Article 38 GDPR

← Article 38 - Position 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 38 - Position of the data protection officer

1. The controller and the processor shall ensure that the data protection officer is involved, properly and in a timely manner, in all issues which relate to the protection of personal data.

2. The controller and processor shall support the data protection officer in performing the tasks referred to in Article 39 by providing resources necessary to carry out those tasks and access to personal data and processing operations, and to maintain his or her expert knowledge.

3. The controller and processor shall ensure that the data protection officer does not receive any instructions regarding the exercise of those tasks. He or she shall not be dismissed or penalised by the controller or the processor for performing his tasks. The data protection officer shall directly report to the highest management level of the controller or the processor.

4. Data subjects may contact the data protection officer with regard to all issues related to processing of their personal data and to the exercise of their rights under this Regulation.

5. The data protection officer shall be bound by secrecy or confidentiality concerning the performance of his or her tasks, in accordance with Union or Member State law.

6. The data protection officer may fulfil other tasks and duties. The controller or processor shall ensure that any such tasks and duties do not result in a conflict of interests.

Relevant Recitals

Recital 97

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

Overview

While it brings a novel element, the data protection officer (DPO) role draws inspiration from Regulation 45/2001, which foresaw similar position for European Union institutions, bodies, and agencies. Indeed, the GDPR’s DPO position shows many common elements with the Regulation 45/2001.^[1] In addition, although Directive 95/46/EC did not require organisations to appoint a DPO, this nevertheless became an increasingly widespread practice in some Member States.^[2]

The Role of the DPO in the Organisation

According to Article 38(1) GDPR, the DPO must be involved in a timely manner in all issues which relate to the protection of personal data. In this context, a timely manner would be the earliest possible stage, ideally at the stage of conceptualising the processing operation.^[3] In any case, the DPO should be involved at a stage when fundamental decisions can still be made.^[4] Among others, the early involvement is also necessary in order to adequately conduct a Data Protection Impact Assessment (DPIA) and facilitate a privacy by design approach.^[5]

DPOs should also be regularly involved in management meetings, and opinions of the DPO should be given due weight.^[6] In case management disagrees with the DPO’s opinions, the Article 29 Working Party recommended documenting the reasons for not following the DPO’s position.^[7] Indeed, this best practice seems highly important for implementing the principle of accountability. In any case, the DPO will not be held personally liable based on the GDPR for the non-compliance of the organisation.^[8]

As reflected in Article 38(2) GDPR, the DPO must be provided with all necessary resources to carry out his or her tasks, including by having access to personal data and processing operations. Member States cannot limit the controlling competences of the DPO.^[9] In addition, the DPO must be allowed to enter all premises where personal data is or may be processed, including on the premises of data processors.^[10]

Independence and Confidentiality

According to Article 38(3) GDPR, the DPO’s independence in the organisation must be guaranteed by the controller or processor. In particular, the DPO may not receive any instructions regarding his or her tasks, and may not be dismissed or sanctioned for performing his tasks. This extends to the personnel working under the DPO, which should only receive substantive directions from the DPO and not from the management of the organisation.^[11] Regarding the penalties or sanctions related to exercising the DPO’s functions, a broad interpretation must be followed. For example, the DPO may not suffer disadvantages in the form of threats, absence or delay of promotion, or denial from benefits which other employees receive.^[12]

Regarding the confidentiality requirements of Article 38(5) GDPR, it is worth emphasising that the “obligation of secrecy/confidentiality does not prohibit the DPO from contacting and seeking advice from the supervisory authority”.^[13] Furthermore, Member States have the possibility to regulate and limit the confidentiality requirements on a national level, as well as the legal consequences of breaching these requirements.^[14]

Conflicts of Interest

Tightly connected to the independence requirement is Article 38(6) GDPR which emphasises that while the DPO may fulfill other tasks and duties, these shall not result in a conflict of interest. When interpreting this requirement, the WP29 stated that the DPO may not hold positions which result in determining the purposes and means of the processing.^[15] Examples of such conflicting positions could be “senior management positions (such as chief executive, chief operating, chief financial, chief medical officer, head of marketing department, head of Human Resources or head of IT departments) but also other roles lower down in the organisational structure if such positions or roles lead to the determination of purposes and means of processing”.^[16] Some commentators also interpreted a direct economic interest of the DPO in the success of the company as a possible indicator of a conflict of interest.^[17]

Decisions

→ You can find all related decisions in Category:Article 38 GDPR

References

↑ Alvarez Rigaudias, Spina, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 38 GDPR, p. 702 (Oxford University Press 2020).
↑ WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 4 (available here).
↑ For example, this could be the design and development of a product, as well as the creation of a new service or modification of an existing one by adding new features.
↑ Bergt, in Kühling, Buchner, DS-GVO BDSG, Art. 38 GDPR, margin number 14 (C.H. Beck 2020).
↑ WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 13 (available here).
↑ WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 14 (available here).
↑ WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 14 (available here).
↑ WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 13 (available here); see also Alvarez Rigaudias, Spina, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 38 GDPR, p. 702 (Oxford University Press 2020); as well as Articles 5(2) GDPR and 24(1) GDPR.
↑ Bergt, in Kühling, Buchner, DS-GVO BDSG, Art. 38 GDPR, margin number 18 (C.H. Beck 2020).
↑ Bergt, in Kühling, Buchner, DS-GVO BDSG, Art. 38 GDPR, margin number 20 (C.H. Beck 2020).
↑ Bergt, in Kühling, Buchner, DS-GVO BDSG, Art. 38 GDPR, margin number 26 (C.H. Beck 2020).
↑ WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 15 (available here).
↑ WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 13 (available here).
↑ Article 35(3) GDPR.
↑ WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 16 (available here).
↑ WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 16 (available here).
↑ Bergt, in Kühling, Buchner, DS-GVO BDSG, Art. 38 GDPR, margin number 41 (C.H. Beck 2020).

[1] Alvarez Rigaudias, Spina, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 38 GDPR, p. 702 (Oxford University Press 2020).

[2] WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 4 (available here).

[3] For example, this could be the design and development of a product, as well as the creation of a new service or modification of an existing one by adding new features.

[4] Bergt, in Kühling, Buchner, DS-GVO BDSG, Art. 38 GDPR, margin number 14 (C.H. Beck 2020).

[5] WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 13 (available here).

[6] WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 14 (available here).

[7] WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 14 (available here).

[8] WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 13 (available here); see also Alvarez Rigaudias, Spina, in Kuner et al., The EU General Data Protection Regulation (GDPR), Article 38 GDPR, p. 702 (Oxford University Press 2020); as well as Articles 5(2) GDPR and 24(1) GDPR.

[9] Bergt, in Kühling, Buchner, DS-GVO BDSG, Art. 38 GDPR, margin number 18 (C.H. Beck 2020).

[10] Bergt, in Kühling, Buchner, DS-GVO BDSG, Art. 38 GDPR, margin number 20 (C.H. Beck 2020).

[11] Bergt, in Kühling, Buchner, DS-GVO BDSG, Art. 38 GDPR, margin number 26 (C.H. Beck 2020).

[12] WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 15 (available here).

[13] WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 13 (available here).

[14] Article 35(3) GDPR.

[15] WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 16 (available here).

[16] WP29, Guidelines on Data Protection Officers (“DPOs”)”, WP 243 rev.01, 5 April 2017, p. 16 (available here).

[17] Bergt, in Kühling, Buchner, DS-GVO BDSG, Art. 38 GDPR, margin number 41 (C.H. Beck 2020).

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