Article 64: Opinion of the Board

Article 64: Opinion of the Board requirement matters operationally when your organization is involved in a cross-border GDPR matter that reaches the GDPR consistency mechanism. Your job is to recognize the triggers, preserve decision-quality records, and coordinate with counsel and the lead supervisory authority so draft positions can withstand European Data Protection Board review. (Regulation (EU) 2016/679, Article 64)

Key takeaways:

• Treat Article 64 as a “regulator-facing workflow” requirement, not a day-to-day control for routine processing. (Regulation (EU) 2016/679, Article 64)
• Maintain a clear role-and-scope view (controller vs. processor, systems, data, jurisdictions) so you can respond quickly if your case enters the consistency mechanism. (Regulation (EU) 2016/679)
• Build an evidence packet discipline (positions, risk decisions, approvals, and changes) so you can support your supervisory authority’s draft decision path. (Regulation (EU) 2016/679, Article 64)

Article 64 is easy to misread as a general obligation on companies. It is not. The legal duty in Article 64 is directed at supervisory authorities and the European Data Protection Board (EDPB): when a competent authority intends to adopt certain measures, it must send a draft decision to the Board for an opinion. (Regulation (EU) 2016/679, Article 64)

For a Compliance Officer, CCO, or GRC lead, the operational requirement is indirect but real: you must be ready for the “consistency mechanism” pathway that can shape outcomes in cross-border cases. That readiness comes from two things you control: (1) clear scope and role determination for the processing at issue (so your positions are coherent), and (2) regulator-ready artifacts (so your positions can be defended and consistently reproduced across jurisdictions). (Regulation (EU) 2016/679)

This page gives you requirement-level implementation guidance you can execute: trigger identification, ownership, a repeatable playbook for escalations, and an evidence model that stands up when the lead supervisory authority (LSA) asks for facts under time pressure. The goal is speed with discipline: fewer ad hoc decisions, fewer contradictions, and fewer “we can’t find it” moments.

Plain-English interpretation (what Article 64 is asking for)

Article 64: opinion of the board requirement establishes that the EDPB issues an opinion when a competent supervisory authority intends to adopt certain measures, and the supervisory authority must communicate its draft decision to the Board in those situations. (Regulation (EU) 2016/679, Article 64)

What that means for you: you are not the party sending draft decisions to the EDPB. But if your organization is the subject of, or a key stakeholder in, a cross-border GDPR matter (complaint, investigation, prior consultation, codes/certification decisions, or other measures that trigger consistency), your submissions, factual record, and internal approvals can directly influence what the supervisory authority drafts and then sends for Board opinion. Weak records create risk: inconsistent narratives, missing proof, and delayed responses that undermine your position.

Who it applies to (entity + operational context)

Entity scope (practical):

• Controllers with EU/EEA processing or cross-border establishment, especially where multiple Member States’ data subjects are affected. (Regulation (EU) 2016/679)
• Processors supporting controllers in investigations or disputes, where your technical facts, logs, and sub-processing map become part of the authority’s fact-finding. (Regulation (EU) 2016/679)

Operational contexts where Article 64 readiness is most relevant:

• You operate in multiple EU/EEA markets or serve data subjects across multiple Member States. (Regulation (EU) 2016/679)
• You have complex processing footprints (multiple systems, joint controllership questions, shared services, group companies).
• You anticipate higher scrutiny processing (large-scale, novel tech, sensitive categories, or high-risk profiling) where regulators may coordinate more actively. (Regulation (EU) 2016/679)

Internal teams you will need on the hook:

• Legal/Privacy Counsel (positions, privilege boundaries, regulator communications)
• DPO (if appointed), Security, Engineering, Product, Customer Support (facts and controls)
• Records/IT (logs, retention, legal holds)
• Third-party risk / procurement (DPAs, sub-processor chain, service descriptions)

Regulatory text

Excerpt (provided): “The Board shall issue an opinion where a competent supervisory authority intends to adopt any of the measures below. To that end, the competent supervisory authority shall communicate the draft decision to the Board, when it:” (Regulation (EU) 2016/679, Article 64)

Operator translation (what you must do):

• Assume that in certain cross-border matters your supervisory authority’s decision may be tested through EDPB review. Your materials must hold up beyond a single local regulator.
• Prepare to support the supervisory authority’s draft decision development with consistent facts, a stable scope statement, and clear internal approvals.
• Avoid contradictory statements across jurisdictions, business units, or customer-facing channels. In practice, those inconsistencies are what become “case oxygen” during coordinated review.

