Opinion 5/2020 on the draft decision of the competent supervisory authority of Luxembourg regarding the approval of the requirements for accreditation of a certification body pursuant to Article 43.3 GDPR

3 (GDPR) Adopted on 29 January 2020 2 Adopted Table of c ontents Summary of the Facts ................................ ................................ 4 Assessment ................................ ................................ ..... 4 General reason ing of the EDPB regarding the submitted draft accreditation requirements . 4 Main points of focus for the assessment (art. 2 GDPR and Annex 1 to the EDPB Guidelines) that the accreditation requirements provide for the following to be assessed consistently: ........... 1 GENERAL REMARKS ................................ ................................ 2 GENERAL REQUIREMENTS FOR ACCREDITATION ................................ 3 RESOURCE REQUIREMENTS ................................ ............................ 4 PROCESS REQUIREMENTS ................................ ............................... 7 Conclusions / Recommendations ................................

................................ 8 Final Remarks ................................ ................................ . 9 3 Adopted The European Data Protection Board Having rega rd to Article 63, Article 64 (1c ), (3) - (8) and Article 43 (3 ) of the Regulation 2016/679/EU 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 repe aling Directive 95/46/EC (here af ter “GDPR”), Having regard to Article 51 (1b) of Directive 2016/680 EU on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (hereafter “Law Enforcement Directive”).

Having regard to the EEA Agreement and in particular to Ann ex XI and Protocol 37 thereof, as amended by the Decision of the EEA joint Committee No 154/2018 of 6 July 2018, 1 Having regard to Article 10 and 22 of its Rules of Procedure of 25 May 2018, Whereas: (1) The main role of the Board is to ensure the consist ent application o f the Regulation 2016/679 (here after GDPR) throughout the European Economic Area . 1 GDPR, the Board shall issue an opinion where a supervisory authority (SA) intends to approve the requirements for the accreditation of certification bod ies pursuant to A rticle 43. The aim of this opinion is therefore to create a harmonised approach with regard to the requirements that a data protection supervisory authority or the National Accreditation Body will apply fo r the accreditation of a certification body . Even though the GDPR does not impose a single set of requirements for accreditation , it does promote consistency.

The Board seeks to achieve this objective in its opinions firstly by encouraging SAs to draft th eir requirements for accreditation following the structure set out in the Annex to the EDPB Guidelines on accreditation of certification bodies, and , secondly by analysing them using a template provided by EDPB allowing the benchmarking of the requirements (guided by ISO 17065 and the EDPB guidelines on accreditation of certification bodies ). (2) With reference to Article 43 GDPR, the competent supervisory authorities shall adopt accreditation requirements . They shall, however, apply the consistency mechani sm in order to allow generation of trust in the certification mechanism , in particular by setting a high level of requirements . (3) While requirements for accreditation are subject to the consistency mechanism, t his does not mean that the requirements sho uld be identical . The competent supervisory authorities have a margin of discretion with regard to the national or regional context and should take into account their local legislation.

The aim of the EDPB opinio n is not to reach a single EU set of require ment s but rather to avoid significant inconsistencies that may affect , for instance trust in the independence or expertise of accredited certification bodies . 1 References to the “Union” made throughout this opinion should be understood as references to “EEA”. 4 Adopted (4) The “Guidelines 4/2018 on the accreditation of certification bodies under Article 43 of the General Data Protection Regulation (2016/679)” (hereinafter the “Guidelines”) , and “Guidelines 1/2018 on certification and identifying certification criteria in acc ordance with article 42 and 43 of the Regulation 2016/679” will serve as a guiding thread in the context of the consistency mechanism. (5) I f a Member State stipulates that the certification bodies are to be accredited by the supervisory authority, the sup ervisory authority should establish accreditation requirements including, but not limited to , the requirements detailed in Article 43(2).

In comparison to the obligations relating to the accreditation of certification bodies by national accreditation bodie s, Article 43 provides fewer details about the requirements for accreditation when the supervisory authority conducts the accreditation itself. In the interests of contributing to a harmonised approach to accreditation, the accreditation requirements used by the supervisory authority should be guided by ISO/IEC 17065 and should be complemented by the additional requirements a supervisory authority establishes pursuant to Article 43(1)(b). The EDPB notes that Article 43(2)(a) - (e) reflect and specify requirem ents of ISO 17065 which will contribute to consistency. 2 (6 ) The opinion of the EDPB shall be adopted pursuant to Article 64 (1)(c) , (3) & (8) GDPR in conjunction with Article 10 (2) of the EDPB Rules of Procedure within eight weeks from the first workin g day after the Chair and the competent supervisory authority have decided that the file is complete.

