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CHAPTER IV

INDEPENDENT SUPERVISORY AUTHORITIES AND ENFORCEMENT

EU-Commision

EU-Parliament

Council

Directive 2002/58/EC4

Article 18 – Independent supervisory authorities 

Article 18 – Supervisory authorities 

0. Each Member State shall provide for one or more independent public authorities meeting the requirements set out in Articles 51 to 54 of Regulation (EU) 2016/679 to be responsible for monitoring the application of this Regulation.Member States may entrust the monitoring of the application of Articles 12 to 16 to the supervisory authority or authorities referred to in the previous subparagraph or to another supervisory authority or authorities having the appropriate expertise. 

1.  The independent supervisory authority or authorities responsible for monitoring the application of Regulation (EU) 2016/679 shall also be responsible for monitoring the application of this Regulation. Chapter VI and VII of Regulation (EU) 2016/679 shall apply mutatis mutandis. The tasks and powers of the supervisory authorities shall be exercised with regard to end-users. 

1.  The independent supervisory authority or authorities responsible for monitoring the application of Regulation (EU) 2016/679 shall also be responsible for monitoring the application of this Regulation. Chapter VI and VII of Regulation (EU) 2016/679 shall apply mutatis mutandis. Where Regulation (EU) 2016/679 refers to data subjects, the tasks and powers of the supervisory authorities shall be exercised with regard to end-users under this Regulation. Where Regulation (EU) 2016/679 refers to data controllers, the tasks and powers of the supervisory authorities shall be exercised with regard to providers of electronic communications services and information society services, and manufacturers of software under this Regulation.

– gelöscht / deleted – 

1ab. The supervisory authorities shall have investigative and corrective powers, including the power to impose administrative fines pursuant to article 23.

1b. Where more than one supervisory authority is responsible for monitoring the application of this Regulation in a Member State, such authorities shall cooperate with each other to the extent necessary to perform their tasks. 

2.The supervisory authority or authorities referred to in paragraph 1 shall cooperate whenever appropriate with national regulatory authorities established pursuant to the [Directive Establishing the European Electronic Communications Code].

– unverändert / unchanged – 

2. Where the supervisory authorities are not the supervisory authorities responsible for monitoring the application of Regulation (EU) 2016/679, they shall cooperate with the latter and, whenever appropriate, with national regulatory authorities established pursuant to Directive (EU) 2018/1972 and other relevant authorities.

Article 19 – European Data Protection Board

The European Data Protection Board, established under Article 68 of Regulation (EU) 2016/679, shall have competence to ensure the consistent application of this Regulation. To that end, the European Data Protection Board shall exercise the tasks laid down in Article 70 of Regulation (EU) 2016/679. The Board shall also have the following tasks: 

(a) advise the Commission on any proposed amendment of this Regulation; 

(b) examine, on its own initiative, on request of one of its members or on request of the Commission, any question covering the application of this Regulation and issue guidelines, recommendations and best practices in order to encourage consistent application of this Regulation. 

– unverändert / unchanged – 

1. The European Data Protection Board, established under Article 68 of Regulation (EU) 2016/679, shall have the task to contribute to the consistent application of Chapters I and II and III of this Regulation.

2. To that end, the Board shall have the following tasks:

(a) advise the Commission on any proposed amendment of this Regulation; (b) examine, on its own initiative, on request of a supervisory authority designated in accordance with Article 18 (0) or on request of the Commission, any question covering the application of this Regulation in relation to Chapters I, II and III and issue guidelines, recommendations and best practices in order to encourage consistent application of this Regulation;

(ba)  draw up guidelines for supervisory authorities concerning the application of Article 9(1) and the particularities of expression of consent by legal entities;

(c) 

(bb)  issue guidelinesto determine which technical specifications and signalling methods fulfil the conditions and objectives pursuant to Article 10(1a);

(d) issue guidelines, recommendations and best practices in order to facilitate cooperation, including exchange of information, between supervisory authorities referred to in paragraph 0 of Article 18 and/or the supervisory authority responsible for monitoring the application of Regulation (EU) 2016/679; 

(bc)  issue guidelines, recommendations and best practices in accordance with point (b) of this paragraph for the purpose of further specifying the criteria and requirements for types of services that may be requested for purely individual or work-related usage as referred to in Article 6(3a):

(da) issue guidelines, recommendations and best practices in accordance with point (b) of this paragraph to assess for different types of electronic communications services the moment in time of receipt of electronic communications content; 

(bd)  issue guidelines, recommendations and best practices in accordance with point (b) of this paragraph for the purpose of further specifying the criteria and requirements for:

(i)  measuring the reach of an information society service referred to in Article 8(1) point (d);

(ii)   security updates referred to in Article 8(1) point (da);

(iii)  the interference in the context of employment relationships referred to in Article 8(1) point (db);

(iv)  the processing of information emitted by the terminal equipment referred to in Article 8(2) ();

(v)  technical specifications and signalling methods that fulfil the conditions for consent and objection pursuant to Article 8(2a);

(vi)  software settings referred to in Article 10(1a) and (1b); and

(vii)  technical measures to ensure confidentiality and integrity of the communication pursuant to Article 17(1a), (1b) and (1c).

(db) issue guidelines, recommendations and best practices in accordance with point (b) of this paragraph on the provision of consent in the context of Articles 6 to 6b and 8 of this Regulation by end-users who are legal persons and or in an employment relationship; (e) provide the Commission with an opinion on the icons referred to in paragraph 3 of Article 8; 

(f) 

(g) 

(h) promote the exchange of knowledge and documentation on legislation on protection of electronic communications of end-users and of the integrity of their terminal equipment as laid down in Chapter II and practice relevant supervisory authorities world wide; 

3. Where the Commission requests advice from the Board, it may indicate a time limit, taking into account the urgency of the matter.

4. The Board shall forward its opinions, guidelines, recommendations, and best practices to the Commission and make them public. 

5. The Board shall consult the supervisory authorities referred to in Article 18 (0) before any of the tasks referred to in paragraph 2.

6. The Board shall, where appropriate, consult interested parties and give them the opportunity to comment within a reasonable period. The Board shall, without prejudice to Article 76 of Regulation (EU) 2016/679, make the result of the consultation procedures publicly available. 

Article 20 – Cooperation and consistency procedures 

Article 20 – Cross-border cooperation

Each supervisory authority shall contribute to the consistent application of this Regulation throughout the Union. For this purpose, the supervisory authorities shall cooperate with each other and the Commission in accordance with Chapter VII of Regulation (EU) 2016/679 regarding the matters covered by this Regulation. 

Each supervisory authority shall contribute to the consistent application of this Regulation throughout the Union and cooperate with each other and with the Commission. 

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    The cooperation mechanism proposed by COM and EP is fully excluded in the Council proposal.

    EDPB criticized it in its statement 03/2021:
    (..) only a perfect alignment with the GDPR cooperation and consistency framework would allow the ePrivacy Regulation to reach its goals, to avoid fragmentation in the enforcement and application of the
    Regulation, as well as to lessen the burden for the providers that would otherwise have to address
    possibly over 27 supervisory authorities.

    In case national competent authorities who are not members of the EDPB would have to interact with the EDPB, as currently the Council’s position foresees, their ability to contribute timely to the
    consistent application of the ePrivacy Regulation would diminish to the detriment of both the digital
    economy and the protection of the fundamental rights.Reference

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