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RGPD

Article 43

Certification bodies

1.   Without prejudice to the tasks and powers of the competent supervisory authority under Articles 57 and 58, certification bodies which have an appropriate level of expertise in relation to data protection shall, after informing the supervisory authority in order to allow it to exercise its powers pursuant to point (h) of Article 58(2) where necessary, issue and renew certification. Member States shall ensure that those certification bodies are accredited by one or both of the following:

(a)

the supervisory authority which is competent pursuant to Article 55 or 56;

(b)

the national accreditation body named in accordance with Regulation (EC) No 765/2008 of the European Parliament and of the Council (20) in accordance with EN-ISO/IEC 17065/2012 and with the additional requirements established by the supervisory authority which is competent pursuant to Article 55 or 56.

2.   Certification bodies referred to in paragraph 1 shall be accredited in accordance with that paragraph only where they have:

(a)

demonstrated their independence and expertise in relation to the subject-matter of the certification to the satisfaction of the competent supervisory authority;

(b)

undertaken to respect the criteria referred to in Article 42(5) and approved by the supervisory authority which is competent pursuant to Article 55 or 56 or by the Board pursuant to Article 63;

(c)

established procedures for the issuing, periodic review and withdrawal of data protection certification, seals and marks;

(d)

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

(e)

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

3.   The accreditation of certification bodies as referred to in paragraphs 1 and 2 of this Article shall take place on the basis of criteria approved by the supervisory authority which is competent pursuant to Article 55 or 56 or by the Board pursuant to Article 63. In the case of accreditation pursuant to point (b) of paragraph 1 of this Article, those requirements shall complement those envisaged in Regulation (EC) No 765/2008 and the technical rules that describe the methods and procedures of the certification bodies.

4.   The certification bodies referred to in paragraph 1 shall be responsible for the proper assessment leading to the certification or the withdrawal of such certification without prejudice to the responsibility of the controller or processor for compliance with this Regulation. The accreditation shall be issued for a maximum period of five years and may be renewed on the same conditions provided that the certification body meets the requirements set out in this Article.

5.   The certification bodies referred to in paragraph 1 shall provide the competent supervisory authorities with the reasons for granting or withdrawing the requested certification.

6.   The requirements referred to in paragraph 3 of this Article and the criteria referred to in Article 42(5) shall be made public by the supervisory authority in an easily accessible form. The supervisory authorities shall also transmit those requirements and criteria to the Board. The Board shall collate all certification mechanisms and data protection seals in a register and shall make them publicly available by any appropriate means.

7.   Without prejudice to Chapter VIII, the competent supervisory authority or the national accreditation body shall revoke an accreditation of a certification body pursuant to paragraph 1 of this Article where the conditions for the accreditation are not, or are no longer, met or where actions taken by a certification body infringe this Regulation.

8.   The Commission shall be empowered to adopt delegated acts in accordance with Article 92 for the purpose of specifying the requirements to be taken into account for the data protection certification mechanisms referred to in Article 42(1).

9.   The Commission may adopt implementing acts laying down technical standards for certification mechanisms and data protection seals and marks, and mechanisms to promote and recognise those certification mechanisms, seals and marks. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 93(2).

Common Questions

Frequently Asked Questions

Who can accredit a certification body under Article 43?

Article 43(1) gives two routes, and Member States must ensure certification bodies are accredited through one or both of them. Accreditation can come from the supervisory authority that is competent under Article 55 or 56, or from the national accreditation body named in accordance with Regulation (EC) No 765/2008, in accordance with EN-ISO/IEC 17065/2012 and with additional requirements established by the competent supervisory authority.

The certification body must also have an appropriate level of expertise in relation to data protection, and it has to inform the supervisory authority before issuing or renewing certification so the authority can exercise its powers where necessary.

What conditions must a certification body meet to be accredited?

Article 43(2) sets five conditions, and a body is accredited only where it meets all of them:

  • demonstrated independence and expertise in relation to the subject-matter of the certification, to the satisfaction of the competent supervisory authority
  • an undertaking to respect the criteria referred to in Article 42(5) and approved by the competent supervisory authority or by the Board
  • established procedures for the issuing, periodic review and withdrawal of data protection certification, seals and marks
  • procedures and structures to handle complaints about infringements of the certification or how it is implemented by the controller or processor, made transparent to data subjects and the public
  • proof, to the satisfaction of the competent supervisory authority, that its tasks and duties do not result in a conflict of interests

Accreditation itself takes place on the basis of criteria approved by the competent supervisory authority or by the Board (Article 43(3)).

How long does an accreditation last, and when can it be revoked?
Accreditation is issued for a maximum period of five years and may be renewed on the same conditions, provided the certification body still meets the requirements of Article 43. The competent supervisory authority or the national accreditation body revokes the accreditation where the conditions for it are not, or are no longer, met, or where actions taken by the certification body infringe the Regulation. The certification body must also give the competent supervisory authorities its reasons for granting or withdrawing a requested certification.
If we obtain a certification, does the certification body take over our compliance responsibility?
No. The certification body is responsible for the proper assessment leading to the certification or its withdrawal, but Article 43(4) makes clear this is without prejudice to the responsibility of the controller or processor for compliance with the Regulation. In other words, a certificate does not shift your obligations onto the body that issued it.
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