1. The controller shall consult the supervisory authority prior to processing where a data protection impact assessment under Article 35 indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk.
Article 36 GDPR - Prior consultation
2. Where the supervisory authority is of the opinion that the intended processing referred to in paragraph 1 would infringe this Regulation, in particular where the controller has insufficiently identified or mitigated the risk, the supervisory authority shall, within period of up to eight weeks of receipt of the request for consultation, provide written advice to the controller and, where applicable to the processor, and may use any of its powers referred to in Article 58. That period may be extended by six weeks, taking into account the complexity of the intended processing. The supervisory authority shall inform the controller and, where applicable, the processor, of any such extension within one month of receipt of the request for consultation together with the reasons for the delay. Those periods may be suspended until the supervisory authority has obtained information it has requested for the purposes of the consultation.
3. When consulting the supervisory authority pursuant to paragraph 1, the controller shall provide the supervisory authority with:
(a) where applicable, the respective responsibilities of the controller, joint controllers and processors involved in the processing, in particular for processing within a group of undertakings;
(b) the purposes and means of the intended processing;
(c) the measures and safeguards provided to protect the rights and freedoms of data subjects pursuant to this Regulation;
(d) where applicable, the contact details of the data protection officer;
(e) the data protection impact assessment provided for in Article 35; and
(f) any other information requested by the supervisory authority.
4. Member States shall consult the supervisory authority during the preparation of a proposal for a legislative measure to be adopted by a national parliament, or of a regulatory measure based on such a legislative measure, which relates to processing.
5. Notwithstanding paragraph 1, Member State law may require controllers to consult with, and obtain prior authorisation from, the supervisory authority in relation to processing by a controller for the performance of a task carried out by the controller in the public interest, including processing in relation to social protection and public health.
Frequently Asked Questions
Short answers to common questions about this provision. They are general information and not legal advice.
Under paragraph 1, consultation is required where a data protection impact assessment under Article 35 indicates that the processing would result in a high risk in the absence of measures taken by the controller to mitigate the risk. Consultation is therefore not triggered by every assessment, but only where the residual risk identified cannot be brought down by the controller's own measures.
Where the authority considers that the intended processing would infringe the Regulation, in particular because the controller has insufficiently identified or mitigated the risk, paragraph 2 requires it to provide written advice to the controller, and where applicable the processor, and permits it to use any of its powers under Article 58, which include limiting or banning the processing.
Paragraph 2 gives the authority up to eight weeks from receipt of the request, extendable by six weeks taking into account the complexity of the intended processing, with the controller informed of any extension and its reasons within one month. Those periods may be suspended until the authority has obtained information it has requested for the purposes of the consultation.
Paragraph 3 requires the controller to provide the respective responsibilities of controller, joint controllers and processors where applicable, the purposes and means of the intended processing, the measures and safeguards protecting the rights and freedoms of data subjects, the contact details of the data protection officer where applicable, the data protection impact assessment itself, and any other information the authority requests.
No. Paragraph 4 obliges Member States to consult the supervisory authority when preparing legislative proposals or regulatory measures relating to processing, and paragraph 5 allows Member State law to require controllers performing tasks in the public interest, including social protection and public health, to consult and obtain prior authorisation from the authority notwithstanding paragraph 1.