Article 39 GDPR

← Article 39 - Tasks of the data protection officer →
Chapter 1: General provisions Article 1: Subject-matter and objectives Article 2: Material scope Article 3: Territorial scope Article 4: Definitions Chapter 2: Principles Article 5: Principles relating to processing of personal data Article 6: Lawfulness of processing Article 7: Conditions for consent Article 8: Conditions applicable to child’s consent in relation to information society services Article 9: Processing of special categories of personal data Article 10: Processing of personal data relating to criminal convictions and offences Article 11: Processing which does not require identification Chapter 3: Rights of the data subject Article 12: Transparent information, communication and modalities for the exercise of the rights of the data subject Article 13: Information to be provided where personal data are collected from the data subject Article 14: Information to be provided where personal data have not been obtained from the data subject Article 15: Right of access by the data subject Article 16: Right to rectification Article 17: Right to erasure (‘right to be forgotten’) Article 18: Right to restriction of processing Article 19: Notification obligation regarding rectification or erasure of personal data or restriction of processing Article 20: Right to data portability Article 21: Right to object Article 22: Automated individual decision-making, including profiling Article 23: Restrictions Chapter 4: Controller and processor Article 24: Responsibility of the controller Article 25: Data protection by design and by default Article 26: Joint controllers Article 27: Representatives of controllers or processors not established in the Union Article 28: Processor Article 29: Processing under the authority of the controller or processor Article 30: Records of processing activities Article 31: Cooperation with the supervisory authority Article 32: Security of processing Article 33: Notification of a personal data breach to the supervisory authority Article 34: Communication of a personal data breach to the data subject Article 35: Data protection impact assessment Article 36: Prior consultation Article 37: Designation of the data protection officer Article 38: Position of the data protection officer Article 39: Tasks of the data protection officer Article 40: Codes of conduct Article 41: Monitoring of approved codes of conduct Article 42: Certification Article 43: Certification bodies Chapter 5: Transfers of personal data Article 44: General principle for transfers Article 45: Transfers on the basis of an adequacy decision Article 46: Transfers subject to appropriate safeguards Article 47: Binding corporate rules Article 48: Transfers or disclosures not authorised by Union law Article 49: Derogations for specific situations Article 50: International cooperation for the protection of personal data Chapter 6: Supervisory authorities Article 51: Supervisory authority Article 52: Independence Article 53: General conditions for the members of the supervisory authority Article 54: Rules on the establishment of the supervisory authority Article 55: Competence Article 56: Competence of the lead supervisory authority Article 57: Tasks Article 58: Powers Article 59: Activity reports Chapter 7: Cooperation and consistency Article 60: Cooperation between the lead supervisory authority and the other supervisory authorities concerned Article 61: Mutual assistance Article 62: Joint operations of supervisory authorities Article 63: Consistency mechanism Article 64: Opinion of the Board Article 65: Dispute resolution by the Board Article 66: Urgency procedure Article 67: Exchange of information Article 68: European Data Protection Board Article 69: Independence Article 70: Tasks of the Board Article 71: Reports Article 72: Procedure Article 73: Chair Article 74: Tasks of the Chair Article 75: Secretariat Article 76: Confidentiality Chapter 8: Remedies, liability and penalties Article 77: Right to lodge a complaint with a supervisory authority Article 78: Right to an effective judicial remedy against a supervisory authority Article 79: Right to an effective judicial remedy against a controller or processor Article 80: Representation of data subjects Article 81: Suspension of proceedings Article 82: Right to compensation and liability Article 83: General conditions for imposing administrative fines Article 84: Penalties Chapter 9: Specific processing situations Article 85: Processing and freedom of expression and information Article 86: Processing and public access to official documents Article 87: Processing of the national identification number Article 88: Processing in the context of employment Article 89: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes Article 90: Obligations of secrecy Article 91: Existing data protection rules of churches and religious associations Chapter 10: Delegated and implementing acts Article 92: Exercise of the delegation Article 93: Committee procedure Chapter 11: Final provisions Article 94: Repeal of Directive 95: /46: /EC Article 95: Relationship with Directive 20: 02: /58: /EC Article 96: Relationship with previously concluded Agreements Article 97: Commission reports Article 98: Review of other Union legal acts on data protection Article 99: Entry into force and application

