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Article 41
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Monitoring of approved codes of conduct

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Key words related to article 41

There is no recital in the Regulation related to article 41.

There is no recital in the Directive related to article 41.

The GDPR

Article 41 authorises, on certain conditions, an independent body to monitor the compliance with a code of conduct approved under article 40 without prejudice to the tasks and powers of the competent supervisory authority pursuant to Articles 57 and 58. Paragraph 1 stipulates that the monitoring of compliance may be carried out only by a body which has an appropriate level of expertise in relation to the subject-matter of the code.

The second paragraph sets out the conditions that such body must meet:

- it must have demonstrated its independence and expertise in relation to the subject-matter of the code to monitor (a);

- the body must have established procedures which allow it to assess the eligibility of controllers and processors concerned to apply the code, to monitor their compliance with its provisions and to periodically review its operation (b);

- the body must have established transparent procedures to handle complaints about infringements of the code by a controller or processor, by guaranteeing the absence of conflicts of interest (c);

- the body must have demonstrated to the satisfaction of the competent supervisory authority that its tasks and duties do not result in a conflict of interests (d). 

The competent supervisory authority shall submit the draft criteria as referred to in paragraph 1 of this Article to the Board pursuant to the consistency mechanism referred to in Article 63 (3)).

Without prejudice to the tasks and powers of the competent supervisory authority, such body shall, subject to appropriate safeguards, take appropriate action in cases of infringement of the code by a controller or processor, including suspension or exclusion of the controller or processor concerned from the code. It shall inform the competent supervisory authority of such actions and the reasons for taking them (paragraph 4).

The competent supervisory authority shall revoke the accreditation of a body if the conditions for accreditation are not met or where actions taken by the body infringe this Regulation (paragraph 5).

This provision shall not apply to processing carried out by public authorities and bodies (paragraph 6).

The Directive

There was no provision of the Directive for monitoring of the approved codes as no procedure for approval of such codes was provided.

Potential issues

We may wonder what will be the status of the control body in national law, separate from the national supervisory authority. A priori, it will not a public institution, but private, which would then have powers of sanctions with respect to an enterprise established as appropriate in a third country.

The regulation says nothing either in terms of the management of the costs of this compulsory control, which may also pose difficulties, in addition to the management of potential conflicts of interest.

Also, it should be noted that the provision does not apply to public authorities and public institutions even though they are not excluded from article 38 and are therefore required to adopt the codes. We may also ask which conditions precisely these qualifications of public authorities meet as not defined by the Regulation.

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Summary

European Union

European Union

European data protection baord (EDPB)

Guidelines on Codes of conduct and Monitoring Bodies - 1/2019 (4 June 2019)

The aim of these guidelines is to provide practical guidance and interpretative assistance in relation to the application of Articles 40 and 41 of the GDPR.

They are intended to help clarify the procedures and the rules involved in the submission, approval and publication of codes at both a National and European level. They intend to set out the minimum criteria required by a Competent Supervisory Authority (“CompSA”) before accepting to carry out an in depth review and evaluation of a code. Further, they intend to set out the factors relating to the content to be taken into account when evaluating whether a particular code provides and contributes to the proper and effective application of the GDPR. Finally, they intend to set out the requirements for the effective monitoring of compliance with a code. These guidelines should also act as a clear framework for all CompSAs, the Board and the Commission to evaluate codes in a consistent manner and to streamline the procedures involved in the assessment process.

This framework should also provide greater transparency, ensuring that code owners who intend to seek approval for a code are fully conversant with the process and understand the formal requirements and the appropriate thresholds required for approval. Guidance on codes of conduct as a tool for transfers of data as per Article 40(3) of the GDPR will be considered in separate guidelines to be issued by the EDPB. All codes previously approved will need to be reviewed and re-evaluated in line with the requirements of the GDPR and then resubmitted for approval as per the requirements of Articles 40 and 41 and as per the procedures outlined in this document.

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Regulation
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Art. 41

1.   Without prejudice to the tasks and powers of the competent supervisory authority under Articles 57 and 58, the monitoring of compliance with a code of conduct pursuant to Article 40 may be carried out by a body which has an appropriate level of expertise in relation to the subject-matter of the code and is accredited for that purpose by the competent supervisory authority.

2.   A body as referred to in paragraph 1 may be accredited to monitor compliance with a code of conduct where that body has:

a) demonstrated its independence and expertise in relation to the subject-matter of the code to the satisfaction of the competent supervisory authority;

b) established procedures which allow it to assess the eligibility of controllers and processors concerned to apply the code, to monitor their compliance with its provisions and to periodically review its operation;

c) established procedures and structures to handle complaints about infringements of the code or the manner in which the code has been, or is being, implemented by a controller or processor, and to make those procedures and structures transparent to data subjects and the public; and

d) demonstrated to the satisfaction of the competent supervisory authority that its tasks and duties do not result in a conflict of interests.

