Article 41*

Article 41 – General conditions for the members of the supervisory authority

1. Member States shall provide that the members of the supervisory authority must be appointed either by the parliament or the government of the Member State concerned.

2. The members shall be chosen from persons whose independence is beyond doubt and whose experience and skills required to perform their duties are demonstrated.

3. The duties of a member shall end in the event of the expiry of the term of office, resignation or compulsory retirement in accordance with paragraph 5.

4. A member may be dismissed or deprived of the right to a pension or other benefits in its stead by the competent national court, if the member no longer fulfils the conditions required for the performance of the duties or is guilty of serious misconduct.

5. Where the term of office expires or the member resigns, the member shall continue to exercise their duties until a new member is appointed.

EDRi’s proposed changes

Article 41 – General conditions for the members of the supervisory authority

1. Member States shall provide that the members of the supervisory authority must be appointed either by the parliament or the government of the Member State concerned.

2. The members shall be chosen from persons whose independence is beyond doubt and whose experience and skills required to perform their duties are demonstrated.

3. The duties of a member shall end in the event of the expiry of the term of office, resignation or compulsory retirement in accordance with paragraph 5.

4. A member may be dismissed or deprived of the right to a pension or other benefits in its stead by the competent national court, if the member no longer fulfils the conditions required for the performance of the duties or is guilty of serious misconduct.

5. Where the term of office expires or the member resigns, the member shall continue to exercise their duties until a new member is appointed.

Justification

From the perspective of ensuring full political independence of DPAs, it would be advisable to introduce an explicit clause in the Directive that would forbid the appointment of members of the supervisory authority by the government. National parliaments should be the only political bodies allowed to appoint DPAs due to their representative nature. This can further help to remove DPAs from political pressure.

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