation;

(i)      to issue opinions on any issue related to the protection of personal data;

(j)      to inform the national parliament, the government or other political institutions as well as the public on any issue related to the protection of personal data.

2.           Each supervisory authority shall have the investigative power to obtain from the controller or the processor:

(a)     access to all personal data and to all information necessary for the performance of its duties;

(b)     access to any of its premises, including to any data processing equipment and means, where there are reasonable grounds for presuming that an activity in violation of this Regulation is being carried out there.

The powers referred to in point (b) shall be exercised in conformity with Union law and Member State law.

3.           Each supervisory authority shall have the power to bring violations of this Regulation to the attention of the judicial authorities and to engage in legal proceedings, in particular pursuant to Article 74(4) and Article 75(2).

4.           Each supervisory authority shall have the power to sanction administrative offences, in particular those referred to in Article 79(4), (5) and (6).
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Art. 53

 1. Each Member State shall provide by law that its supervisory authority shall have at least the following investigative powers:

(a) to order the controller and the processor, and, where applicable, the controller’s representative to provide any information it requires for the performance of its tasks; (aa) to carry out investigations in the form of data protection audits;

(ab) to carry out a review on certifications issued pursuant to Article 39(4);

(b) (…)

(c) (…)

(d) to notify the controller or the processor of an alleged infringement of this Regulation;

(da) to obtain, from the controller and the processor, access to all personal data and to all information necessary for the performance of its tasks;

(db) to obtain access to any premises of the controller and the processor , including to any data processing equipment and means, in conformity with Union law or Member State procedural law.

1a. (…).

1b. Each Member State shall provide by law that its supervisory authority shall have 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 processor where processing operations have infringed provisions of this Regulation;

(c) (…);

(ca) 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; in particular by ordering the rectification, restriction or erasure of data pursuant to Articles 16, 17 and 17a and the notification of such actions to recipients to whom the data have been disclosed pursuant to Articles 17(2a) and 17b;

(e) to impose a temporary or definitive limitation on processing (…);

(f) to order the suspension of data flows to a recipient in a third country or to an international organisation;

(g) to impose an administrative fine pursuant to Articles 79 and 79a, in addition to, or instead of measures referred to in this paragraph, depending on the circumstances of each individual case.

1c. Each Member State shall provide by law that its supervisory authority shall have the following authorisation and advisory powers:

(a) to advise the controller in accordance with the prior consultation procedure referred to in Article 34,

(aa) to issue, on its own initiative or on request, opinions to the national parliament, the Member State government or, in accordance with national law, to other institutions and bodies as well as to the public on any issue related to the protection of personal data;

(ab) to authorise processing referred to in Article 34(7a), if the law of the Member State requires such prior authorisation;

(ac) to issue an opinion and approve draft codes of conduct pursuant to Article 38(2);

(ad) to accredit certification bodies under the terms of Article 39a; (ae) to issue certifications and approve criteria of certification in accordance with Article 39(2a); (b) to adopt standard data protection clauses referred to in point (c) of Article 42(2);

(c) to authorise contractual clauses referred to in point (a) of Article 42 (2a);

(ca) to authorise administrative agreements referred to in point (d) of Article 42 (2a);

(d) to approve binding corporate rules pursuant to Article 43. 2. 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 of Fundamental Rights of the European Union.

3. 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.

4. (…)

5. (…)
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Art. 28

1. 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.

These authorities shall act with complete independence in exercising the functions entrusted to them.

2. Each Member State shall provide that the supervisory authorities are consulted when drawing up administrative measures or regulations relating to the protection of individuals' rights and freedoms with regard to the processing of personal data.

3. Each authority shall in particular be endowed with:

- investigative powers, such as powers of access to data forming the subject-matter of processing operations and powers to collect all the information necessary for the performance of its supervisory duties,

- effective powers of intervention, such as, for example, that of delivering opinions before processing operations are carried out, in accordance with Article 20, and ensuring appropriate publication of such opinions, of ordering the blocking, erasure or destruction of data, of imposing a temporary or definitive ban on processing, of warning or admonishing the controller, or that of referring the matter to national parliaments or other political institutions,

- the power to engage in legal proceedings where the national provisions adopted pursuant to this Directive have been violated or to bring these violations to the attention of the judicial authorities.