Upon decision of the Chair , this period may be extended by a further six weeks taking into account the complexity of the subject matter. HAS ADOPTED THE OPINION: SUMMARY OF THE FACTS 1. The LU SA has submitted its draft accreditation requi rements under Article 43 (1)( a ) to the EDPB. Following a decision deeming the file complete, it was broadcasted on 25 October 2019 . The LU SA will perform accreditation of certification bodies to certify us ing GDPR certification criteria . 2. In compliance with article 10 (2) of the Board Rules of Procedure, due to the complexity of the matter at hand, the Chair decided to extend the initial adoption period of eight weeks by a further six weeks. ASSESSMENT General reasoning of the EDPB regarding the submitted draft accreditation requirements The purpose of this opinion is t o assess the accreditation requi rements developed by a SA, either in addition to ISO 17065 or as a full set of requirements , for the purpos es of allowing a national accreditation body or a SA , as per article 43(1) GDPR, to accredit a certification body responsible for issuing and renewin g certification in accordance with article 42 GDPR .

This is without prejudice to the tasks and powers of the competent SA. In this specific case, the Board notes that the LU SA is tasked 2 Para. pdf 5 Adopted by national law to carry out the accreditation of certification bodie s. To this end, the LU SA has developed a set of requirements specifically for accreditation of certification bodies in conjunction with a set of certification criteria that is yet to be formally approved . The assessment of the accreditation requirements is aimed at examining variations (additions or deletions) from the Guidelines and notably the Annex. Furthermore, the EDPB’s Opinion is also focused on all aspects that may impact a consistent approach regarding the accreditation of certification bodies. It should be noted that the aim of the Guidelines on accreditation of certification bodies is to assist the SAs while defining the ir accreditation requirements .

T he guidelines Annex do es not constitute accreditation requirements as such. Therefore, the accreditation requirements for certification bodies need to be defined by the SA in a way that enables their practical and consistent application as required by the SA’s context . T he Board has conducted its assessment in line with the structure foreseen in Annex 1 to the Guidelines . When this Opinion remains silent on a specific section of the LU SA’s draft accreditation requirements, it should be read as the Board is not having any comments and is not asking the LU SA to take further action. The Board notes that the LU SA has provided information to help the assessment of the draft accreditation requirements. However , the Opinion of the Board only addresses the draft accreditation require ments. Furthermore, t his opinion does not reflect upon items submitted by the L U SA, which are outside the scope of article 4 3 (2) GDPR, such as references to national legislation.

The Board nevertheless notes that national legislation should be in line with the GDPR, where required. Main points of focus for the assessment (art. 2 GDPR and Annex 1 to the EDPB G uidelines) that the accreditation requirements provide for the following to be assessed consistently: a. a ddressing all the key areas as highlight ed in the Guidelines Annex and considering any deviation from the Annex. b. i ndependence of the certification body c. conflicts of interests of the certification body d. e xpertise of the certification body e. appropriate safeguards to ensure GDPR certification criteria is appropriately applied by the certification body f. procedures for issuing, periodic review and withdrawal of GDPR certification ; and g. t ransparent handling of complaints about infringements of the certification . 3. Taking into account that: a. Article 43 (2) GDPR provides a list of accreditation areas that a certification body need to address in order to be accredited; 6 Adopted b.

Article 43 (3) GDPR provides that the requirements for accreditation of certification bodies shall be approved by the competent Supervisory Authority. c. Article 57 (1) (p) & (q) GDPR provides that a competent supervisory authority must draft and publish the accreditation requirements for ce rtification bodies and may decide to conduct the accreditation of certification bodies itself , d. Article 64 (1) (c) GDPR provides that the Board shall issue an opinion where a supervisory authority intends to approve the accreditation requirements for a cert ification body pursuant to Article 43(3) the Board is of the opinion that: 4. The Board notes that the draft accreditation requirements do not completely follow the structure set out in Annex 1 to the Guidelines. For example, the sections on “scope” and “terms and definitions” are missing. In connection to this, the Board notes that some terms are not used consistently through out the document , such as “ client ” and “ applicant ” .

In order to avoid confusion, the terms used should be aligned with the Guidelines and the Annex de finitions where possibl e a nd used consistently . Therefore, with the aim to facilitate the assessment, the Board encourage s the LU SA to follow the structure of Annex 1 [to the Guidelines] in the draft accreditati on requirements and add the missing sections . 5. 2). The reference to the certification mechanism seems to be a drafting issu e . Thus, the Board encourages the LU SA to redraft the refer ences in order to reflect that the certification bodies are accredited against the requirements approved by the supervisory authority. 6. 2 ), is confusing. A more appropriate reference c ould be “the criteria set out in the certification mechanism”. Thus, the Board encourages the LU SA to clarify all referenc es to “the certification mechanism” throughout the document. 7. g. 2) refer to the “relevant International Standards” , the “relevant standard” or the “specified standard” .

However , there is no definition of such standards and, therefore, it is unclear which are the standards referred to. Thus, the Board recommends the LU SA to clarify the meaning of such standard s . This could be done, for example, in the “scope” or “terms and definitions” sections. 8. 1 refers to an other standard (“ISAE 3000”), which the EDPB has not assessed . Therefore, the Board recommends the LU SA to clarify that the requirements cannot be overridden by any external standard, such as ISAE 3000. 9. 6). The Board notes that L U SA 7 Adopted might be the certification scheme owner , however the Board considers that it would be helpful to add an appropriate reference to ensure that the criteria is up to date and easily accessible via the certification bod y itself. 1, the LU SA is stablishing a stricter requirement than the An nex, which establishes that the information shall be make easily publicly available.

Therefore, the Board recommends the LU SA to amend the requirement in order to include the obligation of the certification body to make easily publicly available all versi ons of the approved criteria and all certification procedures, in line with the Annex to the Guidelines . 10. 4 refers to the ‘ certified process ’ . The Board considers that more precis e wording , in line with the Guidelines could be used, such as ‘certified processing operations/a c tivities ’ . This provides for the broader certification scope , as provided by GDPR . Therefore, the Board encourages de LU SA to amend the draft requirements accordingly. 11. 2 seems repetitive and unclear, not helped by the different terminology. For example, the third paragraph reads as if the engagement partner makes the decision of suitability on their judgement alone. The Board recommends L U SA to redraft to make the requirement clearer and more understandable, using consistent terminology.

12. 1 provides several examples of necessary information. 2 of the Annex 1 to the Guidelines. Therefore, the Board encourages the LU SA to amend the wording and include the above - mentioned examples as requirements. 13. 4 (Evaluation) of the LU SA accreditation requirements, the Board is of the opinion that the accreditation requirements should include the obligation of the certification body to ensure that there are evaluation methods in place, and that those evaluati on methods, described in the certification mechanism, are standardised and generally applicable. This would ensure that comparable evaluation methods are used for comparable targets of evaluation . Any deviation s from th ese evaluation methods would need to be justified by the certification body . Hence, the Board recommends the LU SA to amend the draft in order to include the above - mentioned obligation for the certification body .

14. 2 states that, even though outsourcing is not allowed, the certification body can use external experts for specific areas. In this regard, it is important to clarify that the certification body will re tain the responsibility for the decision - making, even when it uses external experts. 2 accordingly. 15. 9 ) . 9 on s urveillance . 16. 1 states that the information will be provided to the public “upon request”. 8 of Annex 8 Adopted 1 would be better fulfilled if the information was made available pro - actively by the certification body. 8 of Annex 1 of the Guidelines. 17. 8 has a heading for surveillance without any requirements. The Board recommends that LU SA to clarify how monitoring will be carried out . 18. 10), the Board notes that there is no reference to the obligation of the certification body to accept decisions and orders from the competent supervisory authority to withdraw or not to issue certification to a customer (applicant) if the requirements for certification are not or no longer met.

1. Therefore, the Board recommends the LU SA to amend the accreditation requirements specifying the rules covering withdrawal, termination, reduction or suspension of the certification . 19. The B oard notes that section 9 of the annex which has general headings do not have requirements . 4 o n suspension or withdrawal of accreditation in not covered here . These are signif icant headings that warrant cross references to the relevant section s or requirements being added. The Board encourages LU SA to clarify where the requirements are covered. CONCLUSIONS / RECOMM ENDATIONS 20. The draft accreditation requirements of the Luxembourg Supervisory Auth ority may lead to an inconsistent application of the accreditation of certification bodies and the following changes need to be made: 21. As general remarks, the Board recommends that the LU SA: 1. g . 2) . This could be done, for example, in the “scope” or “terms and definitions ” sections .

22. Regarding ‘general requirements for accreditation’ the Board recommends that the LU SA: 1. clarifies that the requirements cannot be o verridden by any external standard, such as ISAE 3000. 2. 6 in order to include the obligation of the certification body to publish and make easily publicly available all versions of the approved criteria and all certification pr ocedures, in line with the Annex to the Guidelines . 23. Regarding ‘resource requirements’ the Board recommends that the LU SA: 1. 2 to make it clearer and more understandable, using consistent terminology. 24. Regarding ‘process requirements’ the Board recommends that the LU SA: 1. 4 of the draft requirements in order to include the obligation of the certification body to ensure that there are evaluation methods in place, and that those 9 Adopted evaluation methods, described in the certification mechanism, are standardised and generally applicable.

Any deviations from th e evaluation methods would need to be justified by the certification body . 2. 2 in order to make explicit that the certification body will retain the responsibility for the decision - making, even when it uses external experts. 3. 8 of Annex 1 of the Guidelines. 4. 8 how the monitoring will be carried out. 5. 10 in order to specify rules coveri ng withdrawal, termination, reduction or suspension of the certification . FINAL REMARKS 25. This opinion is addressed to the LU SA and will be made public pursuant to Article 64 (5b) GDPR. 26. According to Article 64 (7) and (8) GDPR, the supervisory authority sha ll communicate to the Chair by electronic means within two weeks after receiving the opinion, whether it will amend or maintain its draft list. Within the same period, it shall provide the amended draft list or where it does not intend to follow the opinio n of the Board, it shall provide the relevant grounds for which it does not intend to follow thi s opinion, in whole or in part. For the European Data Protection Board The Chair (Andrea Jelinek)