3.   The competent supervisory authority shall submit the draft criteria for accreditation of a body as referred to in paragraph 1 of this Article to the Board pursuant to the consistency mechanism referred to in Article 63.

4.   Without prejudice to the tasks and powers of the competent supervisory authority and the provisions of Chapter VIII, a body as referred to in paragraph 1 of this Article shall, subject to appropriate safeguards, take appropriate action in cases of infringement of the code by a controller or processor, including suspension or exclusion of the controller or processor concerned from the code. It shall inform the competent supervisory authority of such actions and the reasons for taking them.

5.   The competent supervisory authority shall revoke the accreditation of a body as referred to in paragraph 1 if the conditions for accreditation are not, or are no longer, met or where actions taken by the body infringe this Regulation.

6.   This Article shall not apply to processing carried out by public authorities and bodies.
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No specific provision
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Art. 38a

1. Without prejudice to the tasks and powers of the competent supervisory authority under Articles 52 and 53, the monitoring of compliance with a code of conduct pursuant to Article 38 (1b), may be carried out by a body which has an appropriate level of expertise in relation to the subject-matter of the code and is accredited for this purpose by the competent supervisory authority.

2. A body referred to in paragraph 1 may be accredited for this purpose if:

(a) it has demonstrated its independence and expertise in relation to the subject-matter of the code to the satisfaction of the competent supervisory authority;

(b) it has established procedures which allow it to assess the eligibility of controllers and processors concerned to apply the code, to monitor their compliance with its provisions and to periodically review its operation;

(c) it has established procedures and structures to deal with complaints about infringements of the code or the manner in which the code has been, or is being, implemented by a controller or processor, and to make these procedures and structures transparent to data subjects and the public;

(d) it demonstrates to the satisfaction of the competent supervisory authority that its tasks and duties do not result in a conflict of interests.

3. The competent supervisory authority shall submit the draft criteria for accreditation of a body referred to in paragraph 1 to the European Data Protection Board pursuant to the consistency mechanism referred to in Article 57.

4. Without prejudice to the provisions of Chapter VIII, a body referred to in paragraph 1 may, subject to adequate safeguards, take appropriate action in cases of infringement of the code by a controller or processor, including suspension or exclusion of the controller or processor concerned from the code. It shall inform the competent supervisory authority of such actions and the reasons for taking them.

5. The competent supervisory authority shall revoke the accreditation of a body referred to in paragraph 1 if the conditions for accreditation are not, or no longer, met or actions taken by the body are not in compliance with this Regulation.

6. This article shall not apply to the processing of personal data carried out by public authorities and bodies.
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No specific provision
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Article 60

Monitoring of the Application of a Code of Conduct

Monitoring of the application of a code of conduct, in accordance with Article 59, paragraph 3 of this Law, may be carried out by a legal person accredited to perform monitoring in accordance with the law governing accreditation.

The performance of monitoring referred to in paragraph 1 of this Article shall not affect the inspection and other powers of the Commissioner referred to in Articles 77 to 79 of this Law.

The legal person referred to in paragraph 1 of this Article may be accredited only if it:

1) has demonstrated to the Commissioner its independence and expertise in relation to the content of the code;

2) has established a procedure for assessing the capacity of controllers and processors to apply the code of conduct, monitoring the application of the code by controllers or processors, and periodically reviewing its effectiveness;

3) has established a procedure and a body for deciding on complaints due to a breach of the code of conduct or the manner of its application by controllers or processors, and has ensured transparency of that procedure and body towards the public and data subjects;

4) has demonstrated to the Commissioner that no conflict of interest may arise in the exercise of its powers.

The legal person referred to in paragraph 1 of this Article shall be obliged to inform the Commissioner of the measures taken referred to in paragraph 4 of this Article, as well as of the reasons for their determination.

Taking the measures referred to in paragraph 4 of this Article shall not affect the powers of the Commissioner and the application of the provisions of Chapter VII of this Law.

The accreditation of the legal person referred to in paragraph 1 of this Article shall be withdrawn if it is determined that it no longer meets the conditions for accreditation or that the measures it takes infringe the provisions of this Law.

The provisions of paragraphs 1 to 7 of this Article shall not apply to public authorities and to processing carried out by competent authorities for special purposes.

 

 

 

 

 

 

 
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