Decisions by the supervisory authority which give rise to complaints may be appealed against through the courts.

4. Each supervisory authority shall hear claims lodged by any person, or by an association representing that person, concerning the protection of his rights and freedoms in regard to the processing of personal data. The person concerned shall be informed of the outcome of the claim.

Each supervisory authority shall, in particular, hear claims for checks on the lawfulness of data processing lodged by any person when the national provisions adopted pursuant to Article 13 of this Directive apply. The person shall at any rate be informed that a check has taken place.

5. Each supervisory authority shall draw up a report on its activities at regular intervals. The report shall be made public.

6. Each supervisory authority is competent, whatever the national law applicable to the processing in question, to exercise, on the territory of its own Member State, the powers conferred on it in accordance with paragraph 3. Each authority may be requested to exercise its powers by an authority of another Member State.

The supervisory authorities shall cooperate with one another to the extent necessary for the performance of their duties, in particular by exchanging all useful information.

7. Member States shall provide that the members and staff of the supervisory authority, even after their employment has ended, are to be subject to a duty of professional secrecy with regard to confidential information to which they have access.
United Kingdom
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40. Enforcement notices

(1) If the Commissioner is satisfied that a data controller has contravened or is contravening any of the data protection principles, the Commissioner may serve him with a notice (in this Act referred to as “an enforcement notice”) requiring him, for complying with the principle or principles in question, to do either or both of the following—

(a) to take within such time as may be specified in the notice, or to refrain from taking after such time as may be so specified, such steps as are so specified, or

(b) to refrain from processing any personal data, or any personal data of a description specified in the notice, or to refrain from processing them for a purpose so specified or in a manner so specified, after such time as may be so specified.

(2) In deciding whether to serve an enforcement notice, the Commissioner shall consider whether the contravention has caused or is likely to cause any person damage or distress.

(3) An enforcement notice in respect of a contravention of the fourth data protection principle which requires the data controller to rectify, block, erase or destroy any inaccurate data may also require the data controller to rectify, block, erase or destroy any other data held by him and containing an expression of opinion which appears to the Commissioner to be based on the inaccurate data.

(4) An enforcement notice in respect of a contravention of the fourth data protection principle, in the case of data which accurately record information received or obtained by the data controller from the data subject or a third party, may require the data controller either—

(a) to rectify, block, erase or destroy any inaccurate data and any other data held by him and containing an expression of opinion as mentioned in subsection (3), or

(b) to take such steps as are specified in the notice for securing compliance with the requirements specified in paragraph 7 of Part II of Schedule 1 and, if the Commissioner thinks fit, for supplementing the data with such statement of the true facts relating to the matters dealt with by the data as the Commissioner may approve.

(5) Where—

(a) an enforcement notice requires the data controller to rectify, block, erase or destroy any personal data, or

(b) the Commissioner is satisfied that personal data which have been rectified, blocked, erased or destroyed had been processed in contravention of any of the data protection principles, an enforcement notice may, if reasonably practicable, require the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction; and in determining whether it is reasonably practicable to require such notification regard shall be had, in particular, to the number of persons who would have to be notified.

(6) An enforcement notice must contain—

(a) a statement of the data protection principle or principles which the Commissioner is satisfied have been or are being contravened and his reasons for reaching that conclusion, and

(b) particulars of the rights of appeal conferred by section 48.

(7) Subject to subsection (8), an enforcement notice must not require any of the provisions of the notice to be complied with before the end of the period within which an appeal can be brought against the notice and, if such an appeal is brought, the notice need not be complied with pending the determination or withdrawal of the appeal.

(8) If by reason of special circumstances the Commissioner considers that an enforcement notice should be complied wit has a matter of urgency he may include in the notice a statement to that effect and a statement of his reasons for reaching that conclusion; and in that event subsection (7) shall not apply but the notice must not require the provisions of the notice to be complied with before the end of the period of seven days beginning with the day on which the notice is served.