Legal Text

Article 39 - Tasks of the data protection officer

1. The data protection officer shall have at least the following tasks:

(a) to inform and advise the controller or the processor and the employees who carry out processing of their obligations pursuant to this Regulation and to other Union or Member State data protection provisions;

(b) to monitor compliance with this Regulation, with other Union or Member State data protection provisions and with the policies of the controller or processor in relation to the protection of personal data, including the assignment of responsibilities, awareness-raising and training of staff involved in processing operations, and the related audits;

(c) to provide advice where requested as regards the data protection impact assessment and monitor its performance pursuant to Article 35;

(d) to cooperate with the supervisory authority;

(e) to act as the contact point for the supervisory authority on issues relating to processing, including the prior consultation referred to in Article 36, and to consult, where appropriate, with regard to any other matter.

2. The data protection officer shall in the performance of his or her tasks have due regard to the risk associated with processing operations, taking into account the nature, scope, context and purposes of processing.

Relevant Recitals

Recital 77: Guidance on Evaluating Risks

Guidance on the implementation of appropriate measures and on the demonstration of compliance by the controller or the processor, especially as regards the identification of the risk related to the processing, their assessment in terms of origin, nature, likelihood and severity, and the identification of best practices to mitigate the risk, could be provided in particular by means of approved codes of conduct, approved certifications, guidelines provided by the Board or indications provided by a data protection officer. The Board may also issue guidelines on processing operations that are considered to be unlikely to result in a high risk to the rights and freedoms of natural persons and indicate what measures may be sufficient in such cases to address such risk.

Recital 97: Data Protection Officer

Where the processing is carried out by a public authority, except for courts or independent judicial authorities when acting in their judicial capacity, where, in the private sector, processing is carried out by a controller whose core activities consist of processing operations that require regular and systematic monitoring of the data subjects on a large scale, or where the core activities of the controller or the processor consist of processing on a large scale of special categories of personal data and data relating to criminal convictions and offences, a person with expert knowledge of data protection law and practices should assist the controller or processor to monitor internal compliance with this Regulation. In the private sector, the core activities of a controller relate to its primary activities and do not relate to the processing of personal data as ancillary activities. The necessary level of expert knowledge should be determined in particular according to the data processing operations carried out and the protection required for the personal data processed by the controller or the processor. Such data protection officers, whether or not they are an employee of the controller, should be in a position to perform their duties and tasks in an independent manner.

Commentary

Article 39, titled "Tasks of the data protection officer", outlines the primary responsibilities of the Data Protection Officer (DPO). Among these, paragraph 1 lists the obligation for the DPO to inform the controller, processor, and their staff about the obligations arising from the GDPR and other applicable data protection laws. The DPO is also required to monitor compliance with the GDPR within their organization, which includes ensuring adherence to relevant internal policies, staff training, and conducting audits as necessary. Additionally, the DPO must provide support for the preparation of Data Protection Impact Assessments (DPIAs) in accordance with Article 35. They are further expected to cooperate with the Data Protection Authority (DPA) on any matters or issues related to data protection, including the requirement for prior consultation as specified in Article 36 of the GDPR. Finally, paragraph 2 emphasizes that, in fulfilling their duties, the DPO must take into account the risks associated with data processing operations, considering the nature, scope, context, and purposes of the processing.

(1) DPO's Tasks

Paragraph 1 provides a comprehensive list of tasks that the DPO must perform according to the GDPR, and these tasks cannot be restricted by national regulations. However, the use of the phrase "at least" implies that additional functions or duties may be assigned to the DPO, such as conducting training for the controller's employees. To include such additional functions, they must be explicitly specified in the appointment document or in relevant updates. In accordance with Article 38(2) of the GDPR, the DPO must receive all necessary resources to fulfill these supplementary tasks effectively. This ensures that the DPO is adequately equipped and supported to carry out their responsibilities in a comprehensive and efficient manner.

(a) Inform and advise

The first task of the DPO is to inform and advise the controller, processor, and employees about their respective obligations under the GDPR and other applicable data protection laws.

Regarding the scope of the obligation to inform and advise, all Chapter IV of the GDPR, which covers the general obligations of the controller and processor, becomes relevant. Notable elements include technical and organizational measures required to demonstrate compliance (Article 24), the selection of technical capabilities and default settings to ensure compliance with rights and the GDPR from the outset of data processing (Article 25), obligations related to joint controllers and processors (Articles 26 and 28, respectively), maintaining records of processing activities (Article 30), ensuring the security of processing (Article 32), responsibilities of the DPO in case of data breaches (Articles 33 and 34), and preparation of data protection impact assessments and prior consultation (Articles 35 and 36). Additionally, as correctly noted, the obligations of the controller or processor also arise from other chapters of the GDPR (e.g., regarding data subjects' exercise of rights) or from other applicable laws, both at the European level (e.g., the e-Privacy Directive) and the national level (due to various references made by the GDPR).

The obligation to inform covers any legal matters or developments concerning data protection, such as new legislative requirements, innovative judicial interpretations, or technical developments that could change previous risk assessments. This obligation is proactive, meaning that it is up to the DPO to inform the recipient (controller or processor) about such elements. On the other hand, the obligation to advise relates to specific issues arising during data processing operations. In such cases, the DPO clarifies the obligations that arise in a specific situation and provides solutions in line with applicable laws. In practice, the data protection officer's responsibility for informing and advising can be carried out through various approaches.

A practical example could be the issuing a circular to the management, authority, or key personnel within the company or organization, highlighting the latest developments in data protection laws. This circular may also offer the assurance that the data protection officer is available to provide further elaboration and explanation on the raised issues if needed.

(b) Monitor compliance

Article 39(1)(b) assigns DPOs the responsibility to monitor compliance with the GDPR, as further specified in Recital 97, which states that the DPO should assist the controller or processor in monitoring internal compliance with the Regulation. As part of their duty to monitor compliance, DPOs may engage in various activities, such as collecting information to identify processing operations, analyzing and verifying the compliance of such operations, and providing information, advice, and recommendations to the controller or processor. It is essential to note that monitoring compliance does not imply personal responsibility on the part of the DPO in cases of non-compliance. The GDPR explicitly states that the controller, not the DPO, is obligated to implement appropriate technical and organizational measures to ensure and demonstrate that processing aligns with the Regulation (Article 24(1) GDPR). Therefore, data protection compliance is ultimately a corporate responsibility of the data controller and not that of the DPO.

(c) Advise on the DPIA

As per Article 35(1), conducting a data protection impact assessment (DPIA) is the responsibility of the controller, not the DPO, when deemed necessary. Nonetheless, the DPO can still play a valuable role in assisting the controller. In line with the principle of data protection by design, Article 35(2) explicitly states that the controller must "seek advice" from the DPO when undertaking a DPIA. Additionally, Article 39(1)(c) assigns to the DPO the task of providing advice, upon request, concerning the DPIA and monitoring its execution as outlined in Article 35.

WP29: The WP29 recommends that the controller seeks the advice of the DPO on various issues, including whether to conduct a DPIA, the appropriate methodology for the DPIA, whether to perform the DPIA internally or outsource it, what safeguards to apply to address risks to data subjects' rights and interests, and whether the DPIA has been correctly carried out and its conclusions comply with the GDPR.

Moreover, to the data protection officer is also assigned the responsibility to actively monitor the implementation of a DPIA, rather than solely upon request. The data protection officer is required to assess compliance with the requirements outlined in Article 35 and review the content assessments conducted. In doing so, the DPO should have access to the relevant documentation. Subsequently, the DPO should provide a report on the evaluation of the process, forwarding any significant deficiencies to the relevant staff. In cases of severe shortcomings, the report should also be escalated to management or the appropriate authority.

(d)(e) Cooperatian with the supervisory authority

Articles 39(1)(d) and (e) GDPR lay down the DPO’s obligations in relation to the Data Protection Authorities (DPAs). For example, the DPO could facilitate cooperation in prior consultation procedures or DPA investigations. This contact point functions as an obligation for the controller or processor to involve the DPO in any contact with DPAs. However, while DPAs can always contact the DPO, contacting other members of  an organisation is also possible. Finally, although the DPO is bound by confidentiality, they may still contact and seek advice from the DPA.

(2) Risk-based approach

According to Article 39(2) GDPR, the DPO must “have due regard to the risk associated with the processing operations, taking into account the nature, scope, context and purposes of processing.” While this provision is meant to help DPOs in prioritising certain tasks or in choosing the most adequate DPIA methodology, it does not mean that low-risk areas may ever be neglected. A risk-based approach should never mean that processing activities which do not pose a high risk are exempt from any of the GDPR’s protections.

Decisions

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