What you actually need to do (step-by-step)

1) Establish a role-and-scope register for “regulator-facing matters”

Create and maintain a lightweight register that answers, for each relevant processing activity:

• Are you controller, processor, or joint controller (your reasoned position)?
• Which products/systems are in scope?
• Which data categories and data subject geographies are involved?
• Which third parties and sub-processors are involved?
• Which internal owners can produce authoritative facts fast?

This is the prerequisite for coherent regulator submissions. It also prevents a common failure mode: one team describes the processing one way to a regulator while another team documents it differently in a DPIA, RoPA, or customer materials. (Regulation (EU) 2016/679)

2) Define an “Article 64 readiness” escalation procedure (one page)

You need a procedure that triggers when:

• you receive a cross-border complaint or LSA communication,
• an investigation expands to multiple Member States,
• you anticipate a formal draft decision process (or anything suggesting coordinated regulator steps).

Procedure design requirements:

• Named owner (often Privacy Legal or DPO) and named backup.
• Intake channel (privacy@, legal ticketing, hotline, regulator portal access).
• A single “source of truth” workspace (case folder + document control).
• Approval model for external statements (legal + privacy + executive as needed).

Outcome: fewer unreviewed emails to regulators, fewer “off-the-cuff” explanations, and cleaner consistency across responses.

3) Build a defensible position pack (facts first, then argument)

For any matter that could escalate, assemble a position pack with:

• System description (what happens, where, and why)
• Data flows (collection, use, sharing, retention, deletion)
• Security and access model (who can access what; logs exist; control points)
• Third-party chain (processors/sub-processors, locations, functions)
• Your role analysis (controller/processor/joint) and why

Keep the pack factual and versioned. Separate facts from legal argument to avoid rework when counsel shifts strategy. (Regulation (EU) 2016/679)

4) Implement evidence discipline (so you can answer quickly without scrambling)

Operationalize an “evidence packet” approach:

• Standard folder structure per case
• Version control and change log
• Meeting notes with decisions and approvers
• Exportable artifacts (PDF-ready) for regulator sharing

Tie this to your document retention and legal hold process. If you cannot show who approved a position and when, you will struggle during regulator follow-ups. (Regulation (EU) 2016/679, Article 64)

5) Align external statements across channels (regulator, customer, public)

Run a consistency check:

• Regulator responses
• Customer DPA language
• Privacy notice wording
• Security documentation and trust center claims (if any)
• Internal architecture diagrams

You are reducing the risk of “statement mismatch” that invites deeper scrutiny.

6) Rehearse with a tabletop exercise

Run a scenario: “LSA requests facts; multiple DPAs inquire; draft decision likely.” Test:

• Can you produce your role-and-scope determination?
• Can you produce data flow evidence and logs?
• Can you produce the latest approved position memo?

If you can’t do it in a controlled exercise, you won’t do it under pressure.

Required evidence and artifacts to retain

Use this as your minimum evidence checklist:

• Role-and-scope register (controller/processor stance; systems; data categories; geographies; owners) (Regulation (EU) 2016/679)
• Case intake record (date, channel, matter summary, impacted processing)
• Decision record (approvals for positions, exceptions, remediation choices)
• Factual pack (data flow diagrams, system descriptions, access controls summary)
• Third-party inventory extracts for in-scope processing (DPAs, sub-processor list where applicable)
• Communications log (regulator correspondence, requests, response timestamps, attachments)
• Remediation plan + completion evidence (tickets, changes, validation)

Daydream note (earned mention): teams that already track third-party scope, systems, and evidence in a single GRC workspace typically move faster on regulator requests. Daydream can serve as the system of record for the scope register, evidence packets, and approval workflows without building a custom case-share structure.

Common exam/audit questions and hangups

Auditors and external assessors won’t “test Article 64” directly as a company obligation. They will test your readiness and consistency. Expect questions like:

• “Show how you determine controller vs. processor role for this product.”
• “Show your documented procedure for regulator inquiries and escalation.”
• “Provide the evidence supporting your statements about data retention/deletion.”
• “How do you ensure responses are consistent across regions and teams?”
• “What artifacts exist to support your understanding of third-party involvement?”

Hangup: teams provide policy statements but cannot produce operational evidence (logs, diagrams, approvals). That gap is what creates credibility risk.

Frequent implementation mistakes (and how to avoid them)

1. Treating Article 64 as a policy checkbox.
   Fix: treat it as an escalation workflow with owners, triggers, and artifacts. (Regulation (EU) 2016/679, Article 64)

2. Role ambiguity (controller vs. processor) across documents.
   Fix: publish a single approved role position per processing activity and reference it everywhere. (Regulation (EU) 2016/679)

3. No version control for regulator submissions.
   Fix: case folder discipline, change log, and approval gates before sending.

4. Third-party chain is undocumented or stale.
   Fix: maintain a living third-party inventory mapping each third party to the processing activity and data involved.

5. Engineering facts are oral, not artifacted.
   Fix: require exportable evidence (architecture diagram, configuration snapshot, log examples) with named technical owners.

Enforcement context and risk implications

No specific public enforcement cases were provided in the source catalog for this page, so this guidance stays at requirement and operational-readiness level.

Risk implication you can act on: if a cross-border matter reaches a stage where supervisory authorities coordinate and formal opinions are issued, the quality of your documented facts and internal decisioning becomes a material risk driver. Poor documentation increases the chance of inconsistent positions, extended timelines, and broader remedial demands. (Regulation (EU) 2016/679)

Practical 30/60/90-day execution plan (operator-focused)

First 30 days (Immediate)

• Assign an Article 64 readiness owner (privacy legal or DPO) and backup.
• Stand up a regulator inquiry SOP with triggers, approval gates, and a case folder standard.
• Create the first version of your role-and-scope register for the top products/processing activities most likely to generate complaints.

Days 31–60 (Near-term build)

• Build position pack templates (facts, data flows, third-party chain, security controls, role analysis).
• Run one tabletop exercise with Legal, DPO, Security, Engineering, and Support.
• Fix the top documentation gaps uncovered (missing diagrams, unclear retention, unknown sub-processors).

Days 61–90 (Operationalize)

• Integrate the register and evidence packets into your GRC workflow (ticketing + approvals + retention).
• Add a consistency review step for privacy notice, DPA language, and regulator responses for in-scope products.
• Establish ongoing ownership: quarterly refresh of role/scope for major product changes, and a post-incident/post-complaint retro process.

Frequently Asked Questions

Does Article 64 create direct obligations on my company to contact the EDPB?

Article 64 describes when a supervisory authority sends a draft decision to the Board for an opinion. Your operational obligation is readiness: provide consistent facts and controlled submissions that can support the authority’s process. (Regulation (EU) 2016/679, Article 64)

What’s the fastest way to prepare without boiling the ocean?

Start with a role-and-scope register for your highest-risk processing and a one-page regulator inquiry SOP. Those two items prevent most “we can’t answer quickly” failures. (Regulation (EU) 2016/679)

How do processors fit in if the controller is the one being investigated?

Processors often hold the operational facts: logs, configurations, sub-processing, and incident records. Keep a processor-ready evidence pack so you can support the controller’s response without inventing details under time pressure. (Regulation (EU) 2016/679)

What evidence will a regulator or auditor expect to see from us?

Expect requests for data flows, retention behavior, access controls, third-party involvement, and proof of internal approvals for key statements. Keep these artifacts versioned and tied to owners. (Regulation (EU) 2016/679)

How do we avoid contradictory statements across teams and regions?

Put external communications behind an approval gate (privacy + legal), and require teams to reference a single, approved role-and-scope entry for the processing activity. Store everything in one case workspace with version control. (Regulation (EU) 2016/679)

Where does Daydream fit if we already have basic ticketing?

Ticketing tracks tasks; it rarely enforces evidence quality, scope consistency, and approval trails across privacy, security, and third-party records. Daydream can centralize the register, evidence packets, and approvals so you can produce regulator-ready outputs without stitching together multiple systems.