(9) Notification regulations (as defined by section 16(2)) may make provision as to the effect of the service of an enforcement notice on any entry in the register maintained under section 19 which relates to the person on whom the notice is served.

(10) This section has effect subject to section 46(1).

50. Powers of entry and inspection

Schedule 9 (powers of entry and inspection) has effect. 

Schedule 9 - Powers of entry and inspection

1. (1) If a circuit judge [F1or a District Judge (Magistrates' Courts)] is satisfied by information on oath supplied by the Commissioner that there are reasonable grounds for suspecting—

(a) that a data controller has contravened or is contravening any of the data protection principles, or

(b) that an offence under this Act has been or is being committed, and that evidence of the contravention or of the commission of the offence is to be found on any premises specified in the information, he may, subject to sub-paragraph (2) and paragraph 2, grant a warrant to the Commissioner.

[F2(1A) Sub-paragraph (1B) applies if a circuit judge or a District Judge (Magistrates' Courts) is satisfied by information on oath supplied by the Commissioner that a data controller has failed to comply with a requirement imposed by an assessment notice.

(1B) The judge may, for the purpose of enabling the Commissioner to determine whether the data controller has complied or is complying with the data protection principles, grant a warrant to the Commissioner in relation to any premises that were specified in the assessment notice; but this is subject to sub-paragraph (2) and paragraph 2.]

(2) A judge shall not issue a warrant under this Schedule in respect of any personal data processed for the special purposes unless a determination by the Commissioner under section 45 with respect to those data has taken effect.

(3) A warrant issued under [F3this Schedule] shall authorise the Commissioner or any of his officers or staff at any time within seven days of the date of the warrant

[F4(a) to enter the premises;

(b) to search the premises;

(c) to inspect, examine, operate and test any equipment found on the premises which is used or intended to be used for the processing of personal data;

(d) to inspect and seize any documents or other material found on the premises which—

(i) in the case of a warrant issued under sub-paragraph (1), may be such evidence as is mentioned in that paragraph;

(ii) in the case of a warrant issued under sub-paragraph (1B), may enable the Commissioner to determine whether the data controller has complied or is complying with the data protection principles;

(e) to require any person on the premises to provide an explanation of any document or other material found on the premises;

(f) to require any person on the premises to provide such other information as may reasonably be required for the purpose of determining whether the data controller has contravened, or is contravening, the data protection principles.]

2. (1) A judge shall not issue a warrant under this Schedule unless he is satisfied—

(a) that the Commissioner has given seven days’ notice in writing to the occupier of the premises in question demanding access to the premises, and

(b) that either—

(i) access was demanded at a reasonable hour and was unreasonably refused, or

(ii) although entry to the premises was granted, the occupier unreasonably refused to comply with a request by the Commissioner or any of the Commissioner’s officers or staff to permit the Commissioner or the officer or member of staff to do any of the things referred to in paragraph 1(3), and

(c) that the occupier, has, after the refusal, been notified by the Commissioner of the application for the warrant and has had an opportunity of being heard by the judge on the question whether or not it should be issued.

[F5(1A) In determining whether the Commissioner has given an occupier the seven days' notice referred to in sub-paragraph (1)(a) any assessment notice served on the occupier is to be disregarded.]

(2) Sub-paragraph (1) shall not apply if the judge is satisfied that the case is one of urgency or that compliance with those provisions would defeat the object of the entry.

3. A judge who issues a warrant under this Schedule shall also issue two copies of it and certify them clearly as copies.

4. A person executing a warrant issued under this Schedule may use such reasonable force as may be necessary.

5. A warrant issued under this Schedule shall be executed at a reasonable hour unless it appears to the person executing it that there are grounds for suspecting that the [F6object of the warrant would be defeated] if it were so executed.

6. If the person who occupies the premises in respect of which a warrant is issued under this Schedule is present when the warrant is executed, he shall be shown the warrant and supplied with a copy of it; and if that person is not present a copy of the warrant shall be left in a prominent place on the premises.

7. (1) A person seizing anything in pursuance of a warrant under this Schedule shall give a receipt for it if asked to do so.

(2) Anything so seized may be retained for so long as is necessary in all the circumstances but the person in occupation of the premises in question shall be given a copy of anything that is seized if he so requests and the person executing the warrant considers that it can be done without undue delay.

8 The powers of inspection and seizure conferred by a warrant issued under this Schedule shall not be exercisable in respect of personal data which by virtue of section 28 are exempt from any of the provisions of this Act.

9 (1) Subject to the provisions of this paragraph, the powers of inspection and seizure conferred by a warrant issued under this Schedule shall not be exercisable in respect of—

(a) any communication between a professional legal adviser and his client in connection with the giving of legal advice to the client with respect to his obligations, liabilities or rights under this Act, or

(b) any communication between a professional legal adviser and his client, or between such an adviser or his client and any other person, made in connection with or in contemplation of proceedings under or arising out of this Act (including proceedings before the Tribunal) and for the purposes of such proceedings.

(2) Sub-paragraph (1) applies also to—

(a) any copy or other record of any such communication as is there mentioned, and

(b) any document or article enclosed with or referred to in any such communication if made in connection with the giving of any advice or, as the case may be, in connection with or in contemplation of and for the purposes of such proceedings as are there mentioned.

(3) This paragraph does not apply to anything in the possession of any person other than the professional legal adviser or his client or to anything held with the intention of furthering a criminal purpose.

(4) In this paragraph references to the client of a professional legal adviser include references to any person representing such a client.

10. If the person in occupation of any premises in respect of which a warrant is issued under this Schedule objects to the inspection or seizure under the warrant of any material on the grounds that it consists partly of matters in respect of which those powers are not exercisable, he shall, if the person executing the warrant so requests, furnish that person with a copy of so much of the material as is not exempt from those powers.

11. A warrant issued under this Schedule shall be returned to the court from which it was issued—

(a) after being executed, or

(b) if not executed within the time authorised for its execution; and the person by whom any such warrant is executed shall make an endorsement on it stating what powers have been exercised by him under the warrant.

12. Any person who—

(a) intentionally obstructs a person in the execution of a warrant issued under this Schedule, F7. . .

(b) fails without reasonable excuse to give any person executing such a warrant such assistance as he may reasonably require for the execution of the warrant,

[F8 (c) makes a statement in response to a requirement under paragraph (e) or (f) of paragraph 1(3) which that person knows to be false in a material respect, or

(d) recklessly makes a statement in response to such a requirement which is false in a material respect,] is guilty of an offence. 

13. In this Schedule “premises” includes any vessel, vehicle, aircraft or hovercraft, and references to the occupier of any premises include references to the person in charge of any vessel, vehicle, aircraft or hovercraft.

14. In the application of this Schedule to Scotland—

(a) for any reference to a circuit judge there is substituted a reference to the sheriff,

(b) for any reference to information on oath there is substituted a reference to evidence on oath, and

(c) for the reference to the court from which the warrant was issued there is substituted a reference to the sheriff clerk.

15. In the application of this Schedule to Northern Ireland—

(a)for any reference to a circuit judge there is substituted a reference to a county court judge, and

(b)for any reference to information on oath there is substituted a reference to a complaint on oath.

16. An explanation given, or information provided, by a person in response to a requirement under paragraph (e) or (f) of paragraph 1(3) may only be used in evidence against that person—

(a) on a prosecution for an offence under—

(i) paragraph 12,

(ii) section 5 of the Perjury Act 1911 (false statements made otherwise than on oath),

(iii) section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath), or

(iv) Article 10 of the Perjury (Northern Ireland) Order 1979 (false statutory declarations and other false unsworn statements), or

(b) on a prosecution for any other offence where—

(i) in giving evidence that person makes a statement inconsistent with that explanation or information, and

(ii) evidence relating to that explanation or information is adduced, or a question relating to it is asked, by that person or on that person's behalf